LAW SOCIETY

Gazette€3.75 December 2006

TO BE OR NOT TO BE: Is that the question?

INSIDE: SOLICITOR DEATH THREAT • CORK LAW SCHOOL • ANNUAL CONFERENCE • PARCHMENT CEREMONIES

LAW SOCIETY GAZETTE DECEMBER 2006 CONTENTS

On the cover LAW SOCIETY The recent High Court decision on the custody of frozen embryos has raised a host of ethical and legal issues – and the spectre of the debate on Gazette when life begins December 2006 PIC: GETTY IMAGES

Volume 100, number 10 Subscriptions: €57 REGULARS 5 News Cork Law School opens 12 Minister Micheál Martin declared the new facility formally opened on 20 November Justice Media Awards 14 RTÉ’s Prime Time scoops the overall award 17 Letters 36 Practice doctor 22 Managing your cash flow 40 People and places 43 Student spotlight 44 Parchment ceremony photographs, 2006 Annual conference 2007 in Cannes: 51 programme schedule Briefing 55 55 Council reports 56 Committee report 57 Practice notes 60 Legislation update: 18 October – 17 November 2006 40 62 Solicitors Disciplinary Tribunal report 63 FirstLaw update 65 Eurlegal: recent developments in European law 69 Professional notices 73 Recruitment advertising

Editor: Mark McDermott. Deputy editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 70. Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected]. Printing: Turner’s Printing Company Ltd, Longford. Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), Pamela Cassidy, Paula Fallon, Michael Kealey, Mary Keane, Aisling Kelly, Patrick J McGonagle, 43 Ken Murphy, Philip Nolan, William Prentice.

2 www.lawsociety.ie CONTENTS LAW SOCIETY GAZETTE DECEMBER 2006

Get more at lawsociety.ie PROFESSIONAL NOTICES: send your small advert details, with payment, to: Gazette Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Gazette readers can access back issues of the ALL CHEQUES SHOULD BE MADE PAYABLE TO LAW SOCIETY OF IRELAND. magazine as far back as Jan/Feb 1997, right up to the current issue at lawsociety.ie. COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] You can also check out: • Current news HAVE YOU MOVED? Members of the profession should send change-of-address • Forthcoming events, including ‘Finding your details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] Training Contract’ seminar in Dublin (26 Jan) Subscribers to the Gazette should send change-of-address details to: • Employment opportunities Gazette Office, Blackhall Place, Dublin 7, or to: [email protected] • The latest CPD courses HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. … as well as lots of other useful information Tel: 01 672 4828, fax: 01 672 4877, email: [email protected]

FEATURES COVER STORY: 18 Child in time The recent High Court decision that embryos in vitro are not ‘unborn’ in constitutional terms shows that, while medical and scientific breakthroughs forge ahead, our legal system limps behind, argues Hilary Coveney

Tipp for the top 22 Newly-elected President of the Law Society, Philip Joyce, is the fifth president to hail from ‘the Premier County’. Here he talks to Mark McDermott about his student days, his native county, and the plans for his presidency

Breaking up is hard to do 26 There are 30,000 millionaires in Ireland, so there may well be some high-earning spouses who would want to protect their assets in the event of a separation or divorce. But there is no obligation on a court to enforce pre-nuptial agreements. Geoffrey Shannon explains 26 In whose interests? 30 In a recent case, a solvent company made an application for a prospective validation order. Brónagh Maher discusses the appropriate test to be applied in this novel situation

The big thaw 34 The 1980s saw both the end of the Cold War and numerous assassination attempts. From local and international get-togethers, to provincial and foreign news, the ’80s Gazette presented an intriguing mix of views. Mark McDermott continues this celebration of 100 volumes of the Gazette

The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter. Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Email: [email protected] Law Society website: www.lawsociety.ie 34

www.lawsociety.ie 3

NEWS LAW SOCIETY GAZETTE DECEMBER 2006 nationwide

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

ight across the country, Rpresidential bar association chains of office are being passed on, following the recent convening of a number of AGMs. In the capital, David Bergin has become the new president of the DSBA for the coming year, with Michael Quinlan as vice-president and John P O’Malley and Helene Coffey as the new treasurer and programmes’ director respectively. Kevin O’Higgins continues as secretary. Elsewhere, at the Mayo Midland Bar Association AGM The AGM of the Midland Bar Association (MBA) was held in the Prince of Wales, Athlone, on 6 November Solicitors’ Bar Association AGM, 2006. Guests of honour included the Law Society’s newly-elected president, Philip Joyce, and director Pat O’Connor was elected general Ken Murphy. Charles Kelly took over as president of the MBA from Paul Connellan, while Fiona Hunt president in succession to Fiona takes over as secretary from Aoife Cadden. The MBA aims to continue being active in organising CPD McAllister, with Dermot courses for its members during the coming year. (Back row, l to r): Matt Shaw, Robert Marren, Brian Carolan, Peter Jones, Hugh Campbell, John Shaw, Matt Johnston, and Denis Larkin. (Middle row): Rhona Kelly, Hewson as vice-president, Michelle Mellotte, Mary Ward, Barry McLoughlin, Tom Rogers, Bernadette Greene, Paddy Caulfield, Gareth Bourke as secretary and Richard Whelehan, and Martin Reidy. (Front row): Aoife Cadden, Philip Joyce, Charles Kelly, Ken Murphy, Caroline Barry as treasurer. Its Paul Connellan, Fiona Hunt, and Aidan O’Carroll committee, then, is made up from centres around the county and comprise Michael Browne were special guests. We achievement of Brian Gallagher This year, too, we were thrilled (Westport), Jacqui Durkan understand that everyone during his presidency of the with the emergence of Alma (Castlebar), Samantha Geraghty enjoyed an excellent night, and DSBA. Held in sumptuous Sheehan. It was an interesting (Swinford), Charles Gilmartin great credit for its organisation is Georgian surroundings, Brian night for Alma, in that not only (Kiltimagh), Mark Fitzgerald due to Gail Enright, Justin was toasted by his colleagues for was she elected as a new council (Ballinrobe), Mary O’Brien Condon, Fiona Twomey and a truly amazing year on behalf of member, but earlier in the even- (Claremorris), Evan O’Dwyer Jane Anne Rothwell. the bar association, where his ing she was announced the win- (Ballyhaunis), Fiona McAllister The annual dinner of the work rate and achievements were ner for the junior category in the (immediate past-president) and Southern Law Association has truly outstanding. Brian’s awards of excellence. The senior James Cahill (Council member been fixed for 6 February next. humility is such that he will award went to John Gaynor. of the Law Society). In relation to work-related desist from reading these Meanwhile, down south, the matters, the recent High Court comments, but the regard and Remembering Emer Southern Law Association held sittings were presided over by esteem for which he is held in Elsewhere, a very successful quiz its AGM, in which Eamon the President of the High Court the profession is immense. night was organised by the Harrington became the new and were adjudged a great younger members’ committee of president, succeeding Sinead success. A seminar and practical Electoral system the DSBA. This was a fundraiser Behan. The then President of workshop on information It does not always happen but, for cancer research in memory the Law Society, Michael Irvine, technology as a legal research when it does, it adds to the of a young solicitor, Emer Casey and Director General Ken tool was held recently by the interest of any AGM: an election (28), who died from cancer. She Murphy engaged in a lively SLA in association with the for officers. After some years of was working with MOPs. The dialogue with a large attendance. Faculty of Law in UCC. AGM banality, both last year and night was a huge success, with this year have thrown up hotly- over 60 tables full and a ■ CORK ■ DUBLIN contested elections for new significant sum of money raised Great balls of fire Dining in style council members. In Dublin, this for this worthy cause. G A masked ball took place in the A splendid dinner, attended by usually applies to one or two old city jail in Cork. This was a all his council colleagues and places. Last year, we greatly Nationwide is compiled by Kevin fundraiser for Merrymount their partners, was held to benefited from the arrival of both O’Higgins, principal of the Dublin Hospice, and the local judiciary honour the considerable Paddy Kelly and John Hogan. law firm Kevin O’Higgins.

www.lawsociety.ie 5 LAW SOCIETY GAZETTE DECEMBER 2006 NEWS

COMPETITION REPORT The Competition Authority’s final Master exceeded powers report on competition in the legal profession is now expected to be published on 11 December 2006. in ‘wasted costs’ case As reported in the November issue (p8), the authority began he President of the High made in cases of misconduct or its study of the profession, TCourt, Mr Justice Joseph gross negligence on the part of together with a number of other Finnegan, has found that the a solicitor and, accordingly, are professions, in April 2001. In Master of the High Court has likely to be made very rarely. March 2003, the authority’s no power to make a solicitor In the view of the Society – economic consultants, Indecon, personally responsible for the and, it seems clear from his published the results of their so-called ‘wasted costs’ of a judgment, in the view of the research. The authority published failed application. On 2 president also – the solicitor in its own ‘preliminary report’ in February of this year, the this case behaved impeccably. February 2005, while the Society master had purported to make In the Society’s view, it delivered a 90-page response in a solicitor, specifically not the would make no sense for the July 2005 (which is available on solicitor’s client, personally Master of the High Court to the Society’s website). The liable for all the costs on both be given power to make orders Society awaits the authority’s sides of a failed application for under order 99, rule 7, even in report with interest. interrogatories in a personal President of the High Court the unlikely event that this injury case. Mr Justice Finnegan were constitutionally possible. ROLL OVER BEETHOVEN! The Law Society responded It is the experience in other 10,000 – is the number of swiftly to the making of this In relation to the power of jurisdictions that whether or solicitors that the Law Society of unprecedented order and the the High Court to make an not a procedural step taken in Ireland will see included on the public statements about it order under order 99, rule 7, a particular case should give Roll in January 2007. It will be made by the Master of the that the solicitor personally rise to a ‘wasted costs’ order is the first time in its history that High Court, Edmund bear the costs awarded against a decision that can only be the Society will have exceeded Honohan, who announced his his own client, the president made properly at the this substantial milestone. intention to make other such said that it “depends upon the conclusion of the case. It is “There has been an orders in the future. The solicitor being guilty of only then, with the benefit of extraordinary growth in the Society said that it raised misconduct in the sense of a the full history of the case, profession in recent years,” says “fundamental issues” and had breach of his duty to the court including the disclosed director general Ken Murphy. caused “great uncertainty or at least of gross negligence purpose of the interlocutory “This is a new landmark for the among solicitors”. The Society in relation to his duty to the application being questioned, profession in Ireland.” immediately sought to be court. In the present case I am that whether or not there was joined as an amicus curiae in satisfied that the conduct of misconduct or gross 2005 PINK SHEETS the appeal. The application in the solicitor falls far short of negligence on the part of the The 2005 ‘Pink Sheets’ index to this regard was granted by the this requirement. In particular solicitor can be assessed Supreme Court, High Court and President of the High Court, I have regard to the correctly by a judge. Court of Criminal Appeal written who said that the Society was circumstance that the solicitor As a matter of policy, it judgments is circulated to acting “not just in the interest acted on the advice of senior would also be contrary to the members as an insert with this of its members but also in the counsel”. whole thrust of reform of civil issue of the Gazette. public interest”. litigation, which favours This is an index, with keyword In his judgment of 28 Law Society welcome reducing the length of trials. summaries, to all the 2005 November in this case, Kennedy The Law Society welcomed The reforms of recent years reserved written judgments of the v Killeen Corrugated Products the president’s judgment, encourage the clarification of superior courts circulated to Limited and Others, the although it was not surprised issues in dispute before the date. The summaries were President of the High Court by it. The power to make so- trial commences, and prepared by the Law Reporting found that the master does not called ‘wasted costs’ orders procedural applications, such Council. The index is a joint have jurisdiction to make against solicitors is a major one as the application for publication by the Law Society orders under order 99, rule 7, involving complex issues. For interrogatories in this case, and the Bar Council. of the Rules of the Superior constitutional and other would not be made if solicitors Courts (the so-called ‘wasted reasons, it should be exercised believed they were at RETIREMENT TRUST SCHEME costs’ rule) and “accordingly only by a judge and not by the significant risk of personal Unit prices: 1 November 2006 the master had no power to Master of the High Court, liability for the costs of failed Managed fund: €5.922932 make the order the subject who is not a judge. It is also applications. The result would All-equity fund: €1.388165 matter of this appeal”. He clear from the president’s be longer trials and more Cash fund: €2.685678 proceeded to set aside the judgment that orders under costly, rather than less costly, Long-bond fund: €1.420402 order of the master. order 99, rule 7, should only be litigation.

6 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE DECEMBER 2006

ESSAY COMPETITION ‘Whatever it takes’ to The Association of Pension Lawyers in Ireland is holding its third annual essay competition. protect Saulite solicitor The essay title is ‘Trust Law and Pensions – Is it time for a he President of the Law change?’ First prize is €3,000 TSociety, Philip Joyce, has with a second prize of €1,000 been in telephone also being offered. communication with solicitor The competition is open to all John Hennessy to assure him of students of law, including trainee the profession’s full support for solicitors, and to qualified him at this very worrying time. solicitors and barristers up to two Joyce has said that “the gardaí years qualified. must provide whatever it takes by The closing date for entries way of protection to guarantee is 28 February 2007. Entries his safety when he returns to live should be sent to Peter Fahy, and practise as a solicitor in Association of Pension Lawyers Swords, Co Dublin. It is not in Ireland, c/o O’Donnell Sweeney Solicitors, 1 Earlsfort merely unthinkable at a human Murder victim Baiba Saulite. Her solictor received death threats level, it would also be unthinkable Centre, Earlsfort Terrace, in terms of the damage to the The gardaí had told an urged the media, for obvious Dublin 2. state and to Irish society if any understandably shocked John reasons, to report this matter The rules of the competition harm were to befall him.” Hennessy that they had received very responsibly. On Joe Duffy’s and guidance on the possible At a meeting of the Law intelligence that a ‘contract’ had Liveline radio programme direction an essay might take are Society Council on 1 December, been ordered for Hennessy’s Murphy condemned as “very available from the same address. it was resolved not merely to murder. He was given advice on dangerous” and “irresponsible” express sympathy to John the security measures he should the publication by the Evening ICTR PRESIDENT FOR HLJ TALK Hennessy, but to explore with undertake at his home and his Herald of the name and Judge Erik Møse, President of the him what further practical office. Although he never photograph of John Hennessy International Criminal Tribunal for support the Society could give received 24-hour armed on its front page. Rwanda (ICTR), will be the guest him and his practice. protection, when the threat was The story of the death threat lecturer at the Hibernian Law viewed by the gardaí as being at to Hennessy broke live on RTÉ Journal’s sixth annual lecture. Cold-blooded murder its height, armed gardaí were television’s Six One News when The lecture will be held on On 21 November, the Society placed outside his home and Murphy emphasised that “a Tuesday 19 December 2006 at issued a statement condemning office and accompanied him as threat to a solicitor, simply for 7pm in the Law School Lecture the cold-blooded murder of 28- he moved from place to place. doing his job expertly and Theatre, Blackhall Place. year old Latvian woman, Baiba fearlessly on behalf of his client, Saulite, which cruelly ended her Every possible assistance is a direct attack on the life and left her two young “John seemed remarkably calm administration of justice and on DR JOSEPH children without a mother. The and courageous as he explained the rule of law. The thoughts and ARTHURS – Society simultaneously condemn- this nightmare situation to us,” support of his profession are with ed the death threats that had been said director general Ken him, and with the family of Baiba APOLOGY made against Ms Saulite’s Murphy. “We saw without Saulite, at this terrible time.” Last month, we carried a solicitor. These threats had been hesitation that we must give him The Society was pleased with report on the case of Bailey v made many weeks before the immediately every possible the personal interest taken in the Arthurs and Another. shooting dead of Ms Saulite. assistance. On that day, we sent a situation by Commissioner The case against Dr Arthurs The Society had been letter by fax to Garda Conroy and with his responsive- concerned his failure to give a approached a month earlier by Commissioner Noel Conroy ness on the matter. Some days psychiatric report, which he John Hennessy. He made the urging that Hennessy be after the murder of Baiba Saulite, did not write, to a patient. The Society aware that he was under provided with garda security at and John Hennessy’s departure claim against Dr Arthurs was armed garda protection because the highest level possible.” abroad on garda advice for his dismissed by both the Circuit of death threats he had received On 21 November, after safety, Philip Joyce and Ken Court and, on appeal, by the resulting from the legal work he Saulite’s murder and at Murphy had an hour-long meet- High Court. Any inference to had undertaken on behalf of Hennessy’s request, the Society ing with Commissioner Conroy the contrary in last month’s Baiba Saulite. It was clear that he issued a news release in the and several of his most senior report was incorrect. We are had done an excellent job on course of which it urged the officers in the commissioner’s happy to apologise for any behalf of this grateful client, but media not to try to contact him, office. The Society remains in embarrassment caused to that this had caused deep but to deal with the Society on constant communication with Dr Arthurs. antagonism to another party. all queries. The Society also John Hennessy.

www.lawsociety.ie 7 LAW SOCIETY GAZETTE DECEMBER 2006 NEWS New officer team takes the helm

he new President of the TLaw Society is Philip M Joyce, who will serve until November 2007. Philip was deemed elected to the post after serving as senior vice-president last year. At the first meeting of the new Council, on 3 November, James MacGuill was elected senior vice-president for 2006/07, while John Costello was elected junior vice- president. In this year’s Council election, the number of valid voting papers was 2,714. Eight spoiled votes were recorded, though 33 papers failed to comply with The new officer team (l to r): Junior Vice-President John Costello, President Philip Joyce and various sub-sections of bye- Senior-Vice President James MacGuill law 6(16). The following members 8) Gerard F Griffin 1,194 17) Margaret O’Shea- Council members are elected were elected to the Law 9) Maura Derivan 1,130 Grewcock 685 for a two-year term. The sitting Society Council (the number 10) Michelle Ní Longáin 1,104 18) TC Gerard O’Mahony 450 council members who were of votes appears after each 11) Daniel E O’Connor 1,098 elected last year are: John D name): 12) Simon Murphy 1,058 As there was only one candidate Shaw, John O’Connor, Kevin D 1) Michael G Irvine 1,388 13) Patrick Dorgan 985 nominated for each of the two O’Higgins, Stuart Gilhooly, 2) Donald Binchy 1,361 14) Colin Daly 929 relevant provinces (Ulster and Michele O’Boyle, John Costello, 3) James MacGuill 1,282 15) Barry MacCarthy 846 Leinster), there was no election. James O’Sullivan, James Cahill, 4) Michael Quinlan 1,282 The candidate nominated in each Moya Quinlan, Paul E Connellan, 5) John P Shaw 1,264 The following candidates were instance was returned unopposed: Marie Quirke, Thomas Murran, 6) Gerard J Doherty 1,204 not elected: Ulster – Margaret M Mulrine; Niall Farrell, Jarlath McInerney 7) James B McCourt 1,203 16) Linda O’Shea Farren 773 Leinster – Andrew J Cody. and Joseph B Mannix. LRC launches report on cohabitants he Law Reform an intimate relationship and publicly register their entitlements qualified TCommission has launched who are not related to each relationship (for whatever cohabitants should be its Report on Rights and Duties other. It covers cohabitants who reason). The commission has entitled to apply for; of Cohabitants. The report was do not marry or who have not concluded that this group of • General recognition of same published on 1 December. In registered their relationship cohabitants – whether same-sex sex and opposite-sex 2004, the commission through, for example, civil or opposite-sex – should be cohabitants under, for published a consultation paper partnership. considered separately in any example, social welfare law, on this topic, and made The report assumes that a reform of the law. private tenancy law, in the provisional recommendations form of civil partnership for The report deals with the health-care and hospital for reform. The report same sex couples is likely to be rights and duties of cohabitants setting, and under domestic contains the commission’s final introduced in the near future. under a wide range of topics: violence law; reform recommendations, The commission emphasises • Encouraging cohabitants to •Providing for a ‘safety net’ including a draft Cohabitants that its recommendations are make agreements on financial redress system for ‘qualified Bill. not an alternative to public matters (cohabitant cohabitants’, who could apply The report makes substantial registration systems – whether agreements), how to court for financial relief at recommendations for reform of marriage or civil partnership – transactions between the end of a relationship, but the law concerning cohabitants, but deal with a different ‘qualified cohabitants’ should only if they could show that defined as opposite sex or same- situation, which is the position be dealt with under tax laws, they had become ‘econom- sex couples who live together in of cohabitants who do not and what succession ically dependent’.

8 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE DECEMBER 2006

RACE TO BE ‘CPD Plus’ a big success BIGGEST PD Plus is again being subject to limited exceptions Other benefits of CPD Plus British legal firm Linklaters is Cmade available to members (the Law Society diploma include: challenging the country’s in 2007. Membership runs from programme and the advocacy • Priority booking, biggest law firm, Clifford 1 January 2007 to 31 December courses run by the Law Society •Free copies of materials to Chance, to the title of ‘biggest 2007 and is available to firms are excluded). Prices are: two CPD seminars you do in Britain’. Its revenue was up and individual members. • CPD Plus: €900, not attend, 22% at the half-year stage to Subscribers will be eligible to •CPD Plus Firm: €1,525. • Advance notice of hot-topic Stg£536 million. Linklaters is attend an unlimited number of Click www.lawsociety.ie for seminars, expected to break the magic CPD seminars/conferences and application forms and terms and • Advance copies of the CPD Stg£1-billion barrier by year-end. workshops during that period, conditions. brochure.

SUPPORT SERVICES FOR MEMBERS TAKING ADVANTAGE MEMBERS’ ADVANTAGE SCHEMES Membership of the Law Society comes with lots of added benefits, including valuable advice that offers value for money. Here, support services executive Louise Campbell summarises the main features of the Members’ Advantage Schemes Group life assurance Those insured under the financial advisor to its members, in The Law Society operates a group scheme have the option to nomin- substitution for Marsh Ireland. life assurance scheme. The ate a beneficiary(ies) to receive Penpro Limited provides advice to scheme is administered by Penpro payment under the scheme. This members on all aspects of Ltd and underwritten by Friends nomination can be changed at any financial planning, insurance, and First Life Assurance Company Ltd. time up to the date of the mortgages. They will answer An information leaflet on the insured’s death. In the absence of queries on the solicitor unsecured scheme will be issued to Law a nominee, the benefit will be paid finance plan for preliminary tax, Society members in December with to the estate of the insured. pension contributions, professional their practising certificate A signed nomination enclosed indemnity, and practising- information. in a sealed envelope, indicating certificate-fee finance. For further In brief, the scheme currently the insured’s name, solicitor information, please contact Liz provides cover of €48,750, with number and date of birth may be O’Brien at Penpro Limited, tel: the current premium being €58. forwarded to Louise Campbell, the pensions industry generally. 01 200 0100 or email: The scheme primarily covers Law Support Services Executive, Law The retirement trust scheme [email protected]. Society members who hold Society of Ireland, Blackhall Place, operates under the trusteeship of practising certificates, with the Dublin 7. Louise co-ordinates this the Bank of Ireland and is Health insurance scheme premium of €58 scheme and may be contacted monitored by a committee of the Health insurance group schemes included in the practising for further information, tel: Law Society. Members of the Law are on offer to members through certificate fee for 2007. However, 01 881 5712 or email: Society, whether self-employed, in VHI, tel: 1850 444 444, BUPA tel: solicitors employed in the public [email protected]. partnership or in non-pensionable 1890 700 890 or VIVAS Health tel: service, who are exempt from The Law Society in conjunction employment, are eligible to join the 1850 716 666, all offering a 10% holding practising certificates with Penpro Ltd is currently retirement trust scheme. The group scheme discount. pursuant to the Solicitors Acts, exploring possible additional Gazette contains monthly judges and county registrars may voluntary top-up life assurance and retirement trust scheme reports Credit card also join the scheme, provided will issue information on this in so that members can follow its A Law Society of Ireland Affinity they are Law Society members early 2007. progress. For further information, credit card, offering a wide range and pay the scheme premium for please contact Brian King or of benefits, is available to 2007. The insured must be Retirement trust scheme Maureen Carolan at the Bank of members through MBNA. For resident in Europe. Cover is only The retirement trust scheme was Ireland, tel: 01 637 8770/ further information, please phone: operative where the insured is established in 1975 to facilitate 637 8764 or email: 1800 409 510. under 70 years of age at the date members of the Law Society in [email protected] or of death. Friends First reserves saving for retirement. It is a [email protected]. Further information on all of the the right to require medical Revenue-approved personal above is available on the examinations and/or health pension group scheme. It has Financial advice members’ area of the Law declarations in certain grown and developed over the The Law Society has recently Society’s website: circumstances. years alongside developments in appointed Penpro Limited as www.lawsociety.ie.

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Finnan Financial Limited 21 O'Connell Street, Waterford. Phone 051 850672 [email protected] www.finnanfinancial.com NEWS LAW SOCIETY GAZETTE DECEMBER 2006 human rights watch Supreme Court decision defends amicus interventions Alma Clissmann reports on developments in relation to the practical application of the European Convention on Human Rights n Doherty v South Dublin Quirke J had granted leave to amicus curiae, and that this power role it sought to take on in these ICounty Council and Others, with the authority in the High Court falls well within the scope of the proceedings, were incompatible the Equality Authority as amicus to intervene as an amicus and the general power of the authority and would have the effect of curiae/respondent (Supreme issue now came before the and is not merely ancillary or giving the authority a double Court, 31 October 2006), the Supreme Court on appeal. The incidental. Under these role in relation to proceedings applicants were a Traveller Equality Authority’s case was circumstances, Fennelly J held within the legislative scheme, couple in their 70s, living on an that its functions included the that it was not necessary to something not intended by the emergency halting site in promotion of equal treatment of consider the question in the legislative scheme. Clondalkin, Co Dublin. Their all persons, that the issues raised light of the Race Directive. He claim was that the council, as in the proceedings came within dismissed the appeal, and the Amicus interventions housing authority, failed to its direct remit, and that the case majority of the court concurred. The majority decision is very provide them with appropriate clearly had important important for the future role of accommodation in the form of a consequences beyond its Dissenting judgment statutory bodies and NGOs centrally heated, insulated and particular facts. The authority Macken J dissented. She seeking to intervene in test cases internally plumbed caravan, said that it could be of assistance considered that the technical or cases that raise wider issues. accommodation that would have to the court in relation to the argument made was rather Amicus interventions have been provided to members of interpretation of the EU Race narrow and sterile, and preferred become common in cases in the the settled community as a Directive and its interrelationship to broaden her consideration to US and before the European house. This, they claimed, with domestic legislation, and in the role of an amicus curiae. She Court of Human Rights, where constituted direct or indirect relation to the issue of reason- referred to case law in the US bodies with specialised discrimination against members able accommodation of persons and Australia, which saw amicus knowledge or expertise in a of the Travelling Community in with a disability. The state interventions as appropriate on particular area can bring that relation to social advantages and parties opposed the application. appeal, but not at first instance. knowledge before the court. services, including housing. The state’s argument was This issue had not yet been They can sometimes update the The law pleaded was: technical – that the legislation argued before Irish courts. She court about developments in • The Housing Acts 1966-2004, establishing the Equality reserved her position on the international law, science or as interpreted in the light of Authority did not expressly proper role of an amicus curiae, practice in a particular area or the European Convention on provide for a role as amicus stating that the establishment of demonstrate that a harmful Human Rights Act 2003; curiae, and that the express the appropriate principles would practice is systemic rather than • Section 3 of the ECHR Act instances of the authority’s be of importance where the incidental or peculiar to the 2003; power to intervene in court authority had already secured an particular case. This can be an • Articles 40.1, 40.3 and 41 of proceedings were implicitly order to act as amicus in another important factor in cases the Constitution; exhaustive of the powers of the case, and where the principles involving people’s rights, where • The Equal Status Acts 2000- authority in this respect. would apply equally to similar systemic practices may result in 2004, and in particular section Analysing the legislation in applications by other parties. indirect discrimination. 6 of the Equal Status Act 2000, detail, Fennelly J, giving the The rest of her judgment If the decision had gone the as amended; judgment of the Supreme Court, focused on the interpretation of other way, it might have effect- • Council Directive 2000/43/ held that the provisions relied on the legislative provisions ively closed down the develop- EC of 29 June 2000, imple- did not necessarily exclude the establishing the Equality ment of amicus interventions in menting the principle of equal power of the authority to act as Authority, its functions and Irish courts, except by bodies treatment between persons amicus curiae. He then turned to powers, in the context of that have a specific statutory irrespective of racial or ethnic whether this was included in the established law on the mandate to make them. As it origin (the Race Directive). scope of the authority’s general interpretation of statutory or now stands, such interventions powers and referred to case law corporate powers. She must have the leave of the court, Amicus curiae on the interpretation of statutory concluded that the statutory role which should prevent vexatious This particular decision bodies’ powers, in particular of the authority within the applications. G concerned the capacity of the Keane and others v An Bord legislative framework that Equality Authority to participate Pleanála and others ([1997] 1 IR created it and which governs its Alma Clissmann is the Law in the proceedings as an amicus 184). He held that the authority powers, functions and Society’s parliamentary and law curiae (friend of the court). had the statutory power to act as operational mechanisms, and the reform executive.

