Contents GazetteLawSociety Media firestorm 2 Responding to allegations that solicitors have been guilty of ‘double charging’ Redress Board clients, the Law Society has been quick to Regulars condemn such behaviour by a minority, while stoutly defending the rest of the profession News 6

Viewpoint 12 Cover story

Book review 37 Your own image and likeness? 14 With celebrity endorsements of anything from shaving foam to credit Briefing 39 cards, Sinead Brady asks whether the law protects your own image – or is it public property? Practice note 39 Legislation update 39 Gift tokens Legislation focus 42 20 Not all gifts between married couples are FirstLaw update 45 tax-exempt, so when advising Irish nationals returning to this country, it’s Eurlegal 49 important to consider the tax laws in the People and jurisdiction they’re coming from, write places 55 Richard Grogan and Barry Kennelly

Apprentices’ page 57

Professional Knowing me, knowing you information 58 24 Law Society representatives recently met the PIAB leadership at its secret headquarters to discuss issues of mutual interest. But instead of a Recruitment hollowed-out volcano, Stuart Gilhooly found a plush office and an advertising 65 interesting agenda

The cost of saying ‘no’ 28 Solicitors should take note of recent English court decisions, in which the failure to offer a client the option of mediation in a litigious dispute might amount to professional negligence, says Mary Keane

Doing things by 34 the book The society’s library is a fantastic resource for members and students. So, as the library prepares to extend its opening hours for the new PPCI winter course, Margaret Byrne gives a guided tour

Editor: Mark McDermott. Deputy editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lost land certificates, wills, lost land title deeds, employment, miscellaneous), see page 63. Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 837 5018, fax: 884 4626, mobile: 086 811 7116, e-mail: [email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial board: Keith Walsh (chairman), William Aylmer, Tom Courtney, Stuart Gilhooly, Eamonn Hall, Pat Igoe, Philip Joyce, Mary Keane, Ken Murphy, Michael V O’Mahony, Alma Sheehan

The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter.

Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Volume 99, number 9 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: €57.15

1 Law Society Gazette November 2005 President’s message Ten days that sho Responding to allegations that solicitors have been guilty of ‘double charging’ Redress Board clients, the Law Society has been quick to condemn such behaviour by a minority, while stoutly defending the rest of the profession

id you hear the Joe that this is necessary to make up Referring to the meeting the “The Complaints Committee “DDuffy show?” I’m in for ‘shortfalls’ in their legal fees. previous evening with the of the Law Society, to which my office in Charleville. It is The callers talk of a breach of solicitors in Kerry, he says: these complaints will go, has the afternoon of Tuesday, 11 trust and of an additional form “The rank and file members among its members non- October, and I am preparing to of abuse – this time by their of the solicitors’ profession lawyers nominated by IBEC, drive to Tralee for an evening own solicitors – to add to the react with anger, revulsion and the Irish Congress of Trade meeting with the members of dreadful abuse they suffered in utter condemnation of what was Unions, the Director of the Kerry Law Society. It is the past in residential heard on the Joe Duffy Consumer Affairs, including three weeks to the end of my institutions. Joe Duffy seems programme yesterday, assuming the Director of Consumer year as Law Society president. genuinely appalled and repeat- that it is established as true, that Affairs herself, Carmel Foley. The director general, Ken edly refers to it as “a rip off”. a number of solicitors sought to These are people of ability and Murphy, is flying from Dublin overcharge extremely integrity who would not to Farranfore to join me for the Grand Hotel, Tralee vulnerable people in Redress preside over an unfair, meeting. He is in the air when There is a big turnout of Board cases. Deliberate unbalanced or unjust system.” the Joe Duffy show is being solicitors for the meeting in the overcharging by any solicitor is By coincidence, Carmel Foley, broadcast. When he turns on his Grand Hotel, Tralee. Many of wrong, but it is particularly is in the Morning Ireland studio mobile phone in Kerry, there those present have heard the reprehensible if what is alleged to be interviewed later on a are nine new messages waiting. Liveline programme. It is the in these cases proves to be separate topic. Asked about this Neither of us have heard main topic of conversation. true.” one, however, she makes it RTE radio’s Liveline programme A complete consensus on The Law Society, he clear that she takes her that day but we quickly learn all three things quickly emerges continues, is the statutory body responsibilities as a member of about it. The phone calls start from the discussion: with the power, responsibility the Complaints Committee of pouring in to us from solicitors •If it is true that solicitors have and desire to investigate the Law Society very seriously all around the country. been deliberately complaints from anyone who and will want to have these “No, I didn’t hear the Joe overcharging, particularly wishes to make them. complaints thoroughly Duffy show. What was it such vulnerable clients as “But the Society has to investigated. about?” these, then it is utterly receive complaints,” he states. By the time Ken and I have disgraceful and must be “It is simply impossible to A plan of action reached Tralee, we have been on unreservedly condemned by investigate these matters unless The director general flies back the phone several times to each the Society and by every the Society is told the name of to Dublin that morning and other and have been briefed by decent solicitor. the solicitor concerned, the consults widely, on the Law numerous practitioner • The Society must move very name of the client and certain Society administration side, colleagues and Law Society quickly to do whatever it can other essential details. The with: the deputy director executives. We have discovered to put things right. Society will give assistance to general, Mary Keane, the that Joe Duffy’s phone-in radio • The Society must face this anyone who needs it to properly director of regulation, John programme this afternoon issue openly and formulate their complaint.” Elliot, and the senior solicitor consisted almost entirely of transparently in the media. He explains that the Society in the complaints section, Linda callers complaining that they has the power to order a Kirwan. He also confers at had been ‘double charged’ by Already Morning Ireland wants a solicitor to repay any excessive length by telephone with the their solicitors in Residential radio interview with Ken amount charged and that chairman of the Complaints Institution Redress Board cases. Murphy the next morning. excessive charging is likely to be Committee, Gerry Doherty, Caller after caller says that This, and all other such viewed as misconduct and a with a Council member the Redress Board is supposed interview requests from the very serious disciplinary matter. thoroughly familiar with to pay all legal costs and media, should be accepted. Redress Board cases, James expenses. But, regardless of this, Confidence MacGuill, and with me. the callers very passionately Morning Ireland In response to Cathal Mac Within two hours, a plan of allege that their solicitors have Ken Murphy communicates the Coille’s question about action has been agreed with the deducted substantial amounts very clear messages he will confidence in solicitors following elements: from the Redress Board repeat consistently in the media investigating complaints • An emergency meeting of the cheques, with the explanation over the next ten days. against solicitors, Ken says: Complaints Committee is

2 Law Society Gazette November 2005 President’s message ook the profession

called for tomorrow, • The Law Society will advertise as soon as possible in national newspapers, inviting anyone who believes they have been ‘double charged’ in a Redress Board case to make a complaint to the Law Society, and explaining how this can be done, • The advertisements will contain a free-phone helpline number through which the Society will accept, for the first time, complaints made other than in writing, • The Society will write to every solicitor who acted in a Redress Board case which has been concluded, asking if they have charged additional legal fees and, if so, with what justification, • Complaints in these cases will be placed on a ‘fast track’ with a view to the Complaints Committee deciding on them as quickly as possible, • The Society will contact survivors’ groups and urge for not having acted long before the wonders of hindsight! ‘There would them to use their networks to now. This is despite the The Society spends much of never have been communicate the Society’s Society’s pointing out that, until today making contact with desire to hear from anyone 9 July of this year, the Society survivors’ groups. The day ends justice for people who believes they have was prohibited by law from with the director general who were grounds for a complaint. investigating complaints arising arguing the profession’s position from Residential Institutions effectively in the face of deep consigned to The Society’s response is Redress Board cases, due to the hostility from some quarters on hell-holes by Irish communicated in Ken Murphy’s statutory requirement that these RTE television’s Prime Time interviews on the news cases be shrouded in secrecy. current affairs programme. society for programmes on RTE television The Society had campaigned to On Friday morning, Ken decades … but and TV3, as well as in get the law changed so that it Murphy and I attend the formal numerous radio and print media could investigate complaints in opening, by Minister of State for the work of interviews. In the afternoon, Joe Redress Board cases. Brian Lenihan, of the Aislinn solicitors’ Duffy’s Liveline programme is Determined attempts are education and support centre in again devoted in its entirety to made to suggest that the Dublin’s Jervis Street. It is a new callers with similar allega- Society’s knowledge of a single moving experience. We cannot tions to those heard yesterday. case in 2003, quickly resolved to but admire what Christine the complainant’s satisfaction Buckley and her colleagues have Media firestorm then – and another which the achieved. In a barrage of media reporting Society first heard about on 27 RTE television news puts to and comment the next day, May 2005 – should have been the director general the Thursday, much of the focus is seen by the Society as evidence question – which had already on criticism of the Law Society of a widespread problem. Ah, been raised elsewhere in the

