Jim’ll f ix it! Working abroad Winning ways James MacGuill wins The latest information Gazette team scoops the day in the European on international job top gong at national Court of Human Rights possibilities for lawyers magazine awards LAW SOCIETY LAW GAZETTEGAZETTE€3.75 Jan/Feb 2011

THE BIG CHILL The ‘chilling effects’ of costs for public interest litigation 2010-11 BUSINESS TO BUSINESS MAGAZINE OF THE YEAR LegaL RequiRements

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Irish Criminal Justice: Principles of Irish Theory Process and Employment Law Procedure Dr Brenda Daly, Dr Vicky Conway, Dr Yvonne Daly, Dr Michael Doherty Jennifer Schweppe Price: €60 Price: €80

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To order email: [email protected] Telephone: 01 415 0439 Fax: 01 454 9265 For more information on these and other titles please visit our website: www.claruspress.ie Law Society Gazette www.gazette.ie Jan/Feb 2011 President’s message 1 insurance crisis is major concern

t is with profound gratitude and great respect for you, The second report, reference my colleagues, that I write my first president’s message. 98-2010, entitled Alternative IThe economic tsunami and the horrendously stressful and Dispute Resolution – Mediation expensive insurance renewal process, for many colleagues, has and Conciliation, sets out a caused enormous levels of anxiety, upset and anger, together statutory framework for with huge financial pressure – which I readily acknowledge ADR applying to individuals, and with which I empathise. corporate and state bodies. It Some colleagues have told me that they were subjected contains 108 recommendations to totally unacceptable and unreasonable behaviour from and attaches a draft bill, which insurers in the renewal process – for the last two years sets out: especially. The present system has also created great a) The general principles financial, administrative and time pressure on many applying to mediation (for colleagues. I know the renewal process is also driving some example, confidentiality, firms out of existence by the high cost of insurance, and privilege, limitation periods “The PII renewal many practitioners feel a strong sense of isolation when and enforceability), process is driving applying for professional indemnity insurance (PII) renewal. b) The role of the court, c) The duty of solicitor, and some firms out of PII survey d) The obligations on the existence” A PII survey has now been sent by the Society to every firm litigant. in the country, and I would earnestly request that completed forms, which are confidential, be returned immediately so that I am asking a sub-committee of the Arbitration and Mediation they can contribute to major improvements in the PII renewal Committee to issue guidelines to the profession on the use of process for next December. Replies to the survey will be mediation and conciliation in practice. examined at a Council meeting on 18 February 2011. Please be assured that the insurance crisis is the major concern of the Congratulations to the Gazette Society at present, and the Society is determined to ensure if This is my first president’s message and I am delighted we possibly can that you, our colleagues, do not face a similar that it is being published in Ireland’s ‘Business-to-Business renewal process next December. Magazine of the Year’. At its December meeting, the Society’s On a different note, I wish to organise conferences during Council sent its warmest congratulations to Gazette editor the year for sole practitioners and young solicitors to identify Mark McDermott and all his team for their great success in ways in which the Society can do more to assist them. I am taking the top award in their category, as determined by the encouraging the Society’s work – which is already underway Magazines Ireland judges (see p12 of this issue). It reflects – to develop a mentoring system for newly qualified solicitors. well, not only on the Gazette team, but on the Society and the In addition, I will be examining ways in which the Society can profession to have the excellence of our flagship publication assist colleagues who wish to retire. nationally recognised in this way. With a determination not to rest on even those impressive laurels, the team has now LRC reports – guidelines produced the refreshing new design you see this month. Last December, the Law Reform Commission published a number of excellent reports and I would like to refer, briefly, to Contact me two of these. I would encourage any of you with concerns or suggestions The first, reference 97-2010, entitled Consolidation and to contact me at any time. In particular, in addition to meeting Reform of the Courts Acts, recommends that the monetary bar associations, I would be delighted to meet any other jurisdiction limit of the Circuit Court should be increased groups or firms of solicitors who wish to discuss the massive to €100,000, as intended by section 13 of the Courts and challenges we face as a profession. Court Officers Act 2002, subject to a lower limit of €50,000 in Mary McAleese has said: “Ireland’s task is to build on all personal injury claims. The jurisdiction of the District Court that was good in our success and to make our disappointments would be increased to €20,000. I am asking the Litigation a springboard to reimagine ourselves and our society.” That Committee for their views on these recommendations. should also be the aim of our profession. G

John Costello President 2 Contents Law Society Gazette www.gazette.ie Jan/Feb 2011

Law Society Gazette Volume 105, number 1 Subscriptions: €57

Editor: Mark McDermott FIIC Deputy editor: Dr Garrett O’Boyle Designer: Nuala Redmond Society Law Editorial secretaries: Catherine Kearney, GazetteGazette Valerie Farrell, Peter Downey

Commercial advertising: Seán Ó hOisín, tel: 086 811 7116, RegularS email: [email protected] 1 President’s message 47 Briefing For professional notice rates (wills, title deeds, 47 Council report: 10 December 2010 employment, miscellaneous), see page 58. 4 News 48 Practice notes Published at Blackhall Place, Dublin 7, 49 Solicitors Disciplinary Tribunal tel: 01 672 4828, fax: 01 672 4877. 12 Analysis 50 Legislation update: 13 November – Email: [email protected] 12 News feature: everyone’s a winner 31 December 2010 Website: www.gazette.ie baby, that’s no lie 51 One to watch Printing: Turner’s Printing Company Ltd, 14 News feature: international work 52 Justis update Longford opportunities for lawyers 54 Eurlegal: ECJ upholds fine for abuse of 16 Human rights watch: school’s dominant position Editorial board: Michael Kealey (chairman), admission policy may discriminate Mark McDermott (secretary), Mairéad Cashman, 58 Professional notices Paul Egan, Richard Hammond, Mary Keane, against Travellers Aisling Kelly, Tracy Lyne, Patrick J McGonagle, Ken Murphy, Andrew Sheridan 18 Comment 62 Recruitment advertising 18 Viewpoint: why is forced labour not The Law Society of Ireland can accept considered a crime in Ireland? 64 Captain’s blawg no responsibility for the accuracy of Wild, weird and wacky stories from contributed articles or statements appearing legal ‘blawgs’ and news media around in this magazine, and any views or opinions 40 People and places the world expressed are not necessarily those of the Minister for Justice at parchment Law Society’s Council, save where otherwise ceremony; Mayo solicitors’ annual indicated. No responsibility for loss or distress occasioned to any person acting or refraining dinner; SYS conference; Law Society from acting as a result of the material in Diploma Programme this publication can be accepted by the authors, contributors, editor or publishers. The 45 Books editor reserves the right to make publishing 45 Book reviews: Tax Book 2010; decisions on any advertisement or editorial article submitted to this magazine, and to The End of Lawyers? and District Court refuse publication or to edit any editorial Practice and Procedure in Criminal material as seems appropriate to him. Proceedings Professional legal advice should always be 46 Reading room: a new series focusing sought in relation to any specific matter. on the traditional and electronic Law Society library services 64 FSC independently-certified wood and paper products used by the Law Society Gazette come from ecologically-managed forests. Visit: www.fsc.org

PEFC certifies that wood and paper products used by the Law Society Gazette are sourced by suppliers from sustainable, managed forests. Visit: www.pefc.org

The Law Society Gazette is a full participating member of the Press Council of Ireland and M supports the Office of the Press Ombudsman. R e s c ne This scheme, in addition to defending the free- ycl azi e Mag dom of the press, offers readers a quick, fair and free method of dealing with complaints that they may have in relation to articles that appear on our pages. To contact the Office of the Press Ombudsman go to: www.pressom- budsman.ie or www.presscouncil.ie. 40 42 Law Society Gazette www.gazette.ie Jan/Feb 2011 Contents 3

24 32

winning ways team scoops orking abroad Gazette onal w top gong at nati Cover pic: Thinkstock The latest information magazine awards Law Society Gazette • Vol 105 No 1 jim’ll fix it! on international job James MacGuill wins possibilities for lawyers the day in the European Court of Human Rights cover story €3.75 jan/feb 2011 Law Society GazetteLaw 20 The big chill

jaN/feb 2011 Protective costs orders – or orders at the outset of litigation that provide a plaintiff with certainty on the costs outcome – may provide G chiLL the means of overcoming the so-called ‘chilling effect’ of costs for public the bi YEAR BUSINESS’ THE TO OF

Law Society of ireland he ‘chilling effects’ of costs t 2010-11 ‘BUSINESS for public interest litigation MAGAZINE interest litigation. Jo Kenny turns up the heat and calls for a more

26/01/2011 22:25

new design cover.indd 1 nuanced approach in public interest cases

features 12 24 Jim’ll fix it 32 Lay-off my case In a David versus Goliath confrontation, There is a misconception among solicitor James MacGuill took on the many employers that employees might of the State – and three senior who have been placed on lay-off counsel – in the Grand Chamber of are no longer entitled to be paid. the European Court of Human Rights. Richard Grogan clocks in and puts Colin Murphy spoke to him about in the overtime litigating to win 36 Defame game 28 Lend me arrears The largest libel award in Irish – The legal approach to residential and perhaps European – history mortgage default has changed, was made last November in the and the updated Code of Conduct on prominent case of Kinsella v Kenmare. Mortgage Arrears is likely to have a However, Emma Keane says that significant effect – at least in the short it’s regrettable that the assessment term – on the number of residential of damages was not removed from mortgage suits. Cian O’Sullivan drops the responsibility of the jury by the off the keys Defamation Act 2009 6

Get more at lawsociety.ie HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. Gazette readers can access back issues of the Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] magazine as far back as Jan/Feb 1997, right up PROFESSIONAL notices: send small advert details, with payment, to: Gazette to the current issue at lawsociety.ie. Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. You can also check out: All cheques should be made payable to: Law Society of Ireland. • Current news • Forthcoming events, including the Law Society’s COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, annual conference in Powerscourt, Co Wicklow tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] on Friday 6 and Saturday 7 May 2011 • Employment opportunities HAVE YOU MOVED? Members of the profession should send change-of-address details to: • The latest CPD courses IT Section, Blackhall Place, Dublin 7, or to: [email protected] … as well as lots of other useful information 4 News Law Society Gazette www.gazette.ie Jan/Feb 2011

Nationwide

Kevin O’Higgins is junior vice- DSBA joins the digital age with a bang president of the DUBLIN Law Society and has been a The DSBA has moved firmly into already has 119 members. Says inactive or simply observe – it’s up Council member the 21st century. Pioneered by president Stuart Gilhooly: “ If to you. Those who have joined so since 1998 William Aylmer and his practice you are already on LinkedIn and far seem to be enjoying it.” management committee, they are a member of the DSBA, then In addition, Stuart has become have set up a LinkedIn group please join. If not, it’s the simplest the first DSBA president to join that will operate as a forum for thing in the world. Simply log Twitter. His address is www. Association exchanging views, and answering on to www.linkedin.com and the twitter.com/DSBAPresident and queries, and as a means of process is explained. It is not he will be updating, musing and president interacting with colleagues. It intrusive and you can be active, generally tweeting merrily if you want to follow. appointed On a more serious note, we are all acutely aware of the passing of judge Christmas dress dance the recent insurance round, which many of us found to be another kildare mayo harrowing experience. Time goes

P ic : J ohn O’G rady by and usually the anger and Colleagues throughout the county frustration becomes less acute. have welcomed the appointment However, we cannot simply bury of their bar association president, our heads in the sand and just Paul Kelly, as a judge of the hope it gets better, because it District Court. Paul has served as won’t without asking the hard a councillor on Kildare County questions. Council for 11 years and on Why was it so bad? How can Leixlip Town Council for more we make it better? What are the than 20 years. He has operated alternatives? How can we regain his own legal practice in Leixlip control of the process? These since 1982. His appointment are matters of great concern to follows the resignation last July of the DSBA and the profession District Court judge John Neilan. generally. Meanwhile, the work of the And many more questions association continues, with need to be answered. With this Andrew Cody continuing to in mind, the DSBA is delighted organise excellent CPD offerings. At the Mayo Solicitors’ Bar Association annual Christmas dress dance were to announce a forum that will (l to r): Charlie Gilmartin, Judge Mary Devins and Sandra Murphy mirror similar events last year. We are lucky to have insurance Sad death of Mayo Solicitors’ Bar Association Gael leader Enda Kenny was the guru Ray Brown of Marsh, John held a very successful annual guest of honour. He was relaxed, Elliot (the Law Society’s director Gordan Holmes Christmas dress dance in engaging and proved to be an of regulation) and Stephen Park Lisloughrey Lodge, close to excellent speaker. Mr Kenny and (insurance consultant), among limerick Cong Castle. The food and the his wife Fionnuala even drove others, to give their views on It was with great sadness that accommodation were exquisite. Stuart Gilhooly and his wife the last period – and how we we heard in late January of the As with Dublin, the roads were Fidelma to Ashford Castle in the can improve the process for the passing of one of the biggest legal extremely icy and dangerous, early hours on their journey home next year. It will take place at the names in the country, Gordon though that didn’t stop the to Castlebar through the ice and Radisson Golden Lane at 6.30pm Holmes – co-founder of the intrepid travellers from Dublin, snow.” on 17 February. Admission is free eponymous Limerick City firm, including Law Society president One day’s CPD and a general and spaces are limited, so please Holmes O’Malley Sexton, that John Costello, Michael Quinlan meeting on regulatory matters has book now by contacting Maura proudly bears his name. The and, of course, that veteran been scheduled for 25 February. Smith at [email protected] or at 01 huge funeral attended by the traveller Ken Murphy, together These regulatory matters, aspects 476 3824. president and director general of with their partners. As one of the of which are continuing to cause The DSBA hosted a dinner for the Law Society, and many others president’s right-hand men, I was great distress in this part of the the entire Dublin-based judiciary from Dublin, was a tribute to the delighted to be present, being a country, are sure to lead to a lively drawn from the District, Circuit, esteem in which he was held in by regular attendee at Mayo dinners debate. All solicitors’ officers in High and Supreme Courts. the legal profession. (The Gazette in any event. Mayo will close for Easter from 20 This unique legal occasion was will be publishing an appreciation Says James Cahill: “Fine April to 26 April, inclusive. also attended by many Dublin in the March issue.) practitioners. Law Society Gazette www.gazette.ie Jan/Feb 2011 News 5 Consumers In News this month... Your new-look Gazette! reject non- 6 Changes to pension rules 9 Job-seeking workshops winning ways working abroad Gazette team scoops top gong at national 6 New body for employment lawyers Law Society Gazette • Vol 105 jim’ll fix it! The latest information 10 Reducing legal costs is on international job magazine awards James MacGuill wins the day in the European possibilities for lawyers legal brands 7 Media spotlight – Lorna Groarke government’s goal Court of Human Rights

7 Financial elder abuse seminar 10 Seamus Heaney’s Writer & No 1 Two-thirds of consumers would €3.75 jan/feb 2011 9 Emerging human rights issues Righter Society GazetteLaw prefer not to buy their legal services through non-legal

brands, according to a survey jaN/feb 2011 of 2,000 clients by the law- New president for NI society firm referral service Contact Law. The poll results, published the biG chiLL YEAR BUSINESS’ THE TO OF in the England and Wales Law Society of ireland the ‘chilling effects’ of costs 2010-11 ‘BUSINESS for public interest litigation MAGAZINE

Law Society Gazette, found 26/01/2011 22:25

that 66% of consumers said new design cover.indd 1 they would not be happy to Our readers can’t have failed to buy legal services through notice the redesigned Gazette non-legal brands, such as the this month. It’s the fruit of many AA or Tesco, while 34% said months’ labour by the Gazette they would. The vast majority team, with the full support of (84%) said that service deputy director general Mary was more important than Keane. price when purchasing legal Mr Brian Speers is the new President of the Law Society of Northern Ireland, While the Gazette has been services. (l to r): Alan Hunter (chief executive), Imelda McMillan (junior vice-president), independently acknowledged as Brian Speers (president) and Norville Connolly (senior vice-president) Ireland’s best business-to-business magazine (see p12), we have no desire to stand still. It is vital that the Gazette now evolves in order to New CCBE Solicitor’s Joycean discovery? maintain pole position. The purpose of the redesign president “Dear dirty Dublin” is a phrase claim is a manuscript letter he is to make the Gazette even more we associate with James Joyce. has found, signed on headed readable, relevant and attractive He uses it in his set of short notepaper by Whiteside on to our members, our subscribers, stories Dubliners (1914) and 2 April 1868, in which he potential subscribers and in Ulysses (1922). Scholars expresses interest in a House of advertisers. acknowledge that the term is not Commons’ winding-up speech The focus of the redesign has Joyce’s, but no one has been able by Prime Minister Benjamin been to take the Gazette’s strongest to ascribe the description to any Disraeli on the disestablishment editorial and design elements – and written source with confidence – of the Church of Ireland. The to introduce new ones. until now. final comment in Whiteside’s The good news is that, rather Dublin solicitor and librarian letter reads: “I return to my than adding to costs, this redesign Hugh M Fitzpatrick has wife and my duties in dear dirty will reduce our printing and proposed that credit for the Dublin.” distribution costs – making the phrase should go to one of Fitzpatrick says: “I am not Gazette even better value. Ireland’s most eminent Victorian saying that Whiteside created In addition to everything you The new president of the Council of lawyers, James Whiteside the phrase, but he may well have Bars and Law Societies of Europe already like about the Gazette, (CCBE) is Mr Georges-Albert Dal, who (1804-1876). Joyce referred to done. What I am claiming is that your new-format magazine took office on 1 January 2011. He is Whiteside in Ulysses as “a master Whiteside’s written record of contains a fresh, modern design; the former president of the Federation of forensic eloquence”. the phrase is the earliest known more practitioner profiles; a new of European Bars The evidence for Fitzpatrick’s permanent source.” ‘Representation’ section; a new ‘In the media spotlight’ column; more concise book reviews; a new ‘Reading room’ section; and a light-hearted ‘Captain’s blawg’ Child Law shortlisted page. We look forward to your The Irish Association of Law Teachers’ conference has shortlisted Child comments, which can be emailed Law by Geoffrey Shannon for their book prize. The award is made to to [email protected]. We’re a member who has published a book that is deemed to have made an sure you’ll like the changes! outstanding contribution to the understanding of law. Mark McDermott Editor 6 News Law Society Gazette www.gazette.ie Jan/Feb 2011 Budget 2011 brings in sweeping changes to pension rules Budget 2011 contained sweeping can normally claim 10.75% changes to the rules governing PRSI relief on any employee pensions, writes Tom Kennedy. contributions to either a These changes have implications company pension scheme, a for anyone contributing to either a trust-RAC or an employer- personal pension or an employer- sponsored PRSA. With effect sponsored pension arrangement. It from 1 January, this relief is also affects those already receiving reduced by 50%. pension benefits through an • Standard fund threshold – the approved retirement fund (ARF). standard fund threshold (SFT), The main changes introduced which is effectively the lifetime are as follows: limit on the accumulated • Earnings cap – the earnings limit value of all of an individual’s for the purposes of tax relief pension arrangements, is being on pension contributions has reduced from €5.4 million to been reduced from €150,000 €2.3 million, with immediate to €115,000 with effect from effect. An individual can, 1 January 2011. This new however, benefit from a higher reduced limit will also apply to personal fund threshold if the total value of any pension law society of ireland retirement trust scheme contributions paid in 2011, but entitlements in place now, or applied against 2010 earnings. claimed after 7 December 2005, Set up by the Law Society in currently exceed €117,000,000. This affects all pension is already in excess of the new 1975, this group personal pension For queries or a member arrangements. limit. Such individuals have six arrangement facilitates the full booklet, contact Mercer (the • Abolition of employee PRSI and months from 7 December 2010 range of tax reliefs available on registered administrator of the health relief – with effect from to apply for a higher personal contributions, on investment and scheme) by email at justask@ 1 January 2011, employee fund threshold, which will be on draw-down. mercer.com, or by telephone at contributions will no longer based on their total pension Members of the Law Society 1890 275 275. qualify for any PRSI or health entitlements at current values who are self-employed, in A copy of the latest updated levy relief, though they will to a maximum of €5.4 million partnership or in non-pensionable scheme booklet is also available continue to benefit from – including the value of any employment can join the scheme. at www.lawsociety.ie (in the income-tax relief. benefits taken from a pension Pension savings within the scheme members’ area). • Reduction of employer PRSI since 7 December 2005. relief – at present, employers This application must be made within six months of 7 December 2010. • Retirement lump sum – the tax- New body for employment lawyers created free lump sum available from A new legal body – the Employment junior counsel, academia, the pension arrangements is to be Law Association of Ireland (ELAI) Department of Enterprise, Trade capped at €200,000, with any – has been set up. Over 100 and Innovation, IBEC, the trade balance up to €575,000 in total, employment lawyers and other unions and Northern Ireland. subject to tax at the standard rate interested parties were present for The first ELAI seminar will be (currently 20%). Any amount ELAI’s official launch at Newman held on 8 February 2011 at 6pm in paid out in excess of this figure House, St Stephen’s Green, Dublin the offices of A&L Goodbody, IFSC, will be taxed at the individual’s on 18 November 2010. The North Wall Quay, Dublin 1. Director marginal tax rate. Any tax-free association is intended to be a of the National Employment Rights retirement lump sums taken on forum for those who practice in, Chair of ELAI, Carol Fawsitt Authority (NERA), Ger Deering, or after 7 December 2005 will or have a professional interest in, will speak on the topic of ‘NERA count towards this €200,000 cap. employment law. inspiration. This was coupled with and compliance with employment • ARFs – the minimum with- Carol Fawsitt of Hayes Solicitors, the growing number of employers regulation orders and registered drawals of 3% of value, which who organised the gathering and employees seeking advice on employment agreements’. Alan must, in effect, be taken from (and whose firm hosted the a range of complex matters in this Hough will give a presentation on ARFs held by those over 60, has evening), outlined the reasons for field of practice. In addition, there practice in this area. been increased to 5% with effect establishing the new association. is an essential need for networking Enquiries regarding ELAI can from 31 December 2010. She said that the demise of the supports for employment law be made to Carol Fawsitt at Hayes Irish Society for Labour Law, which practitioners. Solicitors, tel: 01 662 4747. If you believe you may need to take had been originally formed in 1982 A committee of 13 was chosen, Those interested in joining ELAI steps regarding your pension on but had become dormant in the comprising representatives from should email Rachel McCrossan at foot of the budget changes, you past decade, had been the chief small and large firms, senior and [email protected]. may wish to contact Tom Kennedy at Mercer on 01 411 8480. Law Society Gazette www.gazette.ie Jan/Feb 2011 News 7 CIC Tribunal Media appointments In the media spotlight The Minister for Justice and Law Reform has appointed members Lorna Groarke to the Criminal Injuries Partner, Groarke and Partners, Main Street, Longford Compensation Tribunal (up to Case summary Significance of the case 30 April 2013). The tribunal At a sitting of Longford “In my 30 years of practising considers applications for Circuit Court on 7 December as a solicitor, I have never compensation from those who 2010, 24-year-old Mr Martin before come across such a have suffered personal injury as a McDonagh of Mostrim Oaks, catastrophic accumulation of result of criminal violence. Edgeworthstown, Co Longford, errors.”

The tribunal administers the

farrell william : ic was given a five-year jail P following schemes: sentence for assault causing Unusual elements that • The scheme of compensation harm to Noel Keegan in Longford emerged for personal injuries criminally on New Year’s Eve 2009. Mr “Mr McDonagh’s two- and four- inflicted, Keegan died as a result of a heart year sentences resulted from • The scheme of compensation attack following the assault. Mr prosecutions brought against for personal injuries criminally McDonagh was also sentenced to him by Longford gardaí. The on any day. In addition, inflicted on prison officers. three years for assaulting Marie four-year prison sentence imposed Castlerea prison failed to notify Keegan. on Mr McDonagh on 28 April the gardaí of: Compensation may be awarded At the time, Mr McDonagh 2009 was entirely ignored by a) The fact they were releasing on the basis of any vouched out- should have been serving a the various organs of the state Mr McDonagh. of-pocket expenses, including jail term. While serving a two- whose job it was to ensure that b) The fact that Mr McDonagh loss of earnings experienced by year prison term, he had been the sentence was served and that was required to sign on every the victim or, if the victim has sentenced to a further four- society was protected. day. died as a result of the incident, year jail term for assaulting “Judge Michael Reilly was • Mr McDonagh did not return to by the dependents of the victim. and stabbing a man in the appointed to carry out an prison on 4 December 2009. The incident in which the injury leg with a pitchfork in 2007. independent investigation into • In the early hours of 27 was caused must have been The prison authorities had not this specific matter. His report is December 2009, Mr McDonagh reported to the gardaí without been informed, however, of the comprehensive and is relied upon was arrested. He was brought delay. second four-year sentence and by me. It found, among other to Longford Garda Station, Application must be made had allowed him temporary things that, between 28 April processed, charged with to the tribunal no later than release for one week – from 2009 and 5 January 2010: criminal damage and was three months after the incident. 27 November to 4 December • The warrant relating to that released on station bail. There is no time limit for fatal 2009. Mr McDonagh did not four-year sentence was not • On 31 December 2009, applications. return to prison at the end of the issued by the Circuit Court Noel and Marie Keegan were For more information, temporary release, leaving him office as it ought to have been assaulted by Mr McDonagh. contact: The Secretary, Criminal free to assault Mr Keegan, which on 1 May 2009 – a fact so Noel died within minutes. Injuries Compensation Tribunal, led to his death. found by Judge Michael Reilly. • On 5 January 2010, the Circuit 13 Lower Hatch Street, Dublin The family said that it had • As a result, the prison Court office issued the warrant 2; tel: 01 661 0604, fax: 01 661 been inexcusable to allow a man (Castlerea) where Mr McDonagh – noting it as a duplicate.” 0598, or email: criminalinjuries@ who should have been in prison was serving the earlier two-year justice.ie. to be at large, and therefore free sentence was not officially Ramifications to attack Mr Keegan. The former informed of the four-year “Checks and balances and Minister for Justice Dermot sentence. accountability are needed. Ahern and the CEO of the Courts • The gardaí did not update Mr Proper procedures need to be Financial elder Service subsequently apologised McDonagh’s record by entering implemented willingly and with abuse seminar to the Keegan family for the the four-year sentence on the diligence.” failures in procedures. Garda Pulse system (court ‘The legal and policy outcome). Lessons learned challenges of financial elder How you got involved • Castlerea prison granted Mr “Judge Michael Reilly has made abuse’ is the title of a seminar “Marie Keegan’s brother and his McDonagh temporary release a number of recommendations. that will be held on Tuesday, family have been good clients of for one week ending on 4 I hope they are strictly and 22 February, at 5.30pm. Room mine for years.” December 2009 on very rigorously implemented. Can we B109/10, UCD School of specific conditions, including have faith that the incompetences Nursing, Midwifery and Health Your background that he was to sign on every and indifferences outlined Systems, Health Sciences “I have been practising in day at his local garda station above will never happen again? Centre, University College Longford since 1980. I am also – found by Judge Reilly to be I sincerely hope so, but, being a Dublin, Belfield, Dublin 4. To an accredited civil, commercial Longford Garda Station. Mr pragmatist, I say – let’s wait and book, email [email protected] or and family mediator.” McDonagh failed to sign on, see.” phone: 01 716 6467. Date for your diary

Law Society Annual Conference 6th/7th May 2011

Friday 6 May saturday 7 May The Smart Economy in Action: Speaker: Strategies for Growth in the Legal Profession Peter Sutherland Including: • Develop a Global Shop Front for your Practice – On a Budget - How to Create a Professional Website – Need to know Facts and Jargon - Email Newsletters – Growing Clients, Revenue and Brand Awareness - How to Use LinkedIn and Face Book to Promote your Practice for Free! • Growing Your Practice through Business Networking • Smart Practice Management – Reduce Time, Costs and Risk for your Practice • Smart Client Relations – Emphasis on Elderly and Vulnerable Clients