www.lawsociety.ie 11 LAW SOCIETY GAZETTE DECEMBER 2006 NEWS FEATURE Historic day as minister opens The formal opening of the Professional Practice Course in Cork by enterprise minister Micheál Martin was a historic day for the Law Society

inister for Enterprise, now is 1,867, and this dramatic MTrade and Employment increase shows no signs of Micheál Martin paid tribute to abating. A total of 546 solicitors the educational excellence and were added to the Roll in 2006. vision of the Law Society when “These extraordinary figures are he formally opened the Society’s a testament to the willingness of Cork Law School on 20 the solicitors’ profession to November. invest time and resources in The minister warmly training their future colleagues,” welcomed the Society’s decision Joyce noted. He went on to to establish in Cork. He noted describe the formal opening of that the decision had been taken the Professional Practice Course in response to demand, both in in Cork as “a very historic day terms of numbers and in the for the Law Society”. desire that people can train to The Society’s premises in be solicitors somewhere other, At the opening of the Law School in Cork were enterprise minister Washington Street, directly and cheaper, than Dublin. Micheál Martin, director general Ken Murphy, and trainees Cliona across from Cork’s historic The extraordinary explosion O’Donoghue, Elisa McMahon and Rhona O’Kelly courthouse, contain a 180- in the numbers of trainee seat lecture theatre, seven solicitors – up approximately tutorial rooms, a fully equipped 90% in the last four years – was IT room, staff offices and one of the main themes of the meeting rooms. The Law address given by President of School is staffed by a very the Law Society Philip Joyce. capable team of seven Law He pointed out that, in 2002, Society employees based full 356 trainee solicitors started the time in Cork. Professional Practice Course in The Cork Professional the Law Society. This year, 672 Practice Course is identical to commence this training. its Dublin counterpart, although In 2002, there were 714 the course in Cork is unique in trainees at various stages in the that it is characterised by a process of qualification as Stuart Gilhooly (chairman of the Education Committee), Director of collaboration with University solicitors. The equivalent figure Education TP Kennedy and Valerie Morrison College Cork. The trainee solicitors on the course have been enrolled as students in UCC as well as with the Law Society, which gives them access to UCC’s excellent academic, social, sporting and entertainment facilities. The president concluded by paying tribute to the practising members of the profession, 750 of whom deliver lectures, tutorials and workshops on the Professional Practice Courses annually. “This scale of involvement is unparalleled and there is nothing comparable to it in any other jurisdiction,” he said. He paid particular tribute The Cork Law School team: Nora Stack, Karen Smyth, Caroline Foley, Mary Singleton, Trina Murphy, to the members of the Southern Gail Sheerin and Valerie Morrison Law Association, whose

12 www.lawsociety.ie NEWS FEATURE LAW SOCIETY GAZETTE DECEMBER 2006 new Cork Law School

(L to r): Director general Ken Murphy, UCC president Gerry Wrixon, enterprise minister Micheál Martin, chairman of the Education Committee Stuart Gilhooly, president Philip Joyce and Lord Mayor of Cork Michael Ahern

enthusiastic support had been week and the European Court Law School in Cork so quickly put this initiative in the wider critically important for this of Justice the following week,” and efficiently, in particular the context of the enthusiasm for initiative. he quipped. Society’s director of education, change and progress that In a humorous speech of Chairman of the Society’s TP Kennedy, saying “he never characterises both today’s Law welcome, President of the Education Committee, Stuart seems to be fazed by any Society and the solicitors’ Southern Law Association Gilhooly, spoke of the Society’s difficulty, but works patiently profession generally. “This is Eamon Harrington announced commitment to provide simply and effectively to overcome very much a profession of the that he was pleased with his the best professional training every problem.” laptop and Blackberry rather achievement, after only three for lawyers anywhere in the Concluding the speeches to than the quill pen,” he said. “It days in office as president, in world. He gave thanks and the 73 trainees and the larger is a profession characterised by already opening a Law Society compliments to the many number of solicitors who had youth, openness and confidence Law School in Cork. “I intend people who had been gathered for the event in the in the future – a future in which to deliver the Supreme Court responsible for the major Society’s new lecture theatre, the Cork Law School will play to Cork by the end of next achievement of establishing a director general Ken Murphy an important part.” G

www.lawsociety.ie 13 LAW SOCIETY GAZETTE DECEMBER 2006 NEWS FEATURE Padraig Nally takes top honours The Law Society’s Justice Media Awards celebrated its crystal anniversary in November with a gala event at Blackhall Place adraig Nally, a one-hour balance by speaking to John PPrime Time special report Ward’s son, Tom, who was by RTÉ television, has been present on the day of the killing, named Overall Winner of the in order to try to determine why Law Society’s Justice Media Nally acted the way he did, and Awards, held in the Society’s it looked at the effect of Ward’s headquarters in Blackhall Place murder on his widow Marie and on 17 November. their family. It raised questions The judges were unanimous about whether or not the in their view that the 2006 presiding judge was wrong to Overall Winner’s prize should rule out a plea of self-defence for go to the programme’s makers – Nally. It brought forward new Mary Wilson (reporter) and evidence showing that John Tanya Sillem (producer). The RTÉ’s Tanya Sillem and Mary Wilson receive the overall award from Law Ward had a long criminal record awards are Ireland’s longest- Society President Philip Joyce and director general Ken Murphy dating back over 30 years. The running media competition was characterised by excellent programme also revealed that which, this year, celebrates its production values from this four bench warrants for John crystal anniversary (15 years). Prime Time (News and Current Ward’s arrest were outstanding at This Prime Time special Affairs) duo. The programme the time of his death. report investigated the killing of was startling in its simplicity and At a black-tie ceremony, the Traveller John ‘Frog’ Ward by probing in its interviewing style, President of the Law Society, Padraig Nally in October 2004 while its production standards Philip Joyce, presented the and the legal consequences that were second to none. Its quality, Overall Winners prize to Mary followed. The programme starkness and directness Wilson and Tanya Sillem, included exclusive interviews encouraged viewers to look consisting of a specially- with Nally and his neighbours, deeper into this divisive case.” commissioned Dublin Crystal and Ward’s family and friends The report brought viewers trophy and a cheque for €1,500. and was a masterful piece of behind the scenes in an effort to Law Society President Philip Joyce Concluding, Ken Murphy televisual work. understand the actions of and Tánaiste Michael McDowell said: “The quality of production Explaining the judges’ Padraig Nally on the day of the in Padraig Nally is typical of decision, Law Society Director killing, interviewed Nally in his as a result of previous encounters Prime Time’s standards of General, Ken Murphy, said: own home, and depicted a man with members of the Travelling excellence. The interviews with “Superb investigative journalism who felt very much under siege Community. It also sought the affected parties, the reconstructions, and this programme’s examination of the legal issues surrounding the case make Padraig Nally a very worthy winner of the Overall Justice Media Award.” The winners in each of the other 11 categories in the competition were presented with Justice Media Awards, comprising a Dublin Crystal trophy and a cheque for €750, while the runners-up received Certificates of Merit and cheques for €250.

Radio The Justice Media Award in the Radio category was presented to John Murray and Cian McCormack, from RTÉ’s

14 www.lawsociety.ie NEWS FEATURE LAW SOCIETY GAZETTE DECEMBER 2006 in Justice Media Awards 2006

The Tánaiste Michael McDowell, who was the evening’s guest speaker, takes centre stage with the winners in the Justice Media Awards

Morning Ireland team, for their his four-part series Juvenile Sundays of The Sunday Times and now report Road Safety – Perception, Justice and Ruadhán Mac The winner of the Justice with the Irish Independent, for Enforcement and Interpretation. Cormaic of The Irish Times for Media Award in the Sunday her article Too Much, Too Young; his captivating series The Newspapers category was Enda John Burke and Eoghan Rice of Television Coroner’s Court. A Certificate of Leahy of The Sunday Times for The Sunday Tribune for their The Justice Media Award for Merit was awarded to TP his article Ireland: Safe Haven. article, Mountjoy: A Prison at television was presented to O’Mahony of the Irish Examiner Certificates of Merit were Breaking Point; and Ian Kehoe RTÉ’s Mary Wilson and for his article Privacy Matters awarded in this category to of the Sunday Business Post for producer Tanya Sillem for their Prove A Very Public Concern. Dearbhail McDonald, formerly his article Commercial Court Prime Time special report Service Cuts To Chase. Padraig Nally. A Certificate of Merit went to journalist Paul Regionals Maguire and producer Niamh The winner of the Justice Sammon for the Prime Time Media Award in this category (News and Current Affairs) is: Ann Murphy of the Evening programme The Neary Report. Echo, Cork, for her story Families Fight for Say in Court. Court Reporting – Print For her two-part series on the Magazines Kilrush Murder Trial, Emer John Cradden of Consumer Connolly of The Clare People was Choice magazine was presented presented with a Justice Media with a Justice Media Award for Award in the Court Reporting Carol Coulter, senior vice-president James MacGuill, Tánaiste Michael his article Residential (Print) section. McDowell and deputy director general Mary Keane Management Companies in the magazines category. Court Reporting – Broadcast In the Court Reporting Books (Broadcast) section, Richard Joint Justice Media Awards Dowling of RTÉ Dundalk was were presented in the books awarded a Justice Media Award category to: Damian McHugh for his television report, For for his book Public Relations and Frances. Corporate Communications Law in Ireland, published by Daily newspapers FirstLaw; and Willie Penrose The joint winners of the Justice TD for Farming Law – A Guide Media Award in the Daily for Farmers, published by Newspapers category were Noel Kieran Walsh, Niamh Nolan (RTÉ news), Philip Joyce, Mary Little and FirstLaw in conjunction with Baker of the Irish Examiner for Joe Little (RTÉ’s social and religious affairs correspondent) the Farming Independent. G

www.lawsociety.ie 15 The Property Registration Authority An tÚdarás Clárúcháin Maoine

Land Certificates and Certificates of Charge

Pursuant to the provisions of the Registration of Deeds and Title Act 2006 the Minister for Justice, Equality and Law Reform has made an order providing for the commencement of section 73 of the Act. As and from January 1st 2007 the Property Registration Authority will cease to issue, or reissue, land certificates or certificates of charge.

For a period of 3 years after January 1st 2007 production of an existing certificate to the Authority shall be required for the registration of a dealing with the property whose ownership it certifies, in accordance with existing requirements. On completion of the application the certificate will be can- celled and no replacement issued.

At the expiration of the 3 year period, referred to above, all remaining land certificates and cer- tificates of charge, not already cancelled, shall cease to have any force or effect.

During the 3 year period the following provisions shall apply where a person claims to hold a lien on registered land or a registered charge through deposit or possession of a land certificate or cer- tificate of charge or an undertaking to furnish a land certificate or certificate of charge, where monies were actually advanced and where the land certificate or certificate of charge did not issue from the Land Registry prior to the 1st of January 2007: ● a holder of such a lien may apply to the Authority for registration of the lien in such manner as the authority may determine; ● the application shall be on notice by the applicant to the registered owner of the land or charge and be accompanied by the original certificate; ● the lien is deemed, for the purpose of section 69 of the Registration of Title Act 1964, to be a burden which may be registered as affecting registered land; ● the Authority shall register the lien without charging any fee.

Note: The foregoing does not apply to a lien for costs on a land certificate or certificate of charge.

Visit PRAI.ie or landdirect.ie for latest information

The online service of the Property Registration Authority LETTERS LAW SOCIETY GAZETTE DECEMBER 2006 letters

Send your letters to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected] Recoverable party-and-party costs and PIAB From: Seamus Sadlier, McCann personal reasons. It should be parties, judgment was reserved where the assessment was and Associates, accountants noted, however, that it was to 21 July. accepted, there was no contrary write to you in connection accepted by the county While the submissions made provision where the assessment Iwith a recent ruling made in registrar on taxation that both by both sides are too detailed was rejected and proceedings the Dublin Circuit Court by the plaintiff’s solicitor and and voluminous to set forth issued. In addition, I submitted Ms Susan Ryan, the county barrister were of the view that here, the thrust of my argument that, as there is a statutory registrar, concerning party-and- the case was worth in excess of to the county registrar was that obligation to deal with PIAB party costs of dealing with the the tendered amount. the High Court had previously and, in the particular Personal Injuries Assessment I prepared a full bill of costs, ruled that a client was entitled circumstances of this case, Board. to include all work done in to representation by a solicitor where legal advice was that the I acted on behalf of the relation to dealing with the (O’Brian vs PIAB, 2004/785JR, assessment was insufficient, it solicitor for the plaintiff in an PIAB and subsequent 25/1/05 – under appeal to the was a necessary step for the action in which an assessment proceedings. The matter Supreme Court). Furthermore, attainment of justice, therefore was made by PIAB in the sum proceeded to taxation and, on while the legislation did state costs of such a necessary step of €9,000, with an additional 3 July 2006, following lengthy that no party-and-party costs should be recoverable on a €200 expenses. Following legal oral submissions by both could be recovered for cases party-and-party basis. advice, this assessment was rejected by the plaintiff, who subsequently issued Interpreting the interpreters proceedings in the Circuit Court. From: James Kinch, solicitor, law as to their having any, or that some are not questioning The personal injuries department, Dublin City Council adequate, qualifications to act as the qualifications of the summons issued in September refer to interpreters an interpreter. interpreters involved. 2005 and the matter proceeded Itranslating in and out of a The role of interpreters in I wonder whether it would be in the usual course up to advice foreign language in the courts in the Irish courts is not as of assistance if the Law Society on proofs stage. The Ireland and, as I understand it, regulated as it is in England and were to recommend that defendant’s solicitors then persons are being employed as most other (EU) member states. practitioners carefully examine tendered the sum of €9,201 ‘interpreters’ on the basis of Many practitioners are already the qualifications of interpreters and the plaintiff subsequently their nationality. There is often aware that such interpreters are before allowing them to act as accepted this amount for little or no consideration taken being used, but I understand interpreters in court?

www.lawsociety.ie 17 LAW SOCIETY GAZETTE DECEMBER 2006 COVER STORY

CHILDinTIME The recent High Court conclusion that the three frozen embryos at the centre of the ‘embryo custody’ case are not ‘unborn’ within the meaning of the Constitution has raised many legal and ethical difficulties. Hilary Coveney explains

edical and scientific breakthroughs embryos were implanted at that time and the have generated a reproductive remaining three embryos were frozen. The IVF revolution, with new or assisted process was successful and the wife gave birth to a reproductive technologies (ARTs) daughter in October 2002. However, before this Mmaking it possible to create child was born, marital difficulties had arisen and the ‘families’ in ways not previously contemplated. The parties had separated. advent of ARTs has also challenged our traditional A dispute subsequently arose as to the custody family law system and our understanding of the and possible use of the three remaining embryos. concepts of parentage, custody and access, rights of The wife sought to assert a ‘right to reproduce’ and children and succession. ARTs include artificial applied for custody of the embryos in the hope of insemination, in vitro fertilisation (IVF), surrogacy having a further child or children. She also argued and use of sperm, egg and embryo donation. ARTs that the embryos constituted human life and should have been available in Ireland since the 1980s, with attract the constitutional protection afforded to the the first Irish ‘test-tube baby’ having been born in ‘unborn’, with associated personal rights, including 1987. the right to life. The father, on the other hand, While many cases have recently come before the argued for his ‘right not to reproduce’, saying that he English and international courts on the implications did not wish to have a child against his will within a of ARTs, the first such Irish case was the case of MR separated family unit, with all the associated legal v TR & Others, which was decided by McGovern J obligations. These legal responsibilities would on 15 November 2006. This landmark decision include automatic joint guardianship as a ‘married’ concerned the fate of three frozen embryos that father and an obligation to pay maintenance. were held in storage following the separation of The court divided the case into two distinct parts: their ‘parents’. the first concerned the private law issue of consent. Multiple embryos are often created in the course The wife argued that her husband had either of IVF treatment to avoid women undergoing expressly or impliedly consented to the three frozen further courses of invasive, and potentially embryos being used for future implantation, with dangerous, infertility treatment where possible. her counsel arguing that there was “no going back” Surplus embryos can then be stored or frozen for a for him once the embryos had been created. The period of time to be used at a later date. In many husband, however, denied that he had consented to jurisdictions, disputes have arisen in relation to the the use of embryos as envisaged by the wife. The custody of these cryopreserved or frozen embryos court examined the various consent forms and other following the breakdown of a marriage or documentation that had been executed by the parties relationship. It was only a matter of time before this in the context of the IVF treatment. It held that issue would arise in the Irish context. there was no agreement between the couple, MAIN POINTS whether express or implied, as to what was to be • Private law issue ‘Love’s labours lost’ done with the frozen embryos in the circumstances of consent The parties in this case were married on 5 March that had arisen. • Meaning of the 1992 and their first child was born in October 1997. Since the required consent of the husband to the term ‘unborn’ In the hope of expanding their family, they implantation of the three frozen embryos had not • Personal rights undertook IVF treatment in 2001, as a result of been obtained, the court ruled in his favour on this which six viable embryos were created. Three issue. The court also stated that the consent forms

18 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE DECEMBER 2006 PIC: GETTY IMAGES

A two-day old human embryo at four-cell stage of development

www.lawsociety.ie 19 LAW SOCIETY GAZETTE DECEMBER 2006 COVER STORY PIC: REX FEATURES depends not only on science and medicine, but extends also to moral and religious beliefs. It was generally accepted, however, that embryos are “deserving of special respect and that their very creation raises serious moral and ethical issues which in themselves impose restraints on what may or may not be done with them”. To assess the status of the embryo, it was necessary for the court to consider the meaning of the term ‘unborn’ in article 40.3.3 of the Constitution – the ‘right to life’ amendment that was inserted following the abortion referendum in 1983. The wife argued that the embryo, being ‘unborn’, was entitled to constitutional protection and therefore had a right to life. In considering previous case law concerning the protection of the ‘unborn’, the court noted that all such cases had arisen in the context of abortion, where the foetus is clearly already in existence. However, the status of the embryo is a different matter and one that has never been considered by the Irish courts.

‘What’s in a name?’ The court was of the view that the general understanding of the word ‘unborn’ at the time of the constitutional referendum related to a foetus in the womb and not to the possibilities available since that time with the advent of ARTs. McGovern J found that the “clear purpose” of the amendment was to deal with the issue of abortion. On this basis, the court concluded that the word ‘unborn’ does not include embryos in vitro and therefore does not include the In vitro fertilisation: three frozen embryos at the heart of the dispute in frozen sperm and were vague in a number of important respects and, this case. As a consequence, the embryos are not human embryos for example, did not cover possible contingencies, afforded constitutional protection and do not have the such as the death of either party or a future ‘personal rights’ enshrined in the Constitution. separation or divorce. The court further held in this regard that it should not be the function of the courts to decide their legal ‘Life’s but a walking shadow’ status and whether the word ‘unborn’ should include The second part concerned the public and embryos in vitro, stating that this was a matter either constitutional law question of the status of the for the Oireachtas, or the people in the event that a embryo and the critical issue of when human life constitutional referendum is put before them. Judge might be said to begin. In other words, is an embryo a McGovern wrote: “laws should, and generally do, human life from the moment of its creation or is it a reflect society’s values and will be influenced by them. cluster of human cells with only the capacity for But, at the end of the day, it is the duty of the courts human life until implanted in the womb? to implement and apply the law, not morality.” Evidence from a number of expert witnesses was A decision is now awaited as to whether the wife adduced in the High Court on this question. These will appeal the decision to the Supreme Court. In the witnesses varied in their opinion, with some arguing meantime, a question mark hangs over the status of that life begins at the moment of fertilisation (fusion these embryos and the reality that they are now likely of egg and sperm). Others argued for the time of to remain in storage for an indefinite period, since the implantation in the womb, at which stage a Medical Council’s Guide to Ethical Conduct and continuum of pregnancy begins. Still others argued Behaviour prevents their destruction or their being for a date following implantation when the human “allowed to perish”. ‘primitive streak’ may be said to have formed. As the in camera rule does not apply to proceedings Given the very divergent and conflicting views on of this nature, the parties were forced to play out this this subject, the court held that it was not possible for critical and very private aspect of their lives in the it to decide the issue. The court further noted that the public glare, and it is my view that some thought point at which people use the term ‘human being’ or should be given to extension of the in camera rule in ascribe human characteristics to genetic material these cases.

20 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE DECEMBER 2006

Britain introduced comprehensive rules and the Grand Chamber of the ECHR, which hearing regulations in this area with the enactment of the took place on 22 November 2006. A final decision is Human Fertilisation and Embryology Act 1990. This act awaited and will be watched with great interest by an deals specifically with the issue of ‘embryo custody’ international audience. The facts of this case are disputes, insisting on the continued consent of both particularly difficult, as the embryos were created parties to storage and use of embryos at all times. prior to the removal of Ms Evans’ ovaries in the The Human Fertilisation and Embryology course of undergoing cancer treatment. As a result, Authority also regulates all aspects of ART clinics and she will be unable to have a biological child in the practices, and insists that prospective parents receive event of the destruction of these embryos and she has counselling at each step of the process, so that spoken of her “last hope” in this regard. circumstances such as the death or separation of the Unlike many other jurisdictions, there is currently couple can be discussed and planned for. The aim of no statutory or legislative guidance in relation to the the legislation is to avoid disputes arising, where practice of ARTs in Ireland. The only practical possible. guidance concerning ARTs is found in the Medical Council guidelines, which, of course, do not deal in ‘We are such stuff as dreams are made on’ any way with the important legal consequences. There Many courts in other jurisdictions, including the US is an urgent need for legislation in this jurisdiction to courts, have also relied upon a consent or intent- regulate ARTs and provide guidance on the myriad based model to determine ART disputes. Many legal and other implications that arise as a result. readers will be familiar with the case of Natalie Evans, While medical and scientific breakthroughs continue “Embryos are who recently brought proceedings in England and the apace, our legal system is left limping behind. The deserving of European Court of Human Rights, seeking custody of consequences of an absence of legislative guidance stored embryos and asserting her right to family life. have already been seen in the R case. In his judgment, special respect Ms Evans had created embryos with her former McGovern J noted that “the absence of any rules or and their very partner in 2001 prior to undergoing cancer treatment. regulations in this jurisdiction means embryos outside Their relationship subsequently broke down and, the womb have a very precarious existence”. He has creation raises when she sought to use these embryos, her former further ordered that the state should pay the legal serious moral partner refused. costs of the case due to the points of exceptional Since consent is the governing criterion under the public importance that it raised, and also due to the and ethical 1990 act, the English courts held that she could not absence of any legislative or regulatory regime for issues which use the frozen embryos after her former partner had ARTs in Ireland. withdrawn his consent for their continued storage and The government recently established a in themselves use. Ms Evans was also unsuccessful in the European Commission on Assisted Human Reproduction to impose Court of Human Rights, where it was ruled review this area, and a comprehensive report was unanimously that the embryos did not have an published in March 2005 with many wide-ranging restraints on independent right to life. However, she was recommendations. However, these recommendations what may or subsequently granted leave to appeal the decision to are still being considered by the Oireachtas Joint Committee on Health and Children. In its report, the may not be commission recommended the use of an intent-based done with LOOK IT UP model for the resolution of ART disputes – the Cases: majority of the commission recommended that an them” • Evans v Amicus Healthcare Ltd [2004] EWCA Civ embryo should not attract legal and constitutional 727 (Court of Appeal judgment); [2003] EWHC protection until time of implantation. The 2161 (Fam) (High Court judgment) commission also expressed the hope that a rational • Evans v United Kingdom (application no debate on ARTs would now take place in Ireland in 6339/05) ECHR, 7 March 2006 the context of ever-developing biotechnology and • MR v TR & Others, High Court, McGovern J, 15 bioethics. November 2006 The plight of the couple at the centre of the R case may not be unique, since it is estimated that there are Legislation: currently approximately 1,000 embryos in storage in • Bunreacht na hÉireann, article 40.3.3 Irish IVF clinics. The current laissez-faire situation is • Human Fertilisation and Embryology Act 1990 unacceptable, not alone for doctors and lawyers, but (Britain) more importantly for those turning to ART clinics for assistance. Legislation and appropriate guidance are Literature: now urgently required to give these issues the • Medical Council’s Guide to Ethical Conduct and importance and urgency they deserve. G Behaviour • Commission on Assisted Human Reproduction Hilary Coveney is a solicitor with Matheson Ormsby report, published in March 2005 Prentice and the head of the newly-formed Family Law Unit.

www.lawsociety.ie 21 LAW SOCIETY GAZETTE DECEMBER 2006 INTERVIEW Tipp for

MAIN POINTS Newly-elected President Philip Joyce talks to Mark McDermott about his • Law School student days, his native Tipperary, and his plans for the coming year memories •A rural practice hen the newly-elected President of solicitor in Killenaule called Edgar Ryan. They were •Presidential goals the Law Society, Philip Joyce, set very friendly over the years. I didn’t have any out on his legal career, he thought particular contact with him, however, but it was his he had got it made. Shortly after practice that I eventually took over in 1976.” Whe qualified, he was involved in a Philip has fond memories of his time in the Law family law case that took him from Tipperary to School, which he describes as being “all over the Paris. After a hard, but productive day’s work, he place” during that period. “In theory it was based in ended up drinking champagne with the husband’s the Four Courts, as the Law Society hadn’t really representative until a very late hour. “I thought that moved out of there,” he says. “Lectures took place in my practice was going to be like that for ever,” laughs various locations around Dublin. We never knew Philip, “but, unfortunately, I haven’t had any other from one term to the next where the next lecture was Parisian business since!” going to be. A bicycle was an essential requirement.” The new president decided on a career in law back He remembers lectures being held in St Andrew’s in the 1970s. From Killenaule in Co Tipperary, his Hall, Earlsfort Terrace, and in a rugby club – “I’ve background was in farming, though he is at pains to forgotten where. It all seemed a little haphazard at point out that being the youngest of four and having the time.” an elder brother who was ten years his senior put paid to any thoughts of a career in agriculture. Philip says Upper echelons he was undecided about what he wanted to do with It was as class rep of the Law School’s Liaison his life during his leaving certificate year, but had Committee that he first made contact with the upper decided “for whatever reason to keep on Latin, which echelons of the Society. “Being class rep brought me was a requirement for law at the time, so in due into some contact with the then director general, Jim course I came to the Law School”. Which was Ivers, who I remember as being an excellent probably just as well, since his brother Patrick administrator. On one occasion, the Society got some eventually inherited the farm. exam results wrong. There was a lot of trouble over it “At the time I started law, my mother had died and the results had to be withdrawn. I can recall some years previously. My father was very pleased writing a long letter to Jim about that, and asking it that I decided to do law. My father’s first cousin was a to be published in the Gazette. The letter was never published. Mr Ivers had me in and we discussed it in detail. He offered to give me the letter back, but I SLICE of LIFE wouldn’t take it! I presume he didn’t want it around the place,” Philip smiles. Childhood: Ballynonty, Co Tipperary. The youngest child of Martin and Joan Joyce. After he completed his studies, Philip did his pre- Books: Killenaule Primary School, Castleknock College and the Law School of the qualification training with Tallaght-based solicitor Law Society of Ireland. John Glynn, where he worked out his apprenticeship. Bosses: Bryan Maguire of JJ O’Shee Murphy & Co, Clonmel, Co Tipperary. John Glynn There, the future president learned the fundamentals & Co, Tallaght, Dublin. of practice and pretty much everything he would Mortarboard: the Law School in 1976. need to know about conveyancing. “John was First job: the office of Edgar J Ryan & Co, the genesis of his partnership firm, Joyce extremely efficient in the way he ran his business,” & Barry Solicitors. Is now a partner in the law firm Joyce & Barry Solicitors, says Philip. “He was careful about how he did his Killenaule, Thurles, Co Tipperary. work, making sure that everything was completed Married to: Rosario Boyle SC. properly and on time. I wouldn’t have regarded Local hero: he is the first chairman of the Killenaule Development Association. myself as efficient as John in that respect, so, if it’s not doing him any disservice, I will put him down as

22 www.lawsociety.ie INTERVIEW LAW SOCIETY GAZETTE DECEMBER 2006 thetop

teaching me all I knew. How much of it I retained, I’ll the practice after a couple of years, which happened leave for others to judge!” in 1979. Terry now lives in Drogheda. Her daughter In these heady times of economic prosperity, it is Elizabeth Senior, who’s very well known in the might seem strange that Philip decided to move out profession.” Philip’s practice is now Joyce & Barry, of the capital city after only one year, heading instead with offices in Killenaule and Cashel. David Barry, for what might have been considered a quiet son of the late Harry Barry, solicitor, is the other Tipperary backwater. Philip explains: “In 1975, the partner in the practice. salary level for a young qualified solicitor would not It was during this time that Philip got involved have been that high. The opportunities that exist now with the Tipperary Bar Association. “After a relatively certainly weren’t in evidence then. I had been asked short time, I found myself on the committee of the to go back to the firm of Edgar J Ryan & Co by bar association. Tipperary always holds elections for Te rry Ryan, Edgar’s widow, with a view to acquiring their committee, while the choice of president is a

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Breda O’Brien on “Miscarriage of Justice: Paul McCabe and Nora Wall” in the Winter issue of Studies – An Irish Review 36 Lower Leeson Street Dublin 2 Tel: 00 353 1 676 6785 Fax: 00 353 1 676 2984 Email: [email protected] Web: www.studiesirishreview.com Tom McGrath and David O’Donnell Subscribe or buy on line General Overseas Legal Services Available in good book shops From Dec 4th 37 Upper Mount Street, Dublin 2, Ireland Phone: 353 1 661 0707 Fax: 353 1 611 4975 Why not consider a www.tmsolicitors.ie Subscription to Studies as a Christmas gift? [email protected] INTERVIEW LAW SOCIETY GAZETTE DECEMBER 2006

well-regulated affair and alternates between North and South Tipperary. I have no idea why anybody put me on the committee on the first day, as it was such a short time after I went into practice. At that time, John Carrigan was still secretary. I eventually succeeded him in that post and remained in it for ten years.” His election to the Council of the Law Society came in November 1988. “I was asked to put my name forward by the Tipperary Bar Association, which I did. I was conscious that, coming from a small practice in rural Tipperary, it was going to be difficult to get elected. At the time, 30 members were elected each year rather than 15 every two years, which is the system now. I came in at number 30 of 30!”