3 Law Society Gazette November 2005 clarus ad being emailed to turners before 11am tuesday President’s message media – whether the actions deductions made were simply system and Minister John exploited people and helped complained of, if true, could be for unrecovered outlay in O’Donoghue firmly expresses them to achieve such measure viewed as criminal conduct on relation to medical report fees. his confidence in it saying: of justice as they have now the part of certain solicitors. If “The Law Society regulates its received. It is unbalanced and so, what attitude would the Solid support members far better than most sad that this has not been any Law Society take to this? Although the barrage of at other professions.” part of the media story over times hysterical coverage in the Still, day after day, the the last ten days.” Fair procedures media continues throughout Liveline programme continues This question was anticipated the weekend, the thing I find to invite complaints on this Goodbye and thanks two days previously. I and most encouraging is the topic. Everyone, even the By the time you read this, my others in the Society considered overwhelming support for the master of the High Court, year will have ended and the what the appropriate answer to Law Society’s stance, which is seems to want to criticise the Law Society presidency will it should be. It is clear on a full communicated to me and solicitors’ profession – have passed to my excellent analysis that there is only one others in Blackhall Place by although former president, successor, Michael Irvine. I proper answer to it, and this is members of the profession and, Geraldine Clarke, responds wish him well. I hope that he precisely what Ken Murphy indeed, many members of the well to him in the media. does not have to face similar gives in his response. He says public. By telephone, issues during his term of office. that fair procedures will be e-mail, fax and letter, solicitors The tide begins to turn However, this will depend in applied and proper conclusions all over the country send an By the end of the week, ten part on how we learn from this will be reached in relation to unambiguous message of days after the issue first breaks, experience. It will depend each complaint. At that stage, approval for the resolute, the media begins to turn its primarily, of course, on how the the Society will review whether speedy and innovative way in attention to other news. A total Society now performs its or not there is evidence of which the Society is handling of 96 complaints have, by now, biggest task, which is that of criminal conduct, such as an extremely difficult situation. been received. ensuring that all these Redress breaches of the Theft and Council member James On the Friday, greater Board complaints are dealt with Fraud Offences Act 2001. If so, MacGuill is highly effective on balance has entered the news effectively and fairly for all the Society will put that Marian Finucane’s Sunday coverage, with both print and concerned. I know that the evidence in the hands of the radio programme. Ken TV news carrying extracts Society’s Complaints gardaí. Murphy gives a consummate from my ‘parchment speech’, Committee has arranged a The Liveline programme this performance on RTE where I again unreservedly series of special sittings to afternoon is again devoted television’s Questions & Answers condemn, on behalf of the ensure that these complaints are exclusively to this story. In an programme on Monday night. overwhelming majority of dealt with without the least attempt to obtain some He quotes Tom Hayes of the solicitors, any overcharging delay. balance, the director general Alliance Support Group, who that has taken place. I pledge In the final words of my phones in and is interviewed at pointed out that there would that the Society will “root out final ‘President’s Message’, length by Joe Duffy on the not have been a Commission and eradicate anything in the however, I want to pay a very measures being taken by the or a Redress Board were it not solicitors’ profession which special tribute to the Law Society, as highlighted in the for solicitors: may have given rise to the Society staff who I saw deal publication of advertisements “There would never have despicable conduct which remarkably well with the in seven national newspapers been justice for people who appears to have occurred in nightmare scenario described today. were consigned to hell-holes these cases”. above. The story once again tops by Irish society for decades and But I again remark how sad At a time of unremitting RTE’s Six One TV News and subjected to physical, sexual it is that the actions of what, I pressure and stress, I could the director general is and psychological abuse but for am confident, will prove to be only admire the interviewed live in studio by the work of solicitors. It is a small minority of solicitors, professionalism and effective Bryan Dobson, dealing tragic now that the actions of a “has detracted from the work crisis management, together comprehensively with every small number of solicitors in of the great majority. This with the enthusiasm and can- question. In particular, he failing in their obligations and includes those who, in the do attitude of dozens of rebuts the suggestion that self- ethical duties have distracted 1990s, were in the vanguard members of the Law Society’s regulation should be in from the true achievement of fighting against huge odds for staff, in particular all of those question as a result of all this. the profession here.” justice for the citizens of in the Complaints Section and On its first day of operation, In addition, Ken quotes Ireland who were sexually, the Regulation Department the telephone helpline receives Christine Buckley to the effect physically and psychologically generally, who responded 29 complaints. A number of that, among the sources of the brutalised in residential magnificently to an these are from people who problem are the Redress institutions in a very dark unprecedented challenge. don’t know whether or not Board’s secrecy and the fact period of modern Irish The profession and the their solicitors made that it does not pay the full history. public are fortunate that the deductions from their amounts for all medical “When Irish society was in Society has such able people on settlement cheques. In certain reports. Council member denial, when the government its staff. other cases, the amounts Stuart Gilhooly, in the studio was hostile, when the media involved, only a few hundred audience, gives reassurance did not want to know, solicitors Owen Binchy euro, strongly suggest that any about the Society’s complaints stood with these oppressed and President

5 Law Society Gazette November 2005 News NATIONWIDE News from around the country ! CAVAN Kerry solicitors and we ourselves, Closing down too, need to play our part,” Mr The last sitting of the District Breslin said. Court in Belturbet took place Particularly in these difficult recently. “It’s the end of an era,” times for solicitors, the Law noted GV Maloney, of the Society needs to be seen to be eponymous company in Cavan supportive. The Law Society town. Mr Maloney, the doyen of does provide many services for solicitors present at the closing solicitors and perhaps these need ceremony, noted that to be better explained, he practitioners and clients would suggested. now have to travel to Ballyconnell courthouse. ! LASBA Because of poor transport in To our Commonwealth friends This year’s winners of the DSBA ‘Awards for Excellence’ are Anne Lalor previous times, “the law had to of Daniel Spring and Co and Michael Farrell of FLAC A recent conference of the be brought to the people,” he Commonwealth Association of noted. It was necessary to have The incoming presidency Bennett, chose Michael Farrell Public Sector Lawyers (CAPSL) courthouses in even the smallest promises to be a year of and Ann Lalor of Daniel E in London was attended by three of towns, including “a continuing progress and Spring & Co in the categories of Irish solicitors. The huge ramshackle building in innovation, both for the DSBA ‘over five years qualified’ and gathering of lawyers from around Swanlinbar”. One of his own and the Dublin legal community, ‘under five years qualified’. “It is the world took place at the earliest memories was travelling according to colleagues. a singular honour to be well Westminster Conference Centre. to Ballyconnell during the war Vice-president David Bergin, thought of by one’s colleagues,” “They attended the years on a pony and trap. secretary Kevin O’Higgins, said DSBA secretary Kevin conference representing the The Anglo Celt newspaper treasurer Michael Quinlan and O’Higgins. Local Authority Solicitors’ Bar noted that tributes were paid at programmes’ director John Association,” explained solicitor the closing of the courthouse to O’Malley, together with the ! KERRY Bryan F Curtin of Dun “the judiciary, legal practitioners, members of the new council, Restless natives Laoghaire Rathdown County An Garda Síochána, the Courts complete the new team. There is some disenchantment Council. Service and members of the Brian furnished an outline of with the Law Society of Ireland He emphasised that they were public who appeared as his programme for the coming among Kerry solicitors, indeed aware of the severing of defendants over the years”. year. “Brian is to many according to Matthew Breslin of the Irish connection with the There was no spokesman present colleagues the epitome of what a Donal J O’Neill & Co in Tralee, Commonwealth in 1948. They to reply for the defendants. good solicitor should be; where the current two-term president attended merely as observers. courtesy, collegiality and legal of the Kerry Law Society. And their presence had helped ! DUBLIN knowledge are his hallmark and Costs are rising while fees are Irish local authority solicitors to Solicitors and the Law Society all his colleagues wish him all the being cut. It is a challenging time foster better understanding and The incoming president of the very best,” noted Kevin for solicitors. However, there is a positive relations with public Dublin Solicitors’ Bar O’Higgins. feeling that not enough is being sector lawyers from around the Association, Brian Gallagher of done to explain the case for world. Gallagher Shatter, urged the Law Credit where it’s due solicitors. Society in his opening address to FLAC’s Michael Farrell received But it is important to be fair Eat first define more clearly its regulatory one of the DSBA’s ‘Awards for and to acknowledge that great The inaugural annual dinner of and representational roles. Excellence’ during its AGM. progress has been, and is being, the LASBA will take place at the He was speaking at the Michael was until recently with made in Blackhall Place. Also, Law Society on 17 November. It DSBA’s recent AGM, which was the firm of Michael E Hanahoe significant efforts are being made will be followed on 18 both well-attended and which and has considerable expertise in to meet with practitioners November by a seminar at heard strong views and debate human rights and public interest around the country. Dublin City Hall on planning from the floor about the role and law, and it was noted that he was In recent months, there have law and the implications of perception of solicitors in today’s practising outside the comfort been two informative and various topical issues, including Ireland. zone of many solicitors, having enjoyable visits to Kerry from social and affordable housing and A long-time prominent left private practice to work with the registrar of solicitors, John anti-social behaviour on local Dublin solicitor, Brian succeeds FLAC. Elliot, and they have also had authority estates. G Orla Coyne, who had a A committee chaired by Mr president Owen Binchy and successful and colourful year and Justice Michael Peart, along with director general Ken Murphy. Nationwide is compiled by Pat led the association to further former DSBA presidents “We need to forge close links Igoe, principal of the Dublin law heights. Ruadhan Killeen and Richard between the Law Society and firm Patrick Igoe & Co.

6 Law Society Gazette November 2005 News

LAW REFORM ESSAY PRIZE Conclusions of costs Students of law are invited to submit an essay identifying a particular area of Irish law that review body imminent they believe to be in need of reform. They should briefly he working group understand, predictable and explain the current inadequacies Treviewing the costs of civil inexpensive as possible. in this area and outline their litigation is likely to deliver its But the society strongly proposals for reform of the law. report to the justice minister in warned against any attempts Entries of approximately 2,000- the very near future. to introduce scale fees for civil 3,500 words in length should be All indications are that the litigation in the Circuit, High typed and may be co-authored. minister will bring the report and Supreme Courts. This Three prizes will be awarded: a to government and publish it system has been deeply first prize of €1,500 and two within the next few weeks. discredited by the experience runner-up prizes of €750 each. What the report will contain of its application in the Prize-winning and short-listed remains shrouded in secrecy. A District Court, where the essays may be published. request by the Law Society to scales have not been increased All undergraduate and meet the working group and since 1991. postgraduate students of law, discuss its draft conclusions Scales of costs would be including trainee solicitors and Michael McDowell: report before they are published has inconsistent with the students of King’s Inns, are could be published in the next been politely rebuffed. few weeks government’s policy of eligible. All competition entries In January 2005, the society encouraging competition. In must be received no later than made a 52-page submission to improved accessibility to addition, by limiting the Monday 30 January 2006, and the working group, which is justice and greater amount that could be should be sent by e-mail to chaired by Paul Haran, former transparency – the three recovered by a successful [email protected] or secretary general of the objectives set out in the litigant on a party-and-party addressed to: The Secretary, Department of Enterprise. working group’s terms of basis, rigid scales would favour The Law Reform Committee, That submission was reference. the party with the financially Law Society of Ireland, Blackhall subsequently copied to every In April, society deeper pocket, at the expense Place, Dublin 7. member of the solicitors’ representatives – immediate of the party with a shallow profession. past-president Gerard Griffin, pocket or no pocket at all. BAR COUNCIL’S CPD SCHEME The submission contained former Litigation Committee The society reminded the The Bar Council of Ireland has an analysis of the issues, chairman Roddy Bourke and working group of the High introduced a continuing together with many director general Ken Murphy Court judgment of Mr Justice professional development (CPD) recommendations for reform – met the Haran working John MacMenamin earlier this scheme. The first conference, of the taxation and courts group. The society made clear year in O’Brien v PIAB, which ‘Revenue Law and the Legal system. If the measures that its view that the taxation spoke of the critical Profession’, will take place on the society recommends were system should be importance in litigation for Saturday 12 November. implemented, it would fundamentally reformed to “equality of arms” and “the To book a place, contact: undoubtedly lead to a ensure that the system, both at maintenance of fairness CPD manager, tel: 01 817 reduction of the costs Circuit and High Court level, between the strong and the 4614, or e-mail: iryan@ associated with civil litigation, becomes as modern, easy to weak”. lawlibrary.ie

MASSEY REJECTS KEY AUTHORITY RECOMMENDATION he former Chairman of the Manchester, delivered a joint “This undoubtedly represents a the future, introduce anti- TCompetition Authority, Patrick paper. This concluded that the major change in the way the legal competitive restrictions. Massey, has poured cold water on Competition Authority “provides profession in Ireland is regulated. “As a general rule, competition the key recommendation of the fairly limited evidence in support The authority’s proposal ignores law only interferes with the Competition Authority – that self- of its claim” that the legal the issue of ‘regulatory failure’. activities of business and regulation of the legal profession profession is permeated with Instead, it simply assumes that a representative bodies where there should be replaced with a state serious and disproportionate state regulatory agency would is clear evidence that the law has regulatory agency. restrictions on competition. prove superior to self-regulation been broken.” While the authors At a major economic In particular, they say: “The and would involve no additional suspect that the existing regime conference in Kenmare on 15 authority’s proposal to abolish cost. More fundamentally, the of self-regulation could be October, Mr Massey, now a self-regulation of the legal authority argues that the existing improved, they conclude that this director of Compecon Limited, profession and replace it with a regulatory regime means that can be achieved far more and Frank Steven, Professor of state regulatory agency appears professional bodies representing effectively by a more limited Regulation at the University of somewhat questionable. solicitors and barristers could, in range of reforms.