Ritz-Carlton Hotel, Powerscourt Co Wicklow

registration form with this MONTH’s issue of the gazette or register online at www.lawsociety.ie Law Society Gazette www.gazette.ie Jan/Feb 2011 News 9 Lawyers Conference on emerging human rights issues love their The Law Society and the Irish They glaze over when we try Human Rights Commission to explain why human-rights- smartphones! (IHRC) held their 8th Annual impact indicators have Human Rights Conference so often to be somewhat Two-thirds of British lawyers on 20 November at Blackhall ‘impressionistic’ in nature.” Law Society now use a BlackBerry device for Place, writes Joyce Mortimer. Notwithstanding this work, and three-quarters check The conference attracted over dichotomy, Mr O’Flaherty their messages either constantly, 200 people and addressed pointed out that there has or at least every hour, research the broad topic of economic, EMERGING been some engagement Annual Conference has suggested. social and cultural rights. and dialogue. For example, The survey of 100 solicitors Law Society President HUMAN RIGHTS there had been high-level th th from firms of all sizes was John Costello and IHRC ISSUES discussions between global carried out for legal publisher president Dr Maurice human rights leaders and 6 /7 May 2011 Saturday, 20 November 2010 LexisNexis by research Manning opened the Presidents’ Hall, Law Society of Ireland, Blackhall Place, Dublin 7 institutions, such as the World company Jures. It also found conference and introduced Bank and the IMF. He said that that 11% of respondents already the keynote speakers: UN these discussions had helped to have an Apple iPad, despite the Human Rights Committee carve out a vision for economic devices having been launched member Professor leadership that had human only last May. Michael O’Flaherty and rights’ protection at its core. A further 10% said they Minister for Equality, He added: “A human rights had an e-book reader such as Integration and Human approach points to the need Kindle, which they used for Rights Mary White. for decision making to be in legal work. More than 75% said Professor O’Flaherty pursuit of a society built on the that they preferred online or gave an insightful address that principle of equality and non- digital resources to ‘traditional, highlighted the effects of the engage with each other,” he said. discrimination, that insists on the paper-based libraries’. economic crisis on human “They have existed often in a state consistent application of the rule wellbeing. of mutual incomprehension. Just of law and, most importantly, “It has been very difficult to take the economists, they are sees the most vulnerable in historically to get the economic often bemused by human rights society as those most in need of Aussie and human rights sectors to talk of very specific social goods. protection.” doctors get legal jitters One-third of Australian Set your satnav for job-seeking workshops doctors have considered giving A new schedule of workshops has • Cork: Wednesday 2 March up medicine due to medico- been organised by the Society’s • Galway: Wednesday 16 March legal concerns. Career Support Service to take • Dublin: Wednesday 30 March According to a study place during February and March mentioned in the Medical 2011. These will take place in Workshop 3 – Successful Journal of Australia, a clear link the evening to facilitate those interviewing was identified between medico- who are working. All solicitors are Building on our previous legal concerns and changes in welcome to attend – free of charge interviewing training, participants doctors’ practice of medicine. – provided places are available. career management will also be will learn how to significantly The study found that: The workshops will start at covered. improve preparing for and • 43% of doctors referred 6pm and will end at 8.30pm. • Dublin: Thursday 10 February performing at interviews, and patients to specialists more Matters covered are relevant • Cork: Tuesday 22 February how to negotiate salary and other than normal, to all solicitors – regardless of • Galway: Tuesday 8 March benefits. • 55% ordered more tests than career stage and whether you are • Dublin: Tuesday 22 March • Dublin: Thursday 24 February Ritz-Carlton Hotel, Powerscourt usual, and employed, in practice or currently • Cork: Thursday 10 March • 11% prescribed more not working. Workshop 2 – Access more • Galway: Thursday 24 March Co Wicklow medications. job opportunities • Dublin: Thursday 7 April Workshop 1 – Career Smart ways to interface with the A total of 33% of doctors said management that works hidden market of unadvertised People attending workshops that they had considered giving Best practices in career jobs will be explored. Participants can qualify for CPD group-study up medicine due to heightened management will be reviewed. will be guided through strategies credits. Capacity is limited at fears over medico-legal Participants will be introduced to that can help them improve their most venues. Solicitors who wish matters, 32% had considered techniques and insights that can networking skills – including those to attend any event should book reducing their working hours, dramatically improve how they who find networking daunting. their place by emailing careers@ while 40% had considered perform at job seeking. Long-term • Dublin: Wednesday 16 February lawsociety.ie. early retirement. 10 News Law Society Gazette www.gazette.ie Jan/Feb 2011 Government’s goal is to reduce legal costs, says Ahern “Those who need legal services is to oversee the handling by the must be able to access them Law Society and Bar Council of at the best possible price for a complaints by clients of solicitors quality service,” said the then and barristers. The ombudsman Minister for Justice Dermot will be independent in the Ahern at the Law Society’s performance of the functions parchment ceremony for newly of the office and will serve to qualified solicitors on increase public confidence in the 9 December 2010. “It is complaints systems of the legal necessary that legal services be professions.” available to the public and to Minister Ahern said that business at a cost that is fair and the ombudsman post had been competitive,” he added. recently advertised and that the In a wide-ranging speech, the appointment would be made “in justice minister said that, in these the near future”. challenging economic times, there was a particular demand Difficult time for new cost efficiencies to be Then Justice Minister Dermot Ahern addresses the parchment ceremony: Minister Ahern encouraged identified. This applied as much “Government now committed to ‘a better regime’ in relation to legal costs” the new solicitors to remain in the legal sphere as it did in optimistic in what was other sectors of the economy. Minister Ahern said that, under The proposals for the Legal Costs undoubtedly a difficult economic “In this regard, the the Programme of Financial Bill are being developed with a climate. “Those of you receiving government’s National Recovery Support for the State from the view to publication as soon as your parchments today are well Plan 2011-2014 includes a EU and the IMF, the government possible in 2011,” he said. qualified to meet the challenges package of measures directed was now committed to “a better of a career in law. Having regard at professional services.” These regime in relation to legal costs Legal ombudsman to your training and the legal measures to reduce legal costs and better regulation of the legal He told the newly qualified and business environment that would be implemented, he said, professions”. solicitors that they would you face, I believe that you can and would include: have been made aware during look forward with confidence • Increased use of tendering by Greater transparency their professional training that to a demanding and, in time, a the state, “The Legal Costs Bill will replace adherence to a code of conduct rewarding future – whether that • Prioritising publication and the Office of Taxing Master and in their work was “absolutely be in practice as a solicitor, or in enactment of the Legal Costs establish new principles for the essential”. some other position for which Bill, assessment of all costs. It will “It is only right, in the public training as a solicitor makes you • Additional proposals for modernise the various statutes, interest, that breaches of the eminently suited. legislation to reduce legal some of them of very old vintage, code are serious matters. To “While the economic situation costs, drawing on the relating to legal costs, while also strengthen the systems that has impacted particularly on the recommendations of the Legal ensuring greater transparency are in place, the government solicitors’ profession, I am sure Costs Working Group and the in relation to how legal costs are has provided in legislation for that, in time, the recovery we Competition Authority, and agreed with clients and invoiced. establishment of the Office of the are working towards will open • Increased use of arbitration The scope of the bill will extend Legal Services Ombudsman. full and rewarding careers for and mediation. to both solicitors and barristers. “The role of the ombudsman you all.”

Irish Human Rights Commission Seamus Heaney lecture with this Gazette

One of Ireland’s most distinguished in times of societal upheaval and Conscience. Heaney wrote this to Writer& poets and prominent advocates for unrest. He particularly highlighted commemorate the 25th anniversary human rights, Seamus Heaney, has the differences between the of Amnesty International in 1985. Righter kindly agreed to the circulation to sedentary w-r-i-t-e-r-s and the pro- Law Society director general all solicitors, with this copy of the active r-i-g-h-t-e-r-s, the former Ken Murphy has thanked both redesigned Law Society Gazette, whose job is to reflect, and the the poet and the IHRC for their of his lecture to the Irish Human latter whose role is to take action. permission to distribute Writer Rights Commission entitled Writer As the president of the Human & Righter free of charge to all & Righter. Rights Commission, Maurice solicitors. Murphy remarked on By Seamus Heaney The lecture commemorates the Manning, remarked in his preface the great value for us all to be Fourth IHRC Annual Human Rights Lecture, 9 December 2009 anniversary of the UN Universal to Writer & Righter, one of the reminded, in the most inspirational Declaration of Human Rights. The most inspirational poems in of language, of the obligation that UN declaration that “all human theme that the Nobel laureate support of human rights ever we share as lawyers to uphold beings are born free and equal in chose was the relevance of poetry written was From the Republic of the fundamental principle of the dignity and rights”. Law Society Gazette www.gazette.ie Jan/Feb 2011 Representation 11 news from the law society’s committees and task forces Whistle-blower protections fall short employment and equality law committee There have been a number legislation has been enacted, the quasi-judicial procedures of of significant employment protections are not consistent for the Equality Tribunal, which and equality law legislative the person making the protected would fundamentally affect the developments and procedural disclosure. Members urged the rights of both complainants and EU VAT refund reviews over the last few implementation of legislation respondents in their interaction months and, as such, committee to bring consistency to the with the tribunal. directive members have been busy making protections available, regardless of The committee has been representations on behalf of the sector involved. in correspondence with the taxation committee practitioners. The committee also made Department of Enterprise, Trade The Taxation Committee In November, committee a detailed submission to the and Innovation regarding an reports that the Council of members made a detailed Department of Community, ongoing departmental review of the European Union recently submission to the Minister Equality and Gaeltacht Affairs the various employment rights adopted a directive concerning for Justice and Law Reform on the content of the Civil Law bodies. To that end, a meeting the refund to taxable persons of regarding proposed whistle- (Miscellaneous Provisions) Bill has been arranged between VAT incurred in another EU blower protection legislation. The 2010. In particular, members committee members and officials member state, where the taxable committee submission extensively highlighted that some of the from the department, to discuss person is not established. The reviewed relevant existing whistle- amendments contained in part how the experience of solicitors new directive provides for the blower protection legislation, 6 of the 2010 bill propose very might contribute to the review extension of the deadline for the highlighting that, where far-reaching changes to the process. submission of refund applications for expenses incurred in 2009 from 30 September 2010 to 31 Clarification for solicitors who witness a will March 2011. Accordingly, refund claims for 2009 can be processed probate, administration and trusts committee electronically via the Revenue on- The Probate, Administration in case law since In Re Pooley (CA 43 ILTR 240), which dealt with line system until 31 March 2011. and Trusts Committee has issued 1888) that a witness who witnesses the same issue. a practice note a will cannot As far back as Miller’s Probate on the issue of a thereafter take Practice in 1900, it was stated: “An Next phase of solicitor witnessing “An executor may any benefit executor may be a witness to a e-registration a will for a testator be a witness to a under the will. will, but he loses any legacy given in circumstances The provision to him” (see p101). The modern econveyancing task force where the solicitor will but he loses any underpinning textbooks have consistently The eConveyancing Task Force is the executor the decision is followed this approach. legacy given to him” welcomes this new forum for appointed under repeated almost Given the clear statement of communicating with solicitors the will. A member exactly in section law, the committee has issued a and looks forward to publishing of the committee has reviewed 82 of the Succession Act 1965. It practice note to clarify matters for regular updates on its work and the law in the matter and it is set was followed in the case of In the the benefit of members (see page engagement with stakeholders out below. It appears to be settled Matter of Daniel McLaughlin (1909 48 of this Gazette). in the development of a modern, electronic, streamlined conveyancing process for Ireland. The CCBE – what it is and what it does The task force has recently met the Property Registration EU and international affairs committee Authority (PRA) to discuss The Council of Bars and Law profession. In addition, it works developments and relevant issues the remit of the next phase of Societies of Europe (CCBE) is closely with legal organisations arising in their area of expertise. e-registration, and it is proposed the representative organisation outside Europe. The delegation meets before to publish a comprehensive joint of around one million European Ireland has had a long and the Society’s standing committees article on these proposals later in lawyers through its member bars active participation in the (five times a year) and in plenary the year. A total of 99 solicitors and law societies. organisation. The Irish delegation sessions (twice a year) to discuss took part in a survey about It acts as the liaison between to the CCBE is composed of the the agenda and reach a common boundary mapping late in 2010. the EU and Europe’s national Law Society and the Bar Council. position for voting. The results from that survey are bars and law societies. The CCBE The delegation includes solicitors For further details on the now being analysed and will be has regular institutional contacts and barristers at the various CCBE and on the Irish delegation, published shortly. with those European Commission CCBE committees and working visit www.ccbe.eu and www. The task force can be contacted officials, and members and staff groups. Through regular reports, lawsociety.ie/Pages/Committees/ by emailing the e-conveyancing of the European Parliament, who these representatives keep the EU-and-International-Affairs/ project manager, Gabriel Brennan, deal with issues affecting the legal delegation informed of recent current-issues. at [email protected]. 12 Analysis Law Society Gazette www.gazette.ie Jan/Feb 2011

GAZETTE scoops top gong

The Gazette won a major national magazine award last December, beating off other leading Irish magazines. But – as our brand-new look shows – we are refusing to rest on our laurels pic : lensmen he Law Society Gazette received national Trecognition on 2 December when it was named best ‘Business to Business Magazine of the Year’ at the Magazines Ireland Awards. The award was presented by RTÉ news anchor Bryan Dobson at a black-tie ceremony at the Four Seasons hotel in Dublin. The ceremony was attended by Ireland’s top publishing houses and magazine publishing teams. The Gazette had previously been shortlisted in the ‘Business to Business Magazine of the Year’ category (for magazines with a circulation of more than 5,000). Among the publications vying for Simply the best! top prize in this category were The Gazette team Accountancy Ireland, Accounting celebrates its and Business Ireland, agendaNI, the national award Engineers Journal and EuroTimes. The Gazette’s citation reads: “[It] made a strong submission are open to all members of the win, Law Society director general the loss of advertising revenue and showed enterprise and association and “are aimed at Ken Murphy said: “I congratulate due to the economic downturn. imagination in dealing with the rewarding the best Irish magazines the Gazette team, led by editor This has been achieved with no commercial realities that hit and the people behind them”. Mark McDermott, as well as the loss of quality or diminution in the magazine in the last two The body represents over 200 Gazette Editorial Board chaired the information provided to our years. This strong commercial Irish magazines – both consumer by Michael Kealey, on this members.” awareness has started to reap and business- outstanding “This award is exactly the benefits in 2010. The title shows to-business success. The impetus we need to continue a commitment to excellence and titles – and a “This award is Gazette team is setting the highest publishing is a ‘must-read’ for those in the total of 42 Irish well deserving standards,” he added, “and to profession’, [and shows] a clear publishers. Every exactly the impetus of this national press on with our plans for the understanding of the audience’s year, 125 million we need to continue recognition for redesign of the magazine early in needs and meeting the needs of magazines are their superb the New Year. I am confident that the people it serves.” bought in Ireland, setting the highest work on the the new changes will nudge the The judges for the Magazines 25 million of publishing standards” Society’s Gazette’s standards even higher – Ireland Awards included Ian which are Irish magazine.” and our costs lower – and that the Locks (former CEO, Periodical produced. The Gazette redesign will be well received by Publishers’ Association), Chris sector contributes over editor Mark McDermott praised members.” Redman (former managing €400 million to the Irish economy his colleagues for delivering The Gazette team reports to editor, Time magazine), Fiona annually. Chief executive of the “best possible Christmas deputy director general Mary Curtin (president, Advertisers’ Magazines Ireland, Grace Aungier, present”. “This is excellent news Keane and consists of Mark Association of Ireland), Orlaith says: “The awards are an important and gives us all a well-deserved McDermott (editor), Garrett Blaney (board member, Institute step in showcasing the best Irish boost at the end of two difficult O’Boyle (deputy editor), Nuala of Advertising Practitioners in talent in magazine publishing and years. With the backing of Redmond (designer), Seán Ireland), and Kathleen Ryan in raising the profile of this key deputy director general Mary ó hOisín (advertising manager), (magazine consultant). sector in Ireland.” Keane, the Gazette has been Catherine Kearney and Valerie The Magazines Ireland Awards Commenting on the Gazette’s constantly evolving to cope with Farrell (Gazette admin). G Law Society Gazette www.gazette.ie Jan/Feb 2011 Analysis 13 14 Analysis Law Society Gazette www.gazette.ie Jan/Feb 2011

the world’s your oyster

So you’re thinking of leaving to pursue international work opportunities abroad? The Career Support service gives you the up-to-date intel on the most popular jurisdictions for lawyers chasing their dream (of a) job

Keith O’Malley assessment, Irish lawyers are now Very few Irish lawyers have enough to organise. There is a is the Law usually required to sit, and pass, gone through the New Zealand one-year work-permit visa that is Society’s career about six exams. assessment-of-qualifications open to anyone under the age of development You must have a law degree to process. It is very similar to, 35. To stay longer, you need to get advisor in the qualify as a lawyer in Australia. but more expensive than, the an employer to sponsor you. Career Support If you do not have at least three Australian process. It is likely As in other jurisdictions, service months’ Irish post-qualification that Irish lawyers who work in foreign-qualified lawyers are experience (gained while holding a New Zealand tend already to required to go through an practising cert), you will probably be Australian qualified and can assessment of qualification ecently, there has been a be required to complete the register in New Zealand, based process. However, in Canada, the big increase in enquiries Australian two-year graduate on the Trans-Tasman Mutual process has proved exceptionally Rabout opportunities programme. Recognition Arrangement. stringent, and people are regularly for Irish solicitors to work and It is reported that Australia’s required to almost completely qualify in other jurisdictions. rural towns and regional centres China re-qualify again. Work opportunities, immigration offer good work opportunities, Hong Kong Employers, too, have proved rules and the ability to qualify all and also the option of building has 5,000 to be conservative and some Irish continually evolve and change in a long-term life there – with practising lawyers have found it difficult to individual locations. This article flexibility to balance work, leisure lawyers and circa 1,000 are get employment in legal firms seeks to outline the up-to-date and family at the relaxed pace originally Irish/British qualified. or legal departments – even in a situation on locations in which associated with country living. Foreign qualified lawyers must sit support role. Irish solicitors are most interested. The Trans-Tasman Mutual a qualified lawyers’ qualification More detailed information on Recognition Arrangement allows examination to qualify as a United States each location is available within Australasian-qualified lawyers to Hong Kong solicitor. It has been Very few Irish the Career Support section on the register and practise throughout reported that Hong Kong lawyers lawyers have Society’s website. Australasia. and law firms are particularly moved to work in the USA in the last few Australia years. Up to a few months ago, The only “A good source of latest information and advice for there was not a facility for people generally to work short term there after available solicitors thinking of travelling to, and living in, qualifying. The only mainstream Australian work-permit visa is Australia is available on LinkedIn in the Law Society way to get a work-permit visa in a working holiday visa. This the USA was to have an employer has a duration of one year and of Ireland’s sub group ‘Working in Australia’” sponsor you (as an employee who allows the holder to stay with an could not be recruited). employer for up to six months. It The ability to sponsor non- is available on a once-off basis to A good source of latest well placed to exploit the rapidly nationals has all but stopped people aged between 18 and 30 information and advice for growing market for law services in for most US employers, given years of age. solicitors thinking of travelling to, mainland China. the significant unemployment To remain on and to be allowed and living in, Australia is available currently being experienced there. work, Irish people usually rely on LinkedIn in the Law Society of Canada To qualify as a lawyer in the on a temporary business visa – Ireland’s sub-group ‘Working in A significant USA, people are required to pass subclass 457. To do this, you need Australia’. number of bar exams in whatever state they to be sponsored by an employer. Irish solicitors plan to practise. There are well- Irish solicitors have no innate New Zealand emigrated to Canada in the last established tuition providers in right to qualify in Australia. Visa three years. Unfortunately, many place in Ireland where people can Lawyers qualified in other regulations in found it more difficult than prepare for popular bar exams, jurisdictions who want to qualify New Zealand expected to get established – like New York and California. in Australia need to submit to an are similar to those in place in especially in relation to qualifying Most US states also require a law assessment of their qualifications. Australia, with sponsorship by an and working as a lawyer there. degree. California is the notable This assessment is done on an employer the most common way Many have since returned to exception in this regard. individual basis and must be that people gain the freedom to Ireland earlier than planned. A recent, welcome development paid for. Following on from the stay and work there. Getting there initially is easy has been the introduction of the Law Society Gazette www.gazette.ie Jan/Feb 2011 Analysis 15

“A recent, welcome development has been the introduction of the Work USA Visa programme that allows newly qualified solicitors to live and work in Work USA Visa programme that for lawyers with expertise in for establishing a the US for a period employers allows newly qualified solicitors large-scale construction projects career in this arena. of up to one year” than to live and work in the US and international trade. Visas are In recent years, Irish experience for a period of up to one year. usually organised by employers. solicitors have had gained Participants need to work in a job success in joining international further away. Britain has, itself, related to their new profession. Europe law firms and consultancy firms, experienced a sharp downturn, but Irish solicitors in particular in Luxembourg and Irish solicitors continue to access Caribbean are entitled to Brussels. Jobs and internships good work opportunities there. Opportunities live and work also become available in the Currently, there are problems in locations in any EU country, and also to European offices of international related to qualifying in Britain. such as the practise as a lawyer using their organisations, such as the UN The Solicitors Regulation Cayman Islands and Bermuda Irish qualifications. Also, after and associated organisations. Authority (SRA) for England are not as prevalent as they were practising as an Irish lawyer for These jobs in international and Wales instituted a new in the past. The usual route is three years in any EU jurisdiction, firms and in European and procedure last September that has for people to land a job offer and one becomes entitled to practise international institutions are experienced teething problems. then the employer undertakes under local title – provided you filled primarily after being We know of no Irish solicitor who to organise a visa. Most Irish have been a registered European advertised on the internet and has qualified through this new solicitors who gain work in these lawyer for the three years. can be applied for from Ireland. procedure yet. locations do so through British Law and commercial work is Inconveniently, organisations The Law Society of Ireland is recruitment firms. A British or now regularly done through the all tend to manage their own working with the SRA in England American legal qualification is English language throughout recruitment and, as a result, and Wales, seeking to simplify usually required. Europe, but people working in job seekers often have to link how members can qualify in both continental Europe still usually up with, and monitor, severed jurisdictions. However, despite United Arab require fluency in a second individual organisations that the Society’s tenacity in addressing Emirates language – typically the local interest them. this matter, it is likely to take some Solicitors language used where they are further time to progress to finality. are recruited living and working. Britain In the meantime, Irish solicitors for jobs in the Gulf states and EU institutions such as the By far the can use the EU Establishment other Middle Eastern locations European Commission, the most popular Directive as an alternative. Irish through British recruitment firms European Parliament and the jurisdiction solicitors can register with the – but also through international European Council all operate outside of Ireland, and with good SRA as a registered European law firms and commercial stage (internship) programmes and reason, is Britain. Getting to and lawyer, and this provides automatic companies who often advertise recently qualified professionals from there is easy, and experience eligibility to work with an English internationally. Traditionally, undertake these to gain experience gained working in Britain is or Welsh law firm (including there has been particular demand and make contacts as a foundation generally more relevant to Irish eligibility to become a partner). G 16 Human rights watch Law Society Gazette www.gazette.ie Jan/Feb 2011

closing the book on traveller discrimination?

The Equality Tribunal has found that a particular school’s admissions policy indirectly discriminated against Travellers – which may have implications for schools with a similar policy

n a decision that could have ‘Father as a past pupil’ criterion Following an unsuccessful internal implications for all schools with The school’s admissions policy stated appeal to the school’s board in January, Ia similar policy, the Equality that the following criteria would be and a failed appeal from that to the Tribunal recently found that the taken into account: “The application is Department of Education and Skills admissions policy of a secondary school on behalf of a boy: under section 29 of the that prioritised places for the children 1) Whose parents seek Education Act 1998, heard of past pupils indirectly discriminated to submit their son “His father was in May, the Irish Traveller Joyce Mortimer is against members of the Traveller to a Roman Catholic statistically much Movement Independent the Law Society’s community. It should be noted that education in accordance Law Centre filed human rights this finding is being appealed by the with the mission less likely to proceedings on behalf of executive school’s board of management to the statement and Christian have progressed Mary and her son John in Circuit Court. ethos of the school, to second-level the Equality Tribunal in In a complaint lodged on behalf 2) Who already has a July 2010. of Mary Stokes and her son John brother who attended education than Due to the urgent (by solicitor Siobhan Cummiskey or is in attendance at the rest of the nature of the complaint of the Irish Traveller Movement the school, or is a child (the child was due to Independent Law Centre), the of a past pupil, or has population at start secondary school tribunal found that the complainant, a close family ties with that time” in September 2010), member of the Traveller community, the school, the Equality Tribunal was disproportionately affected by 3) Who attended for his expedited the proceedings, the ‘child of a past pupil’ criterion. primary school education at one of requesting written submissions from This was demonstrated by figures the schools listed in schedule two, both sides in September and hearing showing that his father was statistically being a school within the locality or the complaint in early November. The much less likely to have progressed demographic area of the school.” director of the Equality Tribunal, Niall to second-level education than the McCutcheon, heard the matter. rest of the population at that time. The complainant met each of the Furthermore, the “blanket priority” essential criteria, save number two, Indirect discrimination given to such school applicants was since no one in his family of his father’s The complainant argued that the found not to be “objectively justified by generation had progressed to second- second criterion of the school’s a legitimate aim”. level education. admissions policy amounted to indirect discrimination under the Equality Acts 2000-2008. This is defined What are the Equal Status Acts 2000-2008? under section 3(1)(c) of the acts as follows: “Where an apparently neutral The Equal Status Acts 2000- establishments is also • Race colour, nationality, provision puts a person referred to in 2008 prohibit discrimination prohibited, subject to some ethnic or national origins, any paragraph of section 3(2) [that is, in the provision of goods and exemptions. • Membership of the Traveller covered by one of the discriminatory services, the disposal of property The nine grounds on which community. grounds] at a particular disadvantage and access to education, on discrimination is outlawed by compared with other persons, unless any of the nine grounds set out the Equal Status Acts are as Penalising a person for making the provision is objectively justified below. follows: a complaint of discrimination or by a legitimate aim and the means of The acts outlaw discrimination • Gender, for giving evidence in someone achieving that aim are appropriate and in all services that are generally • Marital status, else’s complaint or lawfully necessary.” available to the public. • Family status, opposing unlawful discrimination Section 3(3A) of the act provides Discrimination in the • Sexual orientation, is called victimisation, and the that statistics are admissible in order provision of accommodation, • Religious belief, Equal Status Act, specifically to determine if a breach has occurred. admission or access to • Age, protect a person against such According to established case law, it educational courses or • Disability, victimisation. is not necessary in this respect to find that the provision in question does, in Law Society Gazette www.gazette.ie Jan/Feb 2011 Human rights watch 17

the ‘blanket priority’ was not considered proportionate or necessary by the tribunal for the following reasons: “1) The priority applies to the children of all past pupils, irrespective of the actual level of current engagement of the father with the school. In many cases, therefore, the means would not achieve the aim. 2) There are other ways of achieving this aim, which would not disadvantage children whose fathers did not attend the school, such as organising a past pupils’ union, by the activities of a parents’ association, etc. 3) The impact on Travellers is disproportionate to the benefit of the policy (see page 16).”