Should I stay or should I go? Philip has been elected to Council every year since. He is philosophical about his election as President of the Law Society. “I suppose there comes a point in time, when you’re on the Council for a long number of years, and you have to make the decision either to stay or go. If you stay, you know that you’re going to become president at some point. these systems from the initiation of a complaint “I think it gives you an opportunity to lead the through to its completion, will take account of both TIPPERARY’S profession, and to be of some influence in the way that policy and legal considerations, and will make FIVE PRESIDENTS the Law Society goes about its work. It would be recommendations. The task force will be chaired by • Lawrence J Ryan unrealistic to think that, with one year in office, you Joe Brosnan. (1931/32) could change things to a huge degree. You have to be The new president is also happy to see the official • John Carrigan very lucky to be presented with the opportunities to opening of Cork’s Law School. “I’m glad that our (1957/58) make radical change. system of education has become decentralised to • Senator John Nash (1959/60) “I would have to say that there is great satisfaction some extent. I think that this can only benefit the • Donal G Binchy in the work you do on Council from one year to the profession in the long run. My hope would be that, (1990/91) next, and in serving on the various committees. Every when students are educated in Cork, it will become a • Philip Joyce Council member can point to some aspect or other source of employees for practices outside Dublin, (2006/07) where they have made a difference on behalf of because just at the moment, it’s very difficult for such members, or perhaps in some submission that has been practices to attract newly-qualified solicitors. If made to government insofar as legislation is everything is not so geared towards Dublin, then concerned. These things wouldn’t necessarily be lawyers might see that ‘outside the Pale’ has its own dramatic, but I think every Council member can look opportunities.” back over their period in Council and feel that they did Philip believes that the main role of the president well from time to time. is to represent the views of the Society’s members, “I spent ten years in one form or another on the and to be involved as much as possible in a regulatory side of the building, and from that exper- representative capacity. “Of course, various issues will ience you learn a lot. You also have the opportunity to arise throughout the year, including the delivery of help colleagues that have got into some difficulty. But the Competition Authority’s final report, the report there is, I think, a continuing problem with solicitors of the Miller Implementation Group in relation to who might feel that they’re in some difficulty, and who solicitors’ costs, and the results of various items of do not feel that there is a ready-made solution for litigation that the Society is involved in on behalf of them. I would like to see the Regulation of Practice its members. However, as things stand, I would Committee engaging in an ongoing educational expect that it will continue to be the Society’s communication with members of the profession. We function to be the sole regulators of the solicitors’ need to establish a constant stream of communication profession and also the sole educators.” from the committee to our members, so that they are What’s his chief goal? “The challenge during my familiar with the work that the investigating year in office will be to respond to the issues that accountants have to do and that they understand the arise, and to try and make changes where required. reason for their queries, with the aim of improving the Primarily, my focus will be to increase the level of profession’s response and standards generally.” communication between the Society and its members, Philip has also proposed the establishment of a task and between our members and the task force in force that will conduct a thorough review of the relation to complaints. This will be extremely Society’s complaints-handling systems. It will look at important.” G

www.lawsociety.ie 25 LAW SOCIETY GAZETTE DECEMBER 2006 CONTRACT LAW BREAKING The justice minister is to set up an expert group on the recognition of pre-nuptial agreements. Geoffrey Shannon discusses the legal standing of pre- nuptial agreements, given that there are some 30,000 millionaires in Ireland

pre-nuptial agreement is a pre-wedding than a mere five years as was held by the Court of contract, by which a couple intending Appeal. The couple had previously agreed a 50/50 to marry sets out how property and split of their £3 million worth of assets. finances would be divided in the event The Miller case is of particular interest and may A of a separation or divorce. Pre-nuptial very well be followed in Ireland. The Lords’ agreements have increased in practical importance groundbreaking ruling indicates that, even in a short since divorce became law in Ireland in February 1997. marriage, a wife might be entitled to a 50/50 split of They are commonplace in the world of celebrity, the wealth generated during that marriage. This is where they are seen as a form of divorce planning. likely to strike fear into the hearts of wealthy Irish There is no Irish law preventing individuals intending men contemplating separation or divorce after a short to marry from signing a pre-nuptial agreement, but marriage. One of the factors an Irish court can take the difficulty is that the courts are not obliged to into account is the length of the marriage, although it enforce such an agreement should the parties separate is only one of a number of factors. or divorce. The Miller ruling will no doubt be reflected in any settlement negotiations between Heather Mills and Fifty ways to leave your lover Paul McCartney over his £800 million. Indeed, the Binding pre-nuptial agreements appeared to have McCartney’s were married for twice as long as the been relegated to the back burner until the recent Miller’s and there was also a child of the marriage. It Miller and McFarlane judgments in Britain. Neither should be stated that McCartney did not have a pre- Alan Miller nor Kenneth McFarlane had a pre-nuptial nuptial agreement. agreement. These recent House of Lords judgments have given renewed impetus to the drawing up of pre- I will survive nuptial agreements – not only in England, but also in But what is the current status of pre-nuptial Ireland – as high-earning spouses attempt to protect agreements under Irish law, and how compatible their positions in the event of a separation or divorce. would a pre-nuptial agreement be with the In Miller, the Law Lords held that Melissa Miller Constitution? could keep the £5 million she was awarded by the Under article 41 of the Constitution, the family is Court of Appeal after a childless marriage lasting less the basic unit of society. Article 41.1.1 talks of the than three years to Alan Miller, a multi-millionaire family “as the natural primary and fundamental unit fund manager. Lawyers for Miller had argued that the group of society”. It also pledges to “guard with Lords should cut the £5 million award to £1.3 special care the institution of marriage” and to million, as the marriage was childless, lasted only two protect it against unjust attack. Thus, there is a years and nine months, with the added factor of constitutional obligation under article 41 to protect Melissa Miller bringing no wealth to the marriage. and preserve the family unit, as far as practicable. MAIN POINTS Describing the £5 million award upheld by the Court The nature of the family in Ireland, however, has • Recognition of of Appeal as “a jaw-dropping amount”, Miller’s changed dramatically over the past 30 years. The pre-nuptial lawyers argued that it would give Melissa Miller “a immense social, cultural and economic changes since agreements meal ticket for life” after a very short marriage. the 1970s have altered family structures. Today, the • Family Law In the McFarlane case, the Lords considered the reality mirrors that of our European partners. That (Divorce) Act case of Julia McFarlane, who had given up a includes an increase in the incidence of marital 1996 promising career as a solicitor during a 16-year breakdown. • Case law in other marriage to Kenneth McFarlane, a tax partner. The Up to now, an attempt by the legislature to jurisdictions Law Lords held that she was entitled to £250,000 a introduce any legislation to dilute the paramountcy of year from her husband for an indefinite period, rather the family or encourage people to walk away from

26 www.lawsociety.ie CONTRACT LAW LAW SOCIETY GAZETTE DECEMBER 2006

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www.lawsociety.ie 27 LAW SOCIETY GAZETTE DECEMBER 2006 CONTRACT LAW

what most would accept as the ideal family unit would nuptial agreements, that have been concluded several have been deemed unconstitutional by the Supreme years prior to the divorce no more than a factor in Court. That is no longer the case, following the the overall consideration of a case. Further, if it were removal of the constitutional prohibition on divorce intended to have regard to pre-nuptial agreements, it by the insertion of article 41.3.2 into the Irish is reasonable to assume that they would have been Constitution. This weakens, but does not negate, the specifically mentioned in the 1995 act and the argument that a pre-nuptial agreement made in Divorce Act. contemplation of a separation (that may occur at some future date and that is not inevitable) is unenforceable Tainted love for reasons of public policy. In the Divorce Act, specific reference is made to separation agreements as a factor to consider in Heart of glass section 20(3), and thus if it were intended to have The provisions of the Family Law Act 1995 and the regard to pre-nuptial agreements, one would also have Family Law (Divorce) Act 1996 (the Divorce Act) do not expected some other detailed provisions dealing with appear to support the enforceability of pre-nuptial such agreements. agreements. It is clear from the Family Law Acts that It is possible to argue that section 20 of the Divorce the Oireachtas legislated to facilitate repeated Act and section 16 of the 1995 act, which set out the applications to court for ancillary relief, rendering the factors to be taken into account by a court in “Considerable statutes opposed to the concept of spousal autonomy. reordering assets in a divorce and judicial separation uncertainty That the overall philosophy of these acts is not case respectively, provide a framework under which a supportive of spousal autonomy is clear. In JD v DD pre-nuptial agreement can be recognised. The surrounds not (Judicial Separation), for example, McGuinness J held introductory requirement set out in section 20(1) of only the status that no ‘clean break’ provision could be made when the Divorce Act and section 16(1) of the 1995 act financially reordering a broken marriage and requires the court to “ensure such provision as the of a pre-nuptial continued, at page 89: “This also appears to mean that court considers proper having regard to the agreement no agreement on property between the parties can be circumstances”. This general standard is not defined completely final, since such finality would be contrary any more clearly by the legislature, thus increasing the executed in to the policy and provisions of the legislation”. level of discretion afforded to the judiciary in these Ireland, but A further relevant and instructive case is the cases. A pre-nuptial agreement could be considered as decision of Finlay Geoghegan J in RG v CG, which part of the circumstances of the case by a court when also the concerned the weight to be attributed to a consent determining what ancillary orders to make under enforceability order at the conclusion of judicial separation section 16 of the 1995 act and section 20 of the proceedings. Finlay Geoghegan J stated that she did Divorce Act. In the first reported divorce decision, RC v of a pre-nuptial not consider it appropriate on the facts of the case to CC (Divorce), Barron J, after considering the financial agreement take into account an acknowledgement on the part of arrangements made by the spouses, stated: “I am the wife, contained in the consent order, to the effect satisfied that these provisions are proper in the overall executed in that the consent constituted proper provision for the circumstances of the family”. This clearly another purposes of the Divorce Act. The judge quoted with demonstrates that the judge felt he had to view the approval the dicta of Mumby J in X v X, where he arrangements in their totality. In so doing, there is country” stated: “A contract which purports to deprive the room for argument that the terms of a pre-nuptial court of a jurisdiction which it would otherwise have is agreement are a circumstance that ought to be contrary to public policy. Thus, a spouse cannot considered. validly agree, whether expressly or impliedly, not to apply for maintenance or other forms of ancillary Go your own way relief. Such a stipulation is contrary to public policy The government study on pre-nuptial agreements is and unenforceable” (see also N v N). likely to consider the law in other jurisdictions. Pre- To the extent that a pre-nuptial agreement purports nuptial agreements are enforceable in many European to exclude the jurisdiction of the courts, it will be in civil law states (Belgium, Denmark, France, Germany, breach of the constitutional requirement that proper Italy, the Netherlands, Norway, Spain, Sweden and financial provision be in place to ensure that spouses Switzerland). They normally must be signed in the and dependent family members have been catered for. presence of a notary (for example, Germany, Italy, the By virtue of article 41.3.2 of the Constitution and the Netherlands and Spain). In many states – for example, Family Law (Divorce) Act 1996, the court must be Denmark, Italy, Spain and Sweden – pre-nuptial satisfied that such provision as the court considers agreements must also be registered. proper, having regard to the circumstances, exists or Pre-nuptial agreements are enforceable in several will be made for the spouses and any dependent US states, with the exceptions of Kentucky, Michigan, members of the family. It must therefore be noted that Mississippi, Pennsylvania, South Carolina and the constitutional imperative on the part of the courts Vermont. In the US, many states have adopted the to ensure ‘proper provision’ has been made before Uniform Premarital Agreement Act 1983, leading to granting a decree of divorce will, no doubt, make pre- legislation on the basis of this. The US courts have

28 www.lawsociety.ie CONTRACT LAW LAW SOCIETY GAZETTE DECEMBER 2006

generally upheld pre-nuptial agreements that have been validly entered into, with independent legal LOOK IT UP advice, proper disclosure and that are not tainted by Cases: fraud. Interestingly, it seems that lawyers in the US • JD v DD (Judicial Separation) [1997] 3 IR 64 are themselves becoming increasingly cautious about • McFarlane (Appellant) v McFarlane (Respondent) [2006] UKHL 24 drafting pre-nuptial agreements, due to the low • Miller (Appellant) v Miller (Respondent) [2006] UKHL 24 financial returns for the practitioner and the high • N v N (Jurisdiction: Pre-nuptial agreement) [1999] 2 FLR 745 negligence exposure, a trend also observed in • RC v CC (Divorce) [1997] 1 IR 334 Australia and Germany. It appears that pre-nuptial • RG v CG (High Court, unreported, Finlay Geoghegan J, 8 February 2005) agreements are generating increased litigation in the • X v X [2002] 1 FLR 508 US, focused on whether fair procedures were adopted in the negotiation of the contents of the agreement. Legislation: Binding pre-nuptial agreements were brought into • Bunreacht na hÉireann, article 41 force in Australian law by the Family Law Amendment • Family Law (Divorce) Act 1996 Act 2000, which inserted a new part VIIIA into the • Family Law Act 1975 (Australia) Family Law Act 1975 (FLA). The new part VIIIA of • Family Law Act 1995 the FLA provides that couples may, among other • Family Law Amendment Act 2000 (Australia) things, enter into a ‘financial agreement’ before • Uniform Premarital Agreement Act 1983 (USA) marriage. A financial agreement may cover their property and financial resources, spousal maintenance Literature: and “incidental and ancillary matters”. For this form • Supporting Families: A Consultation Document, British Home Office Green of pre-nuptial agreement to be binding, there are a Paper, 1998 number of formalities, including that each party has received independent legal advice before the agreement is entered into. •Where one-half of the couple, or the couple as a It should be noted, however, that there is no court whole, has failed to give full disclosure of assets and supervision or registration of ‘financial agreements’, property before the agreement was made, with the responsibility for overseeing such agreements •Where the agreement is made fewer than 21 days resting on family law solicitors as the providers of prior to the marriage. independent legal advice. For the Australian family law solicitor, the independent advice requirements are Earlier this year, Resolution (the solicitors’ family law highly onerous and difficult to discharge, which, in association in England and Wales) renewed its call for turn, have raised concerns about potential professional pre-nuptial agreements to have binding legal effect in liability. It is therefore not surprising that some England and Wales. It made reference, in particular, to solicitors are refusing to act for clients wishing to enter an increasing number of client enquiries from people ‘financial agreements’ for fear that their professional entering a second and subsequent marriage, seeking indemnity insurance might not cover them in the protection for properties they had before they wed. event of litigation for professional negligence, on the There is no reason why a pre-nuptial agreement basis that advising on a ‘financial agreement’ may should be prima facie unenforceable. That said, amount to financial rather than legal advice. considerable uncertainty surrounds not only the status of a pre-nuptial agreement executed in Ireland, but Without you also the enforceability of a pre-nuptial agreement There has been some consideration of pre-nuptial executed in another country. agreements in England and Wales. A 1998 Home The law should now be clarified to ensure that pre- Office Green Paper, Supporting Families, nuptial agreements are valid and enforceable to the recommended that pre-nuptial agreements should not extent that they support and foster the interests of be enforceable if one or more of the following six children and spouses. It should be noted, however, circumstances apply: that even if, following Minister McDowell’s review, • Where there is a child of the family (whether the the legislature steps in to support pre-nuptial child pre-existed or post-dated the agreement), agreements, caution should be exercised. Any • Where under the general law of contract the legislation should not simply be a ‘rubber stamping’ agreement is unenforceable, exercise, but should allow the judiciary to retain a wide • Where one or both of the parties did not obtain discretion to vary the terms of a pre-nuptial independent legal advice before entering into the agreement. G agreement, • Where the agreement would cause “significant Geoffrey Shannon is the Law Society’s deputy director of injustice”. (I believe the words “significant education. The CPD Unit will be hosting a conference on injustice” are unduly vague in this context. This 27 February 2007 on ‘Divorce – Ten Years On’, to mark could, no doubt, generate increased litigation, a the tenth anniversary of the introduction of divorce in goal that the paper seeks to prevent), Ireland.

www.lawsociety.ie 29 LAW SOCIETY GAZETTE DECEMBER 2006 COMPANY LAW IN WHOSE interest? In a recent case, a solvent company made an application for a prospective validation order. Brónagh Maher discusses the appropriate test to be applied in this novel situation

ntil recently, the reported case law company in relation to which there was no dealing with section 218 of the suggestion, in the event that it was wound up, that it Companies Act 1963 involved companies would be unable to meet its liabilities. that were unlikely to be in a position to U meet their liabilities as they fell due Mixed company (see, for example Re Lynch, Re Ashmark Ltd, Re Pat The application under section 218 arose in the Ruth Limited and Re Industrial Services Company). In context of substantive proceedings under section 205 such circumstances, the courts had to consider, in of the Companies Act 1963,in which the petitioner exercising the jurisdiction to validate certain post- was claiming relief from alleged oppression of his commencement dispositions, whether the position as a minority shareholder in the company. disposition was in the interests of the general body The relief claimed raised the possibility of the of creditors – particularly the unsecured creditors – company being wound up, and there was therefore a of the company. As Courtney comments, “the petition before the court to wind up the company, primary rationale of the validation mechanism in CA despite the fact that there was no suggestion that the 1963, s218 is to protect creditors” (2002: paragraph assets of the company would be insufficient to meet 27.068). This is due to the fact that an inappropriate all of its creditors. By virtue of section 220(2) of the disposition of a company’s assets after the Companies Act 1963, the winding up of a company by commencement of a winding up will usually result in the court is deemed to have commenced at the time some liabilities of the company being met and others of the presentation of the petition for the winding not being met, meaning fewer assets will be available up, and therefore any disposition of the property of to pay the unsecured creditors. As stated by Murphy a company while a winding up petition is pending MAIN POINTS J in Re McBirney and Co Ltd, “the entire burden of before the court is open to the risk that it may be •Dispositions by the authorities is to the effect that the making of the declared void pursuant to section 218. solvent companies payment (as opposed to the incurring of the The board of the company had resolved to sell • Companies Act expense) must be shown to be for the benefit of the Derg Marina, a significant asset that had been 1963, section 218 company or at least desirable in the interests of the purchased by the company in 2003 for €4 million, • Recent case of unsecured creditors as a body”. but could not proceed in practice with the sale Joyce v Wellingford However, in his recent judgment in Joyce v without the prior sanction of the court, as any Construction Wellingford Construction, Clarke J was asked to purchaser would be open to the risk that, in the Limited exercise his jurisdiction under section 218 to validate event of a court-ordered winding up, the sale would a disposition of a significant company asset by a be void unless validated by the court. Obviously, no

30 www.lawsociety.ie COMPANY LAW LAW SOCIETY GAZETTE DECEMBER 2006

LOOK IT UP Cases: • In Re Gray’s Inn Construction Company Limited [1980] 1 All ER 814 • Joyce v Wellingford Construction Ltd & Ors, 2005 IEHC 392 (17 November 2005, unreported, High Court) purchaser would be willing to buy without the court • Re AI Levy (Holdings) Ltd [1963] 2 All ER 556 order, and it was therefore necessary for Clarke J to • Re Ashmark Ltd (No 1) [1990] ILRM 330 decide whether a prior validation of the sale should • Re Industrial Services Company (Dublin) Limited (No 2) [2002] 4 IR 394 occur. The power of the court to prospectively • Re Lynch, Monaghan & O’ Brien Ltd, (9 June 1989, unreported, High Court) validate a post-commencement disposition was set • Re McBirney and Co Ltd (2 July 1992, unreported, High Court) out in Buckley LJ’s judgment in In Re Gray’s Inn • Re Pat Ruth Limited [1981] ILRM 51 Construction Company Limited, where he stated: “Where a third party proposes to enter into a Legislation: transaction with a company which is liable to be • Companies Act 1963 invalidated under s227, the third party can decline to do so until the company has obtained a validating Literature: order, or it might itself seek a validating order, or it • Thomas B Courtney, The Law of Private Companies, 2nd edition, (Dublin: can enter into the transaction in anticipation of the Butterworths, 2002) court making a retroactive validating order at a later

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• On April 1st 2005 Friarylaw was appointed by the Minister and ADR (Alternative Dispute Resolution) has brought about a remarkable Department of Justice as a nominating body under section 15 of change in the solving of civil and commercial disputes worldwide. The latest the Civil Liability and Courts Act, 2004. statistics available from the US reveal the extraordinary impact of ADR, •ADR Group was the first mediation trainer and service provider in where civil and commercial litigation in the public fora of the courts is at a the EU to receive ISO9002 accreditation. forty year low; similar trends are now emerging in the UK. • The training course satisfies 35 hours of the Law Society of Ireland’s CPD requirements. As a result of the lessons learned in both the US and the UK, Irish civil and •Areas of application include: General Civil and Commercial, commercial society is embracing new and innovative forms of dispute reso- Personal Injury and Clinical Negligence, Employment, Construction lution. Recent legislative change at national (Civil Liability and Courts Act, and Engineering, Banking and Financial Services, Insurance, 2004 & Statutory Instrument S.I. No. 2 of 2004 Superior Court Rules regard- Professional Accounting and Related Services Disputes and ing Commercial Proceedings) and at EU level (pending EU Mediation Environmental Disputes, Matrimonial, Divorce. Directive 2007) underpin the emergence of Mediation as an essential tool • Friarylaw Mediation Case Management (Friarylaw MCM) is a unique in the fast and efficient resolution of civil and commercial disputes. service offering in Ireland. Friarylaw MCM manages and administers Sophisticated clients are increasingly aware of the benefits of mediation; Civil, Commercial and Family Mediations from the date of their notifi- cation to Friarylaw MCM to the conclusion of the proceedings by the namely, a speedier and more cost efficient method of dispute resolution. parties in an agreed and formally mediated settlement Friarylaw & ADR Group provide the most comprehensive Mediation train- ing, professional accreditation and case management services in this The course will be presented by ADR Group, jurisdiction. Friarylaw administer a structured pupilage programme for our Oliver J Connolly BL FCIArb and the Friarylaw team. accredited mediators and we are committed to assisting in the develop- If you require any further information please call ment of mediation practice of our panel members. the Friary at tel 8728405, email at admin@the friary.ie or visit the website at www.friarylaw.ie Training as a mediator with Friarylaw will: • Enhance your professional skill set • Obtain Mediator Accreditation Friary Chambers, The Friary, Bow Street, Dublin 7. • Develop a Mediation Practice Tel: 01 872 8405. Fax: 01 872 8409 Email: [email protected]. Web: www.friarylaw.ie COMPANY LAW LAW SOCIETY GAZETTE DECEMBER 2006

date” (section 227 was the then operative equivalent provision of section 218 under Britain’s Companies SUNNY DISPOSITION Act 1948). The general proposition that the post-commencement disposition of a major asset Asset register of the company may be of benefit to the company and its creditors was set out in In exercising his jurisdiction under section 218, in In re Gray’s Inn Construction: the unusual circumstances of a company with assets “There may be occasions, however, when it would be beneficial, not only for exceeding its liabilities, Clarke J commented: the company but also for its unsecured creditors, that the company should be “It seems clear that the underlying purpose of enabled to dispose of some of its property during the period after the petition has section 218 is to ensure that the interests of those been presented but before a winding-up order has been made. An obvious parties who might be affected by a disposition which example is if the company has an opportunity by acting speedily to dispose of takes place after the commencement of a winding up some piece of property at an exceptionally good price. Many applications for are not materially altered by such a disposition. In validation under the section relate to specific transactions of this kind or the case of a company which will be unable to meet analogous kinds.” its debts, then the person who will be affected (or at An example of such a case is Re AI Levy (Holdings) Ltd. In that case, a least potentially affected) by a disposition of the disposition was prospectively validated where, after the presentation of a petition company’s property are likely to be the creditors and to wind the company up, a company resolved to sell its leasehold interest in a most especially, in many cases, the unsecured property because the lease was liable to be forfeited if it, as the tenant, was creditors.” wound up. The sale of the lease at market value was found to be clearly to the However, where the company seeking the court’s benefit of creditors of the company, as the company was put in funds arising from validation of a disposition is in a position to meet all the sale of the lease. If the company had not disposed of its interest, it would of its liabilities, “the parties whose interests might have had neither funds nor a leasehold interest available for distribution amongst be affected by a post-commencement disposition are the creditors. the members of the company who would, in the event of a winding up, share in the distribution of the net surplus of the company’s assets”. The In arriving at his conclusion, he stated: “the test authorities dealing with section 218 therefore would by which validation should be ordered by the court IN GOOD have to be read as applying, in the case of a solvent is, in a case such as this case, the interests of the company, to the interests of the members as a whole shareholders taken as a whole. In principle, COMPANY as opposed to the interests of the creditors. therefore, to achieve that interest, the sale needs to Section 218 of the be on the most commercially advantageous terms Companies Act 1963 Circle of trust (which question is likely to be determined by the provides: In Joyce v Wellingford, the grounding affidavit sale price and the likely time of closing) but must “In a winding up by the indicated that the sale of the property was necessary also not be subject to any circumstances that would court, any disposition because of the pressing nature of various liabilities mitigate against the sale achieving its principle of property, including that the company had. As well as owing substantial objective, which is staving off a threatened things in action, and sums to the company’s bankers, there were other liquidation.” any transfer of shares “significant cumulative liabilities” and, furthermore, or alteration in the there was a winding-up petition by one of the Solvent abuse status of the company’s main contractors pending before the In light of Clarke J’s judgment in Joyce, the members of the courts. Having found that there was “a high degree of authorities dealing with section 218, which establish company, made after probability of the company going into liquidation that a disposition will be validated if such disposition the commencement of unless something radical is done to solve its cash is found by the court to be beneficial to and in the the winding-up, shall, problem in the short term”, Clarke J indicated that he interests of the general body of creditors, must also unless the court would be prepared to validate a sale that was achieved be read as applying to the interests of the members otherwise orders, having complied with certain conditions, including of the company where the applicant for the be void.” the appointment of a neutral auctioneer to obtain the validating order is in fact a solvent company. This is most commercially advantageous contract from the due to the fact that, in the event of a winding-up perspective of the company. Clarke J’s decision not to order being made in respect of a solvent company, make the validation order as sought (the application the net assets of the company after discharging all was for an order validating a sale for not less than debts will fall to be distributed among the €6 million, as an offer had already been received in shareholders. Therefore, the interests of the that amount) was in large part influenced by the fact shareholders should not be materially altered by the that there appeared to be a complete breakdown of disposition. In the words of Clarke J, the situation in trust between the shareholders of the company, as which the company in Joyce found itself was evidenced by the section 205 proceedings, and the “unusual but by no means unique”, and therefore fact that “in the absence of a transparent process … Clarke J’s judgment is likely to be of assistance in being put in place, I am likely to remain unsatisfied future applications pursuant to section 218. G that a sale would necessarily reflect the best interests of the shareholding taken as a whole”. Brónagh Maher is a Dublin-based barrister.

www.lawsociety.ie 33 LAW SOCIETY GAZETTE DECEMBER 2006 LOOKING BACK The BIG thaw The ’80s marked the end of the Cold War and a new era of perestroika. From local and international get-togethers, to the provincial and foreign news, the Gazette presented an intriguing mix of views in the 1980s under the editorship of Mary Buckley (now Gaynor). Mark McDermott continues this celebration of 100 volumes of the Gazette

rather novel meeting was held by the back at work at the bar, at the desk – it’s autumn, Dublin Solicitors’ Bar Association in rainy, foggy. December 1980. A so-called ‘Gripe “But still, we feel enlightened, strengthened to cope Night’ was organised, where members with the dark and cold days of winter by the Acould discuss grievances “at which it was wonderful memories we have of the important work hoped that the Council would hear from colleagues we succeeded in doing during the day and the great about matters and problems which were creating fun we had with our Irish hosts during the evenings difficulties. Despite the fact that from time to time the and nights. Association is criticised by solicitors for its apparent “At no AIJA Congress in my experience have failure to communicate with them and to look after thanks been better earned or more deserved than they their interests, the attendance at this meeting was in were at the AIJA Congress in Dublin in August… the main disappointing… “Many of us had heard of the hospitality of the “Most of the criticism was levelled at the Courts Irish. Your reputation is one thing, but the actual and the failure of judges to issue judgments or, experience of a warm welcome from hosts who were alternatively, as happens in the Lower Courts, to sit so obviously pleased to see us and who, without fuss on time. This latter complaint relates in particular to or trouble, were so obviously interested in making Kilmainham District Court and the method of listing sure that we felt welcome and enjoyed ourselves in cases in that Court was also the subject of severe their country, was something we shall never forget” criticism. It was felt that a system could be evolved (Gazette, January/February 1982, p11). whereby certain cases should be listed in the morning and others in the afternoon, thereby avoiding Household name unnecessary attendance of solicitors. It’s rather apt that, in this issue when we cover the “In relation to the Land Registry and the Justice Media Awards 2006, the Gazette in June 1982 Companies Office, it was apparent that many was covering the Society’s awards to young members have been finding that files are not available journalists: for inspection” (Gazette, January/February 1981, p16). “The Law Society’s Award for the best article on a In the same issue, the Gazette discusses the 1981 legal topic submitted by a 2nd Year Student at the Congress of the Association Internationale des Jeunes School of Journalism, Dublin College of Commerce Avocats (AIJA), which took place in Dublin on 24 to has been awarded to Brenda Power, Ballynooney, 28 August 1981. The association was founded in 1962 Mullinavat, Co Kilkenny, whose article on ‘Rape “as a non-political organisation dedicated to Cases – A Trial Within a Trial’ will appear in the furthering the interest of young lawyers and of the next issue of the Gazette.” Brenda has since become a entire legal profession and to encouraging co- household name on RTÉ radio and television, and MAIN POINTS operation among lawyers of all the world”. In an writes for a variety of publications. • ‘Gripe Night’ ‘Open letter to the lawyers of Ireland’ the president of The same issue featured an advertisement for a • Congress euphoria the AIJA, P R Meurs-Gerken from Copenhagen, says: company-based legal adviser in Dublin, offering the • Lifestyle profile “The first euphoria of our congress in Dublin’s fair grand salary of IR£13,500 per annum. city where the girls are so pretty is over; we are all In an article on wills in the October 1982 issue,