7 Law Society Gazette November 2005 News

NEW MURDOCH’S LAUNCHED Barrister Henry Murdoch Arthur Cox Foundation fund presented a copy of his recently- published fourth edition of he Arthur Cox Foundation have been awarded, depending Murdoch’s Dictionary of Irish Law Tis a charitable trust whose on the project. to the Minister for Justice, funds are used for educational The board welcomes Equality and Law Reform, Michael and charitable purposes in the applications from authors and McDowell TD, at an informal Republic of Ireland. others involved in Irish legal meeting at the minister’s office Set up over 40 years ago as a research who may be seeking recently. Mr Murdoch has been memorial to the late Arthur funding for their projects. researching and writing the Cox, solicitor, the foundation’s Letters of application should dictionary for nearly 20 years. funds have been used to assist be accompanied by a detailed Now firmly established as the authors with the writing and project description to include: definitive dictionary of Irish law, publication of Irish legal content, costings and potential Murdoch’s covers the principal textbooks. In two cases, it has market. In the case of a words, concepts and phrases, assisted with the development textbook, a detailed table of their legal sources – whether of electronic databases of Irish contents and a sample chapter, statutory or judicial – and gives a legal materials. other than the first, should also brief introduction to the law. The Arthur Cox Foundation be provided. This new edition includes Board adjudicates on Enquiries and applications references to all of the statutes applications and administers should be sent to: enacted since the previous edition the funds of the foundation. It initial costs of the preparation Margaret Byrne, Secretary, in 2000, the more important does so on behalf of the Law and publication of texts. The Arthur Cox Foundation Board, statutory instruments, and the Society, which is trustee of the foundation has normally Law Society of Ireland, hundreds of important subsequent foundation. required recipients to refund Blackhall Place, Dublin 7; judicial decisions. The Gazette Funding is available to grants out of royalties. Grants tel: 01 672 4800, fax: 01 672 will feature a review of this enable authors to carry out usually range from €2,000 to 4845, e-mail: m.byrne@ important work in a future edition. research and to meet other €5,000, though larger amounts lawsociety.ie. GOVERNMENT ACCELERATES EXTENSION OF TITLE ffective law reform of title use of information and Compulsory registration Tenfold increase required Eregistration requires rapid communication technologies by It is intended to retain the At present, approximately 90% of progress on its extension. It has the Land Registry, and its future geographical dimension. This the landmass of the state and been a matter of public policy, and potential – as highlighted at the means that it will be possible to over 85% of the titles are a legislative imperative since recent UCD conference, designate a specified area, such registered in the Land Registry. enactment of the Registration of ‘Modernising Irish Land Law and as a county, and to add two further From our research, it is estimated Title Act 1964, that there should Conveyancing Practices’ – are criteria. Firstly, it will be possible, in by the registry that the titles of be a gradual extension of title among the most coercive reasons future, to extend compulsory between 240,000 and 300,000 registration, ultimately covering all to review present approaches. registration to specified types of properties remain to be registered land in the state. It is the stated intention of the land, for example, multi-unit in Land Registry at this time. The It is timely to radically review the government that the extension of apartment buildings either registry currently processes present approach to extension of title registration should now be generally or in a specific area. approximately 4,000 applications title registration. It is widely accept- accelerated to ensure that the Secondly, a new subsection has requiring investigation of title ed that the existing compulsory state will, in due course, have a been introduced into section 24 of annually, around 500 being by provisions of sections 24 and 25 of complete land register to take the 1964 act, which will allow the solicitor’s certificate in form 3 of the 1964 act have not greatly advantage of the general reforms minister to extend, by order, the the Land Registration Rules, as assisted the extension process. proposed in the law of property – type of disposition to which amended – with the balance There are the ongoing difficulties and the inevitable arrival of compulsory registration will apply. requiring a full investigation of arising from the simultaneous electronic conveyancing (e- At present, when registration title. operation of two systems of conveyancing). becomes compulsory, it applies in Asignificant portion of these registration for the registry, The Registration of Deeds and the case of freehold land to a latter cases could be classed as practitioners, and citizens. For the Title Bill, which has recently conveyance on sale and, in the ‘problematic’, very often having registry, it means the allocation of passed through the Seanad and is case of leasehold land, to a grant either an element of adverse scarce staffing, information due to be introduced in the Dáil or assignment on sale of such an possession, or where original technology and accommodation this autumn, contains amended interest. The new subsection (2)(a) deeds are mislaid, lost or resources to the maintenance of a provisions which provide that, in provides that an order under the destroyed. It is generally accepted, separate deeds system. future, the extension of section may extend compulsory however, that a significant number compulsory registration will not be registration to other types of of unregistered titles are perfectly Recent advances determined solely and exclusively disposition, for example, good and marketable. These would However, the recent advance in the by geographical criteria. succession or gifts inter vivos. not present any significant

8 Law Society Gazette November 2005 News

REFORMS WATERED DOWN Hold onto CPD record cards! The Law Society of England and Wales has rolled out the next he current CPD cycle stage in its controversial reforms Tbegan on 1 July 2003 and programme for legal education. ends on 31 December 2005. The original package has been The section dealing with the watered down to regain the CPD scheme has dealt with backing of the profession. 1,800 enquires over the past Under the latest proposals, two-and-a-half years. The issued on 21 October, only most prevalent enquiry – what students with prior qualifications should solicitors do with their or hands-on experience will be record cards? able to gain exemption from Chairman of the Education completing the Legal Practice Committee, Stuart Gilhooly, Course (LPC). The proposals have asks you not to send your been agreed by the Training record card back to the society Framework Review Group and the unless specifically asked to do society’s standards board. so. A new section on your The standards board is practising certificate expected to make a final decision application form will require after a vote in December. you to state that you have complied with the CPD be asked to return your record Ireland website at: RETIREMENT TRUST SCHEME scheme, pursuant to SI card. Should you then require www.lawsociety.ie. You can Unit prices: 1 October 2005 37/2003. a replacement record card, or also contact the CPD Managed fund: €5.24814 From January 2006, further wish to complete it online, executive, Alison Egan, for All-equity fund: €1.19347 proof of compliance may be you should visit the CPD further details about the Cash fund: €2.61605 sought. At that time, you will section of the Law Society of scheme on 01 672 4802. Long bond fund: €1.38528 E REGISTRATION difficulties if application for • An electronic register is now in five years. During this period, covered by the order is 1 April registration were made, place and all registrations are output of casework has more 2006. particularly by way of certification. made electronically than doubled and, for the past In a further development, the It is clear, therefore, that steps will • Access to title information is two years, the arrears of cases Land Registry Rules Committee be required to increase the rate of available instantly on hand have been gradually recommended to the minister an first registration, possibly as much • Facilities for on-line searching reducing. This trend is expected amendment of rules 19 and 35 as tenfold – if: and requests for all certified to continue. and forms 3 and 15 of the Land •Meaningful progress is to be copy documents are provided Registration Rules 1972-2000, made within a reasonable and are widely availed of Three counties extension that is, the solicitors’ certificate timeframe •Practitioners can now file As a result of this progress, the cases on first registration and • Government policy is to be applications electronically and minister for justice, equality and conversion of title. achieved can access details of all law reform, by order dated 23 The new rules provide for an • Solicitors, financial institutions applications from the September 2005, SI No 643 of increase in the certification limit and citizens are to benefit from convenience of their own 2005, has extended compulsory from €320,000 to €1,000,000, the completion of the project to offices registration to three additional to take effect from 1 January extend registration to all titles • The electronic services are counties: Longford, Roscommon 2006. The new rules also provide • The full benefits of e- available from 8am to 8pm. and Westmeath. for additional paragraphs in form conveyancing are to be The minister said: “The making 3 relating to prior title. The realised. These services have been an of this order is the first extension relevant order has been signed by overwhelming success – over 2.5 of compulsory registration since the minister and copies of the ‘Overwhelming success’ million transactions have been 1969. I believe that the promotion new rules will be available shortly. It is to be noted that significant undertaken since the launch of and extension of registration of An explanatory note about the use operational progress has been the Electronic Access Service ownership of land is a critical of form 3 certification is available made in the registry in recent (EAS). Currently, over 4,000 factor as we move towards a on the Land Registry website, years. Capacity has grown services are being availed of on- system of e-conveyancing of land.” www.landregistry.ie, under ‘First significantly – largely due to line. This progress will continue In order to comply with the registrations’. G ongoing procedural improvements as a result of the introduction of provisions of section 24 of the and to the development and digital mapping later this year. Registration of Title Act 1964, the Catherine Treacy is the Registrar exploitation of new technologies. Of particular note is the increase operational date for compulsory of Deeds and Titles in the Land Examples of this are: in production levels over the past registration in the three counties Registry.