Potential consequences practice, affect a substantially given the poor academic standards attended the school would have The tribunal upheld the complaint higher proportion of Travellers among Travellers at primary- increased the complainant’s against the school and ordered that – it is sufficient that it is liable school level in the 1980s. chances of being awarded a place the complainant be offered a place to have such an effect (ECJ Figures supplied by the in the subsequent lottery for immediately, and that the school C-237/94, O’Flynn v Adjudication Department of Education places by 70%. review its policy to ensure that it Officer [1996] ECR-I-02617, showed that just 100 Travellers The tribunal found, on the does not indirectly discriminate paragraphs 20, 21). were registered in post-primary balance of probabilities, that against pupils on any of the The tribunal found that the schools in the entire country the policy of giving priority to grounds covered by section 3(2) of criterion that gave priority to in 1988, making the chances of children of past pupils put the the Equal Status Act. children of past pupils did both the complainant’s father having complainant, as a member of This decision – should it potentially, and actually, put the attended post-primary school the Traveller community, at a stand – could have far-reaching complainant at a disadvantage. “extremely remote”. The tribunal particular disadvantage compared consequences for all schools that The complainant submitted found that this proved that the with non-Travellers. have a similar policy. The board of empirical evidence to depict the complainant, as management of the school at the historical disadvantage to which a Traveller today, “This application ‘Blanket priority’ centre of this case has decided to Travellers had been subjected in was statistically According to appeal the Equality Tribunal’s the past, focusing on when the much less likely to process would established case law, determination in the Circuit complainant’s father would have have a father who likely put when determining Court. The school’s legal advisers, received post-primary education. attended second- Travellers at the scope of any Mason, Hayes & Curran, The Report of the Travelling level education, and derogation from confirmed to the Irish Examiner People Review Body in 1983 stated he was, therefore, that time at a an individual right, on 18 January 2011 that an appeal that just 10% of Travellers potentially affected disadvantage” due regard must be against the tribunal findings had who attended primary school much more by had to the principle been lodged at the Circuit Court progressed to second level at that this criterion of proportionality. on 13 January 2011. The time, compared with 66.4% of the for admission than his settled In other words, the derogation newspaper added that it had been general population in 1982. counterparts. must be appropriate and confirmed by one of the law firm’s As well as potentially affecting necessary to achieve its aim (ECJ partners, Ian O’Herlihy, that John Competitive exam the complainant as a member C-476/99, Lommers [2002] ECR Stokes has not been offered a place While the school could not of the Traveller community, the I-2891, paragraph 39). at the school. produce statistics on how many complainant proved that he was The aim of giving priority Subject to the findings of the Travellers were in attendance at put at a particular disadvantage to children of past pupils, appeal, it will be interesting to see the school in the 1980s, it did compared with his settled according to oral evidence whether this case will have wider indicate that entry was by way of counterparts by this criterion, in presented by the school, was implications for equality law, in a competitive written exam. The that all 36 applicants who met the to foster family loyalty to the general, for schools that accept tribunal found this application ‘father-as-a-past-pupil’ criterion school and to promote a family pupils who fall within any of the process would likely put Travellers were awarded places. The tribunal ethos within education. While nine grounds covered by section at that time at a disadvantage, found that having a father who this was considered legitimate, 3(2) of the act. G 18 Viewpoint Law Society Gazette www.gazette.ie Jan/Feb 2011

the criminalisation of forced labour in ireland

Despite the Criminal Law (Human Trafficking) Act 2008, Nick Henderson argues that no forced labour case has yet been prosecuted in Ireland – and so, forced labour is not considered a crime here

Nick offence. The Irish government is employs or accommodates a article 4. The Siliadin decision Henderson is not alone in drafting legislation victim for the purpose of labour has urgent implications for legal advocacy that criminalises labour or or sexual exploitation, and if Ireland: it must have legislation worker on sexual exploitation with the coercion, deception or abuse of that penalises and effectively trafficking and requirement that the person has vulnerability is used against the prosecutes any act aimed at forced labour at been trafficked for that purpose. victim. This interpretation does maintaining a person in a MRCI Some observers have criticised not link the offence of forced situation of forced labour. the focus on trafficking, as it labour to cross-border or internal allows governments to appear trafficking, and the victim can be Options for victims n November 2010, the active on forced a foreigner or Irish. To MRCI’s knowledge, the Human Rights Commission labour without MRCI submitted gardaí have not prosecuted Istated that the Irish state may addressing its “An offence of this interpretation a case of forced labour using have breached international law most prominent forced labour to the authorities in this interpretation of the 2008 by not outlawing the Magdalene manifestations, June 2010. act – and no other law explicitly laundries. Unfortunately, forced which are not is therefore criminalises forced labour. Until labour is neither a historical always as a committed if a International law this interpretation is accepted nor foreign problem. Migrant consequence of The International or a new law is drafted, forced Rights Centre Ireland (MRCI), trafficking. person employs Labour Office’s labour is not considered a crime an NGO that campaigns for The Criminal or accommodates Forced Labour and a victim has no redress. vulnerable migrant workers, Law (Human Convention 1930 Victims could be advised to assists workers in the domestic, Trafficking) a victim for and the UN’s present themselves to the gardaí. agricultural, restaurant, seafaring Act 2008 can, the purpose of Supplementary If the case were not investigated, and construction sectors who however, labour or sexual Convention on the there would be no prosecution, have experienced forced labour. be read as Abolition of Slavery, on the grounds that there is In MRCI’s experience, forced criminalising exploitation, both ratified by no law to prosecute the crime labour begins with deception forced labour and if coercion, Ireland, require or that the gardaí are awaiting about working and living without the the criminalisation the authorities’ opinion on the conditions, followed by low or ingredient of deception of forced labour. interpretation. A statement no pay. Deception, coercion and cross-border or abuse of Unfortunately, confirming this could be sought abuse are also used to control or internal monitoring and from An Garda Síochána or the workers. The process can also be trafficking. vulnerability is redress procedures Director of Public Prosecutions. gradual: working conditions may (This inter- used against the for both conventions A possible remedy would then be be initially decent but deteriorate pretation was are limited. Article judicial review, on the grounds over time. argued by Eilis victim” 4 of the European that the authorities had failed Barry BL at Convention on to investigate and prosecute a Forced labour – a crime or not? a conference Human Rights case of forced labour, thereby The Criminal Law (Human organised by MRCI in June (ECHR) states that no one shall breaching article 4 of the ECHR. Trafficking) Act 2008 states 2010.) The act contains the be held in slavery or required If the authorities do not agree that trafficking for labour or standard definitions of trafficking to perform forced labour. In that the 2008 act can be interpret- sexual exploitation is a crime (recruiting, transporting or Siliadin v France (26 July 2005), ed as criminalising forced labour, with a maximum sentence of harbouring a person), but its the European Court of Human and unless another law that does life imprisonment. In MRCI’s scope is expanded by including Rights concluded that member so can be identified, Ireland experience, the current trafficking as “providing the states’ positive obligations under may be violating its positive interpretation of this act by the person with accommodation or article 4 require the penalisation obligations to penalise the crime. authorities is that trafficking into employment”. and effective prosecution of A victim could make reference or within Ireland is a required An offence of forced labour is forced labour and that France’s to section 3 of the ECHR Act ingredient for there to be an therefore committed if a person failure to do so was a violation of 2003 and state that failure Law Society Gazette www.gazette.ie Jan/Feb 2011 Viewpoint 19

“To our knowledge, the gardaí have not prosecuted a case of forced labour using this interpretation of the 2008 act – and no other law explicitly criminalises forced labour. Until this interpretation is accepted or a new law to penalise forced labour is criminalise is drafted, forced labour is not considered a and recover from incompatible with the ECHR. forced labour their experiences. Mr Justice McKechnie, in his and amended crime and a victim has no redress” Irrespective of 2007 High Court decision in the Coroners the existence of the Lydia Foy case, said that the and Justice Act 2009 to include a to penalise the crime of forced the offence of forced labour, state was in breach of the ECHR definition of the crime. labour. practitioners will continue to by not having law that met its Britain’s Ministry of Justice If forced labour is criminalised, advocate for victims of forced ECHR obligations – as it would and the Crown Prosecution protection for foreign victims who labour using civil employment be if it had law that violated Service have issued guidance have lost their status to remain in courts. While not equivalent to a its obligations – and made a for the courts and police as the country will also be required, criminal prosecution, the victim declaration of incompatibility. to how the offence should be so that the person is secure in the may at least receive justice for A declaration of incompatibility interpreted. The 2008 act is country while they act as a witness breaches of employment law. G does not necessarily result in a sufficient to criminalise forced change of law. The European labour and a new law is not court has stated that a declaration required, but guidance similar Look it up under Britain’s Human Rights to that of the British authorities Act is not an effective remedy may be required from the Cases: • Human Rights Act 1998 as protected by article 13 of Department of Justice and the • Foy v An t-Ard Chlaraitheoir & (Britain) the ECHR. Considering the DPP, setting out the elements Ors [2002] IEHC 116 • Supplementary Convention on similarity of wording between of the offence and evidential • Siliadin v France, ECtHR (26 the Abolition of Slavery, the Ireland’s ECHR Act and Britain’s considerations. July 2005) Slave Trade, and Institutions Human Rights Act, this finding and Practices Similar to may apply to Ireland. In these The future Legislation: Slavery (1957) circumstances, the victim could The European Court of Human • Coroners and Justice Act 2009 approach the European court Rights will hear a case in due (Britain) Literature: directly and state that Ireland’s course in which it will be • Criminal Law (Human • The Crown Prosecution failure to criminalise forced argued that the state has greater Trafficking) Act 2008 Service’s Guidance on Slavery labour violates its obligations obligations to protect migrant • European Convention on Human and Forced or Compulsory under article 4. domestic workers from forced Rights Labour, published 19 March In October 2009, as a result of labour due to their vulnerability. • European Convention on Human 2010 (see: www.cps.gov.uk/ advocacy by NGOs, politicians The argument will be that Rights Act 2003 legal/s_to_u/slavery_servitude_ and trade unions, the British the state must protect them, • Forced Labour Convention 1930 and_forced_or_compulsory_ government accepted that through workplace inspections, (International Labour Office) labour/) existing legislation failed to for example – and not simply 20 Cover story Law Society Gazette www.gazette.ie Jan/Feb 2011

the big chill Protective costs orders may provide the means of overcoming the so-called ‘chilling effect’ of costs for public interest litigation. Jo Kenny turns up the heat

Jo Kenny is legal officer at the Public Interest Law Alliance, a project of the Free Legal Advice Centres. She qualified as a barrister in England and worked as a legal advisor to the Department for Work and Pensions for three years, where she advised on domestic and international litigation. She co-authored the pensions chapter in Employment Law edited by Maeve Regan (Tottel)

arlier this year, Britain introduced a policy by which unsuccessful asylum-seekers could be deported with little or no notice. Medical Justice is a non-governmental organisation that helps asylum-seekers in immigration centres. They decided to legally challenge this Epolicy. The English High Court found part of the scheme unlawful on the ground that it infringed access to justice. One feature of the case that may have gone unnoticed is that, at the early stages of litigation, Medical Justice was granted what is known as a ‘protective costs order’, which capped its liability for costs at Stg£5,000, whatever the substantive outcome. This meant they could proceed with litigation without fear of an adverse costs order that they could not afford to pay. A ‘protective costs order’ is a costs order made at the outset of litigation, providing a plaintiff with certainty on the costs outcome. The order might provide any of the following: Law Society Gazette www.gazette.ie Jan/Feb 2011 Cover story 21

Fast facts > ‘Protective costs order’ – a costs order made at the outset of litigation, providing a plaintiff with certainty on the costs outcome > The courts may find merit in relaxing the usual costs rules to enable a public-interest matter to be heard >> > In other jurisdictions, what are the relevant criteria to be satisfied for a protective costs order to be granted? > Where Ireland stands on the matter – cases must raise a unique and exceptional issue of public importance 22 Cover story Law Society Gazette www.gazette.ie Jan/Feb 2011 • That there will be no order as to costs, • That the plaintiff’s liability for costs are capped, or • That the defendant will pay costs, even if the plaintiff is unsuccessful.

This may all sound a little radical! So it is necessary to take a step back to understand why the courts would develop such a jurisdiction.

Leading English authority It is a fact that not everyone can afford the high-risk game of litigation. But where a case provides an opportunity to clarify or resolve legal issues for a wider public benefit, the courts may find merit in relaxing the usual costs rules to enable a public-interest matter to be heard. In doing so, they play their role in overcoming the so-called ‘chilling effect’ of costs for public interest litigation. As Judge Toohey commented in Australia: “There is little point opening the doors of the courts if litigants cannot afford to come in ... the fear, if unsuccessful, of having to pay the costs of the other side ... with devastating consequences to the individual or environmental group bringing the action, must inhibit the taking of cases to court.” “To date, the The leading English Irish courts have authority on protective costs orders (PCOs) is the non- considered the governmental organisation, making of a Corner House Research. The Court of Appeal stated protective costs that “the general purpose of order in two a PCO is to allow a claimant of limited means access to the reported cases. court in order to advance his They declined to case without the fear of an elucidation on a point of law, • Planning permission for a power station on order for substantial costs.” grant an order in raises a novel point of law, or a site used for bird-watching (McGinty). The court set out the both instances, and raises a novel interpretation Unsurprisingly, the ‘no private interest’ relevant criteria to be satisfied this is, perhaps, of the law. Where it is more requirement has been subject to much for a protective costs order to likely to be an exercise in criticism. Applicants for judicial review are be granted, as follows: unsurprising” applying familiar principles required to demonstrate ‘sufficient interest’ to • The issues raised are of of law to new facts, the court bring the claim in the first place. general public importance, will be less inclined to grant a PCO. To be required also to demonstrate • The public interest requires that those Examples of issues considered to be of lack of any private interest appears to be issues should be resolved, public importance in English case-law include: a contradiction in terms. Moreover, the • The applicant has no private interest in the • A fast-track pilot scheme to deal with suggestion that private interest and public outcome of the case, asylum claims (Refugee Legal Centre), interest are necessarily mutually exclusive • Having regard to the financial resources • An export credit guarantee consultation has been labelled a “false dichotomy” of the applicant and the respondent(s) and process relating to anti-bribery and (Chakrabarti). The Court of Appeal has noted to the amount of costs that are likely to corruption in international trade (Corner judicial criticisms of the ‘no private interest’ be involved, it is fair and just to make the House Research), requirement and recommended that a flexible order, • Licences granted to a university for animal approach be adopted towards all aspects of the • If the order is not made, the applicant will experimentation (British Union for the Corner House Research guidance (Morgan). probably discontinue the proceedings and Abolition of Vivisection), Another potential difficulty for applicants will be acting reasonably in so doing. • Planning permission regarding a site for of a protective costs order relates to legal rare endangered invertebrates (Buglife), representation. In Corner House Research, the In considering whether a matter raises ‘public • Whether a registered social landlord was a Court of Appeal commented that recipients interest’ issues, the English courts attach ‘public authority’ under the Human Rights of a PCO that permits them to recover costs weight to whether the matter truly requires Act (Weaver), and if successful should incur only “modest costs”. Law Society Gazette www.gazette.ie Jan/Feb 2011 Cover story 23

They added that pro bono representation would Similarly, in Roche, the Supreme Court has made clear that the threshold for a enhance the merits of the application. Yet ordered the successful respondent to pay the PCO is higher than this, requiring issues both costs capping and the need for pro bono costs of the unsuccessful parties in relation to of application beyond the individual, or representation cause difficulties in terms of the the High Court proceedings, on the ground clarification of issues of legal complexity, or legal representation that the applicant will be that the case raised a unique and exceptional a novel point of law or interpretation. Not able to afford. issue of public importance, which “surpassed, every judicial review will satisfy this high It also poses something of a quandary. If to an exceptional degree, the private interests threshold. an issue is of public importance, it may well of the two parties”. That a case must be require lead as well as junior exceptional for deviation Further afield counsel – and yet “modest from the customary costs Other common law jurisdictions have costs” would seem to rule was confirmed in developed various means of overcoming preclude this possibility. “If an issue is of Dunne, where the Supreme the ‘chilling effect’. In South Africa, where a public importance, Court overturned a High constitutional case is taken in good faith, an Ireland – ‘after-the-event’ Court costs order on the unsuccessful plaintiff will not be ordered to approach it may well require basis that the case did pay costs (Gauteng and Biowatch). The Irish courts have lead as well as not raise legal issues of Canadian courts have the power to order occasionally exercised special and general public the state to fund the costs of a public-interest their inherent discretion junior counsel – importance. case by way of an ‘interim costs order’ to disapply the usual costs and yet ‘modest Needless to say, the after- (Okanagan). Australian courts enjoy the rule after the event, where the-event approach provides power to make ‘maximum costs orders’ – they considered the public costs’ would seem plaintiffs with no certainty thereby capping costs which the respondent interest of the case to justify to preclude this as to costs – unlike the may recover where the case is brought in the it. Two Supreme Court possibility” protective costs order. public interest (Corcoran and Haraksin). examples are: Curtin and To date, the Irish courts The approaches may differ, but what is Roche v Roche. have considered the making interesting is that all these common law Curtin concerned of a protective costs order jurisdictions recognise the justification for the removal of a judge from office and, in two reported cases. They declined to modifying costs rules where a public interest accordingly, involved novel and crucial grant an order in both instances, and this is, issue is at stake. constitutional questions and raised serious perhaps, unsurprising. This much is clear – there are options issues around the separation of powers. The In Village Residents, the court considered available to courts to facilitate hearing a Supreme Court awarded the unsuccessful that the case was no different to many other matter which may benefit the wider public. If applicant half his costs. It is notable that the planning judicial reviews, while in Friends Medical Justice had not obtained a protective Supreme Court emphasised that this was an of the Curragh, the court found that the costs order, an important issue of access to exceptional case and that it was not desirable matter involved applying familiar principles justice might have gone unheard. A more to stipulate a definite rule on exceptions to to new facts. nuanced approach is called for in public- the usual costs rules. More developed case law on PCOs interest cases. G

Look it up

Cases: • Dunne v Minister for the Environment, the Centre) v Secretary of State for the Home • Biowatch Trust v Registrar Genetic Resources Attorney General and Dun Laoghaire-Rathdown Department [2004] EWCA Civ 1239 and Others (CCT 80/08 [2009] ZACC 14) County Council [2005] IEHC 94; [2007] IESC • Roche v Roche [2010] IESC 10 • British Columbia (Minister of Forests) v 60 • Village Residents Association Ltd v An Bord Okanagan Indian Band ([2003] 3 SCR 371, • Friends of the Curragh Environment Limited v Pleanála and McDonalds [2000] 4 IR 321 2003 SCC 71) An Bord Pleanála & Ors [2006] IEHC 243 • Weaver v London Quadrant Housing Trust • Corcoran v Virgin Blue Airlines Pty Ltd ([2008] • Gauteng Provincial Legislature In re: Gauteng [2009] EWCA Civ 235 FCA 864) School Education Bill of 1995 [CCT39/95) • R (ex parte Corner House Research) v (1996) ZACC 4; 1996 (4) BCLR 537; 1996 Literature: Secretary of State for Trade and Industry (3) SA 165 (4 April 1996)] • ‘The Costs Barrier and Protective Costs Orders ([2005] EWCA Civ 192) • Biowatch Trust v Registrar Genetic Resources at www.pila.ie • Curtin v Clerk of Dáil Eireann & Ors ([2006] and Others (case CCT 80/08 [2009] ZACC 14) IESC 27) • Haraksin v Murrays Australia Ltd [2010] FCA References: • R (on the application of the British Union for 1133 (20 October 2010) • Toohey J’s address to the International the Abolition of Vivisection) v Secretary of State • R (ex parte Medical Justice) v Secretary of Conference on Environmental Law (1989) for the Home Department [2006] EWHC 250 State for the Home Department [2010] EWHC quoted in Blue Mountains Conservation • R (on the application of Buglife – the 1925 Society Inc v Delta Electricity [2009] Invertebrate Conservation Trust) v Thurrock • McGinty, Re Judicial Review [2010] CSOH 5 NSWLEC 150 Thames Gateway Development Corporation & • Morgan v Hinton Organics (Wessex) Ltd & • Chakrabarti S, Stephens J, Gallagher C, Rosemound Developments Limited [2008] CAJE [2009] EWCA Civ 107 Whose Cost the Public Interest? (2003) EWCA Civ 1209 • R (on the application of the Refugee Legal Public Law 697 24 Profile Law Society Gazette www.gazette.ie Jan/Feb 2011 P ic : siobhan byrne

JIM’LL fix it Law Society Gazette www.gazette.ie Jan/Feb 2011 Profile 25

Fast facts In a David versus Goliath confrontation, > Thirteen-year legal journey to obtain solicitor James MacGuill took on the might justice of the State – and three senior counsel – in > Key items of evidence lost by Garda Síochána the Grand Chamber of the European Court of > Judgment in favour of McFarlane appealed Human Rights. Colin Murphy spoke to him to Supreme Court >> > Second challenge alleges that about litigating to win “systematic” delays by the prosecution had fatally undermined McFarlane’s right to a fair trial Colin Murphy is a journalist and > Substantive case against McFarlane documentary maker in Dublin, specialising collapses, but a European challenge in in social and cultural affairs. His radio relation to delays is pursued on a point of series From Stage to Street is currently principle being broadcast on RTÉ Radio 1 on Saturdays at 7.30pm. A selection of his work can be found at www.colinmurphy.ie

ames MacGuill made his final point and sat down. He had just finished the biggest case of his career. In front of him were the 17 judges of the Grand Chamber of the European Court of Human Rights. Across the aisle sat the three senior Jcounsel against him, representing Ireland. MacGuill had just finished responding to a series of questions posed by the judges, which had followed his presentation of his case. As the judges had asked their questions, MacGuill and his assistant – a young apprentice, Aimée McCummiskey – had noted them, and as he answered them, she ticked them off. But as he sat down, he saw she was pointing urgently to an unticked question. MacGuill jumped back to his feet and just managed to get in his answer to that last, neglected question. A short time later, he and McCummiskey were standing outside in the Strasbourg spring air again. There were no colleagues to clap them on the back and no one to offer an opinion on how the case had gone. They thought about lunch and checked the time. It was 11.30am. The entire case had taken less than two hours. MacGuill’s client was Brendan McFarlane, a one-time leading member of the IRA, now a community worker in West Belfast. McFarlane had an extraordinary ‘career’ JIM’LL fix it 26 Profile Law Society Gazette www.gazette.ie Jan/Feb 2011

with the IRA (see panel). In 1983, he escaped This is your life from the Maze Prison, where he was serving a life sentence for his role in a notorious Brendan ‘Bik’ McFarlane was training to be kidnapped by an IRA gang, McFarlane allegedly pub attack and, subsequently, was allegedly a priest when the Troubles broke out, and he among them. Gardaí and the army traced the involved in the kidnapping of supermarket abandoned his studies and returned home to gang to Derrada Wood in Co Leitrim and, in an executive Don Tidey, during which a trainee Belfast to join the Provisional IRA. In 1976, he ensuing shoot-out, a trainee garda and soldier garda and a soldier were killed. was sentenced to life imprisonment for his part were killed. Tidey escaped, but so did the gang. McFarlane was recaptured in 1986 and in an attack on the Bayardo Bar in the Shankill McFarlane was later captured in the served out the rest of his sentence without ever Road area of Belfast, in which five people were Netherlands and extradited to Northern Ireland being charged with the Don Tidey kidnap. He killed. to complete his sentence. On the day he was was due for final release in 1998 – but on the Imprisoned in the Maze, he was the IRA’s released, he was arrested and charged with day of his release, he was arrested and charged. officer commanding during the hunger strikes Tidey’s kidnapping. That case was eventually of 1981, and later led the mass escape held in June 2008; it collapsed when garda Opportunity knocks from the Maze of 1983. In December that evidence was ruled inadmissible, and McFarlane hired James MacGuill, a prominent year, supermarket executive Don Tidey was McFarlane was acquitted. Dundalk solicitor (later to become president of the Law Society), and the two embarked on a legal journey that would become a 13-year Court of Human Rights in the wake of the For all that, the task was daunting – but odyssey. Supreme Court’s rejection of his complaint he didn’t see it as reckless and argues that, in MacGuill’s first challenge to the charges about unreasonable delays. Now that the fact, solicitors should take to their feet more. was based on the fact that the Garda Síochána substantive case had collapsed, there may have “I have argued in most of the Irish courts. had lost key items of evidence, which allegedly been no pressing need to pursue that European It’s not a given that the barrister is always the had McFarlane’s fingerprints on them. The challenge, but McFarlane decided to persist best bet, and it’s certainly not a given that the High Court found in favour of McFarlane, with it on a point of principle. solicitor is always inadequate for the job. but the state appealed to the “If the case involved an area of law that Supreme Court. In 2006, Magic roundabout the solicitor isn’t comfortable with, then that court found in favour of “This was the The European Court had they shouldn’t be reckless and do it, but if it the state – over six years after solicitor’s equivalent found against Ireland twice involves facts or law that even a truly expert McFarlane’s first complaint before on issues of delays, in barrister can’t properly master in time, then was lodged. of getting to play at the Doran and Barry cases, the barrister shouldn’t be asked to do it. MacGuill then launched Lansdowne Road for and there were (and are) “We had been with the case from day one, a second challenge, alleging other cases pending against so we weren’t going to be wrong-footed easily that “systemic” delays by Ireland. You’re not the state on issues of delay. on the details of domestic proceedings or the prosecution had fatally going to get more The state saw an opportunity the underlying facts of the case. That meant undermined McFarlane’s to overturn these precedents we were able to concentrate on what the right to a fair trial. The delay than one chance of and applied to have the case court might be interested in, such as points “appeared to be vindictive”, doing this” heard by the court’s Grand of broader application from a European he says. “They should have Chamber of 17 judges. perspective. prosecuted him when he had For MacGuill, this “In any case, you get a more predictable the fairest chance of defending himself.” provided a unique challenge and opportunity. reception in Strasbourg than in the Four The High Court dismissed this complaint, Due to a scheduling difficulty for the Courts,” he jokes. “The Strasbourg courts and MacFarlane appealed to the Supreme counsel involved, and with the agreement are not going to make a distinction between a Court. In 2008, they ruled that the trial could of McFarlane, it fell to him to take on the solicitor and a barrister.” proceed. But when it did, later that year, the advocacy of the case before the Grand case collapsed after the court ruled that garda Chamber. Generation game evidence was inadmissible. “This,” he says, “was the solicitor’s MacGuill appreciated the rigours of preparing McFarlane was acquitted – but there equivalent of getting to play at Lansdowne and presenting a case before the European remained one legal challenge outstanding. Road for Ireland. You’re not going to get Court, where the scheduling, paperwork and James MacGuill had applied to the European more than one chance of doing this.” arguing of a case are all far more disciplined than in the Irish system. The initial challenge lay in the paperwork. The court provided Sale of the century him with a precise questionnaire, and he James MacGuill on solicitors arguing before the case, as you get the same fee, so you may as well was entitled to submit a 30-page memorial – courts: “As solicitors, we have had a right of bring in a barrister. If I was paid properly to do it, which he had to distil from the 50 or 60 boxes audience in every court since 1961. Colleagues I’d do it all the time. of files in his office. in other common law jurisdictions have had to “It’s easier to do the Supreme Court, where you He worked on it mostly at weekends – “you struggle to win this right, and only get it on limited get a day, and do it on that day. But in the High can’t do this stuff when the phone is ringing” terms. And yet they use it more than we do – what Court, your case may not get on, and that screws – and focused on making everything as you get for nothing, you don’t appreciate. We up your day, and possibly your week. We can see succinct as possible. “You have to decide what shouldn’t waste the opportunity we have by not changes coming from London, especially on the are the truly relevant materials. You get no using it. But economics kicks in, in the way the commercial side. The Americans are not used to points out there for being lazy and throwing fees are structured: you’re almost penalised if you the split profession, and increasingly don’t want something in as a make-weight.” do both the preparation and the advocacy of a cases handed over.” He found the court procedures supportive and the personnel helpful and responsive. Law Society Gazette www.gazette.ie Jan/Feb 2011 Profile 27 “The court supervises the work so that you The court found in address the issues the court is concerned with, favour of McFarlane and you don’t have an opportunity of dodging by 12 to five. It the hard questions. The personnel make sure concluded that the that, by the time a case gets to the judges, the remedies proposed preparatory work has all been done.” by the state would Asked what his key piece of advice to a not have provided an solicitor facing the European Court would effective remedy to be, this is the aspect he focuses in on: “If you McFarlane and found don’t take time and care to do the paperwork that the duration of the right, you’re on the back foot thereafter. criminal proceedings Paperwork is a solicitor’s friend: we’re good at was excessive, violating that, we’re disciplined.” article 6, section 1 of On the day, the state had 30 minutes to the Convention for the present its case, with MacGuill having 30 Protection of Human minutes to respond; after that, they each faced Rights and Fundamental a series of questions from the judges and were Freedoms, which each given ten minutes to respond. guarantees a fair trial “within a reasonable The persuaders time”. McFarlane was “It was a culture shock. You arrive at the awarded compensation building at 8.30am; at nine, you make a of €15,500. courtesy call to the president of the court; the case starts at 9.30am, and you’re walking out Are you being served? of court at 11.30am. The overall experience “Forty minutes sounds like it’s a short reinforced MacGuill’s period of time, but that’s possibly because conviction that the our courts are too tolerant of content-free Irish courts are badly

filibustering. You can communicate a lot of in need of reform. P ic : siobhan byrne information in 40 minutes. If questions are “We should be put right up to you and you answer them, it’s hopping out of the very efficient. 18th century, where we “Other courts impose strict time limits: the Court of Justice in Luxembourg has a limit of 30 “You get a more predictable reception in Strasbourg minutes; the US Supreme Court has a limit of 20 minutes. We’ve than in the Four Courts,” he jokes. “The Strasbourg compel people to reduce their a lot to learn from that. courts are not going to make a distinction between cases to paper and to agree with “Giving airtime to bad a solicitor and a barrister” the other side the areas that are points can devalue your good really an issue and those that points. People should have aren’t. And hearing dates have the discipline of getting their to mean something. You have arguments down in writing, and then use the are at the moment, and getting ahead of the small businesses involved in a court case, and oral presentation to highlight the most critical game in the 21st century. We should be using they’re waiting around for a couple of days to points, to take issue with developing themes, technology all the time.” get on. It’s hugely wasteful.” and to answer questions. A key development, he says, would be The key to reform is the judiciary, and he “You shouldn’t have to come in and tell to televise proceedings in the appellate believes there is “every indication that the professional judges what the case is about. courts (where there are no witnesses). The judges want to be progressive,” citing the Everyone should be sitting down in a European Court proceedings are broadcast example of the Commercial Court, which has courtroom knowing that the documents have (with a delay) on the internet (at www.echr. “made huge strides forward”. been prepared well and have been studied and coe.int), and this “possibly has the effect of “But solicitors have to improve their taken seriously by everybody there.” making people think more carefully about own professionalism,” he notes. A “culture The case itself was straightforward – what they’re saying,” he speculates. “It is an change” is required, that would see solicitors barring the moment when it took his young important pro-citizen tool that can make the “frontloading the work – doing the work in assistant to point out his omission. processes of the courts available to the public. advance, rather than as you go along. This The state’s core argument was that It’s the coming thing, and what we should be doesn’t require any big legislative change, just McFarlane had not exhausted the domestic doing is working out where it’s appropriate a change in approach.” G remedies available to him by not seeking and where it isn’t.” damages arising from the delays. MacGuill And other reforms? See the court in action pointed out that nobody had ever successfully “I don’t understand the reluctance to allow sued for damages in such a case, and that, as video-links in civil and commercial type The webcast of McFarlane v Ireland can be McFarlane’s main objective had been to have cases,” he says. “We need longer working found on www.echr.coe.int in the section his trial stopped, it was unreasonable to expect hours for the courts. We need to limit the ‘webcasts of public hearings’. him to have sought to have the case expedited. time that’s available for argument. We should 28 Mortgage enforcement Law Society Gazette www.gazette.ie Jan/Feb 2011 lend me