34 www.lawsociety.ie LOOKING BACK LAW SOCIETY GAZETTE DECEMBER 2006

And the wall came tumbling down: Berlin, 1989

Donal G Binchy’s rather amusing opening is worthy lawyer. Some highlights of the survey are: of repetition here: • As a group, ABA lawyers work very hard. Four of “We can hope, with some confidence, that the Law five work more than 40 hours a week, and more Society’s ‘Make A Will Week’ will help to overcome than eight of 10 work at least one Saturday a the natural reluctance of many people to make Wills month. Almost 30 percent work every Saturday. and convince people of the genuine necessity to make • Most lawyers have an office practice. The average proper testamentary provision for their families. In lawyer member works 47 hours a week but spends turn, solicitors must be ready to meet the challenge less than 1.25 hours a week in court. by drawing wills that suit the circumstances and • Despite the long hours and career pressures, 89 requirements of our time. percent said they are happy with their career “Historically, the earliest known will is apparently choice… attributed to Noah. Not merely was he reputed to have made the first will, but he also had the largest “With all that has been written about the increasing estate ever recorded. He bequeathed the world specialization of the profession, it should be noted between his three sons! Anyone who disputed this was that 44 percent of those surveyed indicated they were denounced as a heretic by a fourth century Bishop. in general practice. Twenty-two percent concentrated Noah did not, however, have to contend with the in corporate law, 11 percent in tax and 9 percent in Succession Act, Estate Duty or Capital Acquisitions real estate. One in every four checked off more than Taxes, nor with the complexities of agricultural values one area of concentration of practice” (Gazette, April and tax-free thresholds…” (Gazette, October 1982, 1984, p81). p181). And to finish on a funny, the June 1983 issue In ‘A Profile of Lawyer Lifestyles’ in the April features an amusing letter, dated 27 May, from 1984 issue, an article by Rosslyn S Smith (reprinted solicitor Grattan Neville in Clonakilty, Co Cork: from the American Bar Association Journal) posed the “Dear Sir following questions: Overheard at Dunmanway District Court on the 25th “Did you ever wonder if you’re earning as much as inst., whilst the Defence Solicitor was cross-examining Future director general other lawyers? When you worked on a Saturday, were a witness – “I must put it to you that the van had not Ken Murphy pictured in the March 1985 Gazette. you curious if other lawyers put in that much time? sufficient power left to mount the grass virgin”. At the time, he was the The ABA Journal wondered too, and for the first time “I have heard of a grass widow or widower but a youngest member of the ever developed a profile of what it’s like to work as a grass virgin?” (Gazette, June 1983, p141). G Law Society’s Council

www.lawsociety.ie 35 LAW SOCIETY GAZETTE DECEMBER 2006 PRACTICE MANAGEMENT practice doctor

Got an issue you would like addressed by our panel of practice doctors? Email: [email protected] CASHisKING ash is the lifeblood of any business, but statements and reminders to clients. All other cash management is an area where professional firms produce these. many solicitors’ practices fall down. • Distance the solicitors from the initial collection Many practices operate a crisis- process – they want the next instruction from the C management type system – they ignore client. cash management except when a crisis is looming, for example, the payment of a tax bill. Paying your suppliers The main suppliers are your own staff who are paid Managing work in progress (unbilled work) on a weekly or a monthly basis. Other suppliers are David Rowe: “Cash really There are two stages to good cash management – incidental to cash management in a solicitor’s is the lifeblood” managing work up to the time it is invoiced, and office, but you should take credit from your managing work after it is invoiced. The important suppliers and pay them at month-end following issues here are: receipt of their invoice, unless you have agreed • Agree the fees in advance with the client; don’t alternative terms. avoid the issue. Many partners often wonder why the profits they • Sending a ‘flyer’ does not work. The client will have made do not equal the cash in the bank always expect to negotiate if you do this. account. The answers are usually simple – they • Look for opportunities to invoice monthly or centre on management of one or a number of the quarterly statements. issues above. Cash really is the lifeblood. You will • Send out invoices immediately on closing. have one significant challenge removed if you follow the steps recommended above. G Collecting outlays Controlling outlays is another area where solicitors David Rowe is managing director of Outsource, business can make considerable improvements. Many firms advisors to Irish law firms. take the view that their competitors will pay all outlays for a client, and it is competitively damaging if they do not do so. This has changed significantly MANAGING THE BALANCE SHEET in the last number of years. There are a number of golden rules in managing the balance sheet: Due to the change in the personal injury litigation • Always finance fixed assets such as desks, IT equipment, cars, buildings following the introduction of PIAB, many firms who etc. These are items that offer value to the business over a number of years. were prepared to fund litigation outlays for a client Match this with a loan over a number of years, thereby avoiding an instant are no longer prepared to do so. A client expects to cash hit when a new asset is bought. pay for costs you incur on their behalf, and does not • Have the right mix of capital/debt. Many firms avoid having any borrowings expect you to fund it in most cases. in their balance sheet. This can be unduly harsh on the partners, as they end up with high amounts of capital tied up unnecessarily in the business. While Debtors – collecting invoices when they there is no rule of thumb, banks will happily finance a law firm approximately are issued 50/50 with the partners’ own capital. Having sent out the invoice to the client, assuming • Look after tax and pension payments monthly. Many firms experience the that you cannot be paid by transferring the costs annual trauma in gathering together sufficient funds to pay the partners tax from the client account with the client’s approval, and pension liability at this time of year. A more managed alternative is to the next stage is to collect the money from the transfer the expected tax and pension liability to a savings account on a client. Recommended steps here are: regular monthly basis. The end point is the same, this simply shifts the •Transfer monies in the client account quickly pressure from a huge once-a-year pressure to a monthly pressure to issue (with client approval). bills and collect cash. •Have accounts personnel issue monthly

36 www.lawsociety.ie BOOK REVIEWS LAW SOCIETY GAZETTE DECEMBER 2006 books

Civil Procedure in the Superior Courts (second edition)

Hilary Delany and Declan McGrath. Thomson Round Hall (2005), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-406-3. Price: €350 (hardback).

rimitive man had regard to and solicitors”. It would be court, judicial review and case- Pprocedure. The tribe would difficult, if fruitless, for me to stated procedure. sit in a circle with one man quibble with Mr Justice Peter The price of the book may speaking at a time. In fact, there Kelly. appear expensive to some, at was a concept of adherence to Seriously, procedural law plays €350, but why should authors proper procedure. Proper or a a significant role in the quest for slave endlessly to produce a tome degree of civilised procedure has justice. One must know how to for practitioners and others a relationship with due process. go about the process of seeking without some prospect of It was that great US judge Felix justice: otherwise one may fail reward? High Court work Frankfunter who wrote that the miserably. represents a significant part of “history of liberty has largely This book contains 30 the remuneration of many been the history of procedural chapters. There is a lawyers. safeguards” (McNabb v United comprehensive table of cases, Dr Delany and Mr McGrath States, 318 US 322, 347 [1943]). statutes, orders and other related have produced an invaluable Judge Peter Kelly, a master of instruments. There are about constructive work on the the intricacies of the law of 1,020 pages in the entire book. intricacies of civil procedure in practice and procedure (apart The table of contents reveals the neglected procedure, in my the superior courts of Ireland. from his gifts as a jurist), writes essence of the book. The titles of opinion), security for costs, delay The book is admirably thorough, in the foreword to the second the chapters include the and want of prosecution, striking eminently readable and the gifts edition of Delany and McGrath’s commencement of proceedings out proceedings, discontinuance, of intelligence and scholarship of book that the authors have in the superior courts, service of lodgements and offers, the authors enhance our own produced “a work of high quality proceedings, appearance, settlement of proceedings, understanding of the seminal and great utility”. Judge Kelly pleadings, joinder of causes of appeals, costs (a matter of importance of procedural law in goes so far as to state that the action, remittance of seminal importance for lawyers our superior courts. G book is a “vade mecum” for any proceedings, third-party of all hues), the summary legal practitioner – “an procedure, discovery, summons procedure, personal Dr Eamonn G Hall is the chief invaluable tool for bench, bar interrogatories (a much injury actions, the commercial solicitor of Eircom Ltd.

www.lawsociety.ie 37

BOOK REVIEWS LAW SOCIETY GAZETTE DECEMBER 2006 Older People in Modern Ireland: Essays on Law and Policy

Eoin O’Dell (ed). First Law (2006), Merchant’s Court, Merchant’s Quay, Dublin 8. ISBN: 1-904480-32-2. Price: €145. his book is essential reading other relevant topics. Ita Mangan, barrister, is equality law in the context of EU Tfor any practitioners who Some of the papers give very extremely critical of the fact that law and discusses the Equality have elderly clients. The book good practical guidance on issues it is difficult for older people to Authority report Implementing grew out of two conferences. such as wards of court, powers of vindicate whatever rights they Equality for Older People. The first was organised by the attorney and other issues relating have against the health service Consultant geriatrician Irish Women Lawyers’ to incapacity. without taking cumbersome, Desmond O’Neill and Dr Association in January 2005. The However, I would like to costly and time-consuming court Marianne Falconer discuss the second was organised by the highlight a number of the action, and she rightly bemoans complex care needs of older Trinity Law School in April papers. Law Reform Commis- the absence of a statutory inde- people in nursing homes, and 2005. Papers from both of these sioner Patricia Rickard Clarke pendent complaints and appeals Estelle Feldman looks at the role conferences and from other has an excellent paper, written in machinery for the health service. of the ombudsman in enforcing contributors are included in this her usual erudite fashion, on Barrister Oran Doyle and Prof the rights of the elderly. excellent publication. elder abuse and the greater legal Gerry Whyte give an excellent This book is not just In all, there are 22 papers protection required to prevent analysis of the reasoning of the compulsory reading for relating to older persons written physical, sexual, psychological Supreme Court in the striking solicitors, but also for any by well-known specialists and and financial abuse and general down of the Health (Amendment) professional person involved in lawyers, involving legal and neglect of the elderly. (No 2) Bill 2004, where it was the elderly. Eoin O’Dell is to be medical problems, elder abuse, There is also an excellent held that the attempt by the state congratulated for this age discrimination, nursing- paper by Jane Liddy on how the to retain unlawfully exacted publication. G home care, social policy, recent European Convention on Human charges for health care was an in- Law Reform Commission Rights can be used to help en- vasion of vested property rights. John Costello is head of the private proposals, the Constitution and force the rights of the elderly to Colm O’Cinneide discusses client department at Dublin law health-care costs, and many obtain appropriate nursing care. age discrimination and Irish firm Eugene F Collins.

www.lawsociety.ie 39 LAW SOCIETY GAZETTE DECEMBER 2006 PEOPLE AND PLACES

Dublin solicitor is IRFU president ublin solicitor Peter Boyle Dhas taken office as president of the Irish Rugby Football Union for the 2006/07 season. As always when a solicitor takes the helm, unprecedented success follows. Victory at Lansdowne Road over southern hemisphere giants Last Word on the Calcutta Run! South Africa and Australia has Ireland rugby star Gordon D’Arcy and Today FM’s The Last Word lifted the Irish international rugby presenter Matt Cooper presented a cheque for €230,000 to GOAL team to the heady heights of and the Peter McVerry Trust in the offices of A&L Goodbody in Dublin on third-best in the world rugby late Cyril Boyle – a travelling 23 November. Both charities will receive €115,000 each. The cheque represents the proceeds from the 2006 Calcutta Run, which has raised rankings. Could this be the year reserve for Ireland in the mid a grand total of €1.53 million for the two charities over the past for the elusive ‘Grand Slam’? 1930s. Cyril was also an Irish eight years. Thanks to all Law Society staff who took part or helped What about the World Cup? team and Lions selector in with the 10km run in May A third-generation solicitor and 1959. Peter is a nephew of ex- principal of Charles BW Boyle Irish international wing, Vesey and Son, Dublin, the president Boyle, who was capped nine played his rugby as a centre/ times between 1936 and 1939 wing/full back for Dublin and is the last surviving member University and Wanderers FC, of the 1938 Lions team. and also had spells with Injury cut short Peter’s Milwaukee RFC and Sydney playing career and led to early University. He is a past pupil of administrative involvement with the High School in Dublin. Peter the Leinster Branch. There, he was a member of the last Trinity followed in the footsteps of his College team to win the Leinster father (1955-56) by being Senior Cup, in 1976, and is the enrolled as president in 1983- club’s first delegate to become 84. He was also honorary president of the IRFU since HM treasurer of the Leinster Branch STEP it up Read in 1955-56. for 14 seasons. Trust and estate planning lecturers pictured with members of the Steeped in a rich rugby He is currently one of the diploma team, Stuart Gilhooly, chairman of the Education Committee, tradition, the IRFU president, IRFU’s delegates on the and Paraic Madigan, chairman of the Society of Trust and Estate who is married to Joan and has International Rugby Board, Practitioners, Ireland

three children, Melanie, Jeremy European Rugby Cup and Six PIC: LENSMEN and Christine, is a son of the Nations Committees.

Looking east At the Law Society/International Bridges to Justice (IBJ) ‘Communities of Stress busters Conscience’ meeting, in Dublin on 24 October, were: (back, l to r): At the recent seminar on liability for occupational stress were (l to r): Philip McNamara (Inspire Nation, sponsor), Barry Donoghue (deputy Barbara Joyce (Law Society), Patrick Groarke (Groarke and Partners, DPP), Jennifer Smith (IBJ), Ken Murphy (director general of the Law Solicitors, Longford), Dr Abbie Lane (consultant psychiatrist at Dublin Society), Yang Jie (IBJ), Colette Carey (Law Society Criminal Law County Stress Clinic), Miss Justice Mary Laffoy (who chaired the Committee) and Lin Zhu and Yuxin Wang (interpreters). (Front, l to r): seminar), Michael Kennedy (BCM Hanby Wallace) and Ian Moore Zhang Xuemei (IBJ), Li Baoyue (IBJ), Michael Irvine (then president of (A&L Goodbody) the Law Society), Wu Ge (IBJ) and Mr Justice Dermot Kinlen

40 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE DECEMBER 2006

Commercial conferees Conferees of the Diploma and Certificate in Commercial Law, pictured with Judge Peter Kelly, Michael Irvine (immediate past-president of the Law Society) and Stuart Gilhooly (chairman, Education Committee) on 1 November 2006

Cream of the crop Arthur Cox have been awarded Prize-winners’ podium Irish Law Firm of the Year for FE1 prize-winners received their awards from the then President of the Law Society, Michael G Irvine, in the the second year running at the presence of guest speaker Mary Robinson. The Overend Scholarship – Jennifer O’Sullivan; Constitutional Law annual Chambers’ Global Awards – Marianne Bogue and Nicola Heskin. Criminal Law – Jennifer O’Sullivan; Contract Law – Iseult Ní Ghallchoir; ceremony in London (l to r): Law Of Equity (Patrick O’Connor Memorial Prize) – Brendan Murphy, presented by John O’Connor. EU Law – Francis Neate (president of the Gina Conheady; Law of Tort – Mary Townsend; Law Of Property – Gina Conheady and John Aherne; and the International Bar Association) King’s Hospital Prize – Joanne Neary with Padraig O’Riordain (managing partner of Arthur Cox)

Award for excellence Alma Sheehan receives the Award Law Reform Essay Prizewinners for Excellence (Junior Category) Attending the Law Reform Essay Prize-giving ceremony were (l to r): Director General of the Law Society Ken from Kevin O’Higgins at the AGM Murphy, Maebh Harding (joint 1st place), Liz Campbell (joint 2nd place), President of the High Court Mr Justice of the Dublin Solicitors’ Bar Joseph Finnegan, the then President of the Law Society Michael G Irvine and Yvonne Marie Daly (joint 2nd place) Association

www.lawsociety.ie 41 netWork risk health & safety ltd. STUDENT PAGE LAW SOCIETY GAZETTE DECEMBER 2006 student spotlight

World triathlon glory for MOPs trio t might have been Cancun in recuperation on Cancun’s Ithe sun, but for one member stunning beaches afterwards. of the Matheson Ormsby “We took part in a number Prentice triathlon team taking of triathlons during the part in the Corporate Team summer, putting in some World Championships in pretty good performances, so Mexico, what started out as a we thought we had a pretty swim in the sun ended as a good chance,” Keira-Eva told cycle and running puddlefest. the Gazette. She came 62nd in Paul Gillick’s efforts paid off, the World Agegroup Triathlon however, when he and his Champsionships in Lausanne teammates, Keira-Eva Mooney in Switzerland last September. and Aidan Kelly, took gold in “I probably put in one of my the inaugural International best performances there,” she Tr iathlon Union Corporate said. Team World Championships. “We’re really over the The trio, representing moon about our win in Matheson Ormsby Prentice A trio of loveable MOP-tops Cancun and are very proud to and Belpark Triathlon Club in have done our firm proud,” Dublin, travelled to Mexico to however, with the trio taking event. All three were presented said Keira-Eva. “We look take part in the event on 5 the laurels in the ‘Mixed with gold medals and enjoyed forward to defending our title November. Each member of Category’ at the end of the a few days of well-earned next year.” the team had to complete a triathlon comprising a 500- metre swim, 13-kilometre Blackhall men on a winning streak cycle and a 3.3-kilometre run, handing off to the next he Blackhall men’s gaelic from the Blackhall boys was tense first half, Blackhall led by teammate in the relay event. Tteam got their season off to required to overcome the 1-05 to 1-03. The game was a strong start in early October dogged challenge of Froebel ultimately decided by a goal five Hot competition with victory over Cóláiste na Teaching College. The minutes from time, with A total of 18 corporate teams hÍde, Finglas. Understandably, combined elements of freezing Blackhall winning by six points: from 11 countries took part, it took a while for the team to cold, driving rain and a gale- 2-09 to 1-06, thereby clinching featuring some of the world’s gel in what was the first match force wind led to a low-scoring qualification for the quarter- top athletes. Keira-Eva found of the year. However, a strong scrappy affair, with the sides finals. herself lining up against the work ethic from all players level at half time 0-04 to 1-01. The Dun Laoghaire Institute world’s most decorated ensured that Blackhall won on a However, Blackhall’s of Art, Design and Technology Olympic swimmer, Jenny scoreline of 1-12 to 1-7. determination and will to win provided the opposition in the Thompson, who boasts 12 Blackhall’s opponents in the fashioned a hard-fought, but final round of the group stages. Olympic medals – eight of second round were Trinity well-deserved, five-point win: In what can only be described them gold! College. A blistering first-half 1-08 to 1-03. as Blackhall’s most complete Weather conditions at the performance saw the team lead Round four of the league team performance to date, we Mexican event ranged from 4-06 to 0-03 at half-time. With brought Blackhall up against ran out comprehensive winners sunny to stormy. Paul, the victory assured, complacency the Royal College of Surgeons on a scoreline of 4-19 to 1-00. anchor man, had just set in and a shell-shocked and, with the chance of It is hoped that the Blackhall completed his swim in fine Trinity fought back admirably becoming the first-ever men’s gaelic team continues its weather but had to complete to salvage some pride. Final Blackhall men’s gaelic team to winning streak and that it his cycle and run in Monsoon- score: 4-07 to 0-08. qualify for the knock-out stages, qualifies for the league final in like conditions. The training Seeking to secure a hat-trick the match took on added December. and hard work paid off, of victories, a committed effort significance. At the end of a Colm Mullen

www.lawsociety.ie 43 LAW SOCIETY GAZETTE DECEMBER 2006 PARCHMENT CEREMONIES gain, Maebh Ní Mhaoileoin, Suzanne O’Keeffe, Leonard, Jennifer Magee, Joseph Maguire, Peter Malone, Roisin Burke, Conor Carrigan, Colin Clarke, Aislinn Coll,

Society Ken Murphy were guests of honour at the 10 February Scollan, Marie-Clare Scullion, Brendan Sharkey, Lucinda Shaw, Lucinda Shaw, Scollan, Marie-Clare Scullion, Brendan Sharkey,

ynda Smyth, Verona Smyth, Niamh Tuite and Clare Vance Smyth, Niamh Tuite ynda Smyth, Verona L of their parchments on 10 February 2006 Newly-qualified solicitors at the presentation Aoife McCann, Padraig McDermott, Sorcha Helen McGrath, Ian McKenna, James McMahon, Dermot Ní Chuinnea Morahan, Caroline Murphy, Parchment Ceremony for newly-qualified solicitors: Susan Appelbe, Catherine Barry, Catherine Bourke, Seamus Bowe, Sarah Brophy, Gillian O’Mahony, Dermot O’Reilly, Eibhlinn O’Sullivan, Pauline O’Toole, Linda Ramsbottom, Orla Reilly, Rosemary Linda Ramsbottom, Orla Reilly, Scallan, Paula Eibhlinn O’Sullivan, Pauline O’Toole, Dermot O’Reilly, Gillian O’Mahony, Former President of Ireland, Mary Robinson, then President of the Law Society Michael G Irvine, and Director General of the Law Colette Culleton, Emma Cummins, Tomas Davy, Yvonne Donlon, Padraig Gleeson, Sarah Halpin, Carol Jermyn, Justin Lennon, Deborah Davy, Colette Culleton, Emma Cummins, Tomas

44 www.lawsociety.ie PARCHMENT CEREMONIES LAW SOCIETY GAZETTE DECEMBER 2006 vid Walsh and Paul White vid Walsh da Murphy, Sinead Murphy, Jean Murray, Clare Naughton, Jean Murray, Sinead Murphy, da Murphy, l of the Law Society Ken Murphy were guests of honour at aron Keely, Kathleen Kelly, Conor Linehan, Niall Mac Giollabhui, Kathleen Kelly, aron Keely, Eileen Fingleton, Finnuala Finn, Sarah Galligan, Sharon Gardner, ith Byrne, Glenda Carry, Fiona Cullivan, Jean Connors, Ian Crotty, of their parchments on 7 April 2006 Newly-qualified solicitors at the presentation Gareth Noble, Kathryn Da O’Driscoll, Conway O’Hara, John O’Neill, Heather Robinson, Ann Shiels, Simon Shire, Catherine Tarrant, President of the High Court Mr Justice Joseph Finnegan, then President of the Law Society Michael G Irvine, and Director Genera the 7 April Parchment Ceremony for newly-qualified solicitors: Eilis Anglim, Michelle Beirne, John Bourke, Jennifer Burke, Orla Donal Gavin, Maeve Geoghegan, Claire Gilligan, Angela Glynn, Margueritte Glynn, Muriel Hannon, Ciara Hassett, Patrick Healy, Sh Donal Gavin, Maeve Geoghegan, Claire Gilligan, Angela Glynn, Margueritte Glynn, Muriel Hannon, Ciara Hassett, Patrick Healy, Kate Cunningham, Joyce James Downing, Philip Egan, Sari Eyres, Caroline Fanning, Lorraine Farrell, Niamh Farrelly, Susan Grimes, Sonya Henaghan, William Henry, Deirdre Malone, Ciara McDonnell, Gregory McLucas, Siun McMahon, Michael Moran, Fre

www.lawsociety.ie 45 LAW SOCIETY GAZETTE DECEMBER 2006 PARCHMENT CEREMONIES e Roche, Thomas Simmons, Triona Sugrue, Karene Roche, Thomas Simmons, Triona Sutton, gh, Cian McGrath, Paraic McKeogh, Declan Moloney, Ruairi Mulrean, gh, Cian McGrath, Paraic McKeogh, Declan Moloney, vey, Therese Gunning, Timothy Hennessy, Aoife Henry, Tracy Horan, Aoife Henry, Tracy Therese Gunning, Timothy Hennessy, vey, r en Murphy were guests of honour at the 9 June Parchment Ceremony n Dooley, Fiona Downes, Gavin Driscoll, Lorna Duffy, Barbara Eivers, n Dooley, Stephen Swabey, Olivia Thompson, Mark Tierney, Deirdre Ward, Deborah Weekes and Elizabeth Upton Deirdre Deborah Weekes Ward, Olivia Thompson, Mark Tierney, Stephen Swabey, of their parchments on 9 June 2006 Newly-qualified solicitors at the presentation Piarais Neary, Jonathan O’Brien, Miriam O’Connor, Brid O’Dwyer, Naomi O’Higgins, Ruth O’Neil, Lisa O’Reilly, Brian Ormond, Maev Naomi O’Higgins, Ruth O’Neil, Lisa O’Reilly, Brid O’Dwyer, Piarais Neary, Jonathan O’Brien, Miriam O’Connor, for newly-qualified solicitors: Alvaro Blasco, Eric Boland, Robert Patricia Crosbie, Barry Burke, Sarah Cassidy, Denham, Mauree Aisling Fair, Helen Ferguson, Peter Finan, Finian Finn, Thea Fisher, Shiona Fitzgibbon, Gemma Forde, Louise Gallagher, Niamh Ga Shiona Fitzgibbon, Gemma Forde, Helen Ferguson, Louise Gallagher, Peter Finan, Finian Finn, Thea Fisher, Aisling Fair, Ms Justice Mary Finlay Geoghegan, then President of the Law Society Michael G Irvine, and Director General of the Law Society K Susan Hudson, Katherine Keane, Donal Keating, Laura Florence Lavelle, Ciaran Ledwith, Ailbhe Levingstone, Aoife McDona

46 www.lawsociety.ie PARCHMENT CEREMONIES LAW SOCIETY GAZETTE DECEMBER 2006 an, Emma Murphy, David Nevin, Suzanne O’Hare, an, Emma Murphy, arie Hourigan, Patrick Hume, Alina Jokinen, Alan Keating, Stapleton, Sharon Van Sinderen, Sinead Swan, Paul Waldron, Sinderen, Sinead Swan, Paul Waldron, Stapleton, Sharon Van

rd Denise Buckley, Sorcha Burke, Caoimhe Clarkin, Emma Coffey, Denise Buckley, Brendan Frawley, Andrew Freeman, Dolores Gacquin, Sean Gethin, Brendan Frawley,

nd Director General of the Law Society Ken Murphy, were guests of nd Director General of the Law Society Ken Murphy, Dairine Walsh and Hilda Wrixon Dairine Walsh of their parchments on 7 July 2006 Newly-qualified solicitors at the presentation Mairin Kelleher, Joeanne Kenny, Siobhan Laighleis, Michael Leonard, Patricia Lulling, Gemma McMullin, Sorcha Monaghan, Anna Mor Joeanne Kenny, Mairin Kelleher, honour at the 7 July Parchment Ceremony for newly-qualified solicitors: Liesl Assa, Siuna Bartels, Darragh Blake, Peter Boyle, June Glynn, Joyce Good, Donogh Hardiman, Elaine Healy, Michelle Henry, Helena Hickey, Gillian Higgenbotham, Emma Holden, Nina M Michelle Henry, Helena Hickey, June Glynn, Joyce Good, Donogh Hardiman, Elaine Healy, Robert O’Keeffe, Emily Ryan, Elma Shanahan, Conor Stafford, Catherine O’Meara, Fiona O’Neill, Peter Laura Pelly, Richa Mr Justice John L Murray, Chief Justice, then President of the Law Society Michael G Irvine,Mr Justice John L Murray, Rory Brady SC, Attorney General, a Michael Cooney, Mark Dillon, Yvonne Donaghey, Paul Donnelly, Fiona Doyle Margaret Fahy, Alex Fegan, Adrian Flynn, Philip Fiona Doyle Margaret Fahy, Paul Donnelly, Mark Dillon, Yvonne Donaghey, Michael Cooney,

www.lawsociety.ie 47 LAW SOCIETY GAZETTE DECEMBER 2006 PARCHMENT CEREMONIES ’Regan, Sandra O’Reilly, Aileen O’Riordan, Yvonne Quinn, ’Regan, Sandra O’Reilly, allanan, Aislinn Campion, Cormac Carty, Nessa Cox, Irene Daly, McCarthy, Mary Sarah Morrissey, Clare Morrissey, Rose McNally, en Murphy were guests of honour at the 1 September Parchment

, Catherine Hayden, Sinead Hayes, Karl Hutchinson, Emma Jean Hinchy, Brian Shortt, Madeleine Thornton, and Jennifer Tuite Oliver Tighe, Andrew Traynor Michael Smyth, Nicola Sweeney, of their parchments on 1 September 2006 Newly-qualified solicitors at the presentation Dearbhail Mulhern, Kate Murphy, Blaithin O’Brien, Lara Maria O’Brien, Daithi O’Donnabhain, Eanna O’Malley, John O’Regan, Ruth O Blaithin O’Brien, Lara Maria Daithi O’Donnabhain, Eanna O’Malley, Dearbhail Mulhern, Kate Murphy, Ceremony for newly-qualified solicitors: Scott Barry, Ann Byrne, Hilary Jeanne Boyle, Stephen Brennan, Anne Marie Byrne, Tara C Louise Kelly, Lisa Killeen, Cathal Lavelle, Audrey Leahy, Eoin Madden, Maura Neil Maguire, Caitriona McCarthy, Jennifer Lisa Killeen, Cathal Lavelle, Audrey Leahy, Louise Kelly, Ms Justice Mary Finlay Geoghegan, then President of the Law Society Michael G Irvine, and Director General of the Law Society K Maureen Daly, Ruairi Dennison, Julia Emikh, Cian Farrell, Emeria Flood, Hazel Flynn, Grainne Ghent, Emily Gleeson, Noirin Grace Maureen Daly,

48 www.lawsociety.ie PARCHMENT CEREMONIES LAW SOCIETY GAZETTE DECEMBER 2006 nnell, Ciara O’Gorman, Ruth O’Malley, Noeleen Ruddy, Noeleen Ruddy, nnell, Ciara O’Gorman, Ruth O’Malley, l of the Law Society Ken Murphy were guests of honour at the , Katherine Cussen, Patrick Daly, Melanie Dodds, Shane Donnelly, , Katherine Cussen, Patrick Daly, nham, Darina Hannan, Enda Hurley, Barbara Jordan, Sinead Keavey, nham, Darina Hannan, Enda Hurley, Anita Sothern, Donal Twomey and Joanna Walsh of their parchments on 6 October 2006 Newly-qualified solicitors at the presentation Caroline Lynch, Nicola Lynch, Tomas Lynch, Gerard Mooney, Ruth Nic Aoidh, Gillian O’Callaghan, Mary Lynch,Caroline Gerard Lynch, Mooney, Nicola Lynch, Lucy O’Connell, Carmel Tomas O’Do President of the High Court Mr Justice Joseph Finnegan, then President of the Law Society Michael G Irvine, and Director Genera 6 October Parchment Ceremony for newly-qualified solicitors: Jon Bayle, Niamh Baxter, Eamonn Burke, Elizabeth Cox, Nicola Curry6 October Parchment Ceremony for newly-qualified solicitors: Jon Bayle, Niamh Baxter, Sinead Dunne, Sandra Egan, Lynne English, Denise Fanning, Brian Foley, John Fuller, Nessa Gardiner, Caroline Garland, Karen Gre Nessa Gardiner, John Fuller, Sinead Dunne, Sandra Egan, Lynne English, Denise Fanning, Brian Foley,

www.lawsociety.ie 49 LAW SOCIETY GAZETTE DECEMBER 2006 PARCHMENT CEREMONIES James Reilly, Maeve Roche, Derek Stenson, Oisin Suttle, James Reilly,

y, e, Michael Moroney, Laura Mulrooney, Justin Murphy, Ronan Murphy, Justin Murphy, Laura Mulrooney, e, Michael Moroney, were guests of honour at the 26 October Parchment Ceremony for r

ll, Jessica Fergus, Iain Ferguson, Elayne Fitzmaurice, David Gaffney, Emma Walsh and Christopher Wheeler Emma Walsh of their parchments on 26 October 2006 Newly-qualified solicitors at the presentation Aine Ní Fhlatharta, Neil O’Keeffe, Brendan O’Brien, Donogh O’Donovan, Emmet O’Grady, Alma O’Sullivan, Timothy Quinn, Dawn Reill Mr Justice Michael Peart, then President of the Law Society Michael G Irvine and Director General of the Law Society Ken Murphy newly-qualified solicitors: Eleanor Bannon, Emily Comber, Patrick Connor, Jayne Deasy, Laura Dunne, Sinead Durcan, Sheana Farre Jayne Deasy, Patrick Connor, newly-qualified solicitors: Eleanor Bannon, Emily Comber, Jeffrey Greene, Paul Kerrigan, Peter Lavery, Cormac David McCarroll, MacDiarmada, Brian Maher, Elizabeth McSharry, Caroline Moo

50 www.lawsociety.ie ADVERTISEMENT FEATURE: ANNUAL CONFERENCE

Annual Conference 2007 April 11-15 • Cannes

Solicitors’ Mutual Defence Jardine Lloyd Thompson Ireland Limited ADVERTISEMENT FEATURE: ANNUAL CONFERENCE

Message from the president Option 1 • Charter package

The cost includes return flights, taxes, transfers, four nights bed and breakfast at the spectacular Hotel Martinez, welcome reception, conference seminar and gala banquet.