9 Law Society Gazette November 2005

News HUMAN RIGHTS WATCH ‘Immigrants should be accorded the same rights as Irish citizens’ Alma Clissmann reports on the recent annual Human Rights Conference, which focused on the anticipated reform of immigration law x-US Congressman, Bruce that results in fewer labour EMorrison, says that it is in inspectors than there are Ireland’s self-interest that smoking-ban health inspectors or immigrants should be accorded dog wardens. There are only 33 the same rights and opportunities inspectors for a working as natural citizens. population of over 2 million. He The former congressman was suggested some interesting speaking at a conference on proposals to tackle the ‘Migrant Workers and Human exploitation suffered by many Rights’ held in Blackhall Place migrant workers. on Saturday 15 October. The ex-congressman argued Upbeat passionately that the mistakes of Cathryn Costello gave a lucid other countries be avoided in account of EU policy and Ireland in the matter of rights for At the human rights conference on 15 October were (from left) ex-US legislation on migrant workers, immigrants. Over 200 attendees Congressman Bruce Morrison, Catherine Cosgrave of the Immigrant while UK solicitor, Louise heard Mr Morrison call for an Council of Ireland, Maurice Manning, president of the Human Rights Christian, was struck by the Commission, Aisling Ryan, solicitor, and Prasad Kariyawasam, chairman inclusive and egalitarian of the UN Committee on the International Convention on Migrant Workers generous and upbeat atmosphere immigration regime to be and their Families of the conference – very instituted in this country. different, apparently, from the In this respect, he said, Ireland Convention on the Protection of the impact on the future economy atmosphere in her native UK. was starting from a clean slate Rights of All Migrant Workers and and society structures. President of the Human and must accept the reality that Members of their Families, Sancha Magat described the Rights Commission, Dr Maurice many immigrants who come here described the convention and the bureaucratic nightmares faced by Manning, Brian Gallagher, will stay. implications of its ratification in a immigrants. Solicitors Noeline solicitor, and Nuala Kelly, world that has an estimated 200 Blackwell and Aisling Ryan spoke Human Rights Commission, Anticipated reform million migrants. of their experiences with clients – chaired the conference. Senior The conference was jointly Paul Burns and Brian and the reforms urgently needed. Vice-President of the Law sponsored by the Law Society’s Ingoldsby of the Department of The theme of family Society, Michael Irvine, Human Rights Committee and Justice, Equality and Law reunification arose repeatedly. welcomed the delegates. the Human Rights Commission. Reform gave the background to Aspect of the April 2005 Papers from the conference It focused on the anticipated the challenges facing the government discussion paper on are available on the society’s reform of immigration law. department in the new legislation immigration and residence were website under: Society Committees/ Ambassador Prasad and the evolving solutions. convincingly critiqued by Human Rights/Conferences. G Kariyawasam of Sri Lanka, Piaras Mac Éinrí’s presenta- Catherine Cosgrave of the chairman of the UN committee tion focused on the choices that Immigrant Council of Ireland. Alma Clissmann is the Law Society’s that monitors the implementa- Ireland is making – consciously Mike Jennings of SIPTU parliamentary and law reform tion of the International or by default – and how this will decried the lack of political will executive.

[CPD]CONTINUING PROFESSIONAL DEVELOPMENT DISCOVER THE EASY WAY TO GET YOUR CPD HOURS – CHOOSE THE LAW SOCIETY

APPLYING IS EASY You can obtain more information on any CPD seminar Apply on-line and receive a €20 discount (www.lawsociety.ie by contacting the CPD team at: and follow links for CPD) or simply return the application form Tel: (01) 672 4802, fax: (01) 672 4803 at the back of the CPD brochure which is enclosed with each e-mail: [email protected] issue of the Gazette. Website: www.lawsociety.ie

11 Law Society Gazette November 2005 Viewpoint Legal eagles should learn to s Why does the legal profession obstinately cling to a form of language that is more likely to mystify and alienate the public than enlighten it? asks TP O’Mahony hen a newly-struck print McBeal, Law & Order and Boston Wof Otto Preminger’s 1959 Legal, which portrayed lawyers film, Anatomy of a Murder, was as wealthy, powerful, glamorous screened recently in Britain, and even sexy, “unfortunately one newspaper critic hailed it the reality doesn’t quite tally as “the best courtroom drama with all of these”. ever filmed”. The headline in one Starring James Stewart as a newspaper’s report of Murphy’s small-town lawyer, George C remarks cleverly said: “The Scott as an ace prosecutor, and legal life is not Ally it’s cracked Lee Remick as a floozy femme up to be.” Journalists like me, fatale, the movie, dealing with who have covered cases right rape and homicide in rural through Ireland’s hierarchy of Michigan, tells a compelling courts, will readily testify to and provocative story. that. When it first surfaced in Yet – and notwithstanding a cinemas in Eisenhower’s certain degree of cynicism over America, it shocked audiences lawyers’ fees at the various Julia Roberts as Erin Brockovich: risking all (well, nearly all) with words like ‘intercourse’, tribunals of inquiry – the image in the cause of justice ‘spermatogenesis’ and ‘panties’. of the lawyer in the mould of This is tame stuff by today’s The same could be said of Film and television, along Atticus Finch, the defender of standards, though in terms of the 1962 movie To Kill a with novels and the theatre, the oppressed, the champion of sheer dramatic appeal, Anatomy Mockingbird (starring Gregory have become powerful liberal values and causes, of a Murder wears well. Just like Peck), the story of a lawyer in a influences in determining how remains deeply embedded in Twelve Angry Men, made two small southern town who the law interacts with popular popular culture. years previously by Sidney defends a black man accused of culture, and thereby hugely Lumet and starring Henry rape. influencing how the general Paths of glory Fonda and Lee J Cobb. Given the racial tensions public perceives the law and Emblematic of this is the You don’t have to share in created by the civil rights lawyers. idealism of the recently the general critical acclaim that movement under the leadership There are, of course, dangers graduated Rudy Baylor in John these two ‘legal’ films have won of Dr Martin Luther King at in this, one of which was Grisham’s novel The Rainmaker, over the years – deservedly so, the time, this film harnessed recently adverted to by the Law who declares that his ambition in my view – in order to the law to the new ‘liberalism’ Society’s director general, Ken is to “shine the light of justice appreciate how they have of the era of JFK and the New Murphy. He said that, while into society’s dark recesses”. helped to create an interface Frontier, a theme that has since new recruits to the law were And in yet another of his between the law and popular become commonplace in undoubtedly swayed by TV novels, one of Grisham’s culture. Hollywood. drama series such as Ally characters, in reply to a Letters Marathon man ‘Convenient shorthand’ bl From: Brian Gilmartin, Gleeson obliged if you would please From: Michael Williams, Dublin who has been tried and & Kean, Solicitors, Tuam, Co print an acknowledgement wo articles in the convicted but has succeeded in Galway thanking my colleagues in TAugust/September Gazette leaving the jurisdiction after am presently in the Wexford and Mayo for their raise issues that I feel call for conviction but, in most cases, Icourse of training for the generous sponsorship of me comment. the person whose extradition is 2005 New York Marathon, for Croí. The language (not the sought is a suspect and due to take place on 6 You might also add that I content) of Michael Finucane’s prospective defendant in a November. am especially grateful that interesting article about criminal process, in which he is Some of my colleagues in none of my colleagues deemed extradition blurs what I entitled to a fair trial based on Mayo and Wexford, where I it necessary to post-date any consider an essential the presumption of innocence. formerly practised, generously of the cheques until after the distinction. In rare cases, a state Mr Finucane says: “once a sponsored me, and I would be marathon! will seek to extradite someone fugitive has managed to get

12 Law Society Gazette November 2005 Viewpoint hoot from the lip

question about why he wants to much to commend them. case, on the one hand, just as it be a lawyer, replies “to serve What the above examples is the plot on the other hand. the public, fight injustice, illustrate is that there isn’t That’s why in a 1992 article change society”. always an unbridgeable gap entitled ‘Law Students go to the So just as the cinematic between the worlds of fact and Movies’ in the University of world and the world of fiction fiction, though it remains true Connecticut Law Review, Philip have bred a romantic and that the creatures of the latter N Meyer said: “Many popular romanticised image of the world, when operating in law storytellers, particularly campaigning journalist, so too or journalism especially, filmmakers, have much to teach do we see the campaigning invariably tend to be young, law students.” lawyer, risking all (well, nearly attractive, dynamic, sexy, When Shakespeare said a tale all) in the cause of fairness and idealistic and successful. is best when simply told, he the pursuit of justice. Would that it were so in real clearly did not have lawyers in Just think of Gray Grantham life, both in journalism and in mind. Surely it is permissible to (Denzel Washington) and law. Alas, all too frequently it is ask the legal profession why it Darby Shaw (Julia Roberts) in not. The life of lawyers, like Ally McBeal: wealthy, powerful, obstinately clings to a form of The Pelican Brief, or David the life of reporters, is far more glamourous and sexy language and a form of James Elliott as Harmon Rabb mundane, dull, routine-ridden ‘storytelling’ or legal narrative Jr in JAG or Jane Fonda as the and immensely less glamorous which of the male graduates will that, in the 21st century, is more intrepid television journalist in than the life dramatically ever get to take down a real-life designed to mystify and alienate The China Syndrome, or Cher as depicted in films, TV series, Jack Nicholson character as the public than to enlighten it? the tenacious defence attorney novels and plays. Tom Cruise so memorably did These days, the teaching of in Suspect. in A Few Good Men? jurisprudence in law schools But then let us also remind Glamour invariably includes a module ourselves that Julia Roberts That said, neither the The verdict entitled ‘Law and literature’. If played a real-life legal heroine idealism nor the glamour do The bigger and more that is to produce one practical in Erin Brockovich and, in All any harm, and may even serve rewarding consideration is benefit, what better way to do it the President’s Men, Robert as an antidote to the cynicism whether and how law can learn than by encouraging lawyers to Redford and Dustin Hoffman that too readily attaches these from the world of film and look to film and literature to played Bob Woodward and days to both law and literature (and here I include help them adopt a language Carl Bernstein, whose exposé journalism. journalism as well). Law, film closer to that of everyday life, of Watergate for The In any case, because and literature all address an and a more compelling form of Washington Post led to the something is dull and unsexy audience, and all involve text narrative? Such a creative resignation of Richard Nixon. doesn’t mean it lacks and narrative, and the interaction could play a crucial And much nearer home, we importance. For the most part, interpretation and meaning of role in how law is presented and are surely entitled to say that a the world inhabited by female language and story. represented and, therefore, how legal profession that produces a students who graduate from our In other words, storytelling, it is received and perceived. G Mary Robinson and a law schools now and in the in one form or another, is as journalistic community that future will be far removed from central to law as it is to film TP O’Mahony is a columnist with gave us a Veronica Guerin have the world of Ally McBeal. And and literature. The ‘story’ is the the Irish Examiner. urs the right of an accused to a fair trial beyond the borders of the state right of an accused to a fair expresses a hope that the courts process to obtain redress for in which an offence has been trial based on the presumption will normally exercise injury you have suffered and at committed”; “efforts to of innocence. I might not discretion where a plaintiff has the same time abuse it by lying prosecute certain types of object to similar wording in a misrepresented the facts, and about the extent of your injury fugitive offenders, notably war newspaper, but on so asks: “In such cases, how could or the circumstances in which criminals and persons who have fundamental an issue I do not the dismissal of the plaintiff’s it was sustained.” I see this as committed crimes against think it is pedantry to question action not result in injustice?” an extension into the common humanity”; and “the it in a periodical produced for That view is based on an law of the equitable principle apprehension and prosecution lawyers by lawyers. interpretation of the section “he who seeks equity must do of offenders”. Such language is In his article on section 26 of with which I differ. I think the equity”. The wording of convenient shorthand, but I the Civil Liability and Courts Act section means: “You cannot subsection 3 seems to support think is inconsistent with the 2004, Patrick Groarke simultaneously use the legal this interpretation.