Tarrearshe legal approach to residential mortgage default has changed, and the updated Code of Conduct on Mortgage Arrears is likely to have a significant effect – at least in the short term – on the number of residential mortgage suits. Cian O’Sullivan drops off the keys

n 6 December 2010, the Central Where a mortgage is unsustainable or where a Bank published its updated Code of borrower is not willing to enter into an alternative Conduct on Mortgage Arrears. The code repayment arrangement, the lender must inform the operates with effect from 1 January borrower of other available options, such as voluntary 2011 and applies to loans to surrender/sale or trading down. Proceedings for individuals in respect of their principal repossession must only issue as a last resort. private residence. The code implements a number Where proceedings are already extant, they must be Cian O’Sullivan O of recommendations issued by the Expert Group on stayed while a borrower complies with any alternative is a solicitor and Mortgage Arrears and Personal Debt. repayment arrangements. Where property is disposed of registered tax The code supersedes its predecessor – published on on foot of a repossession order, the lender must notify the consultant with 17 February 2010 – and specifies the procedures that borrower of the balance outstanding, the costs arising out of Mason Hayes & lenders must follow where a borrower falls into arrears or the disposal that have been added to the loan account, and Curran where he contacts a lender to inform it that he is in danger the interest rate being charged on the remaining balance. of going into financial difficulties and/or In any proceedings, the lender will have is concerned about going into mortgage to demonstrate compliance with the code if arrears. Pursuant to section 117(1) of the “Proceedings its application is to succeed. Central Bank Act 1989, all lenders must for repossession comply with the code. Procedures in the High Court In essence, a lender must not seek to must only issue A lender seeking an order for possession repossess a residential property until every as a last resort” and/or sale of a commercial or residential reasonable effort has been made to agree property should commence proceedings by a alternative repayment arrangements with special summons, which is returnable before a borrower. This involves consideration of the borrower’s the Master of the High Court. The master may transfer personal circumstances and standard forbearance options, the matter to the judge’s list if all necessary affidavits have such as converting to interest only, deferring payments for been delivered by the parties. The master does not have some time, extending the mortgage term or capitalising jurisdiction to make an order for possession or sale. arrears and related interest. Following transfer to the judge’s list, the judge may Lenders are prevented from imposing charges/surcharge make an order for possession and sale at the hearing of the interest on mortgage arrears to which the code applies. special summons or may send the matter on for plenary Also, proceedings seeking to enforce a mortgage cannot hearing if the borrower satisfies the judge that there is a issue unless 12 months has expired after arrears first fair or reasonable probability of a real or bona fide defence arise. The 12-month period will not start to run while a on the merits. The norm is for an order for possession and borrower is complying with any alternative repayment sale to be made. arrangements. The ‘12-month moratorium’ does not apply Adjournments will usually be granted if the borrower where a borrower does not cooperate with a lender. can convince the court that the arrears owing will Law Society Gazette www.gazette.ie Jan/Feb 2011 Mortgage enforcement 29

Fast facts > Updated Code of Conduct on Mortgage Arrears implements recommendations issued by the Expert Group on Mortgage Arrears and Personal Debt > Lender must not seek to repossess a residential property until>> every reasonable effort has been made to agree alternative repayment arrangements > Proceedings seeking to enforce a mortgage cannot issue unless 12 months have expired after arrears first arise – this period will not start to run while a borrower is complying with any alternative repayment arrangements > Sale by consent is usually in the borrower’s best interests, as more of the indebtedness will likely be paid off arrears > Enforcement proceedings must issue within a certain time to avoid becoming statute barred

be discharged within a reasonable time. affecting the property and their priorities. can be avoided if all parties consent to the Moreover, orders for possession and sale are When the examiner is so satisfied, the lender sale (and possession, if necessary) without a usually stayed for a few months, depending issues a motion before the examiner to settle court order. A sale by consent is usually in on the type of property involved and the the particulars and conditions of sale and the borrower’s best interests, as more of the circumstances of the case. nominates an auctioneer. Once the conditions indebtedness will likely be paid off, because If the High Court makes an order for sale, of sale are settled, the sale can proceed and is a voluntary sale usually obtains a better price the sale of the property will proceed under typically by way of public auction. and the legal and transaction costs of a forced- the supervision of the Examiner’s Office (see If the property is sold, the sale proceeds sale process (which are for the account of the order 55 and appendix G of the Rules of the are lodged into court (Accountant’s Office). borrower) are thereby avoided. Superior Courts). The court order is lodged in The examiner completes a certificate of Where the sale proceeds do not exceed the the Examiner’s Office, and a notice to proceed incumbrances, which forms the basis of amount of the indebtedness, a borrower will is served on the borrower with a return date a further court application to pay out the be liable for the shortfall. This liability will before the examiner. funds. Stamp duty totalling 5% of the sale rank equally with other unsecured creditors. The examiner must satisfy himself proceeds is payable. A lender seeking to obtain a money regarding the existence of all mortgages Stamp duty, and additional legal fees, judgment in the High Court for the amount U.S. / IRELAND LEGAL SYMPOSIUM 2011 “DOING BUSINESS IN THE U.S. / IRELAND AND EUROPE - CRITICAL LEGAL ISSUES FOR U.S. AND IRISH COMPANIES” www.brehonsymposium.com Wednesday 11 – Friday 13 May, 2011 4* Knockranny House Hotel & Spa, Westport, County Mayo

The Brehon Law Society, Philadelphia is delighted to present For more information and to register online, the inaugural U.S./Ireland Legal Symposium, which this year visit: www.brehonsymposium.com will address key legal and commercial issues for U.S. and Irish Companies in the following areas: Price: €595.00* I. Accessing Capital and Starting up a Business Members of the Law Society & Bar Council: €495.00 II. Conducting Business / Comparative Analysis Early Bird: €450.00 (Closes 31 March 2011) III. Litigation and Dispute Resolution / Ireland a forum Student & Trainee: €250.00 for Alternative Dispute Resolution Gala dinner only (partner): €75.00 per ticket

This unique event will promote Ireland, Europe, and the * Conference registration includes access to all sessions, U.S. as destinations for foreign direct investment by way of opening night welcoming and networking reception and debate and presentation amongst the top legal, financial, gala dinner on second night. tax and accounting professionals. Irish and U.S. lawyers will also have the opportunity to network and build business CPD certification will be issued for the full day and a half of relationships with various business leaders. seminars.

For information regarding speaker and / or sponsorship opportunities, please contact Katie Cadden, Solicitor at 087 900 7062 or [email protected]

Presented by The Brehon Law Society of Philadelphia, in conjunction with Temple University Beasley School of Law, Western Development Commission and Mayo County Council

ALLIED IRISH BANKS P.L.C. NOTICE TO ALL SOLICITORS Allied Irish Banks p.l.c., wishes to advise all solicitors that is has recently decided to withdraw the provision of executorship/trustee services. Accordingly, it will not be in a position to accept the following appointments: • any future executorships appointed by Will; • any future trusteeships appointed under a Will; and • any future trusteeships arising under an inter-vivos settlement.

The Bank requests that any solicitors with clients who have appointed or wish to appoint the Bank as executor and/or trustee under a Will to advise their clients to make alternative arrangements as the Bank will not be in a position to accept such appointments should the Will proceed to probate.

If you have any queries please contact Mr. Edmond T. O’Regan or Ms. Mary Dwan at Allied Irish Banks p.l.c., Executor and Trustee Services, P.O. Box 512, Bankcentre, Ballsbridge, Dublin 4.

Contact Details Mr. Edmond T. O’Regan Tel. No. 01-6413524, e-mail: edmond.t.o’[email protected] Ms. Mary Dwan Tel. No. 01-6413526, e-mail: [email protected] Law Society Gazette www.gazette.ie Jan/Feb 2011 Mortgage enforcement 31 outstanding on a commercial/residential mortgage should commence proceedings by a summary summons. A lender is entitled to obtain summary judgment for the amount outstanding if an appearance is not entered to a summary summons within eight days of service. If an appearance is entered, a lender must issue a notice of motion before the master grounded upon affidavit that exhibits any relevant documents. If the master is satisfied that there is no bona fide defence to the claim, he may grant liberty to enter judgment. If so, normal enforcement procedures can follow.

Procedures in the Circuit Court With effect from 1 December 2009, section 101(5) of the Land and Conveyancing Law Reform Act 2009 gives the Circuit Court exclusive jurisdiction with regard to all residential mortgages created after that date. The Circuit Court also has jurisdiction for non-residential mortgages where Friends, Romans, the property’s rateable valuation is less countrymen... than €252.95. The 2009 act applies to commercial mortgages unless the mortgage deed provides otherwise or unless has been entered or a replying affidavit taking no further action until the moratorium specifically excluded by the 2009 act. disclosing a prima facie defence has not been expires. (The situation is very different where Section 97 of the act provides that a filed. a borrower passes away and may require an lender shall not take possession of a The intention behind the rules is to application to court. See ‘Night of the living residential property without a court order. simplify and speed up the mortgage debt’, p28 of the Jan/Feb 2010 Gazette). However, a court order is not required enforcement process. As of November 2010, where a borrower consents to a lender taking leave has been granted by Mr Justice Peart, Significant effect possession. The section provides that such a allowing a borrower to judicially review It is likely that the number of commercial consent must be in writing and made seven the exercise of this power on the basis mortgage proceedings will continue to rise days prior to the lender taking possession. that, among other things, it should only be over the next number of years as a result of Section 100 provides that a lender’s power exercised by a judge, as the recapitalisation and of sale becomes exercisable if, among other is the case with the High reorganisation of Irish things, there has been default in making Court. “It is likely that the banks. It is reasonable to repayments for three months, or some number of commercial assume that the code will interest or part interest and part capital is in Time limits have a significant effect on arrears and unpaid for two months, provided Enforcement proceedings mortgage proceedings the number of residential in each case that 28 days’ notice has been must issue within a certain will continue to rise mortgage suits, at least in given. time to avoid becoming the short term. With effect from 8 July 2009, the Circuit statute barred. In assessing over the next number It is contended by some Court Rules (Actions for Possession and Well a case, it is important to of years as a result of commentators that the Charging Relief) 2009 give a county registrar consider the definition of sale of a large number of jurisdiction to make an order for possession ‘default’ contained in a the recapitalisation and repossessed properties will (but not sale) where either no appearance mortgage or in a facility reorganisation of Irish serve to further undermine letter or other terms and banks” values, which is neither in conditions. Usually, non- lenders’ nor borrowers’ Look it up payment coupled with a interests. However, the demand for payment constitutes default. If so, alternative view is that this is necessary to Legislation: a lender has six years (section 11 of the Statute provide a true market price. • Central Bank Act 1989, section 117(1) of Limitations 1957) from default to issue Whichever economic proposition is • Circuit Court Rules (Actions for proceedings. correct, what is clear is that the legal approach Possession and Well Charging Relief) The code does not address the issue of towards residential mortgage default has 2009 (SI 264/2009) whether or not the statute stops running while changed and is well summarised by the • Land and Conveyancing Law Reform Act the ‘12-month moratorium’ is in effect, so one introduction to the code, which states: “All 2009 should assume it does not. Therefore, despite [residential mortgage arrears] cases must • Rules of the Superior Courts, order 55 the wording of the code, a lender may have to be handled sympathetically and positively and appendix G consider issuing ‘protective proceedings’ in by the lender, with the objective at all times • Statute of Limitations 1957, section 11 cases where the statute will run out prior to of assisting the borrower to meet his/her the expiration of the 12-month deadline, but mortgage obligations.” G 32 Employment law Law Society Gazette www.gazette.ie Jan/Feb 2011 Lay-off my case There is a misconception among many employers that employees who have been placed on lay-off are no longer entitled to be paid, but, except in limited circumstances, that is not the case. Richard Grogan puts in the overtime

here is a misconception that when force at the time of, the deduction or payment, or an employee is placed on lay-off, c) In the case of a deduction, the employee has given his the obligation of an employer to pay prior consent in writing to it.” the employee ceases. Except in very limited circumstances, that is not the Where a contract of employment has a specific provision position – as evidenced by the large providing for non-payment of wages during a period of number of claims being brought before the Rights lay-off, then there is no obligation on an employer to pay Richard Grogan T Commissioner Service under the Payment of Wages Act, wages during that period of lay-off. Unless there is such a is principal of relating to payment of individuals while on lay-off. The contract in existence so specifying, then the employer is in a Richard Grogan & misconception appears to arise by virtue of the provisions position of having to get the consent of the employee not to Associates Solicitors, of section 11(1) of the Redundancy Payments Act 1967. pay wages. It is highly unlikely that any employee is going to also registered tax Section 11(2) refers to circumstances where, in any week, consent to not being paid during lay-off. consultants an employee’s remuneration is: There is an exception to this – namely, where there is • Less than half of his normal weekly remuneration, or a custom or practice of not paying during lay-off. Such • His hours of work are reduced to less than one-half of a custom or practice must be reasonable, certain and his normal weekly hours, or notorious. • The reduction in remuneration of hours is caused by the diminution either of the work provided by the employer Payment during lay-off for his employee, or of a kind that, under his contract, The issue of payment during lay-off was considered by the employee is employed to do. Mr Justice White in the case of John Lawe v Irish Country Meats. In that case, the court referred to the legal position Some employers seem to be of the opinion that, once that is helpfully summarised in Forde Employment Law employees are placed on lay-off by following the (p81), where it is stated: “Absent a term in the contract to procedures under the Redundancy Payments Acts, there is no the contrary, the employer’s fundamental obligation is to requirement to pay. However, the provisions of section 5 of pay the agreed remuneration for the time of work during the Payment of Wages Act 1991 provide, in particular: “An which the employee is prepared to work (Hanley v Pearse & employer shall not make a deduction from the wages of Partners). Ordinarily, an employer is free to lay off workers an employee (or receive any payment from the employee) for any reason, provided he continues to pay them. A lay- unless: off without paying the normal agreed remuneration can be a) The deduction (or payment) is required or authorised to treated by the employee as a dismissal.” be made by virtue of any statute or any instrument made The court referred to the case of Bond v CAV Ltd and under statute [section 5(1)], Neads v CAV Limited, where this matter was considered b) The deduction (or payment) is required or authorised to by Mr Justice Payne of the High Court, Queen’s Bench be made by virtue of a term of the employee’s contract Division (see p366, paragraph 48): “I begin by referring to of employment included in the contract before, and in several authorities on the proposition at common law. The Law Society Gazette www.gazette.ie Jan/Feb 2011 Employment law 33

Fast facts > Misconception that employers entitled to lay off employees without pay due to lack of available work > Large of number of claims beginning under the Payment of Wages Act for payment of individuals while on lay-off>> > Are lay-off procedures being abused as a way of avoiding paying redundancy payments? > Many employers are not seeking the advice of solicitors in advance of implementing lay-offs until after a claim is made by an employee > Where redundancies or lay-offs are being considered, legal advice is imperative 34 Employment law Law Society Gazette www.gazette.ie Jan/Feb 2011

first one is Devonald v Rosser, which established The law on this issue would appear to be for a lay-off without pay, an employee will be in common law there is no right to lay off reasonably clear. There is no right to lay off entitled to bring a claim under section 5(2) without payment, except in very limited a worker without paying that worker during of the Payment of Wages Act 1991 for wages circumstances.” the lay-off period, unless there is a custom during the period of the lay-off. Paragraph 50 continues: “It is therefore or practice in the industry or It would appear that, in the plain that there is no general right to lay off the particular employment case of an employer who is without pay at common law, but such a right that is so well known and “Lay-off procedures considering laying off staff, it exists only in very limited circumstances.” notorious that no worker are being abused by is important, when obtaining It is accepted that where there is a custom could be other than aware legal advice, to ascertain of a trade, which is reasonable, certain and of it. certain employers as the position in relation to notorious, it is possible to provide for a lay-off There is a right to lay a method of avoiding the employees’ contracts. If without pay. In order to succeed, an employer off a worker without pay the contracts do not have a must prove a custom or general usage to be where there is a specific paying redundancy specific clause allowing for so well known as to be properly read into the clause in their contract of payments” lay-off without pay, or if contract. It must be, as Lord Denman CJ held employment authorising there is no notorious custom in R v Stoke-Upon-Trent, “a custom so universal an employer to lay off within the business itself or that no workman could be supposed to have without pay. Where an employer lays off a the industry for lay-off without pay, in those entered into this service without looking to it worker without pay and there is no notorious circumstances it would be important for an as part of the contract”. custom, nor a clause in a contract allowing employer to consider whether this is a real lay-

Appeals – getting it all wrong

Claims under the Payment of Wages Act in Shahid Sultan v Nasem) The use of the word This is not an academic issue. It is the past five to seven years were invariably ‘his’ before the word ‘giving’ indicates that arising weekly before the EAT. I would refer dealt with before the Appeals Commissioner there is a requirement that the party personally practitioners to two recent cases, PW31/2009 or compromised before they came on for serve a copy on the other party. It is not and PW200/2009. In both cases, the party hearing. Appeals of payment of wages claims sufficient to believe that service on the EAT is appealing and the party against whom the were relatively few in number. An employer sufficient. appeal had been brought were in attendance. received a payment of wages claim, the Where the person making the appeal gives In neither case had the respondent claimed employer obtained the services of a solicitor, uncontested evidence of having effected that they had not received a copy of the notice and matters were dealt with. Now, because service by ordinary post, the EAT has held that of appeal from the tribunal. of the size of claims or because the employer the onus is on the other party to establish that In one case, the party appealing appeared in has simply ignored the initial complaint to it did not receive it. (See Morris v Department person. In the second, they were represented the Rights Commissioner Service, appeals are of Justice, Equality and Law Reform (PW by a firm of solicitors. In PW31/2009, the having to be considered. 24/205).) respondent was represented by this office. In One issue that is consistently coming to light Where the provisions of section 7(2)(a) have PW200/2009, the respondent was represented in respect of appeals is that the procedures in not been complied with, the EAT will hold that by a citizens’ rights centre. In both cases, relation to appeals to the Employment Appeals it does not have jurisdiction to hear the appeal the defence at the outset was raised under Tribunal are not being complied with. of a Rights Commissioner decision under the the provisions of section 7(2). In neither Section 7(2)(b) of the Payment of Wages Act Payment of Wages Act 1991. The fact that the case could the appellant show compliance 1991 provides: “An appeal under this section party against whom the appeal has been taken with service directly upon the respondent. In shall be initiated by a party by his giving, has entered an appearance, is in attendance, both cases, the appeals were dismissed on within six weeks of the date on which the and has been notified of the appeal by the the basis that the tribunal had no jurisdiction decision to which it relates was communicated EAT is irrelevant. The party against whom the to hear the appeals. This particular defence to him appeal has been taken simply has to put it to is notorious. By this, I mean that it is known a) A notice in writing to the tribunal containing the EAT that no notification has been received by both those of us who practise in the legal such particulars (if any) as may be specified by the party against whom the appeal has been profession and by non-legal practitioners. in regulations under subsection (3) and taken directly from the party appealing. While this defence is one that the EAT stating the intention of the party concerned It is then a matter for the party appealing to rightly does not like, it is one that we as to appeal against the decision, and show that he served the proceedings directly practitioners must utilise for the purposes of b) A copy of the notice to the other party upon the other party within the six-week period representing our clients. It is a simple matter concerned.” of time. There is no provision in the legislation to get it right. The consequences of not getting to allow for an extension of time. The use of it right can be that an employer who has a There is a misconception that simply lodging the word ‘shall’ means it is mandatory. good defence to a payment of wages claim, or the appeal with the Employment Appeals Because of the importance of appeal an employee who has a good appeal against Tribunal is sufficient. Service on the EAT is not documentation being sent and having a a decision by a Rights Commissioner, will sufficient in itself. (See Riehn v Royale and record of same, it is important that the appeal effectively be denied an opportunity to do so Tirmova v Vitra Ireland Limited.) documentation is either hand delivered to the because of failure to comply with a very simple The provisions of section 7(2), by the other side, against whom you are appealing, procedure. use of the word ‘shall’, contain a mandatory or is sent by recorded registered mail. In the Pending the law on this issue being requirement of service on the other party alternative, a certificate of posting by ordinary changed, it is a matter of getting it right or it concerned within the six-week period (see prepaid post would be sufficient. going horribly wrong. Law Society Gazette www.gazette.ie Jan/Feb 2011 Employment law 35

“Many employers are being advised in respect of redundancies and lay-offs by individuals who are not off, with a real potential qualified legal advisors but employee to holiday pay, is arising more and more for employers, and for re-engagement after nor to payment in respect potential claims for employees – shows the a short period of time, purport to provide quasi- of public holidays. Again, importance of the Law Society message that, or whether the employer legal services under the it is important to ensure where redundancies or lay-offs are being should immediately that a contract is in place considered, legal advice is imperative. G commence the guise of HR consultancy that makes provision for redundancy procedure services” non-payment during lay- and make the employees off, as otherwise there is redundant. a continuing entitlement Look it up There is a worrying trend developing at the to these payments, unlike the Payment of Wages present time, in respect of which a number of Acts, where the award can only be the amount Cases: claims are going to the Rights Commissioners of the actual loss. In the case of a claim in • Bond v CAV Ltd and Neads v CAV Limited Service under the Payment of Wages Act, where respect of annual holidays and public holidays, [1983] IRLR 360 employers are placing employees on extended a Rights Commissioner or the Labour Court • Devonald v Rosser [1906] 2KB 728 lay-off where there is no real potential for is entitled to award, in addition, compensation • Hanley v Pearse & Partners [1915] 1 KB re-engagement. I have a concern that lay- for failure to pay these sums. 698 off procedures are being abused by certain Unfortunately, many employers are not • John Lawe v Irish Country Meats (Pig employers as a method of avoiding paying seeking the advice of solicitors in advance of Meats) Limited [1998] ELR 266 redundancy payments by placing employees implementing lay-offs until after a claim is • R v Stoke-Upon-Trent Inhabitants [1843] on long-term lay-off, where there is no real made by an employee. The law relating to 5 QB 303 potential for re-engagement, in the hope that redundancies and lay-offs is complex. Many • Riehn v Royale PW 21/205 the employees will not claim redundancy. employers are being advised in respect of • Shahid Sultan v Nasem [2001] ELR 302 Employers who do so run the significant risk redundancies and lay-offs by individuals who • Tirmova v Vitra Ireland Limited PW of a claim for non-payment of wages during are not qualified legal advisors but purport to 72/206 the period of the lay-off. provide quasi-legal services under the guise of There is a further risk that an employer runs HR consultancy services. Legislation: in these cases. Where an employee is placed The Law Society recently ran a series • Payment of Wages Act 1991 on temporary lay-off, it would appear that of advertisements on the radio concerning • Redundancy Payments Act 1967 this does not impact on the entitlement of the redundancies. This particular problem – which 36 Defamation Law Society Gazette www.gazette.ie Jan/Feb 2011 defame GAMe

Fast facts > The highest award of damages for libel in the history of the state was made in Kinsella v Kenmare in November 2010 > It is also believed to be the biggest libel payout in European history > Under the new defamation>> regime, it is expected that new requirements will make it less likely that a jury will make excessive awards Law Society Gazette www.gazette.ie Jan/Feb 2011 Defamation 37

The largest libel award in Irish – and perhaps European – history was made last November in the prominent case of Kinsella v Kenmare. Emma Keane says that it’s regrettable that the assessment of damages was not removed from the responsibility of the jury by the Defamation Act 2009

he Defamation Act 2009 introduces a libel payout in European history. number of changes to Irish defamation Mr Kinsella sued his former employer, Kenmare law. One such change that is particularly Resources, claiming he was defamed by a press release defame relevant to a recent decision, Kinsella it sent out. The release stated that the board of the v Kenmare Resources, is provided for in company was to seek Mr Kinsella’s resignation as section 31 of the act, which deals with chairman of the company’s audit committee arising out of damages.T The 2009 act came into force on 1 January 2010. ‘an incident’ that occurred in 2007 at the company’s mine It applies only to defamatory statements made after in Mozambique. On foot of the incident, a complaint Emma Keane is 1 January 2010. The offending press release in Kinsella was was made by the company secretary, Deirdre Corcoran, a barrister and issued in 2007, so the case was heard using the old rules. against Mr Kinsella. The company chairman requested practises mainly Irish juries were previously given some basic guidance that the company solicitors conduct an investigation in Dublin in assessing damages. For example, they were told that and prepare a report on the incident. The report was an award of damages should represent presented to the chairman, and he then fair and reasonable compensation for the sought and received a written apology injury suffered by the plaintiff. However, from Mr Kinsella to it was not allowable for actual figures to “After just Ms Corcoran. be mentioned to juries. three hours of Mr Kinsella had appeared naked at Under section 31(1) of the 2009 act, the room of Ms Corcoran. She had “the parties in a defamation action may deliberations, the complained about this. Mr Kinsella make submissions to the court in relation jury awarded Mr claimed to have been sleepwalking. The to the matter of damages”. (Section independent investigation had found that 31(8) provides that “in this section Kinsella €9 million there was no conscious attempt by Mr ‘court’ means, in relation to a defamation in compensatory Kinsella to enter Ms Corcoran’s room and action brought in the High Court, the no improper motive in opening her door. jury, if the High Court is sitting with a damages and The jury was asked whether the press jury”.) Section 31(2) provides that “in a €1 million in release stated or inferred that Mr Kinsella defamation action brought in the High aggravated had made inappropriate sexual advances Court, the judge shall give directions to Deirdre Corcoran. The jury answered to the jury in relation to the matter damages” this question affirmatively. After just three of damages”. Section 31(3) states: “In hours of deliberations, the jury awarded making an award of general damages Mr Kinsella €9 million in compensatory in a defamation action, regard shall be had to all of the damages and €1 million in aggravated damages. Kenmare circumstances of the case.” said it was shocked at the verdict and would “immediately Section 31(4) provides a list of 11 criteria to which the and vigorously” appeal to the Supreme Court in pursuit of court is to have regard. These criteria include the gravity a retrial. of any allegation, the means of publication, the extent to which the statement was circulated, the offering of Falling short an apology, the making of an offer to make amends, the The previous highest libel award in the history of the state importance to the plaintiff of his reputation in the eyes was that awarded to Monica Leech. Ms Leech, a public of the recipients of the statement, acquiescence by the relations consultant, was awarded €1.87 million against plaintiff in the publication of the statement, and evidence Independent Newspapers over false suggestions that she given concerning the reputation of the plaintiff. won contracts because she was having an extra-marital affair with Martin Cullen, the then environment minister. New requirement The danger of juries deciding awards of damages in It remains to be seen how the new procedure will operate defamation cases is further illustrated in the case of Denis in practice. It is expected that the new requirement that O’Brien v Mirror Group Newspapers Limited. An award of the judge shall give directions to the jury in relation to €250,000 was made to Mr O’Brien against the newspaper the matter of damages will make it less likely that a jury for alleging that Mr O’Brien had paid £30,000 to former will make such an excessive award as was made in the case minister Ray Burke. The level of the award was appealed of Kinsella v Kenmare. The highest award in the history to the Supreme Court, which found it disproportionately of the state was made to Mr Kinsella on Wednesday 17 high and referred the case back to the High Court on the November 2010. It is in fact believed to be the biggest issue of damages only. However, at the retrial, a new jury Diploma Programme 2011

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COURTS AND COURTDiploma OFFICERS spring 2011 ad Gazette ACTS (new dimensions).indd 1995 – 1 2002 17/01/2011 12:29 JUDICIAL APPOINTMENTS ADVISORY BOARD Appointment of Ordinary Judge of: The High Court Appointment of Ordinary Judge of: The Circuit Court Notice is hereby given that applications are invited from practising It should be noted that fully completed application forms received barristers and solicitors who are eligible for appointment to the by this office may be considered for future vacancies that may arise Office of Ordinary Judge of the High Court and to the Office of in the High Court and in the Circuit Court during 2011. Ordinary Judge of the Circuit Court. It should also be noted that The Standards in Public Office Act, Those eligible for appointment and who wish to be considered 2001, as amended, prohibits the Board from recommending a should apply in writing to the Secretary, Judicial Appointments person for judicial office unless the person has furnished to the Advisory Board, Phoenix House, 15/24 Phoenix Street North, Board a relevant tax clearance certificate (TC4) that was issued Smithfield, Dublin 7, for a copy of the relevant application form. to the person not more than 18 months before the date of a recommendation. The closing date for receipt of completed application forms for the Circuit Court is 5pm on Friday, 18th February 2011. Applicants may, at the discretion of the Board, be required to attend for interview. The closing date for receipt of completed application forms for the High Court is 5pm on Friday, 4th March 2011.