Full delegate *?1,350 Accompanying person ?1,250

Surcharges could apply in respect of changes in air fares or increases in insurance premiums or VAT/tax rates in respect of the hotel.

Charter flights : 11 April 2007 departure from Dublin – morning flight – times tbc. 15 April 2007 departure from Nice – afternoon flight – times tbc. (Exact times will be detailed in your booking confirmation. The charter flight will be allocated strictly in order of bookings received.)

Connecting flights: Delegates are asked to make their own arrangements for connecting flights.

Single room supplement: ?100 per night. * Includes ?100 registration fee

Dear Colleague,

This year the Annual Conference of the Law Society will be held in Cannes from 11 to 15 April 2007. Option 2 • Package less flights I am sure I do not need to tell you what a stunning location it is. The Conference To facilitate delegates from outside Dublin, we are offering a package without flight option so that delegates can book their Committee have spared no effort in putting own flights from local airports. Flights will be the responsibility together an interesting and varied programme. of the individual to arrange. Please check with local airlines for information. Aer Lingus operate direct flights from Cork to Nice The area has some fantastic amenities and (at time of going to print). we have been assured of fine weather! Full delegate *?990 Accompanying person ?890 We are very grateful to our sponsors, Bank of Ireland, Jardine Lloyd Thompson Ireland Ltd, The cost includes taxes, four nights bed and breakfast at the Hotel Martinez, welcome reception, conference seminar and Benson & Associates and the Solicitors’ Mutual gala banquet. Surcharges could apply in respect of changes or Defence Fund for their continued and very increases in insurance premiums or VAT/tax rates in respect of the hotel. This price does not include airport transfers, flights generous support of our conference. and may incur hotel surcharges.

Single room supplement: ?100 per night. I am very gratified that so many of you have * Includes ?100 registration fee made advance bookings and I invite those of you that have not yet booked to now do so. I hope that you will find it to be a really enjoyable event and I look forward to meeting you there.

Philip M Joyce President Online booking available at www.lawsociety.ie ADVERTISEMENT FEATURE: ANNUAL CONFERENCE

Registration fee Programme

Payable by delegates only and not accompanying persons: ?100 WEDNESDAY, 11 APRIL 2006 Accommodation Morning Assemble for departure at Dublin Airport (charter package).

All delegates will be accommodated at the Hotel Martinez, which Afternoon Arrival at Nice Airport. is conveniently located on Le Croissette in Cannes, enjoying Transfer to hotel for check-in. wonderful views. This year we are offering guaranteed sea-view rooms upon payment of a supplement (limited availability – see Evening Welcome reception for all participants. booking form for details). Venue: Hotel Martinez Cannes.

THURSDAY, 12 APRIL 2006

Morning and Optional tour: full-day Nice, Villa Ephrussy afternoon De Rothschild and Eze Village.

Evening At leisure.

FRIDAY, 13 APRIL 2006

Morning Conference business session. Venue: Hotel Martinez Cannes.

Afternoon Optional tour: half-day wine tasting at Chateau de Bellet.

Evening Drinks reception and gala dinner. Venue: Hotel Martinez Cannes (Dress: smart informal). Social programme SATURDAY, 14 APRIL 2006 The conference will open on Wednesday evening with a welcome reception for all participants at the Hotel Martinez. Morning and Optional tour: half-day tour of Maeght afternoon Foundation and St Paul de Vence On Thursday, there will be an optional full-day tour of Nice, Villa Ephrussy de Rothschild and Eze village. Delegates can Evening At leisure. experience a short sightseeing walking tour of Nice, where you can take in many city attractions such as the Promenades des SUNDAY, 15 APRIL 2006 Anglais, the harbour and also the Vieux-Nice, the most pictur- esque area of the city. Afternoon Departure.

The tour continues to the magnificent Villa Ephrussy de Rothschild and Gardens. This is one of the finest listed buildings Booking arrangements on the French Riviera, an area known locally as the Cape of Millionaires. Constructed between 1905 and 1912, the Villa is The closing date for receipt of bookings is 20 February 2007. home to an extraordinary collection of art. A stroll through the Please complete the reservation form and return with payment. stunning gardens overlooking the Mediterranean Sea is highly Any remaining monies will be collected in advance of the recommended. Lunch will be provided. From here, delegates will conference. It is the responsibility of the delegate to submit all be taken to Grasse to visit the Fragonard Perfume factory. Known required passport information. as the world’s perfume capital in 1926, you can complete your tour by purchasing perfume, soaps and cosmetics as a souvenir of your day. Contact details Friday’s optional tour is a half-day wine tasting at Château de Bellet. The castle is a splendid example of Niçoise architecture If you would like any further information, please contact: and the Bellet vineyard, located within the city’s boundaries, Niamh McCrystal or Deborah Hayden (Ovation Group) produces some of Provence’s best vintage wines. The tour starts tel: 01 280 2641, email: [email protected] with a visit of the vineyard and culminates with wine tasting in the castle accompanied with typical local bread – a treat for all budding wine connoisseurs!

Friday evening will include a drinks reception and gala dinner at Hotel Martinez.

On Saturday, there will be a half-day tour of Maeght Foundation and St Paul de Vence. The Maeght Foundation hous- es an impressive collection of modern art works. Sculptures and mosaics by famous artists Miro, Giacometti, Chagall and Braque can be seen in the beautiful gardens. The tour continues to the magical hill-top village of St Paul de Vence, where delegates can discover the narrow paved streets, chapels and the ancient build- ings of this famous Provence village. Online booking available at www.lawsociety.ie ADVERTISEMENT FEATURE: ANNUAL CONFERENCE

Booking/cancellation terms and conditions

1. The Conference Secretariat must receive notification of The organisers reserve the right to alter any of the all cancellations in writing (by email or fax) to arrangements for this conference, including cancellation Deborah Hayden/Niamh McCrystal, Ovation of the event should unforeseen circumstances require Group, 1 Clarinda Park North, Dun Laoghaire, such action. The organisers accept no responsibility for Co. Dublin. resulting costs and inconvenience to delegates, who are 2. Cancellations received up to and including 31 advised to have their own travel insurance in place. December 2006 will be subject to a 10% cancellation The currency exchange rate to be applied in the case fee. of payments and refunds will be based on the available 3. Cancellations received from 1 January 2007 to 19 exchange rate at the time of the transaction. Ovation February 2007 will be subject to a 50% cancellation Group is not responsible for any changes in exchange fee. rates that may cause any differences or any other 4. No refunds will be given after 20 February 2007. additional fees levied by your bank or card processor. 5. Cancellation should be communicated in writing or by By registering for the Law Society of Ireland Annual email. Transfer of registration fee to another delegate Conference, delegates give permission for their contact will be accepted. Please inform the Conference details to be used for official purposes and to be included Secretariat of any changes as soon as possible. in the list of participants. 6. No contract shall arise until full payment has been received and a Booking Form (which will be sent with written confirmation of acceptance of the reservation) has been signed and returned. 7. Travel agent reserves the right to allocate all bookings on flights. It is the responsibility of the delegate to submit correct passport details. Charges will apply for change of details.

Solicitors’ Mutual Defence Jardine Lloyd Thompson Ireland Limited BRIEFING 55 pro bono www.lawsociety.ie DECEMBER 2006 DECEMBER eport sonnel and the documenta- tion – for those clients of ours wishing to transact their busi- ness in that language.” r ributes and thanks Death threats against a solicitor The director general briefed the Council in relation to corre- spondence and discussions with aris- the Garda Commissioner, ing from death threats made reported He against a solicitor. to the Council on a meeting with the solicitor concerned and the security measures that had been put in place as a consequence of the threats. The Council expressed their revulsion at the aris- threat to life of the solicitor, ing from his fearless representa- tion of his client. ing the involvement of all sectors ing the involvement of of the community in community that a initiatives. It was noted had legal profession sub-group three dif- been established and had been ferent work streams (a) a lia- identified, comprising bility risk initiative, (b) a initiative, and (c) an individual participation initiative, with spe- cific working groups focusing on each strand. T The president paid tribute to past presi- Patrick O’Connor, dent, who was retiring from the Council after 28 years of service. He also paid tribute to Anne Orla Coyne, Sinead Colley, Behan and Jerome O’Sullivan, who were not seeking re-elec- tion to the Council. On behalf of the Council, he thanked each of them for their contribution to the work of the Council and its committees over many years. LAW SOCIETY GAZETTE , in which he had council annual education courses to enable them to achieve com- petency in legal Irish; through its departments and agencies, to provide through the medium of Irish all legal services – to include the per- The director general said that The director general said aoiseach with a view to increas- their support for the Council and the president for the coming year. Approval of motion passed at AGM The Council approved the motion passed at the AGM on the previous evening, as follows: “That having regard to the renewed interest of more and more people in the Irish lan- guage, the Law Society should: 1) Provide its members with 2) Request the government, following Thursday. whol- the Law Society had been ly supportive of the proceedings. contents The Council noted the interview of the transcript of his letter to with Pat Kenny and his The Irish Times emphasised that no reasonable person should attach any credi- bility to the website. Appointments to other bodies The Council approved the appointment of Paul Keane as representative on the Society’s the Published Accounts Awards Committee and the appoint- ment of Patrick O’Connor and Andrew Cody to the Society of Actuaries Disciplinary Panel. Active Citizenship The Council discussed the Active Citizenship initiative that had been launched by An T The senior vice-president, ipperary and to be in such Society’s submission urged the submission urged Society’s to implementation group recognise that such prescribed of guidelines were not capable contra- implementation without dicting the central recommenda- rele- tion of the Haran Group vant to access to justice – namely that successful parties should not suffer a penalty in vindicating their rights and thus should be entitled to recover their costs reasonably incurred in the process. ratemysolicitor.com The president reported that the court case brought by a barrister had against ratemysolicitor.com been before the court on the as a consequence previous day, of which Mr Justice Hanna had made an order requiring the administrators of the website, Digiweb, to reveal the identities of those behind the site. The matter had been put back to the Joyce, every success in the com- was then Mr Joyce ing year. formally appointed as president He said that he of the society. was honoured to be the fifth president of the Society from T esteemed company as John Lawrence J Ryan, Carrigan, Senator John Nash He paid trib- and Don Binchy. ute to the hard work and com- mitment of Michael Irvine dur- ing his year of office. He also acknowledged the support and encouragement of his wife, Anne, and children, Colin, Janet and Heather. James MacGuill, and the junior vice-president, John Costello, then took office and indicated Report Council Society of Law meeting held on 6 October 2006 held on 6 October meeting In relation to the proposed The Council noted that the aking of office of president guidelines on legal costs, the model form bill of costs appeared to envisage a pure sys- tem of hourly-charging for solic- itors’ work. It was noted that this represented a departure from the the Haran report. Consequently, Society had highlighted the sig- nificant limitations of measuring costs by reference to recorded time and hourly charge-out rates. The submission suggested that, should any costing system be limited to hourly rates, it should provide for an uplift on such hourly charges to take into account factors other than time. Implementation Group on Legal Costs a sub- The Council approved Imple- mission to the Miller Legal mentation Group on group’s Costs, in response to the on a request for comments model form bill of costs. T and vice-presidents The outgoing president, Michael Irvine, thanked the Council members, the director general and the staff of the soci- ety for their support during his term of office, a year that he had found to be very rich in both professionally collegiality, He wished the and personally. incoming president, Philip New Council members The Council welcomed its new Council members, Maura Derivan, Barry McCarthy and Patrick Mullins, together with Patrick Dorgan, who had been re-elected after a break from the Council, and wished them well for their term of office. Report held on 3 November 2006 of Law Society Council meeting G Practitioners should there- Practitioners should 2007 and the property can be 2007 and the property need to dealt with without the to the produce such certificates Land Registry. of any fore note that, in respect holding cases where they are or liens over land certificates certificates of charge for unpaid fees, they should now consider identifying such liens with a view to having a legal charge executed by the client, thus cre- ating a legal charge capable of registration to replace the lien. In the alternative, solicitors may wish to identify such liens with a view to taking alternative steps to secure any sums due. . Registration of Under section 73 of the above act, the land certificate or certificate of charge will cease to have any legal status or effect after three years from 1 January tor’s common-law lien over a common-law lien over tor’s of title deeds in respect client’s by unpaid fees will be treated merely a the Land Registry as them- lien over the documents the land selves (for example, a lien on certificate) and not as It has been indi- the property. cated that it is the intention of the Land Registry that the latter type of lien would not be capa- ble of being registered under section 73 of the Act 2006 Deeds and Title eport The Land Registry has indi- The Land Registry has for registration of the lien as a for registration of the burden on the folio. applica- cated that, in assessing of such tions for registration will dis- liens as burdens, they situations tinguish between over the where there is a lien property and situations where there is merely a lien over the title deeds. It has been indicated that, for example, where an equitable deposit of title deeds was completed by a client with a bank or other lending institu- tion as security for a loan, the Land Registry will accept that this creates a lien over the land. for example, a solici- However, will committee r committee DECEMBER 2006 DECEMBER Reg- Registration of , agenda item 56/06 CONVEYANCING www.lawsociety.ie Liens under section 73 of Liens under section 73 Act 2006 LAW SOCIETY GAZETTE The Conveyancing Committee the notice would like to bring to fact that of the profession the section 73 of the Deeds and Title Act 2006 Deeds and Title come into operation on 1 under January 2007. Thereafter, section 73(3)(b), any person holding a lien on registered land or a registered charge through deposit or possession of land certificates or certificates of charge may apply to the new Property Registration Authority istration Of Deeds And Title

BRIEFING 56 BRIEFING 57 John Elliot, www.lawsociety.ie DECEMBER 2006 DECEMBER Registrar of Solicitors notes and Director of Regulation equest a form to be emailed to in force. Employed solicitors cannot absolve themselves from this responsibility by rely- ing on their employers to pro- cure their practising certifi- it is the cates. However, Society’s recommendation that all employers should pay for the practising certificate of solici- tors employed by them. Some of your details are already on the application form The practising certificate appli- cation form with will be issued certain information relating to each solicitor’s practice already completed. What can you access on the website (www.lawsociety.ie) The application form a prac- for tising certificate will be available on the Society’s website. You can print out a blank form or, complete the form alternatively, on-screen and print out the form for signing and returning to the The form can be Society. accessed in the members’ area of the website using the solici- tor’s surname and reference you may Alternatively, number. r you by phoning the Society at 01 672 4800. If you are ceasing practice If you are intending to cease practice in the coming year, please notify the Society accord- ingly in writing on or before 1 February 2007. Solicitors’ LAW SOCIETY GAZETTE practice equire a solicitor r If mandatory professional ection B, part applica- I of the enewed. Registrar of Solicitors is preclud- ed by law from issuing a practis- ing certificate. All solicitors who are required to have profession- al indemnity insurance cover are asked to ensure that either they or their insurer or broker furnish- es the Society with confirmation of cover as soon as cover is r indemnity insurance is not in place on 1 January 2007 and cover commences from a date after 1 January 2007, the prac- tising certificate will issue with effect from the date of the com- It is not mencement of cover. possible in such circumstances, even by application to the High Court, to have a practising cer- tificate made effective from 1 January. Compliance partner S tion form includes a require- ment for partners state the to name of their firm’s compliance partner. The who is a partnera solicitors’ in practice, on making application for a practising certificate, to furnish the name of the partner in the firm who has been nominated as the compliance partner. If you are an employed solicitor Solicitors who are employed should note that it is the statu- tory obligation of every solicitor who requires a practising certifi- cate to ensure that he or she has a practising certificate tions 2005 Accounts (Amendment) Regula- Solicitors to prohib- Please note that, again during The Regulation of Practice ribunal and will be informed that eceipt by the Registrar of eceived after 1 February. What happens if you apply late What happens if you apply Any applications for practising certificates that are received after 1 February 2007 will result in the practising certificates being dated the date of actual r Solicitors, rather than 1 January 2007. There is no legal power to allow any period of grace under any circumstances whatsoever. 2006, some solicitors went to the trouble and expense of mak- ing an application to the High Court for their practising certifi- cate to be backdated to 1 January because their practising certificate application was r Committee is the committee of the Society that has responsibili- ty for supervising compliance with practising certificate require- ments. A special meeting of this committee will be held on 8 February any 2007 to consider late or unresolved applications for practising certificates. At this meeting, any practising solicitors who have not applied by then for a practising certificate will be considered for referral forthwith to the Solicitors Disciplinary T the Society reserves the right to take proceedings for an order under section 18 of the PRACTISING CERTIFICATES 2007: CERTIFICATES PRACTISING (Amendment) Act 2002 it them from practising illegally. What you need to do about pro- fessional indemnity insurance If confirmation of mandatory pro- fessional indemnity insurance cover is not received, the NOTICE TO ALL PRACTISING SOLICITORS NOTICE TO ALL conduct and a criminal

mis

is offence for a solicitor (other t ribunal.

eturned to solicitors who omit elates to investment business I Section D of the application form a considerable num- Each year, ber of application forms are r to complete section D, which r services or investment advice. It is necessary for either part I or part to be com- II of this section pleted in order for the Society to process your application. than a solicitor in the full-time than a solicitor in the service to practise of the state) without a practising certificate. Any solicitor found to be prac- tising without a practising cer- tificate is liable to be referred to the Solicitors Disciplinary T When you must apply A practising certificate must be applied for on or before 1 February in order in each year to be dated 1 January of that year and thereby operate as a qualifi- cation to practise from the com- It is a mencement of the year. legal requirement for a practis- ing solicitor to deliver or cause to be delivered to the Registrar of Solicitors at the Society’s premises at Blackhall Place, Dublin 7, on or before 1 February in 2007, an application the prescribed form, duly com- pleted and signed by the appli- The cant solicitor personally. onus is on each solicitor to ensure that his or her applica- tion form is delivered by Thursday 1 February 2007, with the appropriate fee. Finance Act Conveyancing Committee Conveyancing Committee Guarantee scheme, it is the Guarantee structuralcase that the insur- ance protection under Premier when Guarantee commences the surveyor carries out a final inspection of the insured prop- erty and issues a certificate of approval to Premier Guarantee. The insurerthen issues the insurance certificate to the the evi- which is developer, dence that the structural cover is in place. It is therefore rec- ommended that solicitors should neither give nor accept undertakings for production of the insurance certificate under the Premier Guarantee scheme, as the issue of same is not within the control or pro- curement of either solicitor. has brought it practitioner practitioner of the com- to the attention ractitioners are remindedthat all Revenue practice directions including first-time buyers’ relief, on stamp duty, It is the view of the Convey- REVENUE PRACTICE DIRECTIONS PREMIER GUARANTEE SCHEME – SCHEME GUARANTEE PREMIER INSURANCE (FINAL) CERTIFICATE (FINAL) INSURANCE certificates required in deeds, and so on, are readily available for inspection on Revenue’s website, www.revenue.ie. ect conveyancing practice. egistered the Premier with A P STAMP DUTY – FIRST-TIME BUYERS: DUTY STAMP Guarantee scheme, the builder Guarantee scheme, the purported to close the sale of the property before the insur- ance certificate (formerly called the final certificate) under the Premier scheme had Guarantee been issued. An undertaking was offered by the builder to the effect that the final inspection would be carried out and that the final certificate would be issued in due course. ancing Committee that the above does not represent cor- r Under the rules of the Premier mittee that, on recently closing the purchase a new dwelling of r Section 109 exempts con- Section 109 Section 118 (amending Practitioners should also Conveyancing Committee entitlements. sideration for single farm pay- ment entitlements from stamp If the total consideration duty. for comprises consideration the land as well as for single farm payment entitle- is ment, the consideration to be apportioned as is just and reasonable. 2003) section 89 CATCA of ‘agri- extends the definition cultural property’ pur- for CAT poses to include single farm payment entitlements. implica- be careful of the VAT tions on transfers of single farm It payment entitlements. is anticipated, at this stage, that the lease of the single payment entitlement may be treated in the same manner as a lease of a milk quota. this is not certain,However, and practitioners must check for their relevant clients the proper treatment of such leas- es with the clients’ inspector of taxes. DECEMBER 2006 DECEMBER 61, the . SINGLE FARM PAYMENT FARM SINGLE Tax Briefing ince tax treatment of the single Section 12 (amending sec- Section 12 (amending Section 70 (amending Finance Act 2006 S 15,000 where the qualifying 12,000. espect of single farm elief from CGT to apply in www.lawsociety.ie LAW SOCIETY GAZETTE tion 664 TCA 1997) increases income the tax exemption for for medium-term land leases and extends the relief to include income from the leas- ing of single farm payment with entitlements together land with effect from 1 January limits are 2006. The € lease or qualifying leases is or are for a definite period of seven years or more. In all other cases, the limit is € sections 598 and 599 TCA 1997) allows retirement r r payment entitlements where they are disposed of at the same time and to the same person as land, to the extent that the land would support a claim to payment in respect of those single farm payment farm entitlements payment by the has been changed

BRIEFING 58 BRIEFING 59 or Practitioners should bear in Practitioners Members have expressed As far as the closing of the elation to the provision of jurisdiction or who have their par- jurisdiction or trading or based ent company jurisdiction. outside the lending mind that, while some institutions may be ‘prescribed credit for the purpos- institutions’ es of the the purchasers do have a mini- mum level of protection. concern about their position in r undertakingscertificates and of title to lending institutions. This should not present a diffi- culty as long as the purchaser’s solicitor gets a transfer of the title on payment of the first stage payment, and the title is otherwise A solicitor in order. should not, of course, pay any stage payment without getting the transfer of title. Members are reminded of the need to ensure that any necessary floor area compliance certificates are available before accepting an assurance of the property. transaction is concerned, as long as the purchaser’s solici- tor is presented with a valid assurance from the landowner, that will be sufficient ground to the solicitor’s undertaking and certificate of title. www.lawsociety.ie DECEMBER 2006 DECEMBER Consumer Credit Act Conveyancing Committee Conveyancing Committee , this does not necessarily Consumer Credit Act 1995 mean that such lending institu- mean that such lending tions are regulated by the Being a ‘pre- Financial Regulator. scribed creditinstitution’ may lending simply mean that the institution concerned is obliged to notify the Financial Regulator of certain matters, such as their customer charges, their and that credit agreements must comply with provisions laid out in the 1995 other legislation. LAW SOCIETY GAZETTE A question may arise as to A question may arise It is the view of the committee While the Conveyancing equirement for stage payments chaser’s solicitor should ensurechaser’s solicitor cheque to be ten- that any loan deredby the and/or endorsed purchaserwill be at closing acting acceptable to the solicitor for the vendor. solici- whether or not a vendor’s tor’s bank (or a purchaser’s solic- itor’s bank, if the purchaser’s the pur- loan cheque is lodged to prior chaser’s solicitor’s account to completion) will treat such a loan cheque as uncleared funds, and these are banking matters that the relevant solicitor should clarify with their own banks. that it does not have any function in distinguishing between lending institutions that are based in the jurisdiction from lending institu- tions that are based outside the the owner to execute assur- ances of the land on which the houses had been built to the purchasers. In some of the cases that have been brought to the notice of the committee, the builder is declining to fur- nish any evidence of the arrangements that the builder In the has with the landowner. absence of such evidence, a r places the purchaser’s solicitor in considerable difficulties. Committee is unhappy with some of these arrangements, it is satisfied that, in certain cir- cumstances, they are just about acceptable. As long as deposits are of such a level that they are protected by the Homebond or Premier schemes, or are held by the builder’s solicitors on trust or and as long as as stakeholder, purchaser’s solicitors areenti- tled to obtain assurances of the site as soon as the first of any stage payments are made, then LOAN CHEQUES LOAN Practitioners will be awarePractitioners will be In the former pur- case, a Historically, the landowner Historically, lending institutions concernedlending institutions Society does not and the Law have any remit how in specifying should issue lending institutions loan funds. it has that, over several decades, become accepted conveyancing practice for a purchaser to fur- nish (as part of the balance the monies due to complete) the pur- loan cheque issued by such chaser’s lending institution, by loan cheque to be endorsed the purchaser in favour of the In some vendor’s solicitor. cases, the purchaser’s loan cheque is lodged by the purchas- who then er’s own solicitor, draws a bank draft against the lodged funds when they have been cleared. ments vary in detail, their basis is that the builder has an enti- tlement to call upon the landowner to execute an assur- ance of the site to the purchas- as a nominee of the builder, er, at the builder’s request. Difficultiesthe may arise if builder is seeking stage pay- ments and the arrangement with the landowner only entitles the builder to call for an assur- ance of the sites when the houses have been completed. While the Law Society is totally opposed to stage payments and has lobbied for legislation to outlaw it, the practice still survives outside the Dublin area. entered into licences with the builders, entitling them to go in on the owner’s land and build houses. The builders entered into contracts with the pur- chasers to build houses on the land. When the houses were satisfactorily completed, the builders were entitled to call on TITLE CONTRACTED FOR NEW HOUSES TITLE CONTRACTED FOR licence and option agreement.”

cent months, the furnished with a copy of the chaser shall not call for or be

join in this agreement. The pur- owner of the site or for AB to re the vendor to be registered as accept same and not call for sale. The purchaser shall

to enter into this contract for

and option agreement with AB cient interest under a licence While these other arrange- warrant that they have suffi- condition was: “The vendors ceived an increasing number n Conveyancing Committee has t has been brought atten- to the Conveyancing tion of the AB, a third party. One special veyance of unregistered land to