13 Law Society Gazette November 2005 Cover story imageimageYOUR OWN

In the current climate of celebrity endorsements for anything from shaving foam to credit cards, does the law protect your own image – or is it public property? Sinead Brady gets her camera out

number of recent high-profile cases breaks new ground. It has echoes of the have raised the question of whether droit à l’image reflected in Article 9 of people’s images are their own private the French Code Civil and the German property, most recently the cause of action.” ADouglas/Zeta-Jones action against Hello They concluded, however, that magazine for publishing unauthorised photographs “confidential or private of them on their wedding day (Michael Douglas, information which is capable of Catherine Zeta-Jones & Others v Hello Ltd & Others commercial exploitation, but [2003] EWHC 786, AC 18 May 2005). which is only protected by the The celebrity couple had secured a deal with OK law of confidence, does not fall magazine for exclusive rights to their wedding to be treated as property that photographs and had gone to great lengths to ensure can be owned and that no unauthorised pictures were taken. transferred.” They found that Nevertheless, a paparazzo fraudulently infiltrated the photographs could constitute wedding reception and surreptitiously took photos of confidential information and the newlyweds. He subsequently sold the that Hello had breached a duty photographs to Hello magazine, which published of confidence owing to the them. Douglas’s. The Douglas’s initially secured an injunction to The significance of this prevent Hello from publishing the photographs, but judgment may be limited, this was subsequently lifted on the grounds of however, in protecting personality damages being an adequate remedy. The full hearing rights, as the circumstances were then came before Mr Justice Lindsay in the English such that an invasion of privacy High Court. After weighing up the conflicting rights occurred. Much emphasis was placed by of freedom of expression and confidentiality, he both the trial judge and the lords on the found in the Douglas’s favour on the basis of breach fact that the wedding was a private affair and of confidence and invasion of privacy. the Douglas’s had gone to great lengths to keep intruders out. Makes the world go round Another recent case in point is Campbell v MGN This decision was subsequently upheld by the House Limited ([2004] UKHL 22). This involved an action of Lords on appeal. The lords said that “recognition by Naomi Campbell, an international supermodel, of the right of a celebrity to make money out of for damages for breach of confidence against the publicising private information about himself, Mirror newspaper for publishing unauthorised including his photographs on a private occasion, photographs of her attending a Narcotics

14 Law Society Gazette November 2005 Cover story

AND likeness?likeness?

Anonymous meeting in England and detailing the therapy she was receiving for drug abuse. As in the Douglas case, her claim ultimately succeeded in the House of Lords on the grounds of breach of confidence and invasion of privacy. Another supermodel – Kate Moss – has been in the media spotlight in recent weeks due to the publication of unauthorised images of her allegedly engaging in illicit drug-taking. This again raises the question of whether one has an inherent right to prevent others from exploiting one’s own image.

Talking heads The treatment of personality rights, including one’s image, has been the subject of much judicial creativity in many jurisdictions on both sides of the Atlantic over the last number of years. In certain instances, the law of ‘passing off’ has been dubiously extended to afford a plaintiff redress when their image has been exploited to another’s commercial gain. In other instances, it seems that a new tort may be emerging, that is, the appropriation of personality, which does not fit neatly into the classic trinity required to establish passing off: misrepresentation, goodwill and damage. • Rights to your An example is Irvine v Talksport Limited ([2002] own image EWHC 367). This case involved an action brought • High-profile by Eddie Irvine, the racing-car driver, for damages cases for passing off arising out of the defendant’s use of •Breach of his image to promote advertising on a newly- confidence and established sports radio station. The image of Mr invasion of Irvine had been doctored so that it appeared he was privacy

holding a radio to his ear and listening intently to it, MAIN POINTS

15 Law Society Gazette November 2005 Cover story

image rights. The leading case in this area is Mirage Studios v Counter-Feat Clothing ([1991] FSR 145), which involved an application by the plaintiff to restrain the defendants from using sporty turtle characters obviously based on the Teenage Mutant Ninja Turtles, which had been created by the plaintiffs. Browne Wilkinson VC was of the opinion that the critical element common to all passing-off cases is that the misrepresentation must be calculated to injure the business or goodwill of another trader – so long as the injury is a reasonably foreseeable consequence of the defendant’s actions. Browne Wilkinson VC acknowledged that the injury caused could be the loss of royalties. Crucially, he concluded that “a substantial number of the buying public now expects and knows that where a cartoon Eddie Irvine or television character is reproduced on goods, that with the suggestion that he was listening to reproduction is the result of a licence granted by the Talksport radio. owner of the copyright or owner of other rights in Laddie J concluded that there was no necessity for that character.” there to be a common field of activity between the His decision broke away from the absolute claimant’s and the defendant’s businesses in order for necessity for a common field of activity, which had a claim in passing off to succeed. There was previously thwarted a number of similar cases of obviously no danger of confusion on the part of the character merchandising: Wombles v Womble Skips Ltd public that the defendant’s radio business was that of ([1975] FSR488; see also Lyngstad v Anabas Products the plaintiff’s. The false misrepresentation in this Ltd [1977] FSR 62 and Halliwell v Panini SpA, 6 June instance was that Mr Irvine had endorsed the use of 1997, unreported). While not dealing with real his image in connection with the plaintiff’s business. personalities and having some foundation in copyright law, this case is still of note in that it is ABBA-esque indicative of the judiciary’s increasing willingness to A narrower approach requiring a common field of protect endorsement rights. activity had up to this been taken in the UK (McCulloch v May [1947] 5 RPC; see also Lyngstad v Crocodile Dundee Anabus Products Limited [1977] FSR 62, which ‘It seems that Similarly, the courts down under have recognised involved merchandising of clothing bearing the a new tort such merchandising rights. Hogan v Koala Dundee Pty images of the pop group ABBA). Indeed, Simon Ltd ([1988] 12 IPR 508) concerned an emblem used Brown LJ had specifically warned against extending may be by the defendant in its shops, depicting a koala aspects of intellectual property law so as to provide emerging, dressed in the same manner as Mr Hogan in the remedies against all unauthorised exploitation of Crocodile Dundee movie. Pinkus J recognised an aspects of the character or personality attributes in that is, the extended form of passing off that protects against Re Elvis Presley Trade Marks ([1999] RPC 567). It is, appropriation the appropriation of images of characters, even in therefore, significant that the House of Lords upheld the absence of misrepresentation. He accepted that Laddie J’s judgment in Irvine and praised his of personality’ there was a likelihood of an association between Mr examination of previous case law in the area. Hogan and the defendant’s goods, which sufficed. However, while Irvine marks the extension of the law However, in a later case involving Mr Hogan of passing off, it does not introduce a new (Hogan v Pacific Dunlop [1989] 14 IPR 398), the personality right. appellate court in Australia reaffirmed the need for Interestingly, as passing off has usually concerned misrepresentation and allowed the defendant to those carrying on trade or business, this did not continue to use the offending advertisement deter Laddie J from finding in Irvine’s favour. He depicting a likeness of Mr Hogan’s character in the considered the use and licensing by Irvine of his same film, provided they adopted a disclaimer image as carrying on a business. The damage making it clear that it was not endorsed by Mr incurred by Mr Irvine as a result of this false Hogan was not endorsing it. endorsement was assessed as being the endorsement One of the most notable Australian judgments in or licence fee he would have negotiated had he this area is that of Henderson v Radio Corporation Pty licensed the use of his image to Talksport. Ltd ([1969] RPC). The plaintiffs were famous ballroom dancers whose image was used on the Wombles of Wimbledon cover of a record of ballroom-dancing music It is now necessary to examine the backdrop to the manufactured by the defendant. The plaintiffs court’s decision in Irvine and the general movement alleged that the use of their photograph on the cover towards some, if limited, protection of character or would falsely lead buyers to believe that they had

16 Law Society Gazette November 2005 Cover story recommended the record and that this amounted to order to succeed, the plaintiff would have to show passing off. both injury and damages. The appellate court upheld the trial judge’s It seems that, in Canada, some implication of finding that the photograph on the record cover endorsement is necessary. This was emphasised by would lead buyers to believe that the couple had the court in the case of Glen Gould Estate v Stoddart recommended the record and, consequently, their Publishing Co ([1998] Can LII 5513 [on CA]). Mere claim in passing off succeeded. They acknowledged appropriation of personality in the absence of some that the use of the photograph amounted to the form of misrepresentation is not enough (Horton v wrongful appropriation of the plaintiff’s professional Tim Donut Ltd [1997] OJ no 390). In weighing up reputation, which, in itself, was sufficient damage to the rights of the plaintiff, the courts will consider found the action. The court in that instance also the competing right of freedom of speech and where disregarded the requirement for there to be a “the portrayal functions primarily as a means of common field of activity, as enunciated in McCulloch commercial exploitation” it will not be immune from v May ([1947] 5 RPC). It was notable that the couple liability (Estate of Elvis Presley v Russen, 513 F Supp had never before endorsed a record and had no 1399, US District Court, DNJ 1981). experience in performing for advertisements. Don’t worry about a thing Just can’t help believin’ In the case of Bob Marley Foundation v Dino Michelle The tort of appropriation of personality has been Limited ([1994] no CLR 115 of 1992, 12 May 1994), recognised by the Canadian judiciary since the early the Jamaican Supreme Court approved of the 1970s. The case of Corlett-Lockyer v Stephens ([1996] extended form of passing off and, furthermore, BCJ no 857) is illustrative of this. The court in this wholly recognised the tort of appropriation of instance held that the appropriation of the plaintiff’s personality. name or likeness for the defendant’s advantage On the facts, there was a likelihood of confusion formed the basis of the tort. or connection between the plaintiff’s goods and Another case in point is that of Krouse v Chrysler those of the defendants, so it could fall to be decided Canada ([1971] 25 DLR, [1973] 40 DLR 3d 15, under the rubric of passing off in the classic sense. Ontario Court of Appeal). On the facts of the case, Nonetheless, the court, per Clarke J, went on to the Ontario Court of Appeal was not satisfied that pronounce that “just as the law recognises property the plaintiff had established that the photograph in … in the goodwill of a business, so must the law question implied any endorsement of Chrysler cars recognise that property rights attach to the goodwill by the plaintiff. They did, however, acknowledge “a generated by a celebrity’s personality. On that basis, concept in the law of torts, which may be broadly those rights are violated where the indicia of a classified as an appropriation of one’s personality”. In celebrity’s personality are appropriated for commercial purposes.” The Jamaican judiciary, therefore, seems to be one of the most radical of those considered, in firmly accepting a separate tort of appropriation of personality. It can be seen from the analysis of the case law in the area that, generally, there must at least be some form of implication of connection between the defendant’s goods/advertising and the plaintiff in order for an action to protect one’s image to succeed. This is commonly in the form of an implication of endorsement of the defendant’s goods on the part of the plaintiff. It is clear that the courts have not yet overwhelmingly recognised a right to personality/image per se. This is particularly notable from the English case of Kaye v Robertson ([1991] FSR 62 CA). The plaintiff in this case failed to be able to point to a cause of action, as there was no suggestion of endorsement or misrepresentation. It concerned Gordon Kaye, a well-known British actor who was recuperating in hospital after sustaining serious head injuries when he was photographed and interviewed by a newspaper. Due to the nature of Mr Kaye’s injuries, he had no recollection of the interview and, shortly afterwards, sought to prevent the publishing of the photographs and details of the interview.