Brendan Ryan BL Canvassing is prohibited. Secretary Dated the 27th January 2011 Judicial Appointments Advisory Board Law Society Gazette www.gazette.ie Jan/Feb 2011 Defamation 39 awarded Mr O’Brien €750,000. The case was subsequently settled. In the case of De Rossa v Independent Newspapers, Denham J, in her dissenting opinion, argued that the common law position of leaving damages solely to the jury’s discretion was incompatible with article 10 of the European Convention on Human Rights. As mentioned above, under the 2009 act, juries in Irish defamation cases are now given guidelines on damages in relation to defamatory statements published after 1 January 2009. Mohan and Murphy state that it seems that this change in law in the 2009 act has provided “a belated statutory blessing” to the dissenting judgment of Denham J in De Rossa. However, the 2009 act has been criticised for falling short of its expected reform in the context of damages.

Judge and jury The role of juries in defamation proceedings has long been the subject of debate in Ireland. The press has for a long time argued for ‘Look here, you – why I oughta...’ reform of libel laws and, in particular, for the abolition of juries in defamation proceedings. In 1991, the Law Reform Commission (LRC) published a detailed consultation paper entitled to include in their verdict a finding not completely eradicate, the possibility of and a report on the civil law of defamation. that the plaintiff is entitled to nominal grossly disproportionate awards being made in The 2009 act reflects some of the proposals damages only.” defamation proceedings. contained in the report. It is unfortunate, In relation to an appeal against damages, however, that the act does not implement the The LRC considered that, while juries should prior to the act, a defendant could appeal an following two LRC proposals: continue to decide the issue as to whether the award of damages by a jury in the High Court “1) In the High Court, the parties to words complained of were defamatory, and only if it could be shown that the award was defamation actions should continue to should also determine the level of damages, disproportionately high. The Supreme Court have the right to have the issues of fact, the actual amount should be determined by a could then remit the matter back to the High other than the assessment of damages, judge. Although the LRC could not be certain Court for re-hearing. Section 13(1) of the 2009 determined by a jury, that transferring the function of deciding act provides that, upon appeal, the Supreme 2) The damages in such actions should be damages in defamation actions to judges would Court can substitute an award of damages assessed by the judge, but the jury should be remove the danger of seriously excessive granted by a jury in the High Court with such awards, the LRC expressed its opinion that amount “as it considers appropriate”. Although “judges, by their training and experience, are in this is a helpful development in the law, it a better position to arrive at a sum which bears unfortunately does not remove the problems Look it up an appropriate proportion to the seriousness of with the delay involved in an appeal and the the libel or slander”. resultant pressure on the defendant to settle. Cases: The LRC therefore proposed that Although some of the reforms brought • De Rossa v Independent Newspapers legislation should provide that the assessment about by the 2009 act are to be welcomed, it [1999] 4 IR 432 of damages should be a matter for the judge is disappointing that the reforms do not go • Denis O’Brien v Mirror Group Newspapers alone. The LRC added one qualification to further. The requirement that a judge must Limited [2001] 1 IR 1 this: that the jury should be entitled to include provide a jury with specific guidelines in order • Kinsella v Kenmare Resources Plc and in their verdict a finding that the plaintiff to aid them in assessment of damages is a very Another (High Court, 17 November 2010) is entitled to nominal damages only. This helpful development in the law of defamation. • Leech v Independent Newspapers would be the situation in a case where the jury Also of assistance is the ability of the Supreme (Ireland) Ltd [2007] IEHC 223 concluded that the plaintiff had indeed been Court, upon appeal, to substitute an award of defamed, but that he had no reputation worthy damages granted by a jury in the High Court Literature: of vindication. with such amount as it considers appropriate. • Law Reform Commission (1991), It is a great pity, however, that the Report on the Civil Law of Defamation, Specific guidelines assessment of damages was not removed from www.lawreform.ie/_fileupload/Reports/ These LRC recommendations are to be the responsibility of the jury, as proposed rDefamation.htm praised and ought to have been implemented. in the LRC report. Such removal would • Hugh I Mohan and Mark William Murphy, Other than in relation to an award of nominal strengthen the protection against the danger “Defamation Reform and the 2009 Act: damages, it is much more suitable for a of the making of very excessive awards in Part II”, Bar Review, June 2010 judge than for a jury to decide an award of damages such as that made in Kinsella v damages. It would significantly reduce, if Kenmare. G

40 People and places Law Society Gazette www.gazette.ie Jan/Feb 2011

hotography P larke C ason J : ic Minister for Justice is P parchment ceremony guest of honour P ic : J ason C larke hotography

At the parchment ceremony on 9 December 2010 were (l to r): President of the High Court Mr Justice Nicholas Kearns, then Minister for Justice Newly qualified solicitors Dermot Ahern, President of the Law Society John Costello, and director Karen Quigley, Sarah Kelly and Aoife O’Malley are congratulated general Ken Murphy by then Minister for Justice Dermot Ahern following the presentation of their parchments on 9 December 2010 P ic : lensmen

Following the parchment ceremony on 9 December, the Society hosted a dinner to honour the outgoing Minister for Justice. It was attended by a number of fellow Dundalk-based solicitors chosen by him. (Front, l to r): Dermot Lavery, John Woods, then Minister for Justice Dermot Ahern, Law Society President John Costello and president of the Louth Solicitors’ Bar Association Tim Ahern. (Back, l to r): Donal O’Hagan, Fergus Mullen, Brian Berrills, deputy director general Mary Keane, James Murphy and director general Ken Murphy

Kilkenny Bar Association

At a recent meeting of Kilkenny Bar Association, held in the Pembroke Hotel, Kilkenny, were (front, l to r): Len Roche, Eugene O’Sullivan, Martin Crotty, Gerard Doherty (then Law Society president), Owen O’Mahony (Kilkenny Bar Association president), Ken Murphy (director general), John Costello (then senior vice- president) and Matthew Kearney. (Back, l to r): Gerry Meaney, Kieran Boland, Michael Lanigan, Hilary Roche, Tom Walsh, Tim Kiely, Sonya Lanigan (Kilkenny Bar Association secretary), Tristan Lynas, Martin O’Carroll and Celine Tierney Law Society Gazette www.gazette.ie Jan/Feb 2011 People and places 41 Mayo solicitors’ annual dinner beats the snow and ice! A ll pics : J ohn O’G rady , B allina C o M ayo

At the MSBA annual dinner on 5 December were (back, l to r): Kevin O’Higgins (Law Society junior vice-president), Yvonne Chapman, Michael Quinlan, Judge Dan O’Keeffe, Fidelma Gilhooly, Stuart Gilhooly (DSBA president), Patricia Ball O’Keeffe, Dr Jimmy Devins, Jane Houlihan and John Costello (Law Society president). (Front, l to r): Dermot Hewson, retired Judge Bernard Brennan, Ken Murphy (director general), Judge Mary Devins, Evan O’Dwyer (MSBA president), Aisling O’Dwyer, leader of Fine Gael Enda Kenny and James Cahill (Law Society Council member)

Catherine Killalea (solicitor, Legal Aid Centre, Castlebar) and Fidelma Gilhooly

The Mayo Solicitors’ Bar Association (MSBA) held its very popular annual Christmas dinner dance in Lisloughrey Lodge, Cong, on 5 December. The guests of honour were Fine Gael leader Enda Kenny and his wife Fionnuala. Also present were special guests Judge Mary Devins, Judge Bernard Brennan (retired), Law Society President John Costello, Kevin O’Higgins (Law Society junior vice-president), Stuart Gilhooly (DSBA president) and his wife Fidelma, Ken Murphy (director general) and his wife Yvonne Chapman, Fintan Murphy (county registrar, Mayo), The MSBA annual dinner welcomed visitors from far and wide, including (back, l to r): Leader of Fine Gael Enda Susan Brennan of the Belfast Kenny, Law Society president John Costello, DSBA president Stuart Gilhooly, John Guerin and Donald Eakin. Front row: Patricia Eakin, Evan O’Dwyer (MSBA president), Susan Brennan (Belfast Solicitors’ Association president) and Solicitors’ Association, and Evan Fintan Murphy (county registrar, Mayo) O’Dwyer (MSBA president), as well as other guests. 42 People and places Law Society Gazette www.gazette.ie Jan/Feb 2011

Above: At the SYS Members of the SYS committee who organised the conference conference were (l to r): included (l to r): Stephen Fuller, Claire Walsh, Daniel Mueller, Claire Claire McLoughlin (SYS), McLoughlin, Micheál Grace (chairman), Joanne Joyce, Michael Eileen Moloney (from Keaveney (treasurer), Jane McCluskey (secretary) and Paul Kennedy sponsors, Brightwater), Catriona O’Dwyer (Brightwater) and Micheál Grace (SYS chairman)

Right: At the Ardilaun Hotel were (l to r): Lorna Osbourne, Noelle White and Edel Bourke

Meeting up in Galway were (l to r): Ciara McLoughlin, Darren Nangle, Elaine Caulfield, Daniel Mueller (all Eversheds) and Claire Molloy (A&L Goodbody)

Enjoying the ‘City of the Tribes’ were (l to r): Elaine Caulfield (Eversheds), Iain McDonald (Philip Lee), Stephen D’Ardis and Ciara McLoughlin (both Eversheds)

Attending the conference in the Ardilaun Hotel Young solicitors go tribal were (l to r) Lucy O’Reilly, Elizabeth Cass, Catriona Galway was the venue for the Galway) and Caitriona O’Dwyer Cummins and Emer O’Hora recent conference of the Society (Brightwater Recruitment). Law of Young Solicitors (SYS). In Society President John all, over 200 delegates attended. Costello was guest Showing their Useful contacts were established speaker at the gala support for SYS were (l to r): with counterparts from the dinner on Saturday Audrey-Maura Northern Ireland Young night. Ferguson, Ruth Solicitors’ Association. SYS is indebted to Jordan, Deirdre Conference speakers included its sponsors, Bank of Munnelly and Padraic Brennan (managing Ireland, Brightwater and Janet Keane partner, RDJ Glynn Solicitors), RDJ Glynn Solicitors. John Kennedy BL, Dermot SYS chairman Micheál Dempsey (DFG Legal Costs Grace thanks the SYS Accountants), Tom O’Malley committee for its role in BL (senior lecturer in law, NUI organising the event. Law Society Gazette www.gazette.ie Jan/Feb 2011 People and places 43 Conferring ceremonies of the Law Society Diploma Programme

Diploma in Trust and Estate Planning Pictured with lecturers and conferees at the conferring ceremony for the Diploma in Trust and Estate Planning on 18 November were Padraic Courtney (law school), Eddie O’Regan (STEP), Nick Jacob (deputy chairman, STEP Worldwide), Mary Condell (MC) and Freda Grealy (diploma manager)

Diploma in Commercial Litigation At the Diploma in Commercial Litigation conferring ceremony on 24 November were John O’Connor (vice-chairman, Education Committee), Ms Justice Fidelma Macken and Freda Diploma in Finance Law Grealy (diploma manager) At the conferring ceremony for the Diploma in Finance Law on 18 November were Peter Oakes (assistant director general – enforcement, Central Bank of Ireland), Mary Condell (MC) and Freda Grealy (diploma manager), with diploma conferees

Pre-ceremony diploma reception Pictured at Blackhall Place on 30 November were Diploma in Civil Litigation (back, l to r): Geoffrey Shannon (deputy director of education), Louise Lecturers and conferees at the conferring ceremony for the Diploma in Stirling (Alliance Française), Rory O’Boyle (diploma coordinator), Freda Grealy Civil Litigation on 24 November were John O’Connor (vice-chairman, (diploma manager) and Claire Bourgeois (director, Alliance Française). (Front, l Education Committee), Ms Justice Fidelma Macken and Freda Grealy to r): Alan Dukes (Comité de l’Alliance Française), Dara Calleary TD (Minister for (diploma manager) Labour Affairs), John Costello (Law Society president) and Ms Justice Mary Finlay Geoghegan New TiTle Disciplinary Procedures in the Statutory Professions By Simon Mills, JP McDowell, Aideen Ryan and Eimear Burke

Contents Part 2 - Professional regulatory New, fully up-to date provisions: Medical Practitioners Part 1 - Principles and Practice: Act 2007; solicitors Acts; nurses and and comprehensive the nature and purpose of statutory Midwives Bill 2010; Dentists Act professional regulation; Grounds 1985; Pharmacy Act 2007; Health and This new book is written by experienced for disciplinary action; Making social Care Professionals Act 2005 practitioners in the field of professional regulatory complaints; Investigation of (Physiotherapists, social Workers et al); law. It deals with both the principles and practice complaints; Pre-hearing issues; Veterinary Practice Act 2005; teaching of statutory professional conduct proceedings. the disciplinary hearing; Decisions Council Act 2001; Building Control As well as dealing with the established regulated and sanctions; Appeal and review Act 2007 (Architects and surveyors); of decisions professions such as doctors, solicitors, nurses, vets Companies (Auditing and Accounting) and dentists, the book will also consider those Act 2003; opticians Acts. professions which have recently (or are about to) come under statutory regulation, including: ABout tHe AutHors JP McDowell, Aideen Ryan and architects; surveyors; teachers; pharmacists; health Eimear Burke are solicitors in the Simon Mills is a barrister and doctor, and social care professionals and accountants. firm McDowell Purcells olicitors which who practises in all areas of medical has a dedicated professional regulatory law, including professional regulatory law unit. they specialise, in particular, ISBN: 978 184766 6697 Format: Hardback matters. He is the author of Clinical in advising professional regulatory Practice and the Law (2nd ed). Price: €160.00 Pub Date: April 11 bodies and registrants in relation to professional conduct inquiries.

To place your order simply: Visit: www.bloomsburyprofessional.com Telephone: (01) 637 3920 Fax to: (01) 662 0365 Email: [email protected] Post to: Jennifer Lynch, Bloomsbury Professional, The Fitzwilliam Business Centre, 26 Upper Pembroke Street, Dublin 2. Document Exchange: DX 109035 Fitzwilliam Law Society Gazette www.gazette.ie Jan/Feb 2011 Book reviews 45 The End of Tax Book 2010 Lawyers? Alan Moore. Tax World (2010), www.taxworld.ie. ISBN: 978-1- Richard Susskind. Oxford University 902065-40-3. Price: €150. Press (revised 2010), http://ukcatalogue. oup.com. ISBN: 978-0-1995-936-13. The volume and complexity of Price: Stg£12.99. Irish tax legislation is increasing on an annual basis. In light of In The End of Lawyers?, Richard the constant amendment and Susskind predicts significant introduction of new provisions pressures on the legal world as into tax legislation, the interaction we know it today. In this, the between statutory provisions and of sequel to The Future of Law the intention behind them becomes These changes, such as the (1996), Susskind assesses the legal their work is concentrated more essential for anyone seeking to NAMA provisions, VAT place-of- marketplace and identifies the on the former model, a move to advise their clients on tax matters. supply rules and the mandatory issues facing law firms, big and latter is underway and will impact Tax Book 2010 is an updated disclosure regime, among others, small. He explores the cracks in greatly on business models. comprehensive guide that seeks are covered for the first time in the current system and the forces Susskind outlines how legal to give guidance as to the ‘what this publication. Unfortunately, as that will eventually cause them to tasks can be decomposed into and why’ of the main provisions in is the case with any publication of shatter. component parts and delegated. the tax code. The book comments this nature, these rules continue Most importantly, the author This, of course, includes the on every section and subsection to evolve, and certain issues will provides a panoramic view of a imminent arrival of outsourcing, of the Taxes Consolidation Act most likely require substantial profession undergoing a massive but also ‘in-sourcing,’ ‘de- 1997, the Value Added Tax Act updating in the Tax Book 2011 transformation. The book focuses lawyering’, offshoring, sub- 1972, the Capital Acquisitions publication, if and when published. on how the internet, technology, contracting and leasing. Systems Consolidation Act 2003, and the Also, since publication of the book, collaboration, globalisation and ensure that these services come Stamp Duties Consolidation Act the Value Added Tax Act 1972 other factors are reshaping the together seamlessly for the client. 1999. The approach of taking every has been repealed and replaced. fundamental rules by which legal He predicts increased effectiveness section and subsection and, where One of the main difficulties for services are bought and sold – and and efficiency as the legal world possible, commenting on relevant many practitioners is to try to find observes how these changes will embraces new technologies. guidance or giving examples of something that is affordable and affect the everyday workings of The book paints a scary picture. how the legislation operates, is useful. This publication is perhaps lawyers. The threat for traditional-style something that anyone who has the best tax publication that meets He identifies a spectrum of lawyers is very real. This book cause to look at tax legislation is both of these tests across such a legal-service categories, moving should be compulsory reading likely to find very useful. wide body of legislation. from the ‘left’: bespoke, one-off, for all, but especially for those The Finance Act 2010 saw the tailored services – to the ‘right’: beginning a journey in the field. introduction of important changes, Gavin McGuire is a partner in standardised systems, precedents both to direct and indirect taxes. Eversheds O’Donnell Sweeney. and packaged ones. He argues Diarmuid Byrne is a trainee solicitor that, while many lawyers claim at Arthur Cox.

District Court Practice and Procedure in Criminal Proceedings (3rd edition) James V Woods. James V Woods BL. 12 Elsinore, Castletroy, Co Limerick. [email protected]. Price: €200 (incl p&p). outline of the framework of the District Court and a chapter to a text of this nature. District Court, before moving on is also devoted to the subject In each chapter, the author to the process of the preparation of judicial review by the High is meticulous in examining the of the prosecution’s case and the Court of a decision made by a issues with recourse to legislation hearing of proceedings. A detailed District Court judge. The author and with reference to reported discussion on arrest and detention guides the practitioner through and unreported cases. The for various offences is provided. procedures in the conduct clear and concise manner in A chapter is devoted to summary of proceedings, tendering of which it is written makes the sanctions of a non-criminal evidence and satisfying the burden book an excellent reference nature, detailing various offences of proof. A commentary is also tool for District Court judges, The third edition of District and penalties in a number of provided on the Fines Bill 2009. practitioners and members of Court Practice and Procedure in fields, including the topical issue The inclusion of an extensive An Garda Síochána. It is an Criminal Proceedings provides of antisocial behaviour orders, chapter dedicated to the invaluable and necessary guide. an authoritative text that will be as provided under the Criminal Children Acts 2001-2007, which especially welcomed by litigation Justice Act 2006. deals with criminal and antisocial Joyce A Good Hammond is a partner practitioners. There is a comprehensive behaviour proceedings involving at Hammond Good in Mallow, Co The author begins with an treatment of appeals from the children, is a welcome addition Cork. G 46 Reading room Law Society Gazette www.gazette.ie Jan/Feb 2011 Smart people use smart libraries When was the last time you visited the Society’s research/document delivery library holds in-house are dealt service if you are interested in with speedily. In addition, the library or its website? The head of library and sourcing materials on specific library has arrangements in information services, Mary Gaynor, begins a new topics – for instance, if you need place with a number of back-up to find out if there is anything libraries to supply other materials, series focusing on the superb traditional and written on NAMA or the Land usually within 24 hours. There is electronic services available to practitioners and Conveyancing Law Reform Act a nominal charge for document 2009, you can run a subject or title delivery. For charges effective search that will yield catalogue from 1 January 2011, see www. Mary Gaynor Obtaining material – records of relevant books, lectures, lawsociety.ie. is head of the smart way legislation and judgments, If you haven’t used the Law library and Book loans can be ordered online with pdf links to the full text of Society library’s services in recent information via the catalogue by clicking on materials, where available. times, you might like to visit the services at the the ‘request loan’ button to the left Non-book material, copies library during the National Library Law Society of of the book record. Items can also of case law, articles, precedents, Week, or log on to the online Ireland be renewed online. Both of these and so on, can be ordered by catalogue and request a loan. functions require a library PIN. If contacting the library with If you are a regular library you don’t have your library PIN, specific requests. The preferred user and have any comments or he Library Association of please contact the library. There is method of document delivery is suggestions about how our services Ireland’s annual national no charge for borrowing books. by email, with pdf attachment. might be improved, please email Tevent, ‘Library Ireland The library also provides a Requests for material that the [email protected]. G Week’, will take place from 7-13 March 2011. The theme for this year’s event is ‘Smart people use Just published smart libraries’. During this week, there will be library events and media coverage throughout the What’s new – and how to use it country, encouraging people to During the last few months • Gallagher, B – Powers of Attorney ADR in Construction Disputes visit their public and institutional of 2010, Irish law publishers (3rd ed, 2010; Round Hall) (2010; Round Hall) libraries and to learn more about published a number of new editions • Hogan & Morgan – Administrative • Kerr, A (ed) – The Industrial how technological developments of key law textbooks, as well as new Law in Ireland (4th ed, 2010; Relations Act 1990 – 20 Years have made access to library first editions of works on important Round Hall) On (2010; Round Hall) collections easier and more current topics. Keeping up to date • Lyall, Andrew (with Albert Power) • Kilcommins, S and Kilkelly, efficient – from your home and on the books and other materials – Land Law in Ireland (3rd ed, U – Regulatory Crime in Ireland office. that are available is a very useful 2010; Round Hall) (2010; First Law/Lonsdale) exercise in helping to deliver an • O’Halloran, K – Adoption Law • Maddox, N – Housing Authority The Society’s library excellent service to clients. and Practice (2nd ed, 2010; Law (2010; Round Hall) The Law Society Library has When was the last time you Round Hall) • McDonnell, M – Misuse of Drugs: a collection of over 10,000 logged on to the Law Society’s • Sanfey, M and Holohan, B – Criminal Offences and Penalties monographs, including textbooks, website (members’ area) to view the Bankruptcy Law and Practice, (2010; Bloomsbury Professional) conference papers, and so on, and online library catalogue? The ‘new (2nd ed, 2010; Round Hall) • Round Hall seminar papers on subscribes to a large number of books’ section on the catalogue • Wylie, JCW – Land Law, (4th ed, risk management (September journals, law reports series and key homepage contains a list of the 2010; Bloomsbury Professional) 2010), judicial review (November electronic databases. The online last three months’ publications. • Shannon, G – Child Law, (2nd 2010) and planning and library catalogue now contains Currently, the list contains the ed, 2010; Round Hall) environmental law (November almost 30,000 records of books, following new editions of long- • Woods, J – District Court Practice 2010) legislation and judgments. awaited key textbooks: and Procedure in Criminal • Ryan, D – Mental Health Acts At the heart of the library service • Casey, P – Psychiatry and the Proceedings, (3rd ed, 2010; 2001-2009: Case Law and is the textbook collection, from Law (2nd ed, 2010; Blackhall Woods). Commentary (2010; Blackhall which members and trainees may Publishing) Publishing) borrow. In recessionary times, the • Cassidy, C – Licensing Acts New first editions of books and • TCD School of Law seminar services of a lending library are a (3rd ed, 2010; Clarus Press) seminar papers recently acquired papers on Probate and valuable resource for practitioners • Clark, R and Smyth, S – by the library include the following Succession – Recent – loans from the Society’s library Intellectual property law Irish titles, all of which are available Developments (May 2010); have increased by 25% over the last in Ireland (3rd ed, 2010; to borrow: Schools and the Law – Coping two years. The online catalogue is Bloomsbury Professional) • Daly, B and Doherty, M – with New Challenges (May available via the members’ area on • Forde, M and Byrne, A – Principles of Irish Employment 2010); Medical Negligence – www.lawsociety.ie, so searching for Industrial Relations Law Law (2010; Clarus Press) Developments Impacting on material can be done easily from (2nd ed, 2010; Round Hall) • Hutchinson, B – Arbitration and Practice (May 2010). wherever you are located. Law Society Gazette www.gazette.ie Jan/Feb 2011 Council report 47 briefing Law Society Council meeting 10 December 2010 Motion: training officer Professional indemnity insurance examined by the task force during against solicitors who had multi- regulations Eamon Harrington briefed the 2010 would be re-examined for ple complaints and her view that “That this Council approves the So- Council with the latest informa- 2011 and future years, and PII re- such complaints required rigorous licitors Acts 1954 to 2008 (Appren- tion on renewals for 2011. He mained as an item of the highest attention. The Council expressed ticeship and Education) (Training noted that there were currently 55 priority for the Council for 2011. its gratitude for the valuable work Officer) Regulations 2010.” applications to join the Assigned of the independent adjudicator Proposed: Michelle Ní Longáin Risks Pool, although this number Practising certificate fees and for her annual report, which Seconded: John O’Connor was expected to reduce as solici- for 2011 was largely positive and support- tors continued to negotiate with On the recommendation of the ive of the Society’s complaints- The Council approved the pro- insurers in relation to quotations. Finance Committee, the Council handling process. posed regulations, which were de- In this context, he noted that the approved the practising certificate signed to reduce the administra- Council should take great credit fees for 2011, on the basis that the Report of lay members of the tive burden on training solicitors, for its determination that the As- total fees would remain unchanged Complaints and Client Relations particularly in large and medium- signed Risks Pool would be rein- from 2010, although the fee for Committee sized firms who had numbers of stated, albeit on amended terms. general Society activities would be The Council considered the re- trainee solicitors, by permitting He also noted that the insurance reduced by €40 and the amount of port of the lay members of the the delegation of certain specified market was still active, with a the compensation fund contribu- Complaints and Client Relations functions to a designated training number of insurers continuing to tion would be increased by a cor- Committee, which focused partic- officer within the firm. provide quotations. In relation to responding amount of €40. ularly on the increased activity of the PII Helpline, he reported that the Complaints Section in relation Motion: prescribing fees for 606 enquiries had been received Report of independent to complaints about breaches of certain applications for to date, 50% of which related to adjudicator undertaking. The Council noted information difficulties in obtaining quotations The Council considered the re- that the committee was comprised “That this Council approves regula- and 50% of which related to more port of the independent adjudi- of a majority of lay members and tions (1) to amend the sixth schedule routine enquiries. cator, who had responsibility for expressed its gratitude to the lay to the Solicitors Act 1954, as pro- The Council discussed the fact (a) ensuring that the Law Soci- members for their continued vided for by section 66 of the Solici- that stress levels within the profes- ety handled complaints about its commitment to a thorough and tors (Amendment) Act 1994, for sion had been greatly increased in members in an effective and ef- transparent complaints-handling the purpose of including additional circumstances where colleagues ficient manner, (b) reviewing the system. applications for which fees may be feared that they might not be able Law Society’s handling of claims prescribed, and (2) to prescribe fees for to obtain an insurance quotation. made on the compensation fund, Society’s Law School in Cork certain of the applications included in This fear had been exacerbated by and (c) recommending any chang- John O’Connor briefed the Coun- the sixth schedule.” the fact that RSA and Quinn had es in the Law Society’s complaints cil on the decreasing numbers of Proposed: Michael Quinlan both left the market, and Ireland and claims procedures that were students attending the Society’s Seconded: Martin Lawlor as a whole was experiencing the necessary to maintain the highest Law School in Cork, which had ‘perfect storm’ evidenced by the standards. reduced from a high of 106 in The Council approved the pro- IMF/EU bailout. The Council The Council noted that she had 2007, to 76 in 2008, 66 in 2009 posed regulations, which ena- confirmed its support for the pro- acknowledged that referral time- and 44 in 2010. He noted that bled the Society to apply certain posal of the PII Task Force that frames from the Complaints and there were both educational and charges for specified categories of a professionally organised survey Client Relations Committee to financial implications arising from information requested from the would be conducted by the Soci- the disciplinary tribunal had im- the reducing numbers, which Society. In particular, the Council ety early in the New Year, backed proved, and she had also noted the were a matter of concern to the noted that significant volumes of up by insurance expertise. In ad- appointment of an external firm of Education Committee, and he information were regularly being dition, all of the various options solicitors on a pilot basis to deal confirmed that proposals would sought by financial institutions for the provision of professional with referrals to the tribunal. She be brought to the January Council within very short time frames. indemnity insurance that had been had also focused on complaints meeting for discussion. G