Title furnished was a con- I

re of queries from solicitors acting for purchasers who are being offered for the sale of contracts the sites, which are not based on the ideal situation where the builder is the owner of the land and in a position to execute an assurance of the sites to the purchasers of the houses. An example was: I Committee that certainCommittee lending that may be sub- institutions sidiaryof companies companies arebased outside the jurisdiction borrow-issuing loan cheques to ers drawn on their business accounts within the jurisdiction. Practitioners have inquired as to whether there is any agreement institu- between such lending that tions and the Law Society by loan cheques may be issued rather such lending institutions, than issuing a borrower’s loan draft. funds by means of a bank The committee confirms that there are no agreements in place between the Law Society and any lending institution as to how loan funds are issued. Such matters are business matters for the , in 1/11/ 1/11/ alue Added V Appoints 1/11/ Prescribe the Prescribe the Appoints 5/10/ . Mental Health Act SI 551/2006 SI 550/2006 SI 520/2006 . ax Act 1972 T Contents note: 2006 as the commencement sections, date for the above which amend the Regulations 2006 Regulations 2006 122(1)) Order 2006 axes Consolidation Act 1997 (Approved Centres) (Authorised Officer) (Commencement of Section Mental Health Act 2001 Number: Contents note: minimum standards required in approved centres, that is, hospi- tals or other in-patient facilities for the care and treatment of persons suffering from mental illness or mental disorder that are registered with the Mental Health Commission, and the proper conduct of such centres. Commencement date: 2006 Mental Health Act 2001 Number: Contents note: officers of the Health Service Executive who may apply to have a person (other than a child) involuntarily admitted for care and treatment in a psychi- atric hospital or unit under sec- tion 9 of the 2001 Commencement date: 2006 Finance Act 2006 Number: Contents note: 2006 as the commencement date for section 122(1) of the act (amendment of section 1003A, T relation to payment of tax by means of donation of heritage property to an Irish heritage trust). ’ specified Appoints 14/11/ in relation : (a) sections Insert a new Circuit Court Appoints 1/11/ (SI 510/2001) to SI 549/2006 SI 539/2006 SI 529/2006 SI 532/2006 Protection of Employ- Children Act 2001 Children SELECTED STATUTORY INSTRUMENTS Order 2006 raffic by Sea) Act 2003 (Commencement) Order 2006 93(1), 97(1)(b) and 99(1)(a)) Order 2006 Term Work) Act 2003 T (Commencement of Sections (Commencement) (No 2) Protection of Employees (Fixed- Number: Contents note: ‘Rule 9 – Criminal Justice (Illicit Number: Contents note: 2006 as the commencement date for all sections of the act. Finance Act 2006 Number: Criminal Justice Act 2006 Number: Contents note: 16/10/2006 as the commence- ment date for the following provisions of the act – all relat- ing to amendments to the Act 2001 Children 120, 121(a), 128, 129 and 130; (b) section 158 and schedule 4, insofar as they relate to the amendment of the provision of the at reference number 5 of that schedule. . ees (Fixed-Term Work) Act 2003 prescribe procedures for appli- cations to the Circuit Court under section 16 of the Rules 2001 Work)) 2006 Sea to enforcement of determina- tions of the Labour Court. Commencement date: 2006 in order 57 of the (SI 14/11/ Bunkers ( Protocol on International Insert a new , inserts a new , and provides , amends the 31/10/2006 ’ in order 57 of Sea Pollution Acts National Minimum National Minimum ); (2) Bunkers Convention SI 531/2006 International Convention (MARPOL) by the 1997 ; (3) the ; and (4) annex VI as added Circuit Court Rules 2001 of Employees (Fixed-Term Minimum Wage Act) 2006 2006 Commencement date: Circuit Court Rules (Protection Circuit Court Rules (National Number: Contents note: ‘Rule 10 – Preparedness, Response and Co- Response Preparedness, by operation to Pollution Incidents Substances and Noxious Hazardous 2000 Convention on the Control of Harmful Anti-Fouling Systems 2001 to the of Pollution from on the Prevention Ships protocol to the convention. Also makes provision for matters relating to regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commer- cial matters insofar as it relates to the Convention Damage 2001 section 28A, ‘Power of Minister to make regulations to give effect to acts of the European Communities’, in the Pollution Act 1991 for related matters. Date enacted: Harbours Act 1996 Commencement date: Commencement order(s) to be made (per s1(2) of the act) Amends the 1991 to 1999 Wage Act 2000. Wage Act 2000 the 510/2001) to prescribe proce- dures for applications brought under the Rome 18 October – 17 November 2006 – 17 November 18 October Inter- DECEMBER 2006 DECEMBER 31/10/ tion update tion Provides for Gives effect to 31/10/2006 , done at Rome, 30/2006 29/2006 legisla Provisions) Act 2006 Act 2006 www.lawsociety.ie Sea Pollution (Miscellaneous Number: Contents note: a number of instruments that were agreed at the International Maritime Organisation relating to the protection of the marine environment: (1) the national Convention on Civil Liability for Bunker Oil Pollution 2006 Statute of the International Criminal Court 17/7/1998; enables effect to be given to requests by that court for assistance in the investiga- tion or prosecution of those offences, including requests to arrest and surrender persons, to freeze assets and to enforce any fines or forfeitures imposed by it; makes provision in relation to any sittings of the court that may be held in the state; and provides for related matters, Date enacted: Commencement date: the punishment by courts in the state and by courts-martial of ICC offences – genocide, crimes war crimes against humanity, and other offences within the jurisdiction of the International Criminal Court, which was established under the International Criminal Court Number: Contents note: Details of all bills, acts and Details of all bills, since statutory instruments cata- 1997 are on the library logue – www.lawsociety.ie area) (members’ and students’ – with updated information a bill has on the current stage reached and the commence- act. ment date(s) of each ACTS PASSED LAW SOCIETY GAZETTE

BRIEFING 60 BRIEFING 61 21/10/ 1/11/ Dir 91/ Revoke and (SI 352/1999), Revoke and Prepared by the Prepared : Law Society Library www.lawsociety.ie alue Added Tax Act alue Added Tax V DECEMBER 2006 DECEMBER SI 548/2006 G 2006 Contents note: Contents amendments, the restate, with of (Licensing Road Traffic Drivers) 1999 Regulations as amended. Leg-implemented: 94/72, 439 as amended by dir and dir dir 96/47, dir 97/26 2000/56 Commencement date: alue-Added Tax Regulations 2006 V Number: Contents note: restate or update as necessary all regulations made the VAT under the 1972. Commencement order: 2006 REETING PRINTED el: 842 6444. Contact: Amanda el: 842 6444. Contact: T ith Best Wishes ith Best Wishes the New Year G INSIDE EACH CARD 4/11/ and W 20/11/ for Christmas and Amend the ARDS Inserta new LAW SOCIETY GAZETTE District Court SSOCIATION Criminal Justice A (SI 93/1997). SI 558/2006 C SI 545/2006 ’ in the 70. € . 2005 Land Registration RulesNumber: 2006 Contents note: Land Registration Rules 1972- ule 13 in order 23, prescribing Act 2003 Commencement date: 2006 the form procedures and for the courtissue of the order under section 3 of the Number: Contents note: r Criminal Justice (Public Order) (Public Order) Act 2003, Commencement date: 2006 Rules 1997 insert a new ‘Order 96B – Closure Orders the under (SI RDER FORM O 20/11/ IN AID OF THE ENEVOLENT SAMPLE OF OVERPRINTED TEXTSAMPLE OF OVERPRINTED WILL BEFORE PRINTING. FOR CONFIRMATION BE FAXED Insertnew rules Planning and SEND ORDER FORM AND CHEQUE TO: AND CHEQUE SEND ORDER FORM ’B Card B payable to Santry Printing Ltd. MAAM TURK MOUNTAINS, CONNEMARA TURK MOUNTAINS, MAAM Kate Noonan SI 544/2006 70, pack(s) of card B @ packet of 50 cards.

SI 537/2006 € each 70 (including overprinting of your firm’s name). Minimum order 50 cards. 70 (including overprinting of your firm’s € Rules 2006 Offenders) Rules 2006 District Court (Public Order) District Court (Probation of Number: Contents note: in order6, 7 and 8 the 28 of District Court Rules 1997 bers of An Bord Pleanála and amend sections 104, 106 and 108 of the Development Act 2000. Drivers) Regulations 2006 Road Traffic (Licensing of Number:

93/1997) to provide procedures and forms for variation and dis- charge of probation bonds. Commencement date: 2006 HRISTMAS Association, whose needs are particularly acute at Christmas time particularly acute Association, whose needs are OLICITORS This is an opportunity to support the work of the Solicitors’This is an opportunity to support the work Benevolent S Appoints

€ C . Planning and Appoints 5/11/ Card A ADORATION OF THE MAGI OF ADORATION Peter Paul Rubens SBA Christmas Cards, Santry Printing Ltd, Unit 5, Lilmar Coolock Lane, Dublin 9. Industrial Estate, 5.50 for postage and packaging for SI 553/2006 SI 525/2006 € ext to be overprinted: I enclose cheque for DX: Tel:DX: Each card sold in packets of 50 costing Fax: Firm: Contact: Address: Add I wish to order pack(s) of card AI wish to order pack(s) of card @ T 2) Order 2006 Order 2006 2006 (Commencement) (No 2006 (Commencement) (Strategic Infrastructure) Act (Strategic Infrastructure) Act Number: Contents note: Planning and Development 2006 as the commencement date for sections 14, 15 and 16 of the act. These sections relate to the appointment of the mem- Contents note: Contents 17/10/2006 as the commence- 1, 2, 6(a), ment date for sections 21, 24, 7 to 10 inclusive, 11, 13, inclusive, 26, 28, 31, 43 to 46 from and 48 of the act. Apart sections sections 1 and 2, these all amend the Development Act 2000 Number: Planning and Development provides suc- 5,500 to the € d Anne Stephenson for the protection and administration, and to G Regulations of clients and the public. compensation fund, the Law Society of Ireland as taxed by a taxing master of the High Court in default of agreement. The tribunal ordered that the respondent solicitor: i) Do stand censured, ii) Pay a sum of iii)Paywhole of the costs of the ills, Probate & Estates W and cinct and practical advice, tackling ques- tions of practice and procedure that are of central importance, not only to students on professional practice course, the Society’s but also to practitioners who deal with any area of wills, trusts or probate. The president further ordered the that Solicitors’ no bank shall, without leave of the court, without leave of the no bank shall, in the out of an account make any payment name of the respondent or her firm. practising certificate of the respondent solicitor be suspended. Solicitors (Amendment) Act Solicitors’ Accounts ; , that accounting date, as required by regulation 21(1) of the Solicitors’ Accounts Regulations 2001 Through his conduct, showed disregard for his statutory obligations to com- ply with the Accounts Regulations showed disregard for the statutory obligation Society’s to monitor compliance with the b) inter alia published by the Law Society of Ireland/Oxford University This practical and user-friendly book ing to act; grant of administration intestate, where the deceased has left no will; and grant of administration with will annexed, where the deceased has left a will but there The is no executor able or willing to act. text goes on to outline those less frequent occasions where a further type of grant is whether a second or subse- necessary, quent grant, or a grant limited as to pur- pose or duration. also covers in full how to advise the per- sonal representative of their responsibilities and duties to beneficiaries, family mem- bers, creditors, and the State in terms of any taxation liability either outstanding or arising. (respondent) Rosalyn Kelly (applicant) On 27 October 2006, the PresidentOn 27 October 2006, the of the High Court made an order, Law Society of Ireland furnished to the Society a report reporting accountant’s for the year ended 31 August 2004 within six months of his Wills, Probate & Estates, Padraic Courtney, (solicitor, Law Society of Ireland) is both the editor and an author. Other authors: Nuala Casey Law Society of Ireland) is both the editor and an author. (solicitor, Padraic Courtney, Sean McGlynn solicitor) (respondent On 28 September 2006, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his prac- tice as a solicitor in that he: a) Failed to ensure there was the profession in CPD, STEP, and the various diplomas run by the Law Society of Ireland. and the various diplomas run by the profession in CPD, STEP, THE HIGH COURT HIGH THE DECEMBER 2006 DECEMBER 4-2002 Solicitors Acts 1954- Solicitors (Amendment) Act 1994 70. Ward: Contact Julianne email: or phone: [email protected] 01 672 4942 if wish to order you a copy. WILLS, PROBATE & ESTATES WILLS, PROBATE . € ) of the olume editor and authors: he Law Society is now selling he Law Society is now (solicitor, Daly, Lynch, Crowe & Morris), Anne McKenna (solicitor, FJ Irvine & Co), Annette O'Connell (BL, probate officer), an Annette O'Connell (BL, probate officer), FJ Irvine & Co), Anne McKenna (solicitor, & Morris), Crowe Lynch, Daly, (solicitor, The manual deals fully with how to NEW ADDITIONNEW of to the Law Society V T (solicitor, Stephenson & Co). All the authors tutor and lecture on the Law Society, PPC I and PPC II in wills, trusts, probate All the authors tutor and lecture on the Law Society, Stephenson & Co). (solicitor, RECORD NO: 2006 NO 44SA RECORD NO: Friday 27 October 2006 Before the President a solicitor. Kelly, In the matter of Rosalyn In the matter of the A Ireland series, this manual has been writ- ten to give trainee solicitors and practition- ers a clear and thorough understanding of current practice and procedure in the area of wills, trusts, probate, and the administra- tion of estates. It outlines the basic ele- ments of a will and familiarises trainees with the common law and statutory back- ground, so that they are able to draft docu- mentation exactly in accordance with their clients’ informed instructions and statutory requirements. extract an appropriate grant of representa- tion; grant of probate where the deceased has left a will and an executor who is will- 2002 In the matter of Sean of McGlynn, a solicitor, Church Street House, Co Donegal, Letterkenny, and in the matter of an application by the Law Society of Ireland to the Solicitors Disciplinary Trib- unal and in the matter of the Solicitors Acts 195 [5520/DT78 /05] Law Society of Ireland (applicant) This report of a Solicitors Disciplinary of the outcome inquiry Tribunal by the Law Society of is published Ireland provided as 17 of the for in section 23 (as amended by section 2002 www.lawsociety.ie Solicitors DisciplinarySolicitors Tribunal LAW SOCIETY GAZETTE Press. Price: BRIEFING 62 BRIEFING 63 for , to – whether [FL12908] High Court, , www.lawsociety.ie DECEMBER 2006 DECEMBER Luxembourg Convention Finlay Geoghegan J held update the applicant to have specified the applicant to have sought contact. The applicant 7 of an order pursuant to article the enforce- the recognition and and con- ment of the residence The respondent tact order. other contended, among should things, that the court as the children refuse the order, were habitually resident in Ireland prior to 2004, and that the order was no longer in the welfare of the children. that the court was bound, pur- suant to article 7 of the Luxembourg Convention make an order for recognition and enforcement of the 2004 The court was not satis- order. fied that the 2004 order was manifestly no longer in the interests of the children. As the children were now habitually resident in the jurisdiction, it was desirable that future court applications in relation to access were made within this jurisdiction. The court also made provisions as to access. RGHR v LMG Miss Justice Finlay Geogh- egan, 19/7/2006 Judicial separation Family Law Act 1995 the court could consider the family compa- home and the respondent’s ny as part of the assets available in to make proper provision for order the parties. The High Court granted a decree of judicial separation and made resulting orders, including an order that the applicant transfer to the respondent her legal and bene- ficial interest in the shares and share holdings of the W group of companies in consideration for a number of lump-sum pay- Luxem- – High Court, , LAW SOCIETY GAZETTE Child Abduction firstlaw [FL12817] esidence and contact order – esidence and contact order unjustified delay on the part of unjustified delay on the that the the prosecution, but a applicant had not established trial that real risk of an unfair by appro- could not be avoided on priate rulings and directions judge by the part of the trial reason of those circumstances, which was the appropriate standard of proof to be met by the applicant. While the right of an accused to a fair trial could be prejudiced by pre-trial publicity that could, in certain circumstances, lead to a trial being prohibited, it was neces- sary to balance the applicant’s rights in that respect with the right to have community’s criminal offences prosecuted. there was a Where, however, real risk of an unfair trial, which could not be avoided by appropriate rulings and direc- tions by the trial judge, such a balancing exercise did not arise. Rattigan v DPP Mr Justice O’Higgins, 30/6/ 2006 Custody Recognition and enforcement of r – whether resi- habitual residence of English dence and contact order and enforceable in court recognised Irish courts – and Enforcement of Custody Orders Act 1991 bourg Convention. In 2004, an English court made an order in respect of residence and contact, as to the non-mar- ital children of the applicant and respondent, that permitted the respondent to remove the children permanently to Ireland and for them to reside for while providing with her, AMILY LAW AMILY F Compiled by Flore Bouhey for FirstLaw News fromIreland’s online legal awareness service O’Higgins J refused the CRIMINAL LAW Delay pros- – impending Fair procedures – right to ecution for murder appli- expeditious trial –whether caused cant must prove prejudice excessive by delay – whether delay constitution- – whether applicant’s al rights infringed – adverse pre- risk trial publicity – whether real of unfair trial – whether such risk can be avoided by rulings and of trial judge – whether directions further prosecution of offences should be restrained. The applicant was charged with murder in 2003, more than two years after the alleged offence. That charge was struck out for failure to pro- duce a book of evidence within the time limited for doing so. The applicant was re-charged In the almost two years later. interim, a newspaper article had been published identifying the applicant as the leader of a gang involved in the alleged He sought the prohi- murder. bition of the continuance of the prosecution on the grounds, among other things, that the delay in the institution and prosecution of the proceedings had been excessive and violated his right to trial with reason- able expedition, and that the delay prejudiced his chances of obtaining a fair trial in that it hindered the preparation of his defence by reason, among other things, of the consequen- tial unavailability of witnesses. He also sought the relief on the basis of adverse pre-trial pub- licity due to the newspaper article, which he alleged would prejudice potential jurors. relief sought, holding that there had been a culpable and [FL12854] High Court, Mr Justice , Abbott J awarded the plain- CONSTITUTIONAL LAW CONSTITUTIONAL 214,000 compensating him Abbott, 29/7/2005 tiff damages, holding that the plaintiff was entitled to an award in the amount of € for loss of rent; loss of conven- ience of housing; false impris- onment; loss of amenity through work activities; breach of his constitutional right to the enjoyment of pri- includ- vacy; marital privacy, ing access to his children and his house; loss of his good name; and psychological and emotional suffering resulting from the making of the uncon- stitutional barring order and his arrest and detention fol- lowing a breach of that order. Crow- K(D) v Judge Timothy ley Detention – false – damages Barring order the imprisonment – whether damages plaintiff was entitled to rights of constitutional for breach and false imprisonment. and wife sought The plaintiff’s obtained an interim barring order against the plaintiff in November 1998. As a result of the a breach of that order, plaintiff spent two days in in Subsequently, garda custody. 2002, the Supreme Court determined that the District Court order making the interim barring order was unconstitutional, that is to say, the legislation enabling the making of such an order was held to be unconstitutional. the plaintiff Consequently, sought damages for breach of his constitutional rights and for false imprisonment arising from the making of the interim barring order. , High Court, Mr G Peart J affirmed the Circuit Justice Peart, 15/11/2006 [FL12964] appellant sought to appeal by appellant sought the adverse way of rehearing the President of the decision of claiming that the Circuit Court, had been gifted to memorabilia she had already her and that amount returned a significant band. of memorabilia to the holding that the Court order, by case had to be determined witnesses way of credibility of appellant had not The only. support adduced any witness to of or corroborate her account credibili- ownership and lacked of ill will could No motive ty. be attributed to the respon- dents by their actions. The appellant had not established ownership as a matter of prob- ability. Clayton, Evans, Hewson, Mullen (a firm trading as U2) v Cashman , The information contained here Legal is taken from FirstLaw’s Service, Awareness Current published every day on the internet at www.firstlaw.ie. For more information, contact bartdaly@ Merchant’s or FirstLaw, firstlaw.ie Dublin 8, Quay, Court, Merchant’s tel: 01 679 0370, fax: 01 679 0057. [FL12830] estrained. petent jurisdiction; where it petent jurisdiction; that an action was obvious succeed; where the could not brought for an action was purpose; where improper to be rolled for- issues tended actions ward into subsequent and repeated and supplement- brought ed, often with actions who had against the lawyers litigant acted for or against the and in earlier proceedings where the person instituting failed to the proceedings had pay the costs of unsuccessful present proceedings – were all action. in the plaintiff’s McCabe v Minister for Justice High Court, Mr Justice 29/6/2006 Murphy, Evidence – rock Practice and procedure band memorabilia – appeal by re- hearing from Circuit Court – con- flict of evidence – whether proper- ty gifted to appellant – whether auction of property could be r In Circuit Court proceedings, the respondent rock band had sought, among other things, to restrain the appellant, their for- mer personal stylist, from auc- tioning personal memorabilia related to their rock band. The PROPERTY LAW Mr Justice Murphy dis- Mr Justice Murphy THE SERVICE IS COMPLETELY CONFIDENTIAL AND THE SERVICE IS COMPLETELY SOCIETY OF THE LAW INDEPENDENT TOTALLY 01 284 8484 HELPLINE SOLICITORS’ The Solicitors’ Helpline is available to assist every member of the profession with any problem, whether personal or professional ous prior actions brought by ous prior all of which had the plaintiff, The defen- been dismissed. a motion seeking dants brought proceedings struck to have the basis that they dis- out on the cause of closed no reasonable and an action, were vexatious also abuse of process. They the sought an order restraining further plaintiff from bringing the prior applications without leave of the court. and missed the proceedings the made an order restraining any fur- plaintiff from making ther application without seek- ing the prior leave of the court, holding that an application to strike out proceedings could only succeed where the facts were not reasonably in dispute. Insofar as there was a conflict of fact, it had to be resolved in favour of the party against whom the application to strike out had been brought. A claim would only be struck out where, on admitted facts or undisputed evidence, it was clearly unsustainable or bound to fail. The criteria character- ising vexatious litigation – such as the bringing up of one or more actions to determine an issue that had already been determined by a court of com- DECEMBER 2006 DECEMBER High Court, Mr , [FL12865] McKechnie J held that the McKechnie J held that PRACTICE AND PROCEDURE Abuse of process Application to strike out proceed- ings on basis of being vexatious and abuse of process – application plaintiff from further to restrict application without seeking prior leave of court – criteria for mak- – whether proceedings ing of order should be struck out. The plaintiff brought plenary proceedings claiming negli- gence and for the wrongful birth of five children against the defendants. All of the issues had been the subject of numer- ments to be made by the ments to within certain time respondent an appeal by limits. Following the Supreme the respondent, the matter to Court remitted for re-hearing the High Court what on certain issues, namely, used for mechanism could be company extracting from the paid to the funds ordered to be the the applicant and, further, or tax effects on the company extrac- the respondent of the tion of the relevant funds. over all court had jurisdiction applicant the assets of both the and respondent, including the family home and those held by the latter through the medium and of a limited company, could make proper use of them in the most appropriate man- ner feasible, so as to make proper provision for the par- ties. The company and the respondent could be fully asso- ciated together and treated as one. Having considered the evidence, the funds could be extracted by way of remunera- tion or dividend, and the tax liability in the case of the for- mer would be 39.4% and in the case of the latter 47%. It was not appropriate to avail of any share adjustment scheme in the circumstances. D(B) v D(J) Justice McKechnie, 2/12/ 2005 www.lawsociety.ie LAW SOCIETY GAZETTE

BRIEFING 64 BRIEFING 65 www.lawsociety.ie DECEMBER 2006 DECEMBER legal entitled. The term ‘paid annual entitled. The term ‘paid leave’ means that remuneration for the must be maintained and that duration of the leave their nor- workers must receive that peri- mal remuneration for od of rest. The directive pre- cludes part of the remuneration from being attributed to pay- ment for annual leave without the worker receiving a payment additional to that for work done. There can be no derogation from that entitlement by con- tractual arrangement. There is no provision in the directive expressly providing when pay- ment for annual leave must be the purpose of made. However, the requirement of payment for that leave is to put the worker, during such leave, in a position that is comparable to periods of work as regards remuneration. the point at which Accordingly, payment for annual leave is made must, as a rule, be fixed in such a way that, during that leave, the worker is put in a position comparable to period of work as regards remunera- tion. Furthermore, a regime of rolled-up holiday pay may lead to situations in which the mini- mum period of paid annual leave is, in effect, replaced by an allowance in lieu. The directive prohibits this (except where the employment relationship is ter- minated) in order to ensure that a worker is normally entitled to actual rest. Thus, the court held that payment for minimum annual leave through a system of rolled-up holiday pay is contrary to the directive. The court con- sidered that sums already paid in respect of leave through this sys- tem can be set off against the payments for specific leave. . The eur JC Caulfield , LAW SOCIETY GAZETTE , 16 March 2006. Michael Jason Clarke , orking Time Directive orking Time W orking Time Directive orking Time W Cases C-131/04 and C-257/04, RD Retail CD Robinson-Steele v Services Ltd v Frank Staddon Ltd and Others v Hanson Clay Products, formerly Marshalls Clay Products Ltd The (93/104/EC) provides that member states must take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks. This minimum period of leave cannot be replaced by an allowance in lieu. Under the British regulations transposing the directive, any contractual remuneration paid to a worker in respect of a period of leave goes towards discharging any liability of the employer to make payments under the regulation in respect of that period. The applicants are employees of the respondents. They were paid for annual leave in the form of a payment included in the hourly remuneration, rather than paid for a specific period of leave. This system is known as ‘rolled- up holiday pay’. The applicants applied to the Leeds claiming Employment Tribunal payment for annual leave. The case was appealed to the Court of Appeal. It asked the ECJ whether the system of rolled-up holiday pay is compatible with the court found that the entitlement of every worker to paid annual leave is an important principle of EC social law from which there can be no derogation. Holiday pay is intended to enable the worker to actually take the leave to which he is EMPLOYMENT Data (directive News fromthe EU and International Affairs Committee were infringed. The European were infringed. The Data Protection Supervisor of the intervened in support annulled parliament. The ECJ examined both decisions. It could whether the commission adopt the decision on adequacy on the basis of the Protection Directive 95/47/EC). Article 3(2) of the directive excludes from its scope the processing of personal data in the course of an activity that falls outside the scope of EC law and processing operations con- defence, cerning public security, state security and the activities The of the state in criminal law. transfer of PNR data to the US CBP constitutes processing operations concerning public security and the activities of the The deci- state in criminal law. sion did not concern data pro- cessing necessary for a supply of services, but data processing regarded as necessary for safe- guarding public security and for law enforcement purposes. The transfer of the PNR data falls within a framework established by the public authorities that The relates to public security. decision on adequacy thus does not fall within the scope of the directive. The court went on to find that article 95 of the treaty, read in conjunction with article 25 of the directive, cannot justi- fy EC competence to conclude the agreement with the US. The agreement relates to the same transfer of data as the decision on adequacy and there- fore relates to data-processing operations that are excluded from the scope of the directive. Thus, the court annulled the council decision approving the conclusion of the agreement. Edited by TP Kennedy, Director Law Society of Ireland of Education, Edited by TP Kennedy, and ultra , 30 May 2006. The

, that article 95 was not an

DATA PROTECTION DATA European Parliament v European Parliament Commission of the European Communities USA introduced legislation requiring air carriers operating flights to, from or across US territory to provide US author- ities with electronic access to the data contained in their reservation and departure con- trol systems. This data is called ‘passenger name records’ or PNR. The commission consid- ered that this legislation could conflict with EC data protec- tion legislation. It started nego- tiations with the US authorities. Following these negotiations, the commission took a decision finding that the US Bureau of Customs and Border Protection (CBP) ensured an adequate level of protection for PNR data transferred from the EU. In May 2004, the council approved a decision approving the con- clusion of an agreement between the EC and the USA on the processing and transfer of PNR data by air carriers established in the EC to the US The agreement was CBP. on 28 signed in Washington May 2004 and entered into The force on the same day. European Parliament applied to the ECJ for annulment of the council and commission deci- sions. It contended that the decision on adequacy was vires adequate legal basis for the deci- sion approving the conclusion of the agreement and that, in both cases, fundamental rights