17 Law Society Gazette November 2005

Cover story

A limited injunction was granted by the court, merely preventing publication of the materials in such a way as to suggest that it had been approved by Mr Kaye. In my opinion, the denial of any adequate remedy to Mr Kaye (despite the obvious gross invasion of his privacy) seems wholly unjust. The court felt that it was powerless to come to the aid of Mr Kaye in the absence of legislative intervention. Orinoco: underground, Don’t lie to me overground, Wombling free It is of note that paragraph 2.29 of the Code of Advertising Standards for Ireland (2001) requires that advertisements do not portray nor refer to any law of passing off or whether to recognise a new tort person unless their express prior permission has been of appropriation of personality. obtained. Paragraph 2.31 also prohibits What is clear is that there should be some form of advertisements from claiming or implying an protection afforded to individuals so that their image endorsement where none exists. It reminds is not anyone’s fodder. advertisers that people who do not wish to be Rather than the judiciary usurping the legislature’s associated with the advertised product may take legal function and extending or morphing the law in a action against them. piecemeal fashion, statutory intervention would be In Ireland, the constitutional protections in welcomed. It will be interesting to see how the Irish relation to property and good name may also be of courts will deal with this when the case arises. Given assistance to a person whose name has been the proliferation of Irish celebrities in recent years, prejudicially appropriated but, as of yet, there has this is likely to be only a matter of time. G been no judicial recognition of any right to personality in Irish case law. Sinead Brady is a trainee solicitor with the Dublin law It is clear that there is some divergence in judicial firm Lennon Heather & Co. The author would like to opinion as to how protection of personality rights thank Richard Hammond, solicitor with Reddy Charlton might be achieved, whether through extending the McKnight, for his helpful comments.

Keep your magazines safe with a Gazette BINDER Solve your storage problems with a new-style Gazette magazine binder. Each easy-to-use binder takes a year’s worth of issues and is finished in blue leatherette with the Gazette logo in gold on the front and spine.

Please send me magazine binders at €10 plus €1.50 p&p (special p&p rate of €7 for orders of between five and ten binders)

I enclose my cheque for € Please charge my Access Visa Mastercard Eurocard

Credit card number Expiry date: MONTH/YEAR

Name: Address: Telephone:

EACH BINDER COSTS €10 PLUS €1.50 POST AND PACKAGE (FOR ORDERS OF BETWEEN FIVE AND TEN BINDERS, A SPECIAL POSTAGE Signature: RATE OF €7 APPLIES) Please return to Law Society Gazette, Blackhall Place, Dublin 7. To order your magazine binder, please fill in the form.

19 Law Society Gazette November 2005 Tax GIFTto It may come as a surprise, but not all gifts and inheritance between married couples are tax-exempt. When advising Irish nationals returning to this country, it’s important to consider the tax laws in place in their former homeland, say Richard Grogan and Barry Kennelly

here is a mistaken belief that all gifts and spouse is subject to US gift tax. The fact that she is an inheritance between married couples are Irish citizen, possibly resident and domiciled in tax-exempt. For the vast majority of Ireland, is irrelevant. married couples they are. However, for a If her husband were also a US citizen, there would Tsmall but increasing minority, the position be no limit on the amount of gifts. This is not the is different. Many solicitors will act for Irish nationals case, however, in this example. who have lived abroad and return home. When they The US tax treatment of gifts from husband to return, it’s important to consider the tax laws in the wife: The position of the husband is that, in the country from where they have come. situation described above, different considerations The foreign jurisdiction may impose a tax liability arise. He is not a US citizen and has a green card. He on gifts and inheritances received from one spouse can make annual exclusion gifts of up to $11,000 per due to its rules of residence. In particular, care needs donee for the tax year 2005. to be taken when clients return from the US. This is Where the gift exceeds this amount, the tax liability particularly so if they have acquired US citizenship or depends on the domicile of the husband. If he lives in have a ‘green card’. the US, then all gifts in excess of the annual exclusion amount are potentially subject to US gift tax. Beware of US tax Gifts to his wife, however, will qualify for the Here, we examine the tax position of two Irish marital deduction and no gift tax arises because she is nationals. They have lived in the US for many years, a US citizen. were married in Ireland and have returned to Ireland. If he is not domiciled in the US, then only gifts of The wife has obtained US citizenship. The husband real estate and tangible personal property located in has a green card. the US are potentially subject to US gift tax. The tax treatment of gifts from wife to However, where the gifts are to his wife, she will be husband: The wife can only make limited gifts to required to report gifts from her husband if they her husband free from US tax. She may make an exceed in aggregate of $100,000 during the calendar ‘annual exclusion’ gift of $11,000. She may make year. gifts totalling up to $117,000 for the tax year 2005 If he is domiciled in the US (given that his wife is a to her husband. Gifts of this amount to a non- US citizen), gifts of Irish property to his wife in excess citizen spouse qualify for the marital deduction. of $11,000 dollars are not subject to US gift tax. If he • Gifts and Therefore no tax applies. Gifts in excess of is not domiciled in the US, gifts of Irish property are inheritance $11,000 and $117,000 in 2005 will be subject to not subject to US gift tax. liable to tax US ‘gift tax’. Difference between husband and wife for tax •Worldwide In this case, the wife may also shelter $1 million purposes: The ‘annual exclusion’ amount for US gift property subject during her lifetime from gift tax. However, all gifts in tax purposes is $11,000 per donee for the tax year to US gift tax excess of $11,000 and $117,000 per annum must be 2005. This is regardless of whether the donor is a US •Green-card reported in a ‘gift tax return’. citizen or resident or a ‘non-resident alien’. holders are There is a misconception that where the gift is of For gifts to a US-citizen spouse, the marital subject to US Irish property, US tax does not apply. This is deduction is unlimited. For gifts to a non-citizen income tax

incorrect. Worldwide property from the US citizen spouse, the deduction is limited to $117,000 for 2005. MAIN POINTS

20 Law Society Gazette November 2005 Tax ken PHOTO: NILS JORGENSEN/REX FEATURES

Failure to deal with outstanding tax Every US citizen and person domiciled in the US leave this amount to her husband. This is assuming liabilities during the is entitled to a credit that offsets the tax on lifetime the wife has not applied any of the lifetime taxable administration of an gifts of up to $1 million. There is a difference for the gift exemption. In addition, if the couple have estate could result husband and wife, however. If the husband is not US- children, the $1.5 million estate-tax exemption will in you and your client going to jail domiciled, he is not entitled to this gift tax credit. have to be shared between the surviving spouse and under money- The upside is that only his US real estate and tangible the children. laundering rules assets are subject to US tax. Where there is a benefit to a surviving spouse who is a non-citizen, the tax can be delayed until the What happens at death? surviving spouse’s death if the property passes to a If the wife in this case dies and is a US citizen at the ‘qualifying domestic trust’ (QDOT). However, an time of her death, her worldwide property will be Estate Tax Return Form 706 must be filed. subject to US estate tax. As her husband is not a US A further downside of this type of planning is that, citizen, any property passing to him will not qualify unless the QDOT is very carefully checked by an for the ‘estate tax marital deduction’ and will be Irish practitioner in advance, it may be that the subject to US estate tax. QDOT will become subject to Irish discretionary Her estate, however, will be entitled to a credit trust tax and annual levies if the surviving spouse is that will shelter $1.5 million from estate tax. She can over 21 years of age.

21 Law Society Gazette November 2005

Tax

On the death of the husband, the position is different. If he lives in the US, his entire estate is SHELTERED AMOUNTS TO INCREASE subject to US estate tax. His estate can shelter $1.5 The position of a person who is a US citizen or green card holder is that they million from such tax, assuming no part of the credit must file US income tax returns and pay US income tax. This is regardless of the has been applied to lifetime gifts if he is US- fact that they live and work in Ireland. They are entitled to an annual exemption domiciled. If, however, as in this case, he is not US- of up to $80,000 for foreign-earned income. (This would mean income earned in domiciled, only the value of his US estate will be Ireland.) Anything over this is subject to US income tax. This point is often subject to US estate tax. overlooked. Unlike US gift tax, US situs property for estate The amounts that can be sheltered from US estate tax will increase to $2 tax purposes includes securities in US companies million for 2006-2008 and $3.5 million for 2009. (‘situs’ refers to the place to which a property From 2010, only the marginal gift-tax rate is to be reduced to the top income belongs for the purposes of legal jurisdiction or tax rate of 35%. From 1 January 2011, the US estate and gift tax credits and taxation). His estate will be entitled to a credit rates will revert to a maximum of $1 million. The maximum rate would be 55% sheltering of just $60,000 from estate tax for 2005. and a further 5% surcharge on certain large estates. His estate exemption can be used by a child or spouse. If the spouse is a US citizen, any benefit is exempt. In the case of a non-resident deceased, a US of the will, particularly if made in Ireland, could have Estate Tax Return Form 706-NA must be filed. significant US-estate-tax consequences, which could In this case, if both the husband and the wife have been avoided if US tax advice had been simply had green cards, the tax in the US will arise obtained. on anything over $60,000. This can come as a nasty Nobody should assume that Irish law will apply shock. It can be particularly relevant where a spouse where you have a US citizen or green-card holder. has shares in US companies, which were acquired Equally, if our clients have lived abroad for a number under shares options. It also often arises where the of years, they may, for a number of years after they parties have retained a property in the US as a return, be subject to residence-based obligations holiday home. relating to tax in the foreign jurisdiction. We are now living in a much more mobile Child benefit environment. People will go abroad to places like the For 2005, a US citizen can pass $1.5 million free US and acquire assets there. They will return to from US estate tax (assuming the gift tax credit has ‘If both Ireland. More often than not, they will not seek tax not been used). A non-citizen, but US domiciled, husband and and legal advice on their return. They will wrongly person can pass the same value, free from tax. assume that, as Irish citizens (regardless of their being In the case of a non-domiciled person, only wife simply US citizens or green-card holders) living in Ireland, $60,000 of US property can be protected from US had green they will be covered by the laws of Ireland in relation estate tax. to tax matters. Nothing could be further from the The difficulty is that this is not an exemption per cards, the tax truth. Not all gifts or inheritances will be exempt donee. It is an exemption for the estate of the in the US from tax between spouses, particularly if one or both deceased. Therefore the tax exemption may have to be are either US citizens or hold a US green card. shared between a number of beneficiaries, depending would arise The difficulties are most likely to return to haunt on the manner on which it is passed to them. on anything their estates and their executors. Failure to deal with The benefit a child can receive will depend on the outstanding US tax liabilities as part of the citizenship or domicile of a parent with US situs over $60,000. administration of an estate can result in the US property. This can federal tax authorities making a complaint under the money-laundering rules against the executors here in The role of executors and solicitors come as a Ireland. This is not some idle option. Many people who return from the US will have nasty shock’ We are already aware of one case where the Dutch either a US green card or US citizenship, which they tax authorities issued a formal complaint under the retain. They may not consider US tax – whether gift money-laundering rules in respect of an Irish citizen tax, estate tax or income tax. It may only arise as a who was ordinarily resident in Ireland, but who had side ‘comment’ that they have a green card or are a been resident in the Netherlands. Because of their US citizen when they are asking their solicitor to residence rules, which still deemed that person transfer property into their joint names, or when resident there for their equivalent of inheritance tax, making a will. The client should be advised to obtain there was a Dutch tax liability. US tax advice. Before agreeing to act to transfer We are living in ever-increasingly complex times. property, every client should be alerted to the Estate planning is becoming more complex. Foreign potential for US tax. tax laws and, in some cases succession laws, are now For executors where US estate tax and income tax impacting upon Irish nationals after they return to has not been dealt with, they will be left with a large Ireland. G tax problem. Income-tax returns may not have been made or paid. US gift tax and interest may be due on Richard Grogan and Barry Kennelly are a partner and lifetime transfers. US estate tax may be due. Because associate, respectively, in the Dublin law firm, PC Moore of the way US estate tax exemptions apply, the terms & Co.