EXAMINER’S OFFICE OFFICE NOTICE 1/2011 On 12 January 2011, the Minister to the Examiner’s Office itself. documents in the Central Office of include court liquidations, mortgage for Justice and Law Reform signed From 1 February 2011, all the High Court. suits (well-charging proceedings), statutory instrument no 2 of 2011. affidavits, notices of motion, notices The introduction of these new administration suits and any other The SI amends the current Rules to proceed, examiner’s certificates rules will eliminate the need to matter remitted to the Examiner’s of the Superior Courts by removing and examiner’s orders should be attend in the Central Office of the Office by the court. the requirement to file Examiner’s filed in the Examiner’s Office only. High Court in respect of matters Office documentation in the Central There will be no requirement to file that lie within the remit of the John Glennon, Examiner Office of the High Court, in addition these documents or copies of these Examiner’s Office. Such matters 24 January 2011 48 Practice notes Law Society Gazette www.gazette.ie Jan/Feb 2011 briefing Practice notes Lodgment of title deeds with lenders conveyancing Committee Many practitioners will be aware may arise subsequently if it is In default of hearing from you that date will incur a charge, details of the difficulties associated with discovered that a particular deed within ten working days, this firm of which will be provided to you at the getting lenders to acknowledge or document is missing. In order will take it that you have received time of raising the query, and which receipt of title deeds. A lender to avoid the implication that the all the documents on the schedule charge will be payable in advance of may not acknowledge receipt or solicitor may be responsible for and that it is released from any replying to such query.” may furnish a general letter of this omission, it is recommended undertaking given in relation to this A copy of the correspondence acknowledgment, but not a signed that the following paragraphs transaction and in relation to the title and schedule should be retained schedule confirming receipt of the be inserted into correspondence documents, and thereafter this firm on file and may also be copied specific documents listed therein. lodging title deeds with lenders: disclaims all responsibility for the title to the client at the same time. The onus is on the lender to “A duplicate schedule is attached documents. It is also recommended that the ensure that the specific documents for you to sign and return to us in Our file will be closed and placed title documents be delivered by listed in the schedule are order to acknowledge receipt of the in storage and any query from you hand or some form of recorded furnished. However, difficulties enclosed title documents. arising in relation to this matter after delivery.     Firms should not act on both sides of property Witnessing  transactions where one party is vulnerable wills where the Guidance and Ethics Committee solicitor is the There has been concern for some I have no doubt whatsoever that should not act for both parties  executor time that some solicitors’ firms the duty upon a solicitor who is to a property transaction where do not recognise that a special acting on behalf of both parties one or both of the parties is a  Probate, Administration duty of care is owed to vulnerable in the circumstances which have vulnerable person,  and Trusts Committee  clients. In order to ensure that arisen in this case is particularly 2) Practitioners should note  the interests of a vulnerable onerous … Since the Law Society that the characteristics of The Law Society Gazette in recent client who is disposing of is apparently prepared to permit vulnerability are not exhaustive times has covered the question property are properly protected, this practice (notwithstanding the and include a person who, by of the merits of a solicitor acting that client should be represented potentially conflicting interests reason of age, infirmity, mental as an executor in an estate (see by a different firm to the firm to which I have referred), I illness, mental incapacity or Gazette, July 2008) and the representing the purchaser. think it would be helpful if the physical disability, lacks the question of who the client is in There has been negative Law Society would draw up and ability to make an informed circumstances where a solicitor so comment from the judiciary on publish strict guidelines to be or independent decision acts (see Gazette, July 2010). this issue in many cases over applied by solicitors who chose regarding the acquisition or In the event that a solicitor does the past number of years. For to act on behalf of both vendor disposal of property, agree to act as an executor, then instance, in the case of Sean and purchaser in transactions 3) A property transaction includes in drafting the will it is important Murray and another v James involving the transfer of property a mortgage, lease, transfer, that the solicitor includes a O’Donnell and others in 2004, Mr and, indeed, perhaps in other disclaimer, release, easement charging clause enabling the solicitor to charge in connection Justice Quirke stated as follows: transactions also. It would also and any other disposition

“I note with some uneasinessHealth be helpful if such guidelines of property, otherwise than with the administration of the that solicitors are permittedSupport by were rigidly enforced by the Law by will or donatio mortis estate and, further, it is important and Advice  the Law Society to act on for behalf Society.” causa, and also includes that the solicitor (or any partners of both the vendor and Lawyerspurchaser The Council of the Law an enforceable agreement in the firm) should not witness  in  transactions of this kind. Society has now approved the (whether conditional or un- the will. The matter is governed Conflicting interests are bound to following guidelines: conditional) to make any of the by section 82 of the Succession Act arise in such circumstances, and 1) A solicitor or firm of solicitors foregoing dispositions. 1965. G

     Law Society Gazette www.gazette.ie Jan/Feb 2011 Regulation 49 briefing Solicitors Disciplinary Tribunal Notices: the high court

Reports of the outcomes of Solicitors Disciplinary Tribunal The High Court inquiries are published by the Law Society of Ireland as provided Record no 2010 no 27 SA 14, and in the matter of the Solici- for in section 23 (as amended by section 17 of the Solicitors In the matter of Mary Kennedy, tors Acts 1954-2008 (Amendment) Act 2002) of the Solicitors (Amendment) Act 1994 solicitor, practising as Bar- Law Society of Ireland (applicant) rington Solicitors at 97 Middle Katherine MA Ryan (respondent In the matter of Margaret Casey & Co dated 25 July 1998 Abbey Street, Dublin 1, and in the solicitor) (otherwise Mairead) Casey, a and, in particular, up to in or matter of the Solicitors Acts 1954- Take note that, on Monday 17 solicitor practising as Casey & about 25 February 2009, failed 2008 May 2010, the High Court made Company, Solicitors, at North to discharge all Land Registry Law Society of Ireland (applicant) an order that Katherine MA Ryan Main Street, Bandon, Co Cork, queries arising on the purchas- Mary Kennedy (respondent) be suspended from practising as a and in the matter of the So- er’s application for registration, Take note that, on Monday 12 April solicitor until further order of the licitors Acts 1954-2008 [8372/ e) Repeatedly failed to respond 2010, the High Court made an or- court. DT26/09] to correspondence from and der prohibiting Mary Kennedy from John Elliot, Law Society of Ireland to communicate with the com- practising as a solicitor in contra- Registrar of Solicitors and (applicant) plainant regarding the matter vention of the professional indem- Director of Regulation Margaret Casey (respondent of the outstanding Land Regis- nity insurance regulations. solicitor) try queries. John Elliot, Record no 2010/70 SA On 29 September 2010, the Solic- Registrar of Solicitors and Take note that, on 31 August itors Disciplinary Tribunal found The tribunal ordered that the re- Director of Regulation 2010, the High Court ordered that the respondent solicitor guilty of spondent solicitor the practising certificate of Ruairi misconduct in her practice as a a) Do stand censured, Record no 2010/38 SA O’Ceallaigh be suspended. solicitor in that she: b) Pay a sum of €7,500 to the In the matter of Katherine MA John Elliot, a) Up to the date of the swearing compensation fund, Ryan, solicitor, practising as Ryan Registrar of Solicitors and of the Society’s affidavit (on 20 c) Pay the whole of the costs of the & Co at 42 Woodley Park, Dublin Director of Regulation March 2009), failed to comply Law Society of Ireland as taxed with the direction of the Com- by a taxing master of the High plaints and Client Relations Court, in default of agreement. Committee given on 1 April Law Society of Ireland (applicant) c) Ordering the respondent solici- 2008, arising from her failure to In the matter of Greg O’Neill, John BK Lindsay (respondent tor to pay the whole of the costs reply to the Society’s correspon- solicitor, of Greg O’Neill, solicitor) of the Law Society, including dence, that she pay the sum of Solicitors, Suite 109, The On 24 November 2010, the Solic- witness expenses, as taxed by a €650 to the Society towards the Capel Building, Mary’s Abbey, itors Disciplinary Tribunal found taxing master of the High Court costs of its investigation, Dublin 7, and in the matter of the respondent solicitor guilty of in default of agreement. b) Failed to reply to the Society’s the Solicitors Acts 1954-2008 misconduct in his practice as a letters dated 10 March 2005, [3365/DT/73/09] solicitor in that he: And the tribunal took into ac- 30 March 2005, 10 June 2005, Named client (applicant) 1) Failed to respond to multiple count the following finding(s) 16 June 2005, 30 March 2006, Greg O’Neill (respondent solici- letters from the Society, of misconduct on the part of the 8 June 2006, 14 July 2006, tor) 2) Through his conduct, showed respondent solicitor previously 10 January 2008, 11 Febru- On 20 October 2010, the Solici- a disregard for the responsibili- made by them and not rescinded ary 2008, 19 February 2008, tors Disciplinary Tribunal found ties associated with practice as a by the High Court, namely: 3 March 2008, 12 March 2008, the respondent solicitor guilty of solicitor. • Order of the Solicitors Disci- 3 April 2008, 16 April 2008, misconduct in his practice as a plinary Tribunal made on 30 24 April 2008 and 20 May 2008, solicitor in that he failed to return The tribunal made an order: June 2009 (record no 3483/ c) Failed to attend or arrange to telephone calls (to his named cli- a) Admonishing and advising the DT66/08), be represented at the meeting ent) for the past six months. respondent solicitor, • Order of the Solicitors Disci- of the Complaints and Client The tribunal ordered that the b) Ordering the respondent solici- plinary Tribunal made on 30 Relations Committee on 25 respondent solicitor: tor to pay a sum of €1,000 to June 2009 (record no 3483/ June 2008, despite having been a) Do stand admonished and ad- the compensation fund, DT116/08). G notified by letter dated 17 June vised, 2008 that she was required to b) Pay a sum of €750 to the com- attend the said meeting, pensation fund. d) Failed, in her capacity as prin- cipal of the firm of Casey & In the matter of John BK Lind- Get more at gazette.ie Co, to ensure full compliance say, a solicitor formerly practis- Gazette readers can access back issues of the magazine as far back as Jan/Feb 1997 in a timely manner or at all, up ing as Lindsay & Company, So- to the date of the swearing of licitors, at 47 Wellington Quay, right up to the current issue at gazette.ie. You can also check out current news, the Society’s affidavit, with an Dublin 2, and in the matter of forthcoming events, employment opportunities and the latest CPD courses, as well undertaking given to another the Solicitors Acts 1954-2008 as lots of other useful information at lawsociety.ie. firm of solicitors by the firm of [3483/DT32/10] 50 Legislation update Law Society Gazette www.gazette.ie Jan/Feb 2011 briefing Legislation update 13 November – 31 December 2010

Details of all bills, acts and statutory instruments since 1997 1963 or any other enactment measures announced in the budget are on the library catalogue – www.lawsociety.ie (members’ and or administrative measure to statement of 7/12/2010, which students’ area) – with updated information on the current stage a like effect, or is required to be are due to come into effect from bill has reached and the commencement date(s) of each act. All made, approved of or consented 1/1/2011. to (however expressed) by one Enacted: 17/12/2010 recent bills and acts (full text in pdf) are on www.oireachtas.ie or more than one minister of Commencement: Commence- and recent statutory instruments are on a link to electronic statu- the government, to amend the ment order(s) to be made for ss7, tory instruments from www.irishstatutebook.ie. Financial Emergency Measures in 8, 9 and 10 of the act (per s1(3) of the Public Interest (No 2) Act 2009 the act); 17/12/2010 for all other ACTS PASSED Act 2000 to allow the Minister for and the National Minimum Wage sections Appropriation Act 2010 Finance to give certain directions Act 2000, and provides for related Number: 35/2010 in relation to the National matters Social Welfare and Pensions Act Content: Provides for the Pensions Reserve Fund; provides Enacted: 22/12/2010 2010 appropriation to the proper for related matters. Commencement: 22/12/2010 Number: 37/2010 supply services and purposes Enacted: 21/12/2010 Content: Amends and extends sums granted by the Central Fund Commencement: 21/12 2010 Prevention of Corruption the Social Welfare Acts, confers (Permanent Provisions) Act 1965 for all sections other than s59(2); (Amendment) Act 2010 certain functions relating and makes provision in relation to 22/12/2010 for s59(2) (per SI Number: 33/2010 to employment schemes and deferred surrender to the central 623/2010) Content: Amends the Prevention related schemes and programmes fund of certain undischarged of Corruption Act 1906 and on the Minister for Social appropriations by reference to Criminal Law (Insanity) Act the Prevention of Corruption Protection, amends the Labour the capital supply services and 2010 (Amendment) Act 2001 to Services Act 1987, and provides purposes as provided for by the Number: 40/2010 strengthen the law on corruption for the transfer of certain Finance Act 2004, s91, and to Content: Amends s4 (fitness and to ensure that the state is assets, liabilities, property and make provision in relation to the to be tried) of the Criminal Law fully compliant with the terms employees of An Foras Áiseanna financial resolutions passed by (Insanity) Act 2006. Inserts new of the Convention on the Bribery Saothair (FÁS); provides for the Dáil Éireann on 7/12/2010. sections 13A, 13B and 13C in of Foreign Public Officials in continuance of certain schemes Enacted: 17/12/2010 the 2006 act, providing for the International Business Transactions provided by FÁS and provides for Commencement: 17/12/2010 making of conditional discharge drawn up under the auspices of related matters. orders by the Mental Health the OECD on 21/11/1997 and Enacted: 21/12/2010 Chemicals (Amendment) Act Review Board when reviewing ratified by Ireland on 22/9/2003. Commencement: Commence- 2010 the detention of a patient under Inserts new ‘whistleblower’ ment order(s) to be made for ss4, Number: 32/2010 s13 of the act. Further amends provisions in a new section 8A 11(1), 12,13 and 15-26 and parts Content: Amends the Chemicals the 2006 act, amends the Defence of the Prevention of Corruption 3 and 4; 21/12/2010 for all other Act 2008 and the Safety, Health Act 1954 and provides for related (Amendment) Act 2001, providing sections and Welfare at Work Act 2005 and matters protection for persons (including provides for related matters. Enacted: 22/12/2010 employees) reporting offences Value Added Tax Consolidation Enacted: 24/11/2010 Commencement: Commence- under the Prevention of Corruption Act 2010 Commencement: 10/12/2010 ment order(s) to be made per Acts 1889 to 2008. Number: 31/2010 (per SI 591/2010) s11(2) of the act Enacted: 15/12/2010 Content: Consolidates enactments Commencement: 15/12/2010 relating to value added tax. Credit Institutions Stabilisation Financial Emergency Measures Enacted: 23/11/2010 Act 2010 in the Public Interest Act 2010 Public Health (Tobacco) Commencement: 1/11/2010 as Number: 36/2010 Number: 38/2010 (Amendment) Act 2010 per s125 of the act Content: Provides, in the context Content: Provides for the Number: 39/2010 of the National Recovery Plan reduction of the amount of the Content: Provides for the SELECTED STATUTORY 2011-2014 and the European payment of pension or other dissolution of the Office of INSTRUMENTS Union/International Monetary benefits (other than lump sums) Tobacco Control, repeals part 2 Civil Partnership and Certain Fund Programme of Financial payable to or in respect of of the Public Health (Tobacco) Act Rights and Obligations Support for Ireland, in relation certain persons who are or were 2002, and provides for related of Cohabitants Act 2010 to the stabilisation and the in the public service (including matters. (Commencement) Order 2010 preservation or restoration of the former holders of certain offices, Enacted: 22/12/2010 Number: SI 648/2010 financial position of certain credit members and former members Commencement: 1/1/2011 as Commencement: 1/1/2011 for institutions; amends the Building of the Houses of the Oireachtas per s15(2) of the act all sections other than s5; 23/ Societies Act 1989, the Central and former members of the 12/2010 for s5 of the act Bank Act 1971 and the Credit judiciary) under an occupational Social Welfare Act 2010 Institutions (Financial Support) Act pension scheme or pension Number: 34/2010 Civil Partnership (Recognition of 2008 for those purposes; amends arrangement provided under Content: Gives legislative Registered Foreign Relationships) the National Pensions Reserve Fund the Superannuation Acts 1834 to effect to certain social welfare Order 2010 Law Society Gazette www.gazette.ie Jan/Feb 2011 Legislation update 51 briefing

Number: SI 649/2010 One to watch Content: Declares certain classes of registered foreign relationship to be entitled to be One to watch: new legislation recognised in the state as a civil Prevention of Corruption (Amendment) Act 2010 Extra-territorial jurisdiction partnership. The Prevention of Corruption (Amendment) Act 2010 Section 7 of the 2001 act is amended by section 3 of Commencement: 23/12/2010 was signed into law on 15 December 2010. It amends the new act, which extends the categories of persons the Prevention of Corruption (Amendment) Act 2001, subject to extra-territorial jurisdiction to include: District Court (Summonses) giving fuller effect to the OECD Convention on the a) An Irish citizen, Rules 2010 Bribery of Foreign Public Officials in International b) An individual who is ordinarily resident in the state, Number: SI 557/2010 Business Transactions (1997). The act broadens the c) A company registered under the Companies Acts, Content: Substitutes order 15, scope of the corruption legislation, including the Public d) Any other body corporate established under a law rule 6, of the District Court Rules Bodies Corrupt Practices Act 1889, the Prevention of the state, or regarding the procedure for the of Corruption Acts 1906 and 1916, the Ethics in e) A relevant agent in any case where the relevant delivery of summonses. Public Office Act 1995, the Prevention of Corruption agent does not fall within any of paragraphs (a) to Commencement: 25/11/2010 (Amendment) Act 2001, and the Proceeds of Crime (d). (Amendment) Act 2005. Land and Conveyancing Law Protection of whistleblowers Reform Act 2009 (Section 100) Consideration or advantage The 2001 act is amended by inserting a new section Regulations 2010 The act amends section 2(2) of the Prevention of 8(A), which provides protection to persons (including Number: SI 653/2010 Corruption (Amendment) Act 2001, which states that employees) reporting offences under the Prevention Content: Prescribes the form of is an offence to “(a) corruptly give or agree to give, or of Corruption Acts 1889 to 2010. Section 8(A) notice to be used for the purposes (b) corruptly offer, whether for the benefit of that agent protects persons who make a communication of of s100(1) of the act. or another person, any gift or consideration.” The new his or her opinion regarding a suspected corruption Commencement: 30/12/2010 act adds the words “or advantage”, thereby extending offence unless the report is made knowing it to be, the scope of the offence. or reckless as to whether it was, false, misleading, Land and Conveyancing Law frivolous or vexatious. According to section 8(A)(5), an Reform Act 2009 (Section 103) Definition of ‘agent’ employer shall not penalise or threaten to penalise an Regulations 2010 Section 2 of the act extends the categories of persons employee for making a communication in good faith. Number: SI 654/2010 who come within the definition of ‘agent’, to include: An employer who contravenes the act by penalising or Content: Prescribes the form of • Any person employed by or acting on behalf of the threatening to penalise a whistleblower shall be liable notice to be used for the purposes public administration of any state (other than the Irish on summary conviction to a fine not exceeding €5,000 of s103(2) of the act. state), including a person under the direct of indirect or imprisonment for a term not exceeding 12 months Commencement: 30/12/2010 control of the government of any such state, and or both or, on conviction on indictment, to a fine not • A member of, or any other person employed by or exceeding €250,000 or imprisonment for a term not Land and Conveyancing Law acting for or on behalf of, any international organisation exceeding three years or both. Reform Act 2009 (Section 108) established by an international agreement between Regulations 2010 states, to which the Irish state is not a party. Redress Number: SI 655/2010 The new act amends the 2001 act by inserting two Content: Prescribes the rate of The meaning of ‘corruptly’ schedules, which provide protection and redress commission that may be retained The new act clarifies the meaning of ‘corruptly’, for whistleblowers. Schedule 1 provides redress for by a receiver out of any money stating that it includes “acting with an improper employees in the event of penalisation by employers received as remuneration and in purpose personally or by influencing another person, for whistleblowing. An employee may present a satisfaction of all costs. whether by means of making a false or misleading complaint to a rights commissioner, whose decision Commencement: 30/12/2010 statement, by means of withholding, concealing, may in turn be appealed to the Labour Court. altering or destroying a document or other information, Schedule 2 stipulates the provisions applicable Prepared by the or by any other means.” where a communication is made in good faith. G Law Society Library

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COMPANY CRIMINAL was unlawful having regard to the case could be made out that the Administrator Drink driving changed circumstances in question. contested decision, as explained Fees – costs – sanction – partner Criminal procedure – garda demand The applicant applied ex parte at length in the file note, did not hourly charge-out rate – reduction – – police powers – origin – lawful for leave to seek judicial review flow from its premise or flew in increase in fees – Insurance (No 2) demand – Road Traffic Act 1961, of the respondent’s decision to the face of reason and common Act 1983 (as amended). as amended. refuse an application made by the sense. Each of the new facts and Pursuant to section 3(4)(b) of the The case stated posed the question applicant under section 3(11) of changed circumstances relied Insurance (No 2) Act 1983, the of whether it was necessary to the Immigration Act 1999 for the upon by the applicant was set out court was obliged to fix the costs, imply into a road traffic power revocation of a deportation order and commented upon in detail in expenses and remuneration of to inspect insurance on a vehicle, that had been made in respect of the file note. Furthermore, the an administrator of an insurance vested in the gardaí, a requirement him previously. The applicant right protected by article 40.3.3 of company, whom it had appointed to to tell the person against whom arrived in the state from Kenya the Constitution was the right to that role. The legislature had given it was exercised that the power and was refused both asylum life of the unborn child only. The no guidance as to how to apply had a lawful origin and that status and subsidiary protection. application for leave was based on the criteria. The administrator the consequence of failing to The contested decision was a misconception. The proposed sought remuneration for the cooperate was the commission of supported by a file note containing grounds were predicated on an first company, ESG, for the an offence. The defendant had an analysis of the application assumption that the respondent sum of €386,646.25 and liberty been stopped by a garda while made by the Repatriation Unit of was obliged under section 3(11) of to pay his solicitors the sum of driving, and the garda demanded the department for the the act to reconsider the decision €35,394.15 and, for the second the production of a certificate of respondent’s recommendation, to deport the applicant. However, company, Accent, €222,680 and insurance, and further demanded and on which the decision was the only issue that can arise in €25,607.70 to pay his solicitors. that it be produced at a garda based. The essential basis of the respect of a decision to refuse The administrator sought to station within two days. The issue application that the respondent revocation under section 3(11) distinguish the function of arose as to the necessity for the had a duty to consider was is whether, in the light of the administrator from a receiver, demand of production in respect that the applicant was in a changed circumstances advanced liquidator or examiner. The of a prosecution pursuant to the relationship with an Irish citizen in the application to revoke, the businesses of the companies had Road Traffic Act 1961, as amended. for two years, to whom he was respondent erred in law or made a combined balance sheet of $85 The defendant argued that people engaged and was expecting some material mistake of fact in million. €450 per hour was sought were entitled to know when they a child. His partner also had his decision to refuse revocation. as a standard partner call-out rate. were being subjected to police another child by another father, Kangethe (applicant) v Minister Kelly J held that the powers. and there was an insurmountable for Justice and Law Reform court would allow an hourly Charleton J held that the obstacle to her joining the (respondent), High Court, charge-out rate of €375 for ordinary operation of law, and how applicant in Kenya on deportation 7/10/2010 a partner. The court held notorious parts of it may sometimes without the permission of that that, in the case of ESG, the generally be common currency, child’s father. The grounds for TORT fees would be reduced from may or may not, depending on the seeking leave were characterised Damages €386,646.25 to €302,238.95. assessment of the district judge, by the common assertion that Road traffic accident – soft-tissue The administrator’s fees in the lead to an inference that he had the decision was ultra vires, injuries – post-traumatic stress case of Accent would be reduced already sufficient knowledge as to arbitrary, irrational, unreasonable disorder – whether disc prolapse from €222,680 to €186,786.20. the legal origin of a demand and and disproportionate. The attributable to accident – whether €594.85 would be added in that a failure may result in the grounds emphasised at the psychotic episode attributable to expenses. The grand total for the commission of a criminal offence. oral hearing were directed accident – quantum – level of administrator’s fees, expenses This was a matter for the trial particularly at the adequacy of damages recoverable. and charges was €496,619.99. court. The court would answer the the decision’s assessment of the The plaintiff was a 59-year-old The legal costs for ESG were questions of the district judge as applicant’s place in the family lady who received soft-tissue reduced to €27,961.38, and in indicated. unit, the claim that there was injuries on 1 July 2005 when a the case of Accent they were DPP (Shortt) (prosecutor) v an insurmountable obstacle to car collided head-on with her reduced to €20,230.09. Credit Freeman (defendant), High that unit relocating together in car at a roundabout. Liability would be given for payments Court, 2/11/2010 Kenya and, in particular, the was not in issue. She suffered a on account. As to the future, rights of the unborn child under fractured sternum and pain in her the court was only prepared IMMIGRATION AND ASYLUM the Constitution and the European neck and back, and the symptoms to sanction further payments Judicial review Convention on Human Rights. continued for some months. without reference to the court at Deportation – Immigration Act Cooke J refused the application She also became depressed and the levels that the court had fixed 1999 – whether the grounds sought for leave, holding that, having began to abuse alcohol. She was until 30 September 2011. to be raised by the applicant disclosed considered the grounds proposed diagnosed with post-traumatic In Re ESG Reinsurance Ireland any arguable case that the refusal to be raised in the light of the stress disorder. She also suffered a Ltd, High Court, 2/11/2010 to revoke the deportation order oral submissions, no arguable disc prolapse some years later. Law Society Gazette www.gazette.ie Jan/Feb 2011 Justis update 53 briefing

News of Irish case law information and legislation is available from FirstLaw’s current awareness service on www.justis.com Compiled by Bart Daly Mr Justice Peart held that the Donovan (plaintiff) v Farrell defendant never filed a defence although there was inordinate plaintiff had not been consciously (defendant), High Court, to the plaintiff’s claim, despite the and inexcusable delay in this case, and deliberately exaggerating her 4/12/2009 plaintiff’s motion for judgment that delay was not one-sided. difficulties in order to mislead the in default being struck out and There was default by both parties. court, and awarded her €75,000 Practice and procedure time allowed for late filing. The However, the ultimate test with a in general damages for past pain Dismissal for inordinate and first defendant maintained that, delay of this magnitude was as to and suffering and €20,000 for inexcusable delay – whether the in or around January 2005, it was whether a fair adjudication could future pain and suffering. The inordinate and inexcusable delay of indicated to him that the case was nonetheless take place. The first plaintiff’s back pain was clinically the parties rendered it improbable being withdrawn, and allegations defendant had suffered a serious established and explained by that a fair adjudication of this matter were made that the plaintiff later injury since the incident that the evidence of disc protrusion could not take place. informed the defendant that was the subject matter of these and the degenerative changes The first defendant applied to he was not pursuing his claim. proceedings. However, the clear in her lumbar spine. However, have the plaintiff’s case against In November 2006, the first recording of his instructions the plaintiff’s disc prolapse was him struck out for inordinate and defendant was involved in a serious at the time of the criminal not attributable to the accident. inexcusable delay. The litigation road traffic accident, resulting proceedings and the inferences Damages to which the plaintiff was arose from a collision between a in the loss of one of his legs. that the court must make that entitled included the whiplash- motorcycle and a tractor in 1994, He suffered reactive depression his solicitors recorded his type injury to her neck, her and the plenary summons issued and was in constant pain. In instructions, made it improbable fractured sternum and recovery in 1996. The plaintiff was a pillion November 2008, the plaintiff that a fair adjudication of this period, her depression, anxieties passenger on the motorcycle served a notice of intention to matter could not take place. around traffic and post-traumatic being driven by the first-named proceed. The defendant was later Any memory loss or inability to stress disorder from which she defendant and, as a result of the hospitalised in 2009 with severe concentrate was not proved. No had substantially recovered, her accident, he sustained serious physical and psychiatric injuries. costs were awarded arising out of unwillingness to drive a car, as well injuries, including the loss of his The defendant also previously this application, due to the fault as her soft-tissue injury to her back. leg. The first defendant was initially discontinued his case against the of both parties in delaying this Excluded from consideration for convicted of dangerous driving driver of the tractor involved in action. damages was the onset of alcohol before the District Court but, on the collision. Kelly (plaintiff) v Doyle abuse, the psychotic episode and appeal in 1995, was convicted of Charleton J dismissed the (defendant), High Court, the disc prolapse. careless driving only. The first application, holding that, 23/11/2010 G

NOTICE Solicitors Acts 1954 to 2008 (Sixth Schedule) Regulations 2001 – SI no 604 of 2010 Solicitors Acts 1954 to 2008 (Fees) Regulations 2001 – SI no 605 of 2010

The combined effect of the above- below. The Law Society may, at File A and File B are provided for from practice, made by the High mentioned statutory instruments, its discretion in any individual under section 17 of the Solicitors Court under specified sections of which came into operation on 1 instance, waive in whole or in part (Amendment) Act 1960. File the Solicitors Acts. File B contains February 2011, is to authorise the fees specified in respect of any A contains orders striking the certain other orders made under the the charging by the Law Society one or more of the applications name of a solicitor off the Roll of Solicitors Acts, including certain of the fees set out in the schedule referred to in the schedule. Solicitors or suspending a solicitor orders made by the High Court.