Cases C-317/04 and C-318/04, Council of European Parliament v the European Union Recent developments in European developments Recent law an application for a declaration an application Mr insolvency. of Eurofood’s informed on 13 Farrell was 2004, On 20 February February. Parma determined the court in jurisdic- that it had international or tion to determine whether as not Eurofood was insolvent, centre of main inter- Eurofood’s On 23 March ests was in Italy. held that 2004, the High Court the insolvency proceedings been against Eurofood had date of opened in Ireland on the Bank of the application by the the Irish America. It held that main pro- proceedings were the ceedings, as the centre of interests was in Eurofood’s Ireland. The High Court found Eurofood insolvent, ordered its liquidation and appointed Mr Mr Bondi Farrell as liquidator. challenged that judgment in the Irish courts. The Supreme Court referred several questions to the ECJ on the interpretation of regulation 1346/2000. It wished to determine, in particu- which court had jurisdiction lar, to liquidate Eurofood. The reg- ulation provides that the court with jurisdiction to open the main insolvency proceedings, assets applying to the debtor’s situated in all member states, is the court of the state where the main centre of the debtor’s interests is situated. The ECJ looked to article 3(1) of the reg- ulation, which provides that the centre of the main interests of a debtor company is presumed to be the place of the registered office where the debtor regular- ly administers its interests. This presumption can be rebutted only if factors that are objective and ascertainable by third par- ties enable it to be established that an actual situation exists that is different from that which locates it at the registered office. An instance of this would be a company not carrying on any business in the territory of the member state where its regis- tered office is situated. Where a company carried on its business in the territory of the member Eurofood IFSC , 2 May 2006. Eurofood is an and thus completely prevents and thus market for those access to the economic operators services by in other member established legislation was also states. The incompatible with found to be the freedom of establishment. the The legislation restricted cen- right to form such advice meeting tres to certain bodies restric- strict conditions. These or tions completely prevent for opera- make it more difficult states tors from other member in Italy establishing themselves The to provide these services. ECJ did not find a justification for the Italian restrictions. There is no public interest justi- fication, as the bodies autho- rised to set up these centres do not offer any guarantee of par- ticular professional abilities. The court said that it was for the national court to determine whether the payment made to the centres from state funds constituted state aid within the meaning of the treaty. Case C-341/04, Ltd Irish company with its regis- tered office in Dublin. It is a wholly owned subsidiary of an Parmalat Spa. Italian company, On 24 December 2003, Parmalat was placed under extraordinary administration in Mr Italy with an administrator, Bondi. Bank of America NA applied to the Irish High Court seeking the liquidation of Eurofood on account of its debts. On 27 January 2004, the High Court appointed Mr Farrell as provisional liquidator of Eurofood. He was given pow- ers to take possession of assets, manage its Eurofood’s affairs, open a bank account in its name and instruct lawyers on its behalf. On 9 February 2004, Eurofood was placed under the extraordinary administration in Italy of Mr Bondi. The District Court of Parma scheduled a hearing for 17 February 2004 on INSOLVENCY , 30 March Servizi Ausiliari ESTABLISHMENT/ SERVICES over to a subsequent year. It is year. over to a subsequent whether financial immaterial for paid annual compensation not based on a con- leave is or is tractual arrangement. Case C-451/03, Srl v Dottori Commercialisti Giuseppe Calafiori of certain 2006. The provision and assis- kinds of tax advice law tance is reserved by Italian This to tax advice centres. includes advice and assistance activities relating to the annual declaration of the income of employees. These centres can only be established by certain bodies, such as trade unions or employers’ associations. They carry on their business under authorisation from the Ministry of Finance. They receive a pay- ment from state funds for each declaration completed and filed with the tax authorities. In 2003, the tax advice centre in Milan adopted new statutes to take account of the fact that it was also providing tax assistance for undertakings, workers and pen- sioners. The notary responsible for taking the minutes of the meeting adopting the new statutes (the respondent) refused to file that decision in He the companies’ registry. believed that the amendment to the statutes was contrary to the Italian legislation on tax advice centres. The Milan centre brought proceedings in the Italian courts against the refusal of the registration sought. The Court of Appeal in Milan requested a preliminary ruling from the ECJ on the compati- bility of the Italian legislation with the EC rules on the free- dom to provide services, the freedom of establishment and state aid. The court found that the legislation was incompatible with EC rules on the freedom of provide services. The legislation reserves certain advice and assis- tance activities to some centres . The DECEMBER 2006 DECEMBER Federatie , 6 April 2006. orking Time Directive orking Time W www.lawsociety.ie LAW SOCIETY GAZETTE matter was referred to the ECJ. The court noted that the enti- tlement to paid annual leave is an important principle of EC are entitled Workers social law. to actual rest to ensure effective protection of their health and It is only when the safety. employment relationship is ter- minated that payment of an allowance in lieu of paid annual leave is permitted. The court said that the positive effect that leave has for health and safety is deployed fully if the leave is taken in the prescribed year. The significance of the rest period for the protection of the workers remains if it is taken during a later period. The possi- bility of financial compensation, in respect of the minimum peri- od of annual leave carried over, would create an incentive, incompatible with the objectives of the directive, not to take leave or to encourage employees not the to do so. Consequently, court held that the directive pre- cludes the replacement by an allowance in lieu of the mini- mum period of paid annual leave, where that leave is carried Such payments must have been Such payments and comprehensible. transparent of proof of this is on The burden The court pointed the employer. member states are out that take the measures required to that prac- appropriate to ensure the pro- tices incompatible with relative to visions of the directive annual leave are not continued. Case C-124/05, v Staat Nederlandse Vakbeweging der Nederlanden of Social The Dutch Ministry pub- Affairs and Employment that lished a brochure indicating an employer and employee could agree in writing that if an employee did not use his mini- mum leave entitlement in a year, financial compensation could be The paid in the following year. applicant brought an action seeking a declaration that this statement was inconsistent with the

BRIEFING 66 BRIEFING 67 . In to reopen es judicata r EC Treaty 3,906.16 was waiting 3,906.16 was € www.lawsociety.ie G DECEMBER 2006 DECEMBER prize of of the prize The award for her. to a test order with- was subject She returned an out obligation. to Schlank but it was order form to establish whether not possible She did not she placed an order. believed receive the prize she claimed that she had won. She basis of that prize on the Austrian consumer protection an order from She sought law. the prize her local court for interest. amount, together with the Schlank argued that jurisdic- Austrian courts lacked tion on foot of regulation 44/2001. The Austrian court rejected this argument. On the merits of the claim, the court rejected all Ms Kapferer’s claims. She appealed to an appellate court. Schlank did not deci- challenge the lower court’s sion on jurisdiction and thus that decision became final. The Appellate Court asked the ECJ whether it had an obligation under the order to ensure both the stabili- ty of the law and legal relations and the sound administration of justice, it is important that judi- cial decisions that have become final can no longer be called into question. Thus, EC law does not require a national court to disapply its internal rules of pro- cedure in order to review and reopen a final judicial decision if that decision should be contrary to EC law. and set aside a final and conclu- sive judgment on jurisdiction if that judgment were proved to be The court contrary to EC law. referred to the importance of the principle of Rosmarie lawsociety.ie LAW SOCIETY GAZETTE , 16 March 2006. The on the internet or on CD-ROM. on the internet the term ‘weiße Therefore also be considered Seiten’ must term for elec- as a customary As the appli- tronic directories. drawn any distinc- cants had not within tion between the goods data car- the category “magnetic storage riers and recorded instal- media for data processing in partic- lations and equipment, ular tapes, discs, CD-ROMs”, in the mark had to be cancelled Since respect of all those goods. synonym the term has become a direc- in German for telephone it tories for private individuals, may also be considered to be descriptive of the products for which it is regarded as being a customary term. As publishing services and editing of written texts concern the creation and drawing-up of those products, the term ‘weiße Seiten’ may also be regarded as descriptive of those services, as it describes their intended purpose. The link between the mark and the characteristics of all the goods and services in dispute is so close that the mark, being descriptive, should not have been registered. Case C-234/04, v Schlank & Schick Kapferer GmbH applicant lives in Austria and received advertising material periodically from Schlank, a company established under Schlank operates a German law. mail-order business in Austria and other countries. Ms Kapferer received a letter from Schlank informing her that a Have you accessed the Law Society website yet? www. JURISDICTION , elefon & Buch T erlagsgesellschaft mbH v Office INTELLECTUAL PROPERTY resentatives to participate in resentatives with the equality of accordance is of particular arms principle Thus, a member importance. refuse to recognise state may proceedings opened insolvency where in another member state the pro- the decision to open flagrant ceedings was taken in right breach of the fundamental a person to be heard, which concerned by such proceedings enjoys. Case T-322/03, V for Harmonisation in the Internal Marks and Market (Trade Designs) (OHIM) – Herold Business Data GmbH & Co KG 16 March 2006. In 1996, the applicant applied to OHIM for an EC trademark in respect of ‘WEISSE SEITEN’ to cover various goods, including IT refer- goods and printed matter, ence works and classified direc- tories. The mark was registered in 1999. Herold Business Data then sought cancellation of the registration. In 2003, the Board of Appeal of OHIM cancelled the mark, as ‘weiße Seiten’ was a customary term for telephone directories for private individu- als. The applicants challenged decision the Board of Appeal’s before the Court of First Instance. It argued that the basis decision was of the board’s incorrect. The CFI held that the term ‘weiße Seiten’ had become generic in Germany for tele- phone directories for private individuals. Given that the applicants had not drawn any distinction within the category reference “printed matter, works, classified directories” to which telephone directories in paper form belong, the mark had to be declared invalid for The the whole of that category. court noted that telephone directories for private individu- als are available not only on paper but also in electronic form state where its registered office state where the fact that its eco- is situated, are or can be nomic choices by a parent company controlled member state is not in another rebut the presump- enough to of the tion linked to the place then registered office. The court question turned to consider the to of recognition of the decision proceed- open main insolvency of other ings by the courts 16(1) member states. Article pro- provides that insolvency member ceedings opened in one in all state are to be recognised the time the member states from that they produce their effects in the state of opening. This is known as the rule of priority. The principle of mutual trust requires that the courts of the other member states recognise the decision opening the main insolvency proceedings, without being able to review the jurisdic- tion of the court of the state where proceedings were opened. This could be seriously disrupted if the courts of mem- ber states, hearing applications insolvency at based on a debtor’s the same time, could claim con- current jurisdiction over an ensure the extended period. To effectiveness of the system, the court held a that decision hand- ed down by a court of a member state, based on the debtor’s insolvency and seeking the opening of the procedures in the regulation involving divestment of the debtor and the appoint- constitutes ment of a liquidator, a decision opening insolvency proceedings. Such divestment involves the debtor losing the powers of management that he has over his assets. The grounds to refuse to recognise insolven- cy proceedings opened in another member state set out in article 26 are where such recog- nition would produce effects clearly contrary to its public its fundamental princi- policy, ple, or the constitutional rights and liberties of the individual. In the the context of insolvency, rights of creditors or their rep- Co Co Co Co Co Dublin Co Dublin Co Dublin Co Galway Co Galway Co Galway Co Galway ellowmeadows Road in the town ellowmeadows Road in the 14613; lands: townland of Inishlackan 9867F; lands: townland of Ballymanagh and barony of Dunkellin; area: 0.1493 hectares; Galway lands: townland of Rinmore and barony of Galway; area: 0.0404 hectares; 25749; lands: townland of (1) Lackabaun (Leitrim By), (2) Cloonlee, (3) and (4) Coppanagh (Loughrea By); area: (1) 10.7646 hectares, (2) 1.2014 hectares, (3) 0.4755 hectares, (4) 0.2655 hectares; Co Galway 28108F; lands: townland of Rinmore and barony of Galway; 4688F; lands: townland (1), (4), (5), (7), (8) Cornamucklagh; (2), (6), (9) (10), (11) Castlegar East; (3) Weston, Kilglass and barony of (1), (3), (4), (5), (6), (7), (8), (10), (11) Clon- macnowen; (2), (6), (9) Killian; area: (1) 6.3160 hectares, (2) 13.9590 hectares, (3) 6.3430 hectares, (4) 2.0560 hectares, (5) 4.2360 hectares, (6) 13.9590 hectares, (7) 1.3830 hectares, (8) 4.2360 hectares, (9) 13.9590 hectares, (10) 2.8870 hectares, (11) 2.1240 hectares; 31944; lands: townland of Deerpark (Clonmacnowen By) and barony of Clonmachowen; area: 0.1340 hectares; Galway 17368F; lands: townland of Boolard and barony of Ballynahinch; area: 0.1367 hectares; Katherine O’Shea; folio: DN97036L; as no 9, lands: an apartment known 2, Annaly Grove, block second floor, in the town- Ongar Lodge, Ongar, and land of Hanfield or Phibblestown barony of Castleknock; known DN89342F; lands: property as site no 134 Carysfort Park, situate in the parish of Stillorgan and bor- ough of Dun Laoghaire; Dublin DN38380F; lands: the Cooney; folio: as 22 Clanmoyle property known in the parish of Road, situate district of Clontarf; Clonturk and ate in the townland of Cardiffscastle townland of ate in the of Castleknock; and barony Dublin prop- Ellis; folio: DN94758F; lands: of erty situate to the west Y and parish of Clondalkin; Regd owner: Roderick Mullion; folio: Regd owner: Thomas Greally; folio: Regd owner: Ellen Kenny; folio: 718F; Regd owner: Anthony Cummins; folio: Regd owner: Gerard Regan; folio: Regd owner: Sean Murphy; folio: Regd owner: Patrick J Noonan; folio: Regd owner: Louis Perrugia; folio: Regd owner: Shane Russell and Regd owner: Shane Russell folio: Regd owner: Marie O’Gara; Regd owner: John Cooney and Maria Regd owner: Regd owner: Philip Cushen and Karen Regd owner: Philip Cushen Co Co Dublin Co Dublin Co Dublin Co Dublin Co Dublin Co Dublin Co Dublin Co Dublin Co Dublin aterville Row, Waterville, Snug- Waterville, aterville Row, empleogue and barony of Alice O’Keeffe; folio: DN55850L; folio: Alice O’Keeffe; known as 36 lands: property situate in the parish Seagrange Drive, Baldoyle; and district of DN3084L; lands: property known as DN3084L; lands: Brookville, situate on St Catherine’s of the Malahide Road the west side townland and property situate in the Coolock; of Coolock and barony of Co Dublin situate in DN12528; lands: property and the townland of Ballymastone barony of Nethercross; lands: Mangan; folio: DN98366F; of property situate in the townland of Murphystown and barony Rathdown; situ- folio: DN3339F; lands: property and ate in the townland of Rush barony of Balrothery East, part of the property situate to the east side of Skerries road, in the parish of Lusk and town of Rush; Amanda Murtagh; folio: DN106262L; lands: property being an apartment known as duplex unit no block 2, cluster 1, 20, first floor, W borough Road, Blanchardstown, being part of the townland of Corduff and barony of Castleknock; Dublin Thomas; folio: 45889L; lands: 26 Glensdown Lawns in the townland of T Uppercross and county of Dublin; area: 0.028 hectares; folio: DN12820L; lands: property sit- uate in the townland of Whitehall and barony of Uppercross; DN14885; lands: a plot of ground sit- uate on the north side of Lorcan district Grove, in the parish of Santry, and city of Dublin; DN69126F; lands: property situate in the townland of Johnstown and barony of Rathdown, known as 14 Granitefield, Rochestown Avenue; Co Dublin Kathleen Byrne, folio: DN54009F; lands: property situate in the town- South and barony of land of Tymon Uppercross; DN20601L; lands: property situate to in the the south of Collins Avenue parish of Artane and district of Clonturk; O’Regan; folio: DN161093F; lands: property known as 37 St Canice’s Court, Cappagh Green, Finglas, situ- Regd owner: Michael Hogan; folio: Regd owner: folio: Regd owner: Seamus Cannon; and Louise Regd owner: David Mangan Weldon; Regd owner: Patrick Junior Regd owner: Kevin Murtagh and Regd owner: Vincent Thomas and Jean Regd owner: Vincent Regd owner: Joseph O’Rahilly Sealy; Regd owner: James Manning; folio: Shortland; folio: Regd owner: Valerie Regd owner: Michael Byrne and Regd owner: Oliver McNamee; folio: and Niamh Regd owner: Donal Lynch Co Cork Co Cork Co Cork Co Donegal Co Donegal Co Donegal Co Donegal Co Donegal Co Cork Charles Doherty, c/o Beleem Charles Doherty, Limited, Gweedore Road, Dungloe, Co Donegal; folio: 9709F; lands: Meenmore; area: 0.2379 hectares; Co Donegal c/o Beleem Charles Doherty, Limited, Gweedore Road, Dungloe, Co Donegal; folio: 17726F; lands: Meenmore; area: 0.2170 hectares; Co Donegal McMenamin and Son, Solicitors, Co Donegal; folio: Ballybofey, 43532; lands: Saintjohnstown; area: 0.5994 hectares; Gortin, Ballyloskey, Marian Doherty, Carndonagh, Co Donegal; folio: 43402; lands: Ballyloskey; area: 37.975 acres, 5.500 acres, 5.500 acres, 30.038 acres, 7.938 acres, 2.625 acres and 5.250 acres; Dun-an-Oir, Old Bawn, Tallaght, Co Old Bawn, Tallaght, Dun-an-Oir, Dublin; folio: 2934F; lands: Dunglow; area: 0.825; Fabmore, Gleneely, Lifford PO, Co Fabmore, Gleneely, Donegal; folio: 14130; lands: Leitrim; area: 16.686 hectares and 1.6187 hectares; Preston; folio: DN123902F; lands: property situate in the townland of and barony of Coolock; Artane West Co Dublin (deceased); folio: 21963; lands: plot of ground situate in the townland of Ballydesmond in the barony of Duhallow and in the county of Cork; Co Cork Killygordon, Co Donegal; folio; 12261; lands: Ballyarrell; area: 15.3907 hectares; Bernard Harrington (deceased); ground folio: 9855F; lands: plot of of situate in the townland of Bear Cappyaughna in the barony and the county of Cork; (deceased); folio: 14962F; lands: plot (deceased); folio: 14962F; lands: of of ground situate in the townland of Bear Gortgarriff, in the barony and the county of Cork; the barony of Duhallow and the the barony of county of Cork; 3630F; lands: plot of Limited; folio: in the townland of ground situate the barony of Shinagh, in the county of Cork; Kinalmeaky and Co Cork of folio: 10180; lands: townland Ballyanly and barony of Muskerry East; area: 5.4590 hectares; Regd owner: Hugh Gerard Boyle and Regd owner: Hugh Gerard Boyle and Regd owner: Howard Green, c/o WT Regd owner: John Gerard Doherty and Regd owner: Patricia Branagan, 25 Regd owner: Patrick McLoughlin, Regd owner: Anita Preston and Tony Regd owner: Christopher O’Keeffe and Regd owner: Michael J Cronin Regd owner: Don Browne, Ballyarrell, Regd owner: Nancy Harrington and Regd owner: Nancy Harrington Regd owner: John McCarthy Regd owner: John Regd owner: Wesco Aluminium Wesco Regd owner: Mahony; Regd owner: Elizabeth Ann Co Co Co Clare DECEMBER 2006 DECEMBER Co Carlow Co Carlow Co Cavan Co Clare Co Cavan Co Carlow Catherine O’Reilly, Drumalee, Catherine O’Reilly, Cavan, Co Cavan; folio: 16513F; lands: Drumroragh; area: 0.2650 hectares; and 6017F; lands: townland of Cappaduff and barony of Leitrim; 22160F; lands: plot of ground situate in the townland of Gooseberryhill in folio: 9012F; lands: Carlow and barony of Carlow; folio: 8976F; lands: south side of Brownhill Road and barony of Carlow; Keelagh, Elizabeth Mackey, Ballyjamesduff, Co Cavan; folio: 2860F; lands: Keelagh Glebe; area: 0.2655 hectares; Clare Hayes; folio: 15694; lands: townland of Feakle and Coolreagh; area: 44.0626 hectares and 0.3490 hectares Upper; and barony of Tulla Clare 4163F; lands: townland of Cratloekeel and barony of Bunratty Lower; area: (1) 7.4211 hectares, (2) 2.0392 hectares; 17812; lands: townland of Croaghaun (Inchiquin By) and barony of Inchiquin; area: 8.2353 hectares; Derek Byrne; folio: 16635F; lands: Moneybeg and barony of Idrone East; Co Carlow folio: 321; lands: Rathedan and barony of Idrone East; LOST LAND LOST LAND CERTIFICATES Register of Titles), Central Office, Land Register of Titles), Regd owner: Michael O’Reilly and Regd owner: James Cleary; folio: 3296F O’Callaghan; folio: Regd owner: Tadgh Regd owner: Alan and Neville Moore; Regd owner: Alan and Neville Moore; Regd owner: Brian Mackey and Regd owner: Anthony Hayes and Mary Regd owner: Roy O’Donnell; folio: Regd owner: Michael Coughlan; folio: Registration of Title Act 1964 Title Registration of has been received from An application owners mentioned in the the registered of a land schedule hereto for the issue the original certificate in substitution for of the land certificate issued in respect which lands specified in the schedule, to have original land certificate is stated A been lost or inadvertently destroyed. unless noti- new certificate will be issued within fication is received in the registry of 28 days from the date of publication certificate is this notice that the original of some in existence and in the custody owner. person other than the registered state the Any such notification should is being grounds on which the certificate held. ( Chancery Dublin Registry, Street, (Published 8 December 2006) Regd owner: Elaine Fitzgerald and Regd owner: John Condren (deceased); www.lawsociety.ie LAW SOCIETY GAZETTE

PROFESSIONAL NOTICES 68 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE DECEMBER 2006

and barony of Ballynahinch; Co Galway LAW SOCIETY Regd owner: Patrick Kearns; folio: 31252; lands: townland of Headford Gazette and barony of Clare; area: 2.2230 Gazette hectares; Co Galway Regd owner: Mary O’Connor; folio: PROFESSIONAL NOTICE RATES 12918; lands: townland of RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS: Shanaknock (ED O’Brennan) and barony of Trughanacmy; Co Kerry • Lost land certificates – €132 (incl VAT at 21%) Regd owner: John and Margaret • Wills – €132 (incl VAT at 21%) O’Sullivan; folio: 18382; lands: town- • Title deeds – €132 per deed (incl VAT at 21%) land of Cloonalour and barony of • Employment/miscellaneous – €132 (incl VAT at 21%) Tr ughanacmy; Co Kerry Regd owner: Edmond Murphy; folio: HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €31.50 EXTRA 6380F; lands: Kilkeasy and barony of Knocktopher; Co Kilkenny All notices must be paid for prior to publication. CHEQUES SHOULD BE MADE PAYABLE Regd owner: Kevin Hamill; folio: TO LAW SOCIETY OF IRELAND. Deadline for Jan/Feb Gazette: 18 January 2007. 6382L; lands: townland of Clane and For further information, contact Catherine Kearney or Valerie Farrell on tel: barony of Clane; Co Kildare 01 672 4828 (fax: 01 672 4877) Regd owner: Breda O’Reilly (deceased); folio: 1819F; lands: Mountrath and barony of Maryborough West; Co Regd owner: Betty Steenson, Regd owner: Martin and Ann Marshall, Daffy, Maura (deceased), late of 40 Laois Te rrygreehan, Doohamlet PO, Knockmore, Ballingore, Co West Priory, Navan Road, Dublin 7. Regd owner: James McDermott, Castleblaney, Co Monaghan; folio: Westmeath; folio: 13207 and 8682; Would any person having knowledge of Leckaun, Leckaun PO; folio: 4183F; 6309, 6285; lands: Terrygreeghan and lands: Knockycosker; area: 8.4984 the whereabouts of any will made by the lands: Leckaun and Fawnarry; area: Drumgrole; area: 7.1850 hectares and hectares; Co Westmeath above-named deceased, who died on 14 9.5482 hectares and 2.5418 hectares; 6.2470 hectares; Co Monaghan Regd owner: Alex Bethal and Christina August 2005, please contact Hanrahan Co Leitrim Regd owner: Paul Hannigan, Bethal, 19 Crestfield, Whitehall, & Associates, Solicitors, First Floor, 61 Regd owner: Thomas Geoghegan, Lisdrumturk, Carrickmacross, Co Dublin 9; folio: 17028; lands: O’Connell Street, Ennis, Co Clare; tel: Annaghselherney, Kilnagross, Monaghan; folio: 19486; lands: Ballyharney; Co Westmeath 065 684 1569, fax: 065 684 2349, email: Carrick-on-Shannon, Co Leitrim; Lisdrumturk; area: 3.2140 hectares; Regd owner: Health Service Exec- [email protected] folio: 494; lands: Annaghselherny; Co Monaghan utive; folio: 2512; lands: Enniscorthy area: 12.1431 hectares; Co Leitrim Regd owner: Geraldine and Patrick and barony of Scarawalsh; Co Doyle, John (Jack) (deceased), late of Regd owner: Thomas Lenihan; folio: McCooey; folio: 2657F; lands: Wexford 270 Galtymore Road, Drimnagh, 78; lands: townland of Shanid Lower Drumacoon, Newbliss; area: 0.750 Regd owner: John and Kathleen Dublin 12. Would any person having and barony of Shanid, Co Limerick acres; Co Monaghan Mernagh; folio: 4621; lands: knowledge of the whereabouts of a will Regd owner: Francis O’Connor; Regd owner: Joseph Patrick Connolly; Jacketstown and Killane and barony executed by the above-named deceased, Rathcor, Riverstown, Dundalk, Co folio: 11918; lands: townland of of Forth; Co Wexford who died on 15 October 2006, please Louth; folio: 8855; lands: Rathcor; Fairymount and barony of Regd owner: Robert Murphy; folio: 43F; contact Michael Doyle of 4 Wellmount area: 8.7336 hectares; Co Louth Ballintober South; area: 4.7828 lands: Ballinaberney and barony of Court, Finglas, Dublin; tel: 01 864 0769 Regd owner: Alexander Charles Smart; hectares; Co Roscommon Scarawalsh; Co Wexford folio: 12812F; lands: townland of Regd owner: Patrick O’Connor; folio: Regd owner: Nicholas Murphy Garvey, Mary (deceased), late of Churchfield Lower and barony of 18676; lands: townland of Bellahy (deceased); folio: 4200F; lands: Cahir, Kiltimagh, Co Mayo, and for- Ross; area: 0.1962 hectares; Co and barony of Leyny; area: 2.3961 Ballinrooaun (ED Ardcolm) and merly Shanvaghera, Knock, Co Mayo, Mayo hectares; Co Sligo barony of Ballaghkeen; Co Wexford who died on 15 September 2006. Would Regd owner: Michael Quirke and Mary Regd owner: Robert Bourke; folio: Regd owner: Ballygarrett/Realt na Mara any person having knowledge of the Daly; folio: 4422F; lands: 24641; lands: townland of GAA Club; folio: 12232F; lands: whereabouts of a will executed by the Knockanillaun and barony of Moanmore (ED Emly) and barony of Ballinagam Lower and barony of above-named deceased, who died on 15 Tirawley; area: 0.1998; Co Mayo Clanwilliam; Co Tipperary Ballinagam North; Co Wexford September 2006, please contact Regd owner: James Flanagan; folio: Regd owner: Ben Lyons; folio: 13126; Regd owner: I and S English; folio: Gilmartin & Murphy, Solicitors, Main 13543; lands: townland of lands: townland of Kilmakill and 22239; lands: Ferns Upper and Street, Kiltimagh, Co Mayo; tel: 094 Gortaphuill (parts) and barony of barony of Eliogarty; Co Tipperary barony of Scarawalsh; Co Wexford 938 1204 or fax: 094 938 1226 Carra; area: 28 acres; Co Mayo Regd owner: Daniel and Bernadette Regd owner: John Kelly (deceased); Regd owner: Anthony Gill (deceased); Cleary; folio: 24924F; lands: town- folio: 12399; lands: Monasootagh Kavane, Daniel (deceased), late of folio: 34613; lands: townland of land of Spafield and barony of and barony of Scarawalsh; Co Ballyristeen, Dingle, Co Kerry; date of Cartrongolbert and barony of Middlethird; Co Tipperary Wexford death in or about 30 September 2006. Tirawley; area: 0.0632 hectares; Co Regd owner: Anthony Wixted; folio: Would any person having knowledge of Mayo 32306; lands: townland of Birdhill any will executed by the deceased please Regd owner: Vincent McEvitt and Irene and Annaholty and barony of Owney WILLS contact Edmund Butler, LK Shields, McEvitt, Main Street, Clonee, Co and Arra; Co Tipperary Solicitors, 39/40 Upper Mount Street, Meath; folio: 9388F; lands: Clonee; Regd owner: Maurice Lenihan; folio: Dublin 2; tel: 01 661 0 866, fax: 01 661 area: 0.1416 hectares; Co Meath 12603; lands: plot of ground being Condron, Michael Joseph (deceased), 0 883, email: [email protected] Regd owner: Joseph Duignan and part of the townland of late of Blackwood, Screggan, Tullamore, Doreen Duignan, Pagestown, Parkeennaglogh in the barony of Co Offaly. Would any person having Keeley, Annie (deceased), late of 23 Kilcloone, Co Meath; folio: 20001F; Decies without Drum and the coun- knowledge of the whereabouts of any Larkfield Gardens, Kimmage, Dublin 6. lands: Pagestown; area: 1.945 ty of Waterford; Co Waterford will made by the above-named deceased, Would any person with knowledge of a hectares; Co Meath Regd owner: Peter Reilly, Togher, who died on 16 September 1994, please will executed by the above-named Regd owner: John McGee; folio: Castletown-Finea; folio: 15978; contact Brian P Adams & Company, deceased, who died on 28 October 1988 MH26627; lands: property situate in lands: Togher, Clareisland or Solicitors, Cormac Street, Tullamore, at St James Hospital, Dublin, please the townland of Dunmoe and barony Derrymacegan, Moneybag; Co Co Offaly; tel: 057 932 1866, fax: 057 contact Anthony Diamond of AT of Navan Lower; Co Meath Westmeath 935 1443 Diamond & Co, Solicitors, 217 Clontarf