23 Law Society Gazette November 2005 Litigation Knowing me,

As PIAB celebrated its first anniversary, it invited its best customers, the solicitors’ profession, to its headquarters to discuss issues of mutual interest. Stuart Gilhooly reflects on an interesting meeting and KNO examines the solicitor’s responsibility to his client as the awards start to arrive

t was hardly a gilt-edged invitation, but when Patricia Byron wrote to director general Ken Murphy with a request to come and visit the Personal Injuries Assessment Board’s nerve Icentre in Tallaght, it seemed a great opportunity to get a few things off our collective chests. And so it was that the intrepid expedition comprising Ken Murphy, Ward McEllin, Geraldine Clarke and myself descended upon PIAB headquarters on 26 July. We were quickly ushered upstairs to a plush boardroom with a fantastic view of Tallaght’s famous skyscrapers. The entire executive team, led by chief executive Patricia Byron, greeted us. You will be glad to hear that the taxpayer’s and insurance industry’s money has been well spent on a 42-inch plasma screen, which blinded us with the usual statistics. The PIAB chief launched into a presentation telling us that, at that stage, over 11,500 applications had been received, of which 7,000 had been completed. Interestingly, in only 50% of these applications has there been a consent to assessment. The rest have either received authorisations or have been settled between the parties. She did not provide up-to-date statistics on the amount of awards accepted, although we know that of the first 25 awards, 20 were accepted. Latest figures in the annual report suggest that the acceptance rate has since fallen to 75% out of 350 awards accepted. The Law Society delegation raised its eyebrows in unison at the revelation that PIAB intends to be self- financing by next year. Operation costs are apparently • Society meets estimated at €5 million a year. We shall see. PIAB • Medical Money, money, money knew you couldn’t get one for less than €250, and reports The presentation didn’t take long and, in any event, often considerably more. It was even more galling to • PIAB’s we had plenty to say. The first issue was the price of hear that PIAB’s own doctors were receiving a Supreme Court medical reports. We wanted to know how they could payment of €240. appeal possibly justify a payment of only €150 towards a The suggestion that a medical report might cost

MAIN POINTS claimant’s medical report when the dogs in the street more than €150 was met with incredulity by PIAB.

24 Law Society Gazette November 2005 Litigation WING YOU this did not happen in reality and that almost all doctors carried out an examination for the purposes of the report. After further discussion, they agreed to look at the issue and would get back to us. The next matter on our agenda was the number of ‘DIY’ applications. PIAB had no figures on this but revealed that, over the weeks before our meeting, they had seen a very definite trend toward solicitors representing claimants. They expect this trend to continue and have promised to release data setting out the percentage of represented claimants. They subsequently confirmed at the launch of their annual report that, while they still do not have exact figures, about 75% of all claimants are represented by solicitors. It appears as though this figure is increasing all the time.

Voulez-vous A very important concern for us was PIAB’s insistence on sending out medical reports to all respondents with the initial notification. Many colleagues have expressed concern that their clients’ right to confidentiality is being unnecessarily negated in order that respondents can get a free look at the claimant’s medical report before deciding whether or not to consent. In view of the revelation that 50% of all respondents do not consent, we wanted to know why they could not at least wait until a consent was received. They explained that this would not be possible, but did confirm that they were taking care that any medical reports with particularly sensitive aspects were not sent out, as they realised the difficulties that could arise in those circumstances. We would suggest that Personal injuries – the number of ‘do-it-yourself’ colleagues draw attention to any such medical claimants is falling reports in their initial correspondence and ask PHOTO: AGB PHOTO LIBRARY/REX FEATURES PHOTO: AGB PHOTO LIBRARY/REX PIAB not to send them out. This brought us to the issue of the independent If you didn’t know better, you would think they had PIAB medical report, and we wondered why it was never heard this before. They explained that their necessary in nearly every case. They explained that own doctors carried out examinations but that the the reports they received usually did not provide a claimant’s doctors did not need to and only needed prognosis and they needed their own report for this to fill out the form from their notes. When we had purpose. We also asked them why they couldn’t picked our chins up off the table, we explained that send this report out when received rather than with

25 Law Society Gazette November 2005 FRIARYLAW & ADR GROUP – MEDIATION AND DISPUTE RESOLUTION IN IRELAND FORTHCOMING PROGRAMMES November ’05 Programme: 23 – 26 November The Friary, Bow Street, Dublin 7 January ’06 Programme: 18 – 21 January The Friary, Bow Street, Dublin 7 OPEN EVENING: Tuesday 6 December, 7.30pm, The Law Library, Distillery Building • On April 1st 2005 Friarylaw was appointed by the ADR (Alternative Dispute Resolution) has brought about a remarkable Minister and Department of Justice as a nominat- change in the solving of civil and commercial disputes worldwide. The lat- ing body under section 15 of the Civil Liability and est statistics available from the US reveal the extraordinary impact of Courts Act, 2004. ADR, where civil and commercial litigation in the public fora of the courts • ADR Group was the first mediation trainer and is at a forty year low; similar trends are emerging in the UK. service provider in the EU to receive ISO9002 accreditation As a result of the lessons learned in other jurisdictions, Irish business is embracing new and innovative forms of dispute resolution as part of their • The training course satisfies 35 hours of the Law business model. Recent legislative change at national (Civil Liability and Society of Ireland’s CPD requirements. Courts Act, 2004) and EU level (pending EU Mediation Directive) underpin • Areas of application include: General Civil and the emergence of Mediation as an essential tool in the fast and efficient Commercial, Personal Injury and Clinical Negligence, resolution of civil and commercial disputes. Sophisticated clients are Employment, Construction and Engineering, Banking increasingly aware of the benefits of mediation; namely, a speedier and and Financial Services, Insurance, Professional more cost efficient method of dispute resolution. Accounting and Related Services Disputes, Environmental Disputes, Family and Matrimonial Friarylaw & ADR Group provide the most comprehensive Mediation train- ing and formal accreditation process available in this jurisdiction. We The course will be presented by ADR Group, administer a structured pupilage programme for our accredited mediators. Oliver J Connolly and the Friarylaw team. Friarylaw & ADR Group are committed to the development of the media- tion practices of their panel members both here and in the UK. If you require any further information please call the Friary at tel 8728405, email at admin@the friary.ie or visit the website at www.friarylaw.ie Training as a mediator with Friarylaw & ADR Group will: • Enhance your professional skill set • Obtain Mediator Accreditation Friary Chambers, The Friary, Bow Street, Dublin 7. • Develop a Mediation Practice Tel: 01 872 8405. Fax: 01 872 8409 Email: [email protected]. Web: www.friarylaw.ie

WHERE THERE’S A WILL THIS IS THE WAY…

When a client makes a will in favour of the Society, it would be appreciated if the bequest were stated in the following words: “I give, devise and bequeath the sum of X euros to the Irish Cancer Society Limited to be applied by it for any of its charitable objects, as it, at its absolute discretion, may decide.” All monies received by the Society are expended within the Republic of Ireland. “Conquer Cancer Campaign” is a Registered Business Name and is used by the Society for some fund-raising purposes. The “Cancer Research Advancement Board” allocates all Research Grants on behalf of the Society.

5 Northumberland Road, Dublin 4. Tel: (01) 231 0500 15 Bridge Street, Cork. Tel: (021) 4509 918 Web: www.cancer.ie Litigation the actual award. They said they would consider Stuart Gilhooly: this suggestion and come back to us. “Keep fighting for They alluded to cases involving serious injuries your clients” and complex issues being released without any delay and claimed PIAB had no desire to build up case numbers. They wished to point out that any case that was close to the statute deadline would be dealt with immediately and cases were being registered without medical reports where absolutely necessary.

Take a chance on me With most of our queries exhausted, Patricia Byron finished by proclaiming that they wished for a fruitful working relationship with solicitors in the future. We asked whether this meant she was not proceeding with the appeal to the Supreme Court, not be afraid to make brave decisions – that’s what which would have the opposite effect should they we are paid to do. be successful. She replied that this was a board Secondly, if the case is ready to be settled, is the decision and they would accept the decision of the award sufficient? The awards received so far have Supreme Court and draw a line under the matter. been on the low to moderate end of the scale in When asked whether she would then not be general. If you are happy that it is a fair amount, proceeding with her proposed plan to ask the then you must advise the client to accept it. If not, government to amend the legislation if they lost, then your obligation is to advise them they can do she was unable to confirm this. It would seem this better. The court system is still there and if the too is a decision for the board. claimant has an opportunity to obtain fairer After the meeting, we received a response to the compensation and his costs, you must advise him two matters they were considering. In a three-line accordingly. letter, Patricia Byron confirmed that medical Thirdly, is the client happy with the award? Very reports would remain at €150 and the independent often, we have our views, but they are very different report would be sent out with the assessment. In to that of the client. The client’s view is paramount. other words, absolutely no progress. There was no They come to us for advice but, in the final indication that any consideration was given to our analysis, it’s their choice. Our personal views must arguments. be disregarded if they make a contrary decision.