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Application for a copy of an entry in File A or File B: €100 Application for a certificate of good standing or a certificate of standing: €100 Application for details of any indemnity insurance maintained by a solicitor or firm of solicitors pursuant to section 26 of the Solicitors (Amendment) Act 1994 and regulations made thereunder: €100 Application for a duplicate practising certificate: €50 Application for information relating to a solicitor or firm of solicitors which requires a search in archived records: €100 54 Eurlegal Law Society Gazette www.gazette.ie Jan/Feb 2011 briefing Edited by TP Kennedy, Director of Education ECJ upholds fine for abuse of dominant position Last October, the European DT’s local networks consist of sale local loop access services and General Court’s judgment Court of Justice rejected an appeal various physical circuits connect- for retail end-user access services, DT appealed the commission’s against the 2008 decision of the ing a customer’s home or premises it had a dominant position in both. decision to the General Court on European Court of First Instance with its fixed-line network. These Between 1998 and 2001, DT’s various grounds. In rejecting the (now the General Court) uphold- circuits are usually referred to as wholesale prices for accessing the appellant’s argument that, since ing the European Commission’s the ‘local loop’. As part of the EU- local loop were more expensive RegTP had approved its prices, earlier finding that Deutsche led liberalisation of telecommuni- than charges to its direct retail article 102 should not apply, the Telekom AG (DT) had abused cations services, DT was required, customers. General Court stated that the its dominant position contrary to with effect from the mid ’90s, to In 2002, notwithstanding an German regulator’s function was article 82 of the EC Treaty (now offer access to the local loop. Such increase in its retail tariffs, the not to examine EU competition article 102 of the Treaty on the access is essential to any company spread between DT’s wholesale issues. The General Court also Functioning of the European Union, wishing to compete in down- and retail prices was insufficient considered that, since the abuse or TFEU). In its judgment, the stream markets. The wholesale to cover the product-specific costs consisted of the unfairness of the ECJ addresses key issues arising and retail prices that DT charges of providing its own retail access spread between wholesale and re- from the interplay between EU for such access are subject to a services. tail prices, the commission was not competition rules and national strict regulatory regime. The then In its decision adopted in May required to demonstrate that DT’s regulatory frameworks. The court German regulatory authority for 2003, the European Commission retail prices were, in themselves, also considers whether a margin telecommunications and postal considered that DT had abused its abusive. In essence, the General squeeze constitutes a stand-alone services, RegTP, was required to dominant position because there Court found that, irrespective of abuse of a dominant position. set DT’s wholesale access charges. was an insufficient margin be- the decisions of RegTP, DT had RegTP was also tween its whole- genuine scope to increase its retail Abuse of a dominant position obliged to ap- sale prices for prices for access services, thus re- Article 102 prohibits the abuse of prove DT’s retail “The ECJ’s judgment access to the local ducing the margin squeeze. More- a dominant position in the EU (or access prices fol- loop and its retail over, DT must have been aware in a substantial part of it) that may lowing authorisa- is also of major prices for end- that its pricing policies were anti- affect trade between EU member tion applications importance to user access ser- competitive. In April 2008, the states. Accordingly, in order to by this company. vices. This mar- General Court thus rejected DT’s establish that a company has in- participants in any gin squeeze hin- appeal in its entirety. fringed article 102, one must first Commission regulated sector, dered an ‘as-effi- establish that this undertaking has decision cient’ competitor Grounds of appeal a dominant position. A dominant In 1999, 15 of such as gas, from compet- DT appealed the General Court’s position is defined as a position of DT’s market ri- transport, electricity ing with DT decision to the ECJ on two key economic strength that allows a vals submitted for the provi- grounds. Firstly, it challenged the company to hinder effective com- complaints to the and postal services” sion of end-user manner in which the regulation of petition being maintained on the European Com- access services. its activities by RegTP was con- relevant market by allowing it to mission, claim- The commission sidered. DT felt aggrieved that its behave, to an appreciable extent, ing that the prices DT was charg- found that the spread between pricing strategies, while seen as independently of its competi- ing for wholesale access were so DT’s prices was abusive if a mar- abusive by the General Court and tors, customers and, ultimately, expensive that, in order to avoid ket rival, assuming it had DT’s the commission, had previously consumers. Dominance per se is losses, they were forced to charge costs and had to pay DT’s whole- been approved by its national not illegal. However, dominant their own subscribers more than sale prices, was unable to compete regulator. Secondly, DT argued companies are under a special re- DT charged its own retail custom- with DT’s retail prices without that the General Court and the sponsibility not to hinder effective ers. Thus, even if its competitors selling below cost. commission incorrectly applied competition in the marketplace. are at least as efficient as DT, it is The commission did not find article 102. More particularly, DT Article 102 contains a non-exhaus- impossible for them to be profit- that DT’s wholesale prices were argued that a margin squeeze test tive list of various types of abusive able in the provision of retail ac- too high; instead, it felt that this is unsuitable to establish abuse in conduct. These include the impo- cess services. Competitors could company’s retail prices were too a situation where wholesale ac- sition of unfair purchase prices or theoretically offset their losses on low (that is, the latter did not cess charges are imposed by the other trading conditions and the such access services by charging cover DT’s costs.) Accordingly, relevant national regulator, in this limitation of markets to the preju- higher prices for telephone calls; DT could have increased its retail case, RegTP. dice of consumers. however, this was practically im- charges in order to reduce or elim- DT’s first ground of appeal fo- possible against a background of inate the abusive margin squeeze cused on whether it was respon- Factual background falling call charges. of its ‘as-efficient’ competitors. sible for infringing article 102 DT is the incumbent telecommu- In its ensuing investigation, The commission thus found that where its pricing practices were nications company in Germany the commission found that, given DT had abused its dominant posi- approved by RegTP. and operates the fixed-line tele- DT’s monopoly/virtual monopoly tion and imposed a fine of €12.6 According to settled European phone network in that country. in the German markets for whole- million. case law, EU competition rules Law Society Gazette www.gazette.ie Jan/Feb 2011 Eurlegal 55 briefing will not apply to the behaviour of the exclusionary effect it could of an undertaking: (i) provided create for competitors who were, the anti-competitive conduct is at least, as efficient as DT. There required by national legislation, was therefore no need to consider or (ii) if national law creates a whether either DT’s wholesale or legal framework that eliminates retail prices were in themselves any possibility of competition. In abusive. such situations, the restriction of competition is not attributable to ‘As-efficient competitor’ test the independent behaviour of the The purpose of the ‘as-efficient relevant undertaking. The ECJ competitor’ test is to ensure that has consistently interpreted these a dominant undertaking cannot exclusions from the scope of EU drive an undertaking from the competition rules very narrowly. market that is ‘as efficient’ but, If national rules merely encour- because of its inferior financial age or make it easier for dominant resources, is incapable of with- undertakings to engage in autono- standing the competition waged mous anti-competitive conduct, against it. DT argued that this those companies remain subject to test should be adjusted to take article 102. account of the differing regula- DT argued that, since its pric- Dominant positions and competition are not always incompatible tory and competitive situations ing strategies had been approved of its market rivals. Referring to by RegTP under a legal frame- that the commission should follow making market entry very difficult the principle of legal certainty, work geared towards competition, RegTP’s assessment. However, or impossible for its competitors the court responded that, given its duty to preserve the structure the European courts have consis- or limiting the choice of supply the special responsibility of domi- of the market is supplanted by tently held that the commission open to customers. nant companies, they should be in the responsibility of the regula- is not bound by the decision of a The ECJ noted that DT did a position to assess the lawfulness tor. Rejecting this argument, the national body pursuant to article not challenge the possibility that of their pricing practices, includ- court noted that, while RegTP is 102. Therefore, RegTP’s deci- the spread between its wholesale ing whether their conduct is likely the German body responsible for sions could not create a legitimate prices for local loop access ser- to exclude competitors in breach the telecommunications sector, it expectation that DT’s conduct was vices and its retail tariffs for end- of article 102. This must be done does not have competence for the lawful. user access services was capable on the basis of their own costs, enforcement of EU competition of having an exclusionary effect. since they could not be expected law. Indeed, DT should be aware Is the margin squeeze abusive? This margin squeeze made the to know their respective competi- that German telecommunications As mentioned above, the commis- access of competitors to down- tors’ costs and charges. The ECJ regulation and EU competition sion found that DT’s abuse con- stream markets more difficult, thus confirmed that the General law are separate legal instruments. sisted of the margin squeeze of its thus diminishing competition and Court and the commission were For instance, the former provides ‘as-efficient’ competitors due to ultimately reducing the prospect entitled to rely on the ‘as-efficient for ex ante regulation, whereas the the unfairness of the spread be- of long-term reductions in retail competitor’ test in order to deter- latter contains rules for ex post re- tween its wholesale prices for local prices. The ECJ found that the mine whether the margin squeeze view. DT should seek to respect loop access services and its retail fact that DT would be required was abusive. both regimes. Moreover, the ECJ prices for end-user access services. to raise its retail prices in order considered that nothing in Ger- DT challenged the relevance of to avoid the margin squeeze did Actual effects must be shown man telecommunications regula- the margin squeeze test for the not take its conduct outside the The ECJ upheld the General tory rules prevented DT from ad- purposes of establishing abuse un- scope of article 102. The ECJ Court’s rejection of the commis- justing its prices for end-user ac- der article 102, since it would have also dismissed DT’s argument sion’s argument that it was un- cess services by making the appro- had to increase its retail prices for that, since the relevant wholesale necessary to demonstrate any priate authorisation applications end-user access services in order prices were set by RegTP, the anti-competitive effect of DT’s to RegTP. Accordingly, the court to avoid this squeeze. margin squeeze test was not ap- conduct. In this case, the commis- found that the fact that RegTP In general terms, it is abusive propriate on the basis that DT’s sion was required to show that the had encouraged DT to maintain for a dominant company to hinder abuse arose from the unfairness margin squeeze of DT’s ‘as-effi- potentially abusive pricing prac- competition or the growth of com- of the spread between its relevant cient’ competitors created barriers tices does not, in itself, exclude the petition on any market on which prices and not the prices them- for the growth of products in the application of article 102. it is active. The ECJ recalled that selves. The ECJ thus upheld the retail market for end-user access DT also argued that RegTP’s article 102 expressly prohibits a General Court’s finding that the services. The court found that a decisions created a legitimate ex- dominant undertaking from di- margin squeeze, resulting from margin squeeze is not abusive if it pectation that the relevant pricing rectly or indirectly imposing un- the spread between DT’s whole- does not make market penetration practices were lawful. However, fair prices. Moreover, a dominant sale and retail prices, was capable more difficult. The ECJ approved the court held that this argument company must not adopt pricing of constituting an abuse within the General Court’s view that implicitly relies on the hypothesis practices that are capable of either the meaning of article 102 in view the spread between the relevant 56 Eurlegal Law Society Gazette www.gazette.ie Jan/Feb 2011 briefing

wholesale and retail prices hin- ance on the enforcement of article regulation does not preclude the tent with their national regulatory dered the growth of competition 102.) In particular, the ECJ stated application of EU competition framework in order to comply in the latter, since an ‘as-efficient’ that the ‘as-efficient competitor’ rules. In addition, the court left with EU competition rules. The competitor could not compete in test is the correct method for de- open the issue of whether Ger- need to ‘second guess’ its respec- the retail market for end-user ac- ciding whether a margin squeeze many (through RegTP) may have tive national regulatory regime is cess services without incurring infringes article 102. This test infringed EU law in authorising likely to cause significant practi- losses. Indeed, the ECJ found that should allow a dominant company DT’s unlawful pricing practices. cal difficulties for any regulated the small shares acquired by DT’s to assess whether its behaviour is This may have resulted in the body, particularly a dominant competitors in the German mar- lawful, since it obviously knows its commission launching proceed- undertaking. On the other hand, ket for end-user access services own costs. This does not require ings against Germany for its fail- it is perhaps welcome that a regu- show the anti-competitive effect a dominant company to specu- ure to fulfil its treaty obligations. lator’s view may be challenged by of the margin squeeze. late whether actual or potential Accordingly, regulatory bodies the European Commission or any competitors with differing cost must be mindful of the impact of national competition authority Wider implications structures would be excluded by articles 101 and 102 of the TFEU. of an EU member state. Finally, The ECJ’s judgment is of major its pricing practices, as would be Regulated companies should companies seeking to obtain ac- significance to the enforcement required under the ‘reasonably ef- also pay attention to EU com- cess to regulated assets/networks of abuse of dominance rules by ficient competitor’ test. petition rules. Indeed, the court might consider using EU compe- the European Commission and The ECJ’s judgment is also held that, even if ex ante national tition law, since these rules may the various national competition of major importance not only to regulatory rules encourage a com- provide access rights that are not authorities. The court’s rejection telecommunication companies pany to act in a particular manner, obtainable under national regula- of DT’s appeal recognises, for the and regulators but also to partici- this will not absolve that company tory rules. first time, a margin squeeze as a pants in any regulated sector, such from its responsibilities under ar- stand-alone abuse of a dominant as gas, transport, electricity and ticles 101 and 102. Accordingly, Cormac Little is a partner in the position. (This test was also set out postal services. The court’s judg- regulated companies may be re- Competition and Regulation Unit of in the commission’s recent guid- ment shows that national sectoral quired to act in a manner inconsis- William Fry, Solicitors. Recent developments in European law FAMILY LAW suing that activity on the ground provided by ophthalmologists in opinion of Advocate General On 20 December 2010, the coun- that, in Hungary, those products places other than optician’s shops. Cruz Villalón, 7 October 2010 cil adopted regulation 1259/2010 could not be sold via the internet. These services are generally only The Trademark Regulation (40/94) on enhanced cooperation in the Ker-Optika brought a court action required on the first occasion provides for a uniform intellectual area of divorce and legal separa- challenging that prohibition. The when contact lenses are supplied. property right effective through- tion (Rome III). The regulation Hungarian court asked the Court When lenses are supplied sub- out the entire area of the EU. One will apply to the 14 member states of Justice whether the Hungarian sequently, it is sufficient that the tier of its system of specialised ju- that participate in enhanced co- legislation was in compliance with customer advise the seller of the risdiction was the establishment operation (this does not include EU law. The Court of Justice not- type of lenses that were provided of ‘community trademark courts’. Britain or Ireland). The new regu- ed that the prohibition in Hunga- when first supplied and inform the These are a limited number of lation sets out choice-of-law rules ry on selling contact lenses via the seller of any change in his vision national courts of first and sec- to be applied in divorce or legal internet applied to the supply of as measured by an ophthalmolo- ond instance designated by each separation cases. contact lenses from other member gist. The additional information member state that decide disputes states to customers in Hungary. and advice required for prolonged between private parties. In the FREE MOVEMENT OF GOODS It significantly impedes the ac- use of contact lenses can be given context of that system, the na- Case C-108/09, Ker-Optika bt v cess of non-Hungarian suppliers to the customer by using the in- tional courts act as special courts ÁNTSZ Dél-dunántúli Regioná- to the Hungarian market. Thus, teractive feature on the supplier’s of the EU. Where the community lis Intézete, 2 December 2010 it is an obstacle to free movement website or by a qualified optician trademark courts find an infringe- Hungarian legislation provides of goods in the EU. The court designated by the supplier as able ment or a threatened infringe- that the selling of contact lenses found that a member state may to provide that information at a ment of a community trademark, requires a specialist shop with a impose a requirement that contact distance. Thus, the court ruled they are to issue an order prohib- minimum area of 18 square metres lenses are to be supplied by quali- that the objective of ensuring pro- iting the infringer from proceed- or premises separated from the fied staff capable of providing the tection of the health of the users ing with the acts that infringed workshop. To sell contact lenses, customer with information on of contact lenses can be achieved or would infringe the community the services of an optometrist or the correct use and care of those by measures that are less restric- trademark. They may also take an ophthalmologist qualified in products and on the risks associ- tive than those provided for under such measures in accordance with the field of contact lenses must be ated with wearing lenses. Thus, the Hungarian legislation. their national law as are aimed at used. The Hungarian firm Ker- the Hungarian legislation is ap- ensuring that the prohibition is Optika sells contact lenses on its propriate to secure the objective INTELLECTUAL PROPERTY complied with. Chronopost SA is website. The Hungarian health of protecting the health of con- Case C-235/09, DHL Express the proprietor of the French and authorities prohibited it from pur- sumers. Those services can also be (France) SAS v Chronopost SA, community trademarks ‘Web- Law Society Gazette www.gazette.ie Jan/Feb 2011 Eurlegal 57 briefing

shipping’, relating, in particular, territorial scope of the prohibition Directive 2004/83 EC lays down lated to the assessment of specific to services for the collection and corresponds, in principle, to the minimum standards for condi- facts in the case of an individual. delivery of mail. After the registra- scope of the infringement. The tions to be met by third-country Participating in the activities of a tion of those marks, DHL Express advocate general considered that nationals or stateless persons in terrorist group does not, in itself, (France) SAS used the same word the coercive measures have effect order to receive international trigger the automatic application for an express mail management within the territory in which the protection. It provides for the of the exclusion clauses in the di- service accessible principally via declaration of infringement was exclusion of a person from refu- rective. To justify a finding that the internet. In 2007, a regional made and the prohibition issued. gee status where there are serious the grounds for exclusion apply, court in Paris, acting as a com- The quantification and enforce- reasons for considering that he it must be possible for the compe- munity trademark court, declared ment of those measures take place has committed a “serious non- tent authority to attribute to the that there had been trademark in- at a later stage, when, if the pro- political crime” or has been guilty person concerned a share of indi- fringement, prohibited DHL from hibition has been infringed, the of “acts contrary to the purposes vidual responsibility for the acts a continuing infringement, and penalty is applied. The court that and principles of the United Na- committed by the organisation in imposed a financial penalty should has imposed the periodic penalty tions”. B and D are Kurds who question while that person was a it fail to comply with the prohibi- payment will have jurisdiction as hold Turkish nationality. B had member. The competent author- tion. DHL appealed the ruling to regards its quantification and en- supported the armed guerrilla ity is required to assess a number the Cour de Cassation. Chrono- forcement only where the prohi- activity of the DHKP/C and D of factors: the true role played by post also appealed, contesting the bition is infringed in the member was a guerrilla fighter and senior the person concerned in the per- effects of the ruling being limited state of that court. Where the official in the PKK. Both these petration of terrorist acts; his po- to France. The Cour de Cassation prohibition is infringed in another organisations were on a list drawn sition within the organisation; the made a reference to the Court of member state, quantification and up by the EU of persons, groups extent of the knowledge he had, or Justice for a ruling to ascertain the enforcement will be a matter for and entities involved in terrorism. was deemed to have, of its activi- territorial scope of the prohibition the court of that member state. D had been granted refugee status ties; any pressure to which he was issued by a community trademark The court of the member state by Germany and B had applied for exposed; or other factors likely to court and of the coercive measures in which the penalty has been asylum. Both stated that they has have influenced his conduct. If a adopted in order to ensure that infringed is obliged to recognise left these organisations and now competent authority finds that the the prohibition is complied with. the effects of the period penalty feared persecution from both the person concerned has occupied a The advocate general considered payment imposed by the commu- Turkish authorities and their re- prominent position within a ter- that, in principle, a prohibition is- nity trademark court of the other spective organisations. The Ger- rorist organisation, it is entitled to sued by a national court acting as member state, in accordance with man authorities rejected B’s ap- presume that that person has indi- a community trademark court has the rules on recognition laid down plication and revoked the refugee vidual responsibility for acts com- effect as a matter of law through- by the Brussels I Regulation. Such status that had been granted to D. mitted by that organisation during out the entire area of the EU. measures must be adjusted to the A German court asked the Court the relevant period. It is still nec- The purpose of the regulation is specific features of each legal sys- of Justice to interpret the clauses essary to examine all the relevant to enable a trademark proprietor tem. The court of the member in the directive under which a circumstances before a decision to apply to a single court in order state in which the prohibition has person is excluded from refugee excluding that person from refu- to bring acts of infringement to been infringed, if its national law status. The CJ held that exclusion gee status can be adopted. Exclu- an end in several member states. so permits, is simply to recognise from refugee status of a person sion from refugee status pursuant The declaration of infringement the order and apply the period who has been a member of a ter- to one of the exclusion clauses relates to a trademark granted by penalty payment to the specific rorist organisation is conditional concerned is not conditional upon the EU, whose judicial protection case. By contrast, if its national on an individual assessment of the the person concerned represent- is entrusted to special national law does not provide for such a specific facts. The mere fact that ing a present danger to the host courts of the EU and therefore, measure, it must achieve enforce- the person concerned has been member state. The penalty ele- in principle, the declaration has ment in accordance with its own a member of such an organisa- ment of the exclusion clause is in- effect throughout the entire area national provisions. tion cannot automatically mean tended for acts committed in the of the EU. Where the infringe- that the person must be excluded past. There are other provisions in ment or action for infringement REFUGEE STATUS from refugee status. The circum- the directive that allow the com- is limited to a specific geographi- Joined cases C-57/09 and stances in which an organisation petent authorities to take the nec- cal or linguistic area, the court’s C-101/09, Germany v B, Ger- was placed on the list of terrorist essary measures where a person order is limited territorially. The many v D, 9 November 2010 organisations cannot be assimi- represents a present danger. G