www.lawsociety.ie 69 , and in , between and in the and in the Landlord and Landlord and Landlord Landlord and Tenant Landlord Landlord and Tenant and Landlord ake notice that Boylan Bros Limited T In default of any such notice being ake notice that any person having a ake notice that any person enant Acts 1967-1994 enant Acts 1967-2005 (Ground Rents) No 2 Act 1978 (Ground Rents) Act 1967 Navoro Limited (applicant) and Green Estate (first respondent) and Christmas Estate (second respon- Stuart Estate (third dent) and Villiers the county registrar at the end of 21 days the county registrar this notice and will apply from the date of registrar for the city of to the county as may be appro- Dublin for directions basis that the persons or priate on the entitled to the supe- persons beneficially the freehold rever- rior interest including aforesaid premises are sion in the unknown or unascertained. Date: 8 December 2006 (solicitors Signed: HV O’Donoghue Solicitors Cork for the applicants), 8 South Mall, In the matter of the T matter of the by Boylan the matter of an application Bros Limited T inter- freehold estate or any intermediate messuage est in all that and those the and former- house or tenement situate at ly known as 15A Bishop Street and 41 Lower Kevin Street in the city of Dublin, now known as 15/15A Bishop Street and 40/41 Lower Kevin Street in the city of Dublin, more particularly described in a lease dated 21 May 1777 between Robert Byrne of the one part and John Connelly and Alexander Gordon of the other part and a lease dated 12 October 1914 made between John White and James Davis of the one part and the Moravian Union (Incorporated) of the other part. intends to submit an application to the county registrar for the city of Dublin for the acquisition of the freehold interest in the aforesaid properties, and any party asserting that they hold a superior inter- est in the aforesaid premises (or any of them) are called upon to furnish evidence of title to the aforementioned premises to the below named within 21 days from the date of this notice. received, Boylan Bros Limited intends to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the city of Dublin for directions as may be appro- priate on the basis that the persons or persons beneficially entitled to the supe- rior interest including the freehold rever- sion in each of the aforesaid premises are unknown or unascertained. Date: 8 November 2006 Joy and Company (solicitors Signed: Creagh Terrace, for the applicant), 2 Prince of Wales Co Wicklow Bray, In the matter of the T matter of an application under the section 17 of the , and in Landlord and Landlord and in the mat- Landlord and Tenant Landlord ake notice O’Driscoll, that Timothy ake notice that John J O’Donoghue ake notice that In default of any such notice being T In default of any such notice being In default of any such notice T imothy O’Driscoll, Daniel ake notice that any person having an enant Acts 1967-2005 Daniel O’Connell and Martin Twomey intend to submit an application to the county registrar for the city of Cork for the acquisition of the freehold interest and any intermediate interest in the and any party or par- aforesaid property, ties asserting that they hold a superior interest in the aforesaid property are called upon to furnish evidence of title in the aforementioned property to the below named within 21 days from the date of this notice. O’Driscoll, Daniel received, Timothy intend O’Connell and Martin Twomey to proceed with the application before ter of the (Ground Rents) No 2 Act 1978 the matter of an application by T O’Connell and Martin Twomey T interest in the freehold estate or any superior interest in the property known as: all that and those the hereditaments and premises known as 376 Blarney Street in the parish of Saint Mary Shandon, city of Cork, being a portion of the hereditaments and premises com- prised in and demised by an indenture of surrender and lease dated 28 April 1937 made between Harry Franks of the one part and Elizabeth Murphy of the other part held for the term of 100 years from 29 September 1936, subject to the yearly rent of 12 pounds and to the covenants and conditions on the part of the lessee therein contained. and Margaret O’Donoghue (the plain- and Margaret submit an application to tiffs) intend to for a reversionary lease the Circuit Court any party in the aforesaid premises, and inter- asserting that they hold a superior are called est in the aforesaid premises the title to upon to furnish evidence of to the the aforementioned premises from the below named within 21 days date of this notice. to pro- received, the applicants intend before the ceed with the application days from Circuit Court at the end of 21 will apply to the date of this notice and as may the Circuit Court for directions that the per- be appropriate on the basis to the son or persons beneficially entitled superior interest including the freehold reversion in the aforementioned proper- ty are unknown or unascertained. Date: 8 December 2006 Signed: Niall Brosnan & Co (solicitors for the Place, College applicants), 5 St Anthony’s Co Kerry Killarney, Street, In the matter of the T October 1888 and made between October 1888 Lucas and others of the Elizabeth Leader John Curran of the other one part and of 100 years. part for the term : an John J Landlord and Landlord and in the mat- and in the mat- Landlord and Tenant Landlord Landlord and Tenant Landlord ake notice that Oakstead Limited In default of any such notice being T TITLE DEEDS ake notice that any person having inter- ake notice that any person having an ake notice that any person enant Acts 1967-1994 ter of proceedings entitled O’Donoghue and Margaret O’Donoghue (plaintiffs) and the repre- sentatives of Elizabeth Leader Lucas and John Thomas R Lucas (defendants) T est in the freehold estate of the following property: that portion of 35 Main Street, abutting Bohereen Co Kerry, Killarney, Caol, off Main Street in the town, parish barony of and urban district of Killarney, being Magunihy and county of Kerry, portion of the property comprised in and demised by an indenture of lease dated 6 intends to submit an application to the county registrar for the city of Dublin for the acquisition of the freehold interest in and any party or the aforesaid property, parties asserting that they hold a superior interest in the aforesaid premises are called upon to furnish evidence of title to the aforementioned property to the below named within 21 days from the date of this notice. received, Oakstead Limited intends to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the city of Dublin for directions as may be appropri- ate on the basis that the persons or per- sons beneficially entitled to the superior interest including the freehold reversion in the aforesaid premises are unknown or unascertained. Date: 8 December 2006 Signed: McEvoy Partners (solicitors for the applicant), Canada House, 65-68 St Dublin 2 Stephens Green, In the matter of an application for a reversionary lease pursuant to part III of the (Amendment) Act 1980 ter of the 1978 (Ground Rents) No 2 Act application by Oakstead Limited T of the land interest in the freehold estate in the at Pigeon House Road, situate Donnybrook, barony parish of St Mary, land and of Dublin, being part of the dated 30 premises held under a lease between January 1964 and made of the one Southern Properties Limited of the other part and Irish Paints Limited from 1 part for the term of 300 years January 1964, indemnified against the payment of £53, being portion of the entire yearly rent of £78. Fulham Broadway; tel: 0044 2073 Fulham Broadway; 2073 814044, email: 818311, fax: 0044 [email protected] In the matter of the T late of late of 6 DECEMBER 2006 DECEMBER will be pleased to late of Cork Hill, Clara, Co late of Cork Hill, Dublin 6W. AUDITORS 7 Argus 7 Argus House, Harold’s Cross, Harold’s REGISTERED Bookkeeping and Phone: 01 4737455 please contact us at: Accountants Reports Email: [email protected] ACCOUNTANTS & ACCOUNTANTS our Solicitor services, Specialists in Solicitor CERTIFIED PUBLIC CERTIFIED For Enquiries regarding alsh, Edward (deceased), ould any person having knowledge of ould any person having knowledge MISCELLANEOUS Greenmount Office Park, Greenmount Office TD Fitzpatrick Proudstown Road, Navan, Co Meath. Proudstown Road, Navan, W a will executed by the above-named 2006 at deceased, who died on 25 March Co Meath, Hospital, Trim, St Joseph’s & Co, please contact Oliver Shanley Navan, Solicitors, 62-63 Bridge Street, fax: 046 Co Meath; tel: 046 909 3200, 902 9937 W London solicitors advise on UK matters and undertake handle probate, litiga- agency work. We tion, property and company/commer- cial. Parfitt Cresswell, 567/569 Fulham Road, London SW6 1EU; DX 83800 Road, Clontarf, Dublin 3; tel: 01 833 Road, Clontarf, 01 833 4126, email: 3792, fax: [email protected] (née Donkin) McKenzie, Maureen (deceased), knowl- any person having Would Offaly. executed by the above- edge of a will died on 5 named deceased, who CSSO, December 2004, please contact Osmond State Property Division, 8; ref: House, Little Ship Street, Dublin DCH; tel: 01 417 6250 (deceased), Brendan Mulvany, Canal Court, Canal Road, and formerly any Would of Headford, Co Galway. solicitor holding or having knowledge of a will made by the above-named deceased, who died on 30 September B Glynn, 2006, please contact William Solicitors, Aengus House, Long Walk, Galway; tel: 091 594 777, fax: 091 567 316 www.lawsociety.ie LAW SOCIETY GAZETTE

PROFESSIONAL NOTICES 70 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE DECEMBER 2006

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respondent) and Friel Estate (fourth Signed: Peter O’Connor and Sons (solicitors respondent) and Ford Estate (fifth for the applicant), Wyse House, Adelphi respondent) and unknown or unascer- Quay, Waterford GROSSO & MALDONADO tained person (sixth respondent): an Solicitors Abogados Avvocati application by Navoro Limited In the matter of the Landlord and Any person having any interest in the Tenant Acts 1967-1994 and in the freehold estate of the property Parnell matter of the Landlord and Tenant House, situate at Parnell Street and John (Ground Rents) (No 2) Act 1978, and in Street in the parish of Saint John’s within the matter of the lands with buildings ITALIAN LAWYERS the city of Waterford. erected thereon at Braemor Road, Take notice that Navoro Limited Churchtown, Dublin 14: an applica- SPANISH LAWYERS intends to submit an application to the tion by LDB Developments Limited, county register for county of the city of having its registered office at unit 68 Waterford for the acquisition of the free- Western Parkway Business Park, ENGLISH LAWYERS hold interest of the aforesaid premises, Lower Ballymount, Dublin 12 and any party asserting that they hold a Take notice that any person having inter- We offer Italian, Spanish, Irish and English law advice in superior interest in the aforesaid premis- est in the freehold estate or any interme- commercial, corporate, property, litigation, probate and family es (or any of them) are called upon to fur- diate interests in the following property: nish evidence of the title to the afore- all that and those the premises demised law matters. mentioned premises to the below named by indenture of lease dated 5 April 1957 within 42 days from the date of the pub- and made between Jane Egan of We operate from our offices in Dublin, London, Rome, Milan lication of this notice. ‘Corona’, Sutton, in the county of the and Madrid saving you the time, expense and uncertainty of In default of any such notice being city of Dublin of the one part and Joseph instructing lawyers abroad. received, Navoro Limited intends to pro- Samuel Deane of 1 Clare Street in the ceed with the application before the city of Dublin of the other part, and All our lawyers are admitted in more than one jurisdiction and county register at the end of 42 days from therein described as “all that part of the the date of the publication of this notice lands of Little Newtown situate in the are fluent in English, Italian and Spanish. and will apply to the county registrar for parish of Rathfarnham, barony of the county of the city of Waterford for Rathdown and county of the city of FOR FURTHER INFORMATION VISIT OUR WEBSITE directions as may be appropriate on the Dublin, which are more particularly basis that the persons beneficially entitled delineated on the map or plan thereof www.grossomaldonado.com to a superior interest including the free- hereon endorsed and thereon edged with hold reversion in the aforesaid premises a red verge line” (which premises was Dublin Office: Ulysses House, Foley Street, Dublin 1, are unknown or unascertained. previously known as Braemor Road tel. +353 (0)1 8196972, fax. +353 (0)1 8196973 Date: 8 December 2006 Service Station, Braemor Road,

www.lawsociety.ie 71 and in and in the and in the Landlord and Landlord Landlord and Landlord Landlord and Tenant Landlord Landlord and Tenant Landlord ake notice that Rambler Properties wnsend Street, Dublin 2: an appli- wnsend Street, Dublin 2: an In default of any such notice being T illiam White of the other part and ake notice that any person having ake notice that any person ownsend Street in the parish of St enant Acts 1967-1994 enant Acts 1967-1994 Limited intends to submit an applica- tion to the county registrar for the city of Dublin at Áras Uí Dhálaigh, Inns Dublin 7, for the acquisition of Quay, the freehold interest in the aforesaid property and that any party asserting that they hold a superior interest in the aforesaid property are called upon to furnish evidence of title to the below named within 21 days from the date of this notice. received, Rambler Properties Limited intends to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the city of Dublin for directions as may be appropriate on the basis that the person or persons beneficially entitled to the superior interest including the freehold reversion in the aforesaid property are unknown or unascertained. Date: 8 December 2006 & Company (solicitors for Signed: PJ Walsh the applicant), 12 Upper Fitzwilliam Street, Dublin 2 In the matter of the T matter of the T Mark and county of the city of Dublin” (previously more commonly known as Street, Dublin 2, and 144 Townsend now forming part of the development at Street, Dublin Hyde Court, Townsend 2) for a term of 500 years from 25 March 1885, subject to the yearly rent of £6 sterling and the covenants on the part of the lessee and the conditions therein contained. Signed: PJ Walsh & Company (solicitors for Company (solicitors & Signed: PJ Walsh Upper Fitzwilliam Street, the applicant), 12 Dublin 2 of the In the matter matter of the (No 2) Act 1978 (Ground Rents) buildings the matter of the lands with known as erected thereon previously Street, Dublin 2, and 144 Townsend develop- now contained within the Court, ment known as Hyde To Properties cation by Rambler office Limited, having its registered Business at Castle House, Citywest 24 Campus, Naas Road, Dublin T of the interest in the freehold interest and those following property: all that of the premises demised by indenture and made lease dated 15 October 1885 between Thomas Christian Scott, Margaret Scott, Mary Smith and Eleanor Smith of the one part and W therein described as “all that and those the dwellinghouse known as North T and ake notice that Rambler Properties In default of any such notice being T ake notice person having an that any ownsend Street at the corner of Mark Limited intends to submit an applica- tion to the county registrar for the city of Dublin at Áras Uí Dhálaigh, Inns Dublin 7, for the acquisition of Quay, any intermediate leasehold interests in the aforesaid property and that any party asserting that they hold a superior inter- est in the aforesaid property are called upon to furnish evidence of title to the below named within 21 days from the date of this notice. received, Rambler Properties Limited intends to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the city of Dublin for directions as may be appropriate on the basis that the person or persons beneficially entitled to the superior intermediate leasehold interests in the aforesaid property are unknown or unascertained. Date: 8 December 2006 (Ground Rents) (No 2) Act 1978 (Ground Rents) of the lands with build- in the matter thereon previously ings erected Street and Townsend known as 141 Dublin 2, and now 20A Mark Street, the development contained within Court, Townsend known as Hyde 2: an application by Street, Dublin having Rambler Properties Limited, at Castle House, its registered office Naas Citywest Business Campus, Road, Dublin 24 T leasehold interest in any intermediate all that estate of the following property: by and those the premises demised October indenture of lease dated 13 George 1824 and made between and John Donovan of the one part and therein Ferrall of the other part described as “all that dwellinghouse, known as messuage or tenement now being in number 141 situate, lying and T Street as formerly in the possession or merchant, occupation of John Daly, and as lately in the possession and occupation of Richard Oulton, gentle- man, or his under tenants, said premis- es being bounded on the east by Mark Street aforesaid, on the west by the house now or formerly in the posses- sion of Nathaniel Corrigan, on the south by the house now or formerly in and widow, the possession of Mrs Kelly, Street afore- on the north by Townsend said” (which premises was previously Street and known as 141 Townsend 20A Mark Street, Dublin 2, and is now contained within the development known as Hyde Court, Townsend Street, Dublin 2) for a term of 950 years from 13 October 1824, subject to the yearly rent of £34.2.6 sterling thereby reserved and the covenants on the part of the lessee and the conditions therein contained. and in the Landlord and Landlord Landlord and Tenant Landlord 1878 and made between the 1878 and made between Spencer Honourable Charles John Cowper of the one part and for the Thompson of the other part 1878, term of 200 years from 1 May £40 and subject to the yearly rent of therein the covenants and conditions contained and 11 An indenture of lease dated between January 1878 and made and John Luke Reilly of the one part for the Thompson of the other part term of 91 years from 1 November of £65 1877, subject to the yearly rent and the covenants and conditions therein contained and veyance dated 1 June 1984 and made O’ Dea of Terence between William the one part and Thomas O’Connor of the other part for the unexpired residue of the terms of the leases dated 8 August 1878 and 11 January 1878, subject to the covenants and conditions therein contained and assigned and conveyed to Adrian Graham and Genevieve Maiden by deed of assignment and conveyance dated 1 September 2006. In default of any such notice being ake notice that any person having an ake notice that ake notice that Adrian Graham and enant Acts 1967-1994 tion by Adrian Graham and tion by Adrian Genevieve Maiden T freehold estate of the interest in the as 7 Thompson property known Circular Road, Dublin Cottages, North of the property held 1, being portion under: 1) 8 August An indenture of lease dated 2) being all of the property held under: 3) An indenture of assignment and con- T Genevieve Maiden intend to submit an application to the county registrar for the city of Dublin at Áras Uí Dhálaigh, Dublin 7, for the acquisition Inns Quay, of the freehold interest in the aforesaid property and that any party asserting that they hold a superior interest in the aforesaid property are called upon to furnish evidence of title to the below named within 21 days from the date of this notice. received, Adrian Graham and Genevieve Maiden intend to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the city of Dublin for directions as may be appropriate on the basis that the person or persons ben- eficially entitled to the superior interest including the freehold reversion in the aforesaid property are unknown or unascertained. Date: 8 December 2006 Signed: Porter Morris & Company (solici- Street, tors for the applicant), 10 Clare Dublin 2 In the matter of the T matter of the and in DECEMBER 2006 DECEMBER and in the Landlord and Landlord Landlord and Tenant Landlord ENGLISH ake notice that LDB Developments ake notice that SOLICITORS In default of any such notice being In default of any such notice T enant Acts 1967-1994 the matter of the purchase of the freehold estate of property situate at 7 Thompson Cottages, North Circular Road, Dublin 1: an applica- Limited intends to submit an applica- Limited intends the city of tion to the county register for Inns Quay, Dublin at Áras Uí Dhálaigh, of the free- Dublin 7, for the acquisition property hold interest in the aforesaid that they and that any party asserting aforesaid hold a superior interest in the furnish evi- property are called upon the with- dence of title to the below named notice. in 21 days from the date of this Limited received, LDB Developments application intends to proceed with the the end of before the county registrar at notice and 21 days from the day of this for the will apply to the county registrar city of Dublin for directions as may be appropriate on the basis that the person or persons beneficially entitled to the superior interest including the freehold reversion in the aforesaid property are unknown or unascertained. Date: 8 December 2006 and Company (solicitors Signed: PJ Walsh for the applicant), 12 Upper Fitzwilliam Dublin 2 Street, In the matter of the T matter of the (Ground Rents) (No 2) Act 1978 Churchtown, Dublin 14) for a term of Churchtown, 1 July 1951, subject to 500 years from of one shilling thereby the yearly rent covenants on the part reserved and the conditions therein con- of the lessee and tained. www.lawsociety.ie LAW SOCIETY GAZETTE

PROFESSIONAL NOTICES 72 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE DECEMBER 2006

(Ground Rents) (No 2) Act 1978: an ceed with the application before the application by William Owens county registrar at the end of 21 days NOTICE TO THOSE PLACING Take notice that any person having inter- from the date of this notice and will apply est in the freehold estate of the property to the county registrar for the city of RECRUITMENT ADVERTISEMENTS IN THE known as 3 Thompson’s Cottages, North Dublin for directions as may be appropri- LAW SOCIETY GAZETTE Circular Road, Dublin 1, being portion ate on the basis that the person or per- of the property held under an indenture sons beneficially entitled to the superior Please note that, as and from the August/September 2006 issue of lease dated 8 August 1878 and made interest including the freehold reversion of the Law Society Gazette, NO recruitment advertisements will between the Honourable Charles in the aforesaid property are unknown or be published that include references to years of post- Spencer Cowper of the one part and John unascertained. qualification experience (PQE). Thompson of the other part for the term Date: 8 December 2006 of 200 years from 1 May 1878, subject to Signed: O’Scannaill & Co (solicitors for the The Gazette Editorial Board has taken this decision based on the yearly rent of IR£40 and the applicant), 41 Main Street, Swords, Co legal advice, which indicates that such references may be in covenants and conditions therein con- Dublin tained, and an indenture of lease dated 11 breach of the Employment Equality Acts 1998 and 2004. January 1878 and made between Luke Reilly of the one part and John RECRUITMENT Thompson of the other part for a term of Due to restructuring, FB Keating & ence. Apply in strictest confidence with 91 years from 1 November 1877, subject Company, Limerick, require a litigation curriculum vitae to Brendan O’Reilly to the yearly rent of IR£65 and the Co Louth: two experienced solicitors solicitor. Excellent career propects. Esq, O’Reilly Solicitors, Market Street, covenants and conditions therein con- required for young, busy, medium-sized Apply with CV to: [email protected] Cootehill, Co Cavan tained and being all of the property the dynamic practice; firstly, family law and subject of a deed of assignment dated 24 conveyancing solicitor, secondly, con- Solicitor required for busy general July 2000 between Francis O’Neill and veyancing housing estate development, practice. Good general experience pre- Solicitor’s practice for sale Shirley Fagan of the one part and commercial property and possibly some ferred. Reply to Liam Keane & Well-managed, long-established William Owens of the other part. company law. Immediate start. Excellent Company, Solicitors, The Old Toll general practice for sale. South Take notice that William Owens salary. Apply in writing to principal of House, Dunshaughlin, Co Meath; email: Dublin suburbs. Principal retiring intends to submit an application to the Catherine Allison & Co, 6 Roden Place, [email protected] but willing to work part-time at county registrar for the county of Dublin Dundalk, Co Louth; tel: 042 932 0854 or outset if required. Large will cabi- at Áras Uí Dhálaigh, Inns Quay, Dublin direct email: [email protected] Assistant solicitor required for a busy net, good turnover. Would suit a 7, for the acquisition of the freehold progressive solicitors’ practice in partnership, branch office or sole interest in the aforesaid property and that Wanted: general practice position. Cootehill, Co Cavan. The applicant must practitioner. Ref: ST/2091. any party asserting that they hold superi- UK-qualified solicitor with broad experi- have a good background of experience in Contact: Sonya Tighe, Moore or interest in the aforesaid property are ence, mainly civil property litigation, conveyancing, probate, capital taxation, Stephens Caplin Meehan, called upon to furnish evidence of title to looking for work in the Limerick, North with some District Court experience an Chartered Accountants, Blackhall the below named within 21 days from the Cork, North Kerry and West Tipperary advantage. The applicant must also be Green, Blackhall Place, Dublin 7; date of this notice. areas. On roll with Irish Law Society. Full computer literate. Pleasant working tel: 01 646 9000 or email: In default of any such notice being time and part time considered. Reply to atmosphere with support staff and col- [email protected]. received, William Owens intends to pro- box no 100/06 leagues. Salary negotiable with experi-

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From 1 January 2007, the Four Courts consultation room will be a broadband ‘hotspot’ for wireless enabled laptops. No laptop? Simply use the internet kiosks in the Four Courts consultation room office.

The Law Society’s partners in this initiative TEL: 01 668 1806 are GlobalAirNet International Ltd.

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AT STELFOX LEGAL WE PRIDE OURSELVES IN THE FACT THAT CURRENT OPPORTUNITIES INCLUDE: WE ARE A LEGAL RECRUITMENT AGENCY RUN BY LEGAL PEOPLE ■ Corporate Lawyer – Prestigious mid tier firm. ■ Investment Funds Lawyer – Top Tier firm. FOR LEGAL PEOPLE. A DIVISION Dublin city centre – €80,000+ Dublin City Centre – €85,000+ RUN BY SOMEONE WITH SIX YEARS LEGAL EXPERIENCE WE Lawyer with excellent corporate experience Lawyer with experience both advising on and KNOW THE DEMANDS OF BOTH required for prestigious law firm in the Dublin establishing investment funds is required by the THE INDUSTRY AND THE PEOPLE 2 area. Must have sound knowledge of hugely successful department of a Top 5 firm in WHO WORK IN IT. WE CANNOT corporate transactions, be able to work in a Dublin city centre. Enviable client portfolio, STRESS ENOUGH HOW SERIOUSLY WE RESPECT BOTH pressurised but friendly environment and have friendly working atmosphere and excellent career CANDIDATES AND CLIENTS exceptional client management skills. progression for the right candidate. CONFIDENTIALITY. AS ALWAYS, WITH STELFOX LEGAL, YOU'RE IN We would like to take this opportunity to wish all our candidates and clients a merry Christmas THE DRIVING SEAT. and a happy and prosperous 2007

If you are interested in finding the right position in the right firm with an agency who genuinely respects your need for confidentiality contact Stephen Kelly B.A., LL.B. at Stelfox Legal on (01) 679 3182 or email your CV to [email protected] Log on to our new website for a list of more opportunities www.stelfox.ie

www.lawsociety.ie 75 LAW SOCIETY GAZETTE DECEMBER 2006 RECRUITMENT

EMPLOYMENT LAWYER – DUBLIN CITY CENTRE €60K+ Our client, a leading commercial law firm, is now recruiting an employment lawyer. The successful lawyer will be drafting and advising on employment contracts and employee policies, creating and implementing employee programs for its clients, advising on terms and conditions of employment, post-termination restrictive covenants and implementing redundancy programs as well as involved in transfer of undertaking issues in corporate sales and takeovers.

SENIOR PROPERTY SOLICITOR – DUBLIN CITY CENTRE €90K + A leading commercial law firm in Dublin are now seeking a solicitor with experience in commercial conveyancing. The successful candidate will have experience in large deal commercial transactions advising investors, developers and financial institutions and investigating title as well as good working knowledge of landlord and tenant issues.

CONSTRUCTION LAWYER (NON-CONTENTIOUS) – DUBLIN 2 €60-80K Top 5 law firm requires a solicitor for its construction department. The firm advises a range of public and local authorities, private sector developers, contractors and designers in relation to all aspects of construction and engineering. The successful candidate will have experience in construction and planning. For information on these vacancies IN-HOUSE COMPETITION & REGULATORY LAWYER – DUBLIN €60K+ or to discuss Our client based in Dublin is a leading company which is now seeking a legal advisor to take responsibility for other career the provision of competition law. Its remit will also require that the successful candidate assist with its corporate opportunities, governance procedures and adhere to regulatory requirements. please contact John Cronin CONVEYANCING SOLICITOR – MONAGHAN €50-60K Solicitor. This is an opportunity to join a thriving and expanding law firm. As a result of this development, our client is now looking for a conveyancing solicitor to join its team. An interest in cross-border legal practice would be beneficial. PRC Recruitment Limited, 11 Hume Strong partnership potential for ambitious solicitor. Street, Dublin 2. Tel: 01-6381020 COMMERCIAL SOLICITOR – CORK €70K + or e-mail Our client, based in Cork has experienced exceptional growth in its commercial department in the last year. Due to [email protected] this growth it is now seeking a good company/corporate solicitor to join its team.

76 www.lawsociety.ie RECRUITMENT LAW SOCIETY GAZETTE DECEMBER 2006

www.lawsociety.ie 77

LAW SOCIETY GAZETTE DECEMBER 2006 RECRUITMENT

80 www.lawsociety.ie

It’s all about Laurence Simons Financial Services Lawyer Construction Lawyer Dublin €Excellent terms on offer Dublin €90k Major international investment bank requires a junior lawyer Small, but expanding, practice based in the city centre is to join its in-house team. As one of the global leaders in seeking to appoint a construction lawyer at associate level. corporate banking/securities and asset management, the You will preferably have experience in non contentious bank provides financial solutions for demanding clients. The construction work, but candidates with contentious successful candidate will have a background in one of the backgrounds will also be considered. This is an excellent following areas: general banking, structured finance, opportunity to develop your career within a highly securitisation. Ref: 13222. Please contact Portia White. autonomous role. Ref: 14428. Please contact Sharon Swan. Corporate/Commercial Lawyer Commercial Property Lawyer Cork €65k plus Cork €65k Our client a leading Cork firm, requires a junior lawyer to join Leading firm in Cork require a junior lawyer to join an a busy corporate commercial department. You will have the expanding and progressive team. You will have experience in ability to assess and identify commercial and financing issues commercial property transactions with regard to acquisitions, and apply legal reasoning to how these issues are addressed. disposals, letting of property and other property related You will have high quality transactional experience with matters. Experience of acting for landlords, tenants and exposure to asset and share purchase agreements and other developers with a view to expanding this commercial activity related commercial agreements. Drafting and negotiation is essential. The successful candidate will have the ability to skills a must. Ref:13762. Please contact Portia White. take responsibility and act in a fast paced environment. Ref 13454. Please contact Portia White. Pensions Lawyer Dublin €70K Junior Financial Services Lawyer Our client requires an investment/pensions lawyer to join its Dublin base with international travel €60k legal team based in the city centre. You will provide legal The European headquarters of this leading provider of financial advice to the large client base in the areas of pensions, services is looking to recruit a junior lawyer. You will have gained employment and trust law, as well as drafting ancillary legal excellent training and now wish to develop your career in-house. documentation. Relevant experience in pensions and Excellent basic and bonus are offered, as well as international employment law, gained either in-house or in private practice, travel to other global financial centres, including New York and is highly desirable. Ref:11184. Please contact Portia White. Hong Kong. Ref: 6432. Please contact Sharon Swan. Newly Qualified Corporate / Banking Corporate/Trust Lawyers Dublin €Excellent terms on offer Off-shore Cayman Is, Guernsey, Jersey €Excellent Our client, a leading firm with a strong domestic and Leading off-shore law firm is seeking lawyers for its international international focus, is looking to recruit commercial and offices. You will have gained experience in a leading firm and banking lawyers. You will have strong academics and have now want to consider making a move off-shore. Lawyers at all apprenticed in a mid-sized or leading firm. Most importantly levels will be considered. City of London salaries are offered and you will have a desire to develop your career within a leading excellent tax rates will apply. Relocation assistance will also be corporate. Ref: 14840. Please contact Sharon Swan. offered. Ref: 14568. Please contact Sharon Swan. Corporate Lawyer Junior Corporate Lawyer Dublin €Excellent London €100k+ Our client is a boutique firm with an excellent reputation We are representing a number of Magic Circle and second among its clients and is looking to recruit a commercial tier firms based in London. Our clients are looking for lawyer at associate level for a team based role. You will have corporate lawyers at all levels and offer the opportunity experience in one or more of the following: mergers and to work on high profile corporate transactions. acquisitions, venture capital, joint ventures, privatisations and Ref: 12354. Please contact Sharon Swan. flotation’s. Ref: 12667. Please contact Sharon Swan.

Sharon Swan Tel: +353 (0) 1 477 3066 email: [email protected] Portia White Tel: +353 (0) 1 477 3063 email: [email protected]

Harcourt Centre, Harcourt Road, Dublin. 2 Tel: +353 (0) 1 402 9400 Fax: +353 (0) 1 402 9590 Search for positions online at www.laurencesimons.com

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