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Rates McInerney, Monica (deceased), late of Clenagh, Newmarket-on-Fergus, Co Clare, who died on 4 Novem- Professional notice rates ber 2010. Would any person having knowledge of the whereabouts of a rates in the Professional notices section are as follows: will executed by the above-named de- • Wills – €144 (incl VAT at 21%) ceased please contact Lorraine Burke of Desmond J Houlihan & Company, • Title deeds – €288 per deed (incl VAT at 21%) Solicitors, Salthouse Lane, Ennis, • Employment/miscellaneous – €144 (incl VAT at 21%) Co Clare; tel: 065 684 2244, email: [email protected] Highlight your notice by putting a box around it – €33 extra McQuillan, Francis (otherwise All notices must be paid for prior to publication. Cheques should be made Frank) (deceased), late of Knock- payable to Law Society of Ireland. Deadline for March Gazette: 16 February 2011. ataggart, Stradone, Co Cavan, who For further information, contact the Gazette office on tel: 01 672 4828 (fax: 01 672 4877) died on 5 October 2010. Would any person having any knowledge of a will made by the above-named deceased please contact Joanne Kangley, Solici- WILLS Conlon, Bridget (deceased), late of ary, who died on 2 September 2010. tors, Anne Street, Bailieborough, Co Byrne, Bridget (deceased), late 30 Ellesmere Avenue, North Circular Would any person having knowledge Cavan; tel: 042 966 6741, fax: 042 966 of Tara Winthrop Nursing Home, Road, Dublin 7, who died on 9 March of the whereabouts of a will executed 5988, email: [email protected] Swords, and 73 Villa Park Gardens, 1998. Would any person having by the above-named deceased please Navan Road, Dublin 7, who died on knowledge of the whereabouts of the contact John Whelan of Matthew McQuillan, Annie (otherwise 11 December 2010. Would any person original will, dated 25 August 1994, MacNamara & Son, Solicitors, Friar Anna) (deceased), late of Knock- having knowledge of any will executed or any other will made by the above- Street, Cashel, Co Tipperary; tel: 062 ataggart, Stradone, Co Cavan, who by the above-named deceased please named deceased, please contact Pearse 61110, email: macnamaraandson@eir- died on 18 October 1990. Would any contact Brid O’Dwyer, solicitor, Frank Mehigan & Company, Solicitors, com.net person having any knowledge of a will Ward & Co, Solicitors, Equity House, 83/84 Upper Georges Street, Dun made by the above-named deceased Upper Ormond Quay, Dublin 7; tel: Laoghaire, Co Dublin; tel: 01 280 Kelly, Emer (deceased), late of 33 please contact Joanne Kangley, Solici- 01 873 2499, fax: 01 873 3484, email: 8292, fax: 01 280 8651, email: gregfla- Kerrymount Rise, Foxrock, Dublin tors, Anne Street, Bailieborough, Co [email protected] [email protected] 18, who died on 6 September 2010. Cavan; tel: 042 966 6741, fax: 042 966 Would any person having any knowl- 5988, email: [email protected] Carthy, Frank (deceased), late of Conlon, Michael (deceased), late of edge of the whereabouts of a will ex- Crow Street, Gort, in the county of 30 Ellesmere Avenue, North Circular ecuted by the above-named deceased McSwiney, Katryn (deceased), late Galway. Would any person having Road, Dublin 7. Would any person please contact Rochford Gibbons, So- of 54 Barra Glas, Crobally Upper, knowledge of the whereabouts of having knowledge of a will executed licitors, 16/17 Upper Ormond Quay, Tramore, Co Waterford, who died on a will executed by the above-named by the above-named deceased, who Dublin 7; tel: 01 872 1499, fax: 01 872 29 October 2010. Would any person deceased on 24 October 1997, who died on 19 March 2006, please con- 1654, email: [email protected] having knowledge of the whereabouts subsequently died on 23 July 2001, tact Pearse Mehigan & Company, So- of a will made by the above-named please contact Twomey Scott & licitors, 83/84 Upper Georges Street, Killian, Mary Josephine (deceased), deceased please contact Raymond Co, Solicitors, 80 O’Connell Street, Dun Laoghaire, Co Dublin; tel: 01 late of The Beeches, Coosan, Athlone, Glynn & Co, Solicitors, 27 O’Brien Limerick; tel: 061 316 456, fax: 061 280 8292, fax: 01 280 8651, email: Co Westmeath. Would any person Street, Mallow, Co Cork; tel: 022 316 567, email: dscott@twomeyscott. [email protected] having knowledge of a will executed 22285, fax: 022 42415 com by the above-named deceased, who Corish, John Francis (deceased), died on 9 December 2009, please con- Marnell, Timothy (Tim) (de- Carty, Patrick (otherwise Car- late of 61 The Way, Hunter’s Run, tact Mark Cooney, Solicitors, 5 Gar- ceased), late of Killough, Temple- thy) (deceased), late of 98 Ashfield, Clonee, Dublin 15, who died on 31 den Vale, Athlone, Co Westmeath; more, Co Tipperary. Would any Mullingar, Co Westmeath, and for- December 2010. Would any person tel: 090 647 7718, fax: 090 645 0570, person having knowledge of a will merly of Wooddown, The Downs, having knowledge of the whereabouts email: [email protected] made by the above-named deceased, Mullingar, Co Westmeath, who died of a will executed by the above-named who died on 6 October 2010, please on 28 December 2010. Would any deceased please contact Mary Mor- Laverty, Frankie (Francis) (de- contact James J Kelly & Son, Solici- person having any knowledge of the rissey of Morrissey & Co, Solici- ceased), late of Stranorlar, Co Done- tors, Patrick Street, Co Tipperary; tel: whereabouts of a will executed by tors, Lismard House, Bridge Street, gal, who died on 21 August 2010. 0504 31278, fax: 0504 31983, email: the above-named deceased please Tullow, Co Carlow; tel: 059 915 2910, Would any person having knowledge [email protected] contact John Wallace of NJ Downes fax: 059 915 2163, email: postmaster@ of the whereabouts of a will made by & Co, Solicitors, Dominick Street, morrisseycosolicitors.ie the above-named deceased please con- Murray, Ciaran (deceased), late of Mullingar, Co Westmeath; tel: 044 tact MM Mulrine & Co, Solicitors, Herbertstown, Naas, Co Kildare, who 934 8646, fax: 044 934 3447, email: Cummins, Patrick (deceased), late Ballybofey, Co Donegal; tel: 074 913 died on 13 June 2010. Would any per- [email protected] of Farnamanagh, Cashel, Co Tipper- 1608 son having knowledge of the where- Law Society Gazette www.gazette.ie Jan/Feb 2011 Professional notices 59 notices abouts of the original will executed 28 August 2008, please contact Lorna (Ground Rents) (No 2) Act 1978 and superior interests up to and including by the above-named deceased on 21 Shannon, Gaffney Halligan & Co, in the matter of an application by the fee simple in the said property are March 1986, or any other will, please Solicitors, 413 Howth Road, Dublin Joseph O’Reilly unknown and unascertained. contact Ivan Feran, Feran & Co, So- 5; tel: 01 831 4133, fax: 01 831 4908, Any person having any interest in the Date: 4 February 2011 licitors, Constitution Hill, Drogheda, email: [email protected] fee simple estate or any intermediate Signed: William Fry (solicitors for the Co Louth; DX 23001; tel: 041 983 interest in all that and those the her- applicant), Fitzwilton House, Wilton 1055, fax: 041 983 9104, email: ivan- Seven-day liquor licence required. editaments and premises known as 59 Place, Dublin 2 [email protected] Contact: Rory Deane & Co, Solici- Moore Street, in the parish of Saint tors, Temple House, Templeshannon, Mary and city of Dublin, being part In the matter of the Landlord and Ryan, Mary Margaret (deceased), Enniscorthy, Co Wexford; tel: 053 913 of the property comprised in folio Tenant Acts 1967-2005 and in the late of 70 Ballynetty Road, Ballyfer- 6622 DN117599L and held under a lease matter of the Landlord and Tenant mot, Dublin 10. Would any person dated 13 July 1802 from Robert Bur- (Ground Rents) (No 2) Act 1978 and having any knowledge of wills made ton to Thomas Trilly for a term of in the matter of an application by by the above-named deceased, who EXPERT WITNESS 999 years from 1 May 1802, subject Joseph O’Reilly died on 14 April 1983, please contact Highly experienced security to the yearly rent of £18.20 sterling. Any person having any interest in the Patrick W McGonagle, solicitor, of experts specialising in both se- Take notice that Joseph O’Reilly, fee simple estate or any intermediate Patrick W McGonagle & Co, 3 North curity risk analysis and crime being the person entitled to the les- interest in all that and those the her- Street, Swords, Co Dublin; tel: 01 840 prevention techniques. If you see’s interest in the said lease, intends editaments and premises known as 55 4697, fax: 01 840 1161, email: pat@ are representing the victim of a to apply to the Dublin County Regis- Moore Street, in the parish of Saint mcgonaglesolicitors.ie robbery, assault or other crime, trar at Áras Uí Dhálaigh, Inns Quay, Mary and city of Dublin, comprised securityadvice.ie can provide ex- Dublin 7, for the acquisition of the in folio DN118022L, held for a term Ward, Michael (deceased), late of pert witness reports. This service fee simple estate and all intermedi- of 999 years, less the last three days 174 East 85 Street, New York, USA, is available nationwide. ate interests in the said property, and thereof, from 1 January 1874 under and formerly of Fenagh, Co Leitrim For further information, con- any party asserting that they hold the the leasehold interest created by a and Castleknock, Dublin 15. If any- tact [email protected] fee simple or any intermediate inter- mortgage debenture dated 4 Septem- one knows of the whereabouts of a will or call 087 204 4078. Website: est in the aforesaid property is called ber 1990 from Eastdean Limited to made by the above-named deceased, www.securityadvice.ie upon to furnish evidence of their title Irish Intercontinental Bank Limited, who died on 1 August 2010, please thereto to the undermentioned solici- being a sub-demise under a lease dat- contact: [email protected], tel: tors within 21 days from the date of ed 3 March 1875 from Robert Wil- 086 102 6463 Busy established practice, this notice. liam Burton to William Brunton for Eastern region, requires pur- In default of any such notice being the full term of 999 years from 1 Jan- MISCELLANEOUS chaser or partner for heavy work- received, the said Joseph O’Reilly in- uary 1874 aforesaid, which reserved a MacGowan, Cyrill (otherwise Cy- load. Replies to box 01/11/01 tends to proceed with the application yearly rent of £35 sterling. rill Smith) (deceased), late of 82 Ab- before the said county registrar at the Take notice that Joseph O’Reilly, beyfield, Killester, Dublin 5. Would end of 21 days from the date of this being the person entitled to the said any person having knowledge of a wife TITLE DEEDS notice and will apply to the said regis- subleasehold interest, intends to ap- named Molly or a child named Yoko or In the matter of the Landlord and trar for such directions as may be ap- ply to the Dublin County Registrar at any other relative or next-of-kin of the Tenant Acts 1967-2005 and in the propriate on the basis that the person Áras Uí Dhálaigh, Inns Quay, Dublin above-named deceased, who died on matter of the Landlord and Tenant or persons beneficially entitled to all 7, for the acquisition of the fee simple

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estate and all intermediate interests Dublin 1, comprising part of folio In the matter of the Landlord and WPG DocStore’s professional in the said property, and any party as- DN186723F, the subject of a lease Tenant Acts 1967-2005 and in mat- e-discovery support service serting that they hold the fee simple ter of the Landlord and Tenant from €500 per GB. for lives dated 10 March 1774 from ISO 27001 certified; or any intermediate interest in the James Higgins to Mary Johnston, (Ground Rents) (No 2) Act 1978 tel: (01) 2454800, aforesaid property is called upon to which reserved a perpetual yearly and in the matter of an application email: [email protected] furnish evidence of their title thereto rent of £30, now €38.09. by Ann Taylor of ‘Grouville’, 70 or website: to the undermentioned solicitors Take notice that Joseph O’Reilly, Monkstown Avenue, Monkstown, www.wpg.ie/docstore.htm within 21 days from the date of this being the person entitled to the les- Co Dublin notice. see’s interest in the said lease, intends Take notice that any person having In default of any such notice be- to apply to the Dublin County Regis- any interest in the fee simple or any ing received, the said Joseph O’Reilly trar at Áras Uí Dhálaigh, Inns Quay, superior or intermediate interest in intends to proceed with the applica- Dublin 7, for the acquisition of the the following properties (or either of tion before the said county registrar fee simple estate and all intermedi- them): (a) part of the lands of Ashton at the end of 21 days from the date of ate interests in the said property, and Park, Monkstown Avenue, in the par- this notice and will apply to the said any party asserting that they hold the ish of Monkstown, barony of Rath- registrar for such directions as may fee simple or any intermediate inter- down and county of Dublin, with be appropriate on the basis that the est in the aforesaid property is called the substation erected thereon, held person or persons beneficially en- upon to furnish evidence of their title under an indenture of sublease dated A Caring Legacy: titled to all superior interests up to thereto to the undermentioned so- 24 February 1955 and made between bequests to The Carers and including the fee simple in the licitors within 21 days from the date Ashton Estates Limited (1) and the Association (CHY10962) help said property are unknown and un- of this notice. Electricity Supply Board (2) for a term to support home-based family ascertained. In default of any such notice being of 100 years from 1 February 1955 and care in Ireland. Date: 4 February 2011 received, the said Joseph O’Reilly in- subject to the yearly rent of one shil- For information: Signed: William Fry (solicitors for the tends to proceed with the application ling and the covenants and conditions Emma at 057 9370210. applicant), Fitzwilton House, Wilton before the said county registrar at the therein contained; and (b) the lands at [email protected] Place, Dublin 2 end of 21 days from the date of this Ashton Park, Monkstown Avenue, in or www.carersireland.com. notice and will apply to the said regis- the county of Dublin, with the build- In the matter of the Landlord and trar for such directions as may be ap- ing erected thereon, held under an Tenant Acts 1967-2005 and in the propriate on the basis that the person indenture of sublease dated 17 April matter of the Landlord and Ten- or persons beneficially entitled to all 1959 and made between Ashton Es- Selling or ant (Ground Rents) (No 2) Act 1978 superior interests up to and including tates Limited (1) and Frederick Taylor Buying and in the matter of an application the fee simple in the said property are (2) for a term of 899 years from 1 Sep- a seven-day liquor by Joseph O’Reilly unknown and unascertained. tember 1951 and subject to the yearly licence Any person having any interest in Date: 4 February 2011 rent of one pound and the covenants Contact the fee simple estate or any inter- Signed: William Fry (solicitors for the and conditions therein. 0404 42832 mediate interest in all that and those applicant), Fitzwilton House, Wilton Take notice that the applicant, that portion of 70 Parnell Street, Place, Dublin 2 Ann Taylor, being the person entitled

job-seekers’ legal register vacancies For Law Society members to advertise for all For Law Society members seeking a solicitor their legal staff requirements, not just qualified position, full-time, part-time or as a locum solicitors Log in to the members’ register of the Law Society Visit the employment section on the Law Society website, www.lawsociety.ie, to upload your website, www.lawsociety.ie, to place an ad or CV to the self-maintained job seekers contact employer support by email on register within the employment [email protected] section or contact career or tel: 01 672 4891. You support by email on can also log in to the members’ [email protected] or area to view the job seekers tel: 01 881 5772. register. 62 Professional notices Law Society Gazette www.gazette.ie Jan/Feb 2011 notices

to the lessee’s interest in both of the matter of the Landlord and Tenant In default of such notice being re- CV and references available upon re- above-mentioned leases, intends to (Ground Rents) (No 2) Act 1978 and ceived, the said Joseph Power intends quest. Available to attend interview submit an application to the county in the matter of the application to proceed with the application be- to demonstrate competence. Tel: 087 registrar for the city of the county by Joseph Power and in the mat- fore the county registrar at the end of 634 0296 of Dublin for the acquisition of the ter of the premises situate at and 21 days from the date of this notice freehold interest and all intermedi- known as 133 North Strand Road, and will apply to the county registrar ate interests (if any) in the aforesaid Dublin 3 for the city of Dublin for directions properties, and any party asserting Take notice that Joseph Power intends as may be appropriate on the basis Partnership that they hold a superior interest to submit an application to the county that the person or persons benefi- Opportunity in the aforesaid properties is called registrar for the city of Dublin for the cially entitled to the superior interest upon to furnish evidence of title to acquisition of the freehold Interest including the freehold reversion in Young, energetic and the aforementioned properties to the in the property known as 133 North the aforesaid property are unknown highly motivated solicitor undermentioned within 21 days from Strand Road, Dublin 3, and any party or unascertained. with good experience and the date of this notice. asserting that they hold the superior Date: 4 February 2011 solid business acumen In default of any such notice be- interest in the aforesaid property is Signed: Richard Dennehy & Co (so- seeks opportunity to ing received, Ann Taylor intends to called upon to furnish evidence of title licitors for the applicant), 189a Botanic become involved in an proceed with an application before to the aforementioned property to the Road, Glasnevin, Dublin 9 established firm in the the said county registrar to acquire below-named solicitors within 21 days Mid West region. May suit the freehold interest and all interme- from the date of this notice. The said RECRUITMENT sole practitioner or firm in diate interests (if any) in each of the premises are held under an indenture Apprenticeship sought by well-ed- need of modernisation. aforesaid properties on the expiry of of lease made 13 July 1938 (herein- ucated and experienced PPCI trainee 21 days from the date of this notice after called ‘the lease’) and made be- solicitor, to commence April 2011. Email in strict confidence: and will apply to the said county reg- tween Jane Nestor of the one part and Intelligent and reliable individual [email protected] istrar for such directions as may be Patrick O’Neill of the other part for a with a strong work ethic. Significant or call (087)6211574 appropriate on the basis that the per- term of 100 years from 1 June 1938, experience attained in legal practice. son or persons beneficially entitled subject to the yearly rent of 84 pounds to the superior interest(s) including and to the covenants and conditions the freehold reversion in each of the contained, which said property is part aforesaid properties are unknown or of the lands demised by a superior Corporate Solicitor In-House Legal Advisor unascertained. lease dated 12 April 1880, and made Prestigious City Centre Practice requires Commercially focused Legal Advisor Date: 4 February 2011 between Michael O’Brien of the one Corporate Solicitor for their well-established required for a leading Asset Management Signed: William J Brennan & Company part and John Condon of the other and expanding Corporate Department. Company based in Dublin City. (solicitors for the applicant), 33 Upper part for a term of 500 years from 1 Seeking a focused and ambitious Solicitor The ideal candidate will have in-house Merrion Street, Dublin 2 May 1880, subject to the rent of nine with 3-4 years Corporate Experience and experience (3-4 years) gained in Financial pounds, six shillings per annum and interested in developing a client base. Services and deep knowledge of regulatory In the matter of the Landlord and to the covenants and conditions con- Excellent opportunity for career progression and compliance issues surrounding Invest- and superb package on offer for the ideal ment Schemes. An additional language will Tenant Acts 1967-2005 and in the tained. candidate. be a distinct advantage.

For further details on these and more excellent opportunities contact Linda Evans on 01 500 5907 or email NOTICE TO THOSE PLACING [email protected] RECRUITMENT ADVERTISEMENTS IN THE LAW SOCIETY GAZETTE

Please note that, as and from the August/September LegaL editor 2006 issue of the Law Society Gazette, NO This is a uniquely exciting opportunity for a dynamic individual interested in a career in legal publishing. recruitment advertisements will be published that You will be responsible for identifying publishing opportunities, working include references to years of post-qualification with relevant departments to develop and launch a new range of services, experience (PQE). commissioning new content and working closely with the editorial team. You will have editorial experience and knowledge of the legal profession, preferably with a professional qualification in a relevant discipline. The ability to work The Gazette Editorial Board has taken this decision effectively with other departments within the business and with authors is key. based on legal advice, which indicates that such This is a good opportunity to join a major and growing publishing group, based in attractive offices references may be in breach of the Employment in Dublin city centre. To apply, please send a CV and covering letter, stating salary expectations, to Sandra Mulvey, Publishing Manager, at [email protected] Equality Acts 1998 and 2004. Closing date: 21 February 2011 Opportunities in Guernsey

“I wanted to move somewhere that guaranteed the quality of work that the City of London provided and also offered an excellent lifestyle. Guernsey was the answer.” Christopher Jones, previously with Cleary Gottlieb Steen & Hamilton in London, joined Ogier in 2010

Ogier, one of the leading offshore law and fiduciary firms, are looking to meet corporate and banking/finance lawyers who might be interested in a career move to Guernsey. Representatives from Ogier will be in Dublin at the end of the month.

If you would like to be considered or to find out more, please contact our exclusive recruitment consultant Mark Walters on +44 (0)20 7415 2828 or email [email protected] All third party and direct applications will be sent to and dealt with by Taylor Root. www.ogier.com Bahrain • British Virgin Islands • Cayman Islands • Guernsey Hong Kong • Ireland • Jersey • London • Tokyo

Position available Want to place your recruitment advertisement here?

Contact Seán ó hÓisín Tel: 01 8375018 Mobile: 086 8117116

Email: [email protected] 64 Captain’s blawg Law Society Gazette www.gazette.ie Jan/Feb 2011 wild, weird and wacky stories from legal ‘blawgs’ and news media around the world Snappy days Parents should be free to photograph their children in school or nativity plays and challenge schools or councils that try to stop them under data protection laws. That’s according to Britain’s information commissioner, Christopher Graham, as reported in the Belfast Telegraph. Shots for the family album are exempt from the laws, and parents and friends of children in plays should stand ready to challenge any schools or councils on the matter. “Having a child perform at a school play or a festive concert is a very proud moment for parents Judges in ‘top ten’ list of jobs with no future! and is understandably a memory that many want to capture on If you’re intent on becoming a and magistrates by the end of designers, insurance underwriters, camera. It is disappointing to hear judge in the US (and here, you 2018. The agency also notes that travel agents, newspaper reporters that the myth that such photos are might ask), you might want to turnover is slow, with the average and broadcast announcers. forbidden by the Data Protection think again. CBS Moneywatch has tenure spanning 14 years. BLS Lawyers didn’t make the list. Act still prevails in some schools. compiled a list of the ‘top ten’ researcher Tamara Dillon says: According to the BLS report, Clearly, photographs simply taken high-paying jobs with no future – “Years ago, some judges left to job growth for lawyers is projected for a family album are exempt and judges are in pole position! become general counsel in the to be 13% between 2008 and from data protection laws.” The list is based on the US private sector, where they could 2018, about as fast as the average Daniel Hamilton, campaign Bureau of Labor Statistics’ (BLS) triple their salary, but since the for all occupations. The report director of civil liberties campaign Occupational Outlook Handbook. economic downturn, they’re notes that lawyers are increasingly group Big Brother Watch, said The bureau predicts that budget staying longer on the bench.” finding work outside of law firms the information commissioner’s cuts will lead to a loss of 700 jobs Also on the list of high-paying in areas where legal training is an statement was “a real victory for for judges, magistrate judges, jobs with no future are: fashion asset, rather than a requirement. common sense”. It’s a steal Jailhouse rocks As many as 76% of employees have stolen from their place A California lawyer’s claim that impossible for a client in this of work, according to a recent jailhouse sex was consensual situation to consent to sex, survey conducted by office design and lasted no more than “an according to an opinion by company Maris Interiors. Men are hour’s total duration” shows he State Bar Court Judge Lucy particularly light-fingered, with still doesn’t get it and should be Armendariz. Likewise, “having an astonishing 82% admitting to disbarred, a Californian state improper sexual relations helping themselves, compared court judge held, and the state with a client breaches the with 71% of women surveyed. supreme court agreed. basic notions of trust and The stationery cupboard was The respected ABA Journal integrity and endangers hardest hit, with pens (60%) and reports that, according to an public confidence in the legal printer paper (42%) being the order in early December, the profession, irrespective of its most common items pilfered. State Bar of California would duration”. Stamps (31%), mugs (28%) and disbar Patrick Earl Marshall The Hollister Free Lance toilet paper (24%) were also items – ranging from printer toner (63) from 1 January 2011. says the incidents at issue date frequently taken. The stapler – to laptops. More unusual items Marshall, who had sex back to 1995. The suspension, often thought of as a frequent declared included chairs and office with two incarcerated female followed by a two-year period target of office thieves – was plants, even filing cabinets, carpet clients at the San Benito County of probation, was successfully ‘only’ taken by 6% of those tiles and entire desks. Jail while he was working as appealed by the prosecution, surveyed. And yes, we’ve lifted this story a contract public defender, resulting in Marshall’s One in 20 employees admitted – but just can’t remember from failed to recognise that it is disbarment. to having taken more valuable where!

www.benasso.com Remaining the number one Irish legal recruitment consultancy takes a dogged determination, thinking creatively, spotting new opportunities and keeping an open mind

www.benasso.com Remaining the number one Irish legal recruitment consultancy takes a dogged New Openingsdetermination, thinking creatively, spotting new opportunities and keeping an open mind NewPrivate Practice Openings Banking - Associate to Senior Associate: First rate law fi rm seeking a strong Banking lawyer with exposure to SPVs. You will be involved in a range of transactions acting on behalf of both domestic and international clients. CommercialPrivate Practice Litigation – Associate: Central Dublin practice is looking for a strong practitioner with an excellent litigation background. BankingAsset Finance - Associate – Associate to Senior to Associate: Senior Associate: First rate law Working fi rm seeking with a strongdedicated Banking team lawyer at one with of CommercialexposureIreland’s to largest SPVs. Litigation law You firms will - beAssociate you involved will specialise into a Senior range in of Associate: leasing, transactions structured Strong acting practice onand behalf cross-border with of a bothclient domestic financingbase ranging and and international clients. fromsecuritisations. SMEs to international The successful companies candidate requires will litigators be advising with commercial financial litigation institutions expertise. and investment banks Commercialin the domestic -Litigation Senior and international Associate: – Associate: marketplace. A signifi Central cant YouDublinDublin will practicepractice have experience isis lookingsearching for in fora the strong excellent banking practitioner candidates and financial with with an excellent litigation background. commercialservices industry nous coupled with a withbackground the enthusiasm in private and practice. drive to develop a fi rst rate client base. CorporateCommercial Finance Litigation – Assistant - Associate to Senior to Senior Associate: Associate: Leading Strong Dublin practice practice with requires a client a base high rangingcalibre from SMEs to international companies requires litigators with commercial litigation expertise. lawyerBanking to deal – Seniorwith corporate Associate: advisory Awork well including respected mergers Dublin and practice acquisitions, is seeking joint a ventures,strong Banking management lawyer buyCommercialto workouts, withreverse a - smalltakeoversSenior dedicated Associate: and debt team and A with equitysignifi an cantfi nancingsestablished Dublin as practice wellclient as is base.advising searching You on will forfl otations excellentbe dealing and candidates fundraisings. with a range with EU/Competitioncommercialof transactions nous includingcoupled - Assistant: with acquisition the Ourenthusiasm client finance, is aand fi rst re-structuring drive class to legal develop practice and a fi rst whoseNAMA rate clientwork baseforbase. a includesnumber prestigious of clearing publicCorporatebanks. service The Financesuccessful and private – candidate Assistantsector organizations will to haveSenior experienceoperating Associate: both of actingin Leading the domesticfor Dublin both lenders marketpractice andand requires internationally. borrowers a high andcalibre You be will be a Solicitor or Barrister with excellent exposure to EU and Competition Law, gained either in private lawyerfamiliar to withdeal withfacility corporate letters, advisorynegotiations, work includingtaking security, mergers and and securityacquisitions, review joint (ideally ventures, with management syndicated practicebuy outs, or reverse in-house. takeovers and debt and equity fi nancings as well as advising on fl otations and fundraisings. lending experience). There will also be the possibility of some insolvency work. FundsEU/Competition - Assistant/Associate: - Assistant: Our Top client ranking is a lawfi rst fi class rm requires legal practice excellent whose Funds client specialists base includes at all prestigiouslevels. You will advise investment managers, custodians, administrators and other service providers of investment funds on public service and private sector organizationsMajor operating clearing bothbank in requires the domestic an experienced market and banking internationally. practitioner You establishingwillBanking be a Solicitor –operations Associate or Barrister in Ireland. – In with house: excellent exposure to EU and Competition Law, gained either in private to deal with a broad range of matters not limited to NAMA work. Fundspractice -or Assistant in-house. to Senior Associate : International law fi rm recently established in Dublin is searching forFunds ambitious - Assistant/Associate: commercially-minded practitionersTop ranking lawwith fi strongrm requires exposure excellent to investment Funds specialists funds. at all levels. You willCommercial advise investment Property managers, – Partner: custodians, Leading administrators Dublin practice and other is serviceseeking providers an ambitious of investment practitioner funds with on establishingstrong management operations skillsin Ireland. to supervise a dedicated team dealing with a range of commercial property Inmatters House including assisting corporate clients with property affairs to include long and short term leases, Funds - Assistant to Senior Associate : International law fi rm recently established in Dublin is searching Seniorfordisposals ambitious Legal etc. commercially-minded Also,Advisor: NAMA Ourenforcement client practitioners is searching and propertywith for strong a issuessenior exposure solicitoron support to investment or barrister transactions. funds. with expertise in equity capital markets, corporate fi nance, mergers and acquisitions or general corporate practice advising Irish or UK listed companies. Corporate/Commercial – Senior Associate: Our client is a major Dublin City law firm with a TelecomsInfirst Houseclass reputation.- Junior Solicitor You will beor dealingBarrister: with Ourmergers client andis searching acquisitions, for a juniorcorporate solicitor restructurings or barrister andto work with a growing team. You will be dealing with a variety of Telecoms related matters. This is a new role Seniorre-organisations Legal Advisor: of large blue-chip Our client domestic is searching and internationalfor a senior solicitor organisations. or barrister with expertise in equity whichcapital requiresmarkets, strong corporate people fi nance, skills mergersand business and acquisitions acumen. Fluencyor general in corporateSpanish is practice an essential advising pre-requisite. Irish or UK listed companies. PartnershipFunds – Senior Associate: A top flight firm is seeking an experienced asset management and Telecomsinvestment -funds Junior lawyer. Solicitor The department or Barrister: is involved Our client in settingis searching up and for servicinga junior solicitor investment or barrister funds toin Ourwork clients with ainclude growing the team. leading You Irish will law be fi dealingrms. Signifi with cant a variety opportunities of Telecoms exist inrelated the following matters. practice This is areas a new and role a clientwhichIreland following requires for international is strong not essential. people and skillsdomestic and clients.business You acumen. will have Fluency a strong in Spanishacademic is backgroundan essential pre-requisite.coupled with Employmentfirst class technical ; Funds ; Insolvencyskills and ;be Litigation expected ; Regulatory/Compliance to market the firm’s ; servicesEnvironmental to existing & Planning and potential clients. Partnership Our clients include the leading Irish law fi rms. Signifi cant opportunities exist in the following practice areas and a client following is not essential. For more information on these or other vacancies, please Employment ; Funds ; Insolvency ; Litigation ; Regulatory/Compliance ; Environmental & Planning visit our website or contact Michael Benson bcl solr. in strict confi dence at: Benson & Associates, Suite 113, The Capel Building, St. Mary’s Abbey, Dublin 7. TFor +353 more (0) information 1 670 3997 on these E [email protected] or other vacancies, please visit our website or contact Michael Benson bcl solr. in strict confi dence at: Benson & Associates, Suite 113, The Capel Building, St. Mary’s Abbey, Dublin 7. T +353 (0) 1 670 3997 E [email protected]