The winner takes it all Thank you for the music The Supreme Court appeal will presumably be Interestingly, when PIAB launched its annual report heard in the next few months and we must live with on 13 September, they confirmed that of the 25% the consequences of its decision. Either way, PIAB of awards that have not been accepted, the vast is not going away, you know. It will not be majority have been refused by claimants advised by decommissioning any time soon. We, as a solicitors and practically none by respondents. This profession, must accept that it is here for the tells its own story and confirms the importance of foreseeable future and represent our client’s our role in the process. PIAB have admitted that interests to the best of our abilities. This doesn’t while a year ago nearly half of the claimants were mean that we have to be happy about it, though. unrepresented, this is now down to 25%. I We will continue to expose its flaws and ensure that anticipate that it will get lower still, as more and our clients are not sold short. We are their only more claimants become aware of the potential defence and they rely upon us to give robust and pitfalls that lie ahead of them. It is also very likely impartial advice. that, as more solicitors advise claimants, the The first awards are starting to filter through at acceptance rate will fall further, simply because last, and our most important task is to advise our unadvised claimants will inevitably accept the award clients whether or not to accept them. There are whereas those receiving impartial advice will able to three factors to bear in mind here. make an informed decision. Firstly, is the case ready to be settled? In other They’re still very early days and we will see how words, can we put a figure on the injury and is the courts react to assessments that come before them. there a firm prognosis? If the answer is ‘no’, then In the meantime, keep fighting for your clients – and sensible advice is to suggest that the client refuses you may rest assured that we will be keeping a very the award. Remember, there is absolutely no close eye on proceedings in Tallaght! G penalty for refusing an award. The only risk is that the client may get less. Not a pleasant Stuart Gilhooly is a partner in the Dublin law firm HJ thought, but better than the risk of a serious injury Ward & Co and is a member of the society’s PIAB Task being settled for a fraction of its value. We must Force.

27 Law Society Gazette November 2005 Litigation sayingTHE Irish solicitors would be wise to take account of recent decisions in the English courts, where failure to offer a client the option of mediation in a litigious dispute can amount to professional negligence, says Mary Keane of McCann FitzGerald

ediation has been pushed to the top of the alternative dispute resolution (ADR) pyramid – thanks to a series of recent English court decisions. It Mhas been given greater judicial support in the context of the determination of the issue of costs. These court decisions have reinforced the considered view among British legal practitioners that failure to advise – or at least discuss with – a client the option of mediation in a litigious dispute can amount to professional negligence. Irish solicitors would be wise to take account of the prevailing wind in our neighbouring jurisdiction, particularly in terms of the recently introduced sections 15 and 16 of the Civil Liability & Courts Act 2004 (which passed into English law on 31 March 2005). Among other things, these sections provide that: 15.(1) Upon the request of any party to a personal injuries action, the court may: (a) at any time before the trial of such action, and (b) if it considers that the holding of a meeting pursuant to a direction under this subsection would assist in reaching a settlement in the action, direct that the parties to the action meet to discuss and attempt to settle the action, and a meeting held • Mediation pursuant to a direction under this subsection is in this option should act referred to as a ‘mediation conference’. be discussed (6) The costs incurred in the holding and conducting • Cost implica- of a mediation conference shall be paid by such party to tions of declin- the personal injuries action concerned as the court ing to take part hearing the action shall direct. • When is a court 16.(3) At the conclusion of a personal injuries action, the likely to impose court may: cost sanctions? (a) after hearing submissions by or on behalf of the

MAIN POINTS parties to the action; and

28 Law Society Gazette November 2005 Litigation gCOST no OF (b) if it is satisfied that a party to the action failed to comply with a direction under section 15(1) make an order directing that party to pay the costs of the action or such part of the costs of the action as the court directs, incurred after the giving of the direction under section 15(1).

Further, in relation to the recently-established Commercial Court (as part of the High Court), order 63A of the Rules of the Superior Courts includes, among other things: 6. (1) [A] judge may, at the initial directions hearing – (a) of his own motion and after hearing the parties, or (b) on the application of a party by motion on notice to the other party or parties returnable to the initial directions hearing, give any of the following directions to facilitate the determination of the proceedings … (xiii)…that the proceedings, or any issue therein, be adjourned for such time, not exceeding 28 days, as [the judge] considers appropriate to allow the parties time to consider whether such proceedings or issues ought to be referred to a process of mediation, conciliation or arbitration, and where the parties decide so to refer the proceedings or issues, to extend the time for compliance by any party with the provision of these rules or any order of the court. 15.At the case management conference the judge chairing the case management conference may... (e) without prejudice to any powers conferred on the judge by order 33, rule 11 and order 99, rule 37, sub- rule 31, disallow the costs of any party occasioned by a delay or default by that party in complying with a time limit for doing any act or taking any proceedings, and award against that party the costs thereby occasioned to any other party.

While there is no compulsion to do so, one would be brave to disregard judicial invitations to the parties to engage in good faith in a mediation conference. At the very least, one would have to consider the potential cost implications that might ultimately follow if the litigation were pursued because one party had declined to participate in such mediation.

29 Law Society Gazette November 2005

Litigation

The crucial question is: when would a court view a refusal to engage in mediation as unreasonable THE HALSEY CASE and thus impose cost sanctions against a successful litigant? In addressing this question, it is useful to The judgment in Halsey went on to address in some detail the issue as to when consider the recent UK decisions. a court should regard a refusal to mediate as unreasonable and indicated a number of factors that should be considered by a court before drawing any Warnings conclusion, as follows: Since the implementation of the Civil Procedure • The nature of the dispute: Mediation will not always be appropriate. Cases Rules 1999, the UK courts have been positive in that require the court to determine an issue of law or construction, or to set a their support for mediation, where appropriate. binding precedent or give injunctive or other relief, are clearly not suitable. They have not been slow to issue warnings about Most cases, however, are suitable. the possibility of imposing cost sanctions where • The merits of the case: If a party reasonably believes he has a strong case, parties unreasonably refuse to mediate. this is relevant to how reasonable his actions are. The court should, however, The Court of Appeal has given some guidance be alert to the danger of one party seeking to use the threat of cost sanctions on what would constitute an unreasonable refusal to to extract a settlement from another party where the claim is without merit. mediate – and when cost sanctions for such a This factor will only provide justification where the party refusing mediation refusal should be applied (for example, Dunnett v reasonably believes that his case is ‘watertight’, for example, where the party Railtrack1 and Hurst v Leeming2). The recent would have succeeded in an application for summary judgment. (combined) Court of Appeal judgment in Halsey v • Other settlement methods have been attempted: This may be relevant but Milton Keynes General NHS Trust and Steel v Joy3 has the court also pointed out that mediation often succeeds where previous clarified what the approach should be to this issue attempts to settle have failed. of mediation and costs. • The costs of the mediation may be disproportionately high: This is relevant The two separate appeals in Halsey were brought where the sums at sake in the litigation are comparatively small and that after the successful parties, who had declined to mediation can sometimes be at least as expensive as a day in court. mediate, were not penalised in costs; in which • Delays: If mediation is only suggested close to the trial date and acceptance appeals the Civil Mediation Council involved itself of the suggestion would delay the trial, then this factor may be taken into as an intervener. The cases involved, respectively, a account. fatal injuries claim and a personal injuries claim. • Whether the mediation had a reasonable prospect of success: It may Although both appeals were in fact dismissed, sometimes be difficult for a court to decide this question. However, the Irish practitioners should pay particular attention to burden is on the unsuccessful party to show that there was a reasonable the factors – indicated by the Court of Appeal – prospect that the mediation would have been successful. This is not an that a court should consider before awarding costs onerous burden to discharge and it should be fairer and easier for the where an ultimately successful party had refused unsuccessful party than for the successful party to prove the contrary, that mediation. the mediation would not have succeeded. • Judicial encouragement: The stronger the judicial encouragement, the easier Support for mediation it would be for the unsuccessful party to discharge its burden of showing that The Court of Appeal (per Dyson LJ) in Halsey the successful party’s refusal was unreasonable. Therefore, although the prefaced its broad support for the use of mediation court should not compel parties to undertake mediation, if it has robustly as follows: encouraged mediation at an earlier stage, a party who refuses it runs a higher • It is inappropriate for the courts to compel risk of being penalised in costs for that reason alone. unwilling parties to submit a dispute to mediation as such compulsion would be a violation of Article 6 of the European Convention event’ and, therefore, that the successful party who on Human Rights, which provides for the right of had refused to mediate is awarded his costs, Halsey access to the courts. stands as a strong reminder to legal practitioners • Depriving an ultimately successful litigant of his for parties that the suitability of a dispute for costs because he had refused at an earlier stage of mediation should be actively considered at an early the litigation process to mediate is an exception stage of a litigation process. to the rule of practice that ‘costs-follow-the- event’. The burden is on the unsuccessful party ‘Horrific picture’ to justify why there should be a departure from In the later case of Burchell v Bullard,4 the Court of this rule. (It is worth noting that Dyson LJ Appeal again took the opportunity to set out its specifically rejected the submission made by the approach to the question of mediation as an Civil Mediation Council, as an intervener, that alternative to litigation to be considered by the there should be a presumption in favour of parties. This case provides a useful demonstration mediation.) Such a departure from the rule will of how the court might apply the factors set out in not be found to be justified unless it is shown Halsey in deciding whether a refusal to mediate was that the unsuccessful party acted ‘unreasonably’ or was not unreasonable. in refusing to agree to mediation. Burchell v Bullard arose from a relatively straightforward house renovation dispute between In summary, while the balance appears to be in the contractor and the owners involving unpaid favour of the established rule that ‘costs-follow-the- invoices and a counterclaim for defective

31 Law Society Gazette November 2005

Litigation workmanship. The solicitors for the plaintiff Rix LJ gave a short judgment in support of the contractor wrote to the defendant owners judgment of Ward LJ and of the judgment in suggesting that, to avoid litigation, the matter be Halsey. He emphasised that a party “could not rely referred to mediation. The defendants refused the on its solicitor’s or expert’s advice, where the result offer, maintaining that it was inappropriate as the shows that mediation ought reasonably to have matters involved were “too complicated” for been attempted”. mediation. Burchell highlights a number of important principles: ‘Horrific picture’ • The court will scrutinise the behaviour of the The Court of Appeal was presented with a parties in conducting any dispute when making “horrific picture” in relation to costs on the appeal. cost orders. The parties had between them incurred legal costs • Mediation must be considered from the pre- of Stg£186,000, with a netted-off judgment of just action stage. If proposed, both solicitors and Stg£5,000 in favour of the plaintiff contractor litigants would do well to consider participation being the final result of the hearing of the carefully. If they choose to refuse, the reasons for liquidated claim and the unliquidated such refusal should be carefully recorded, as they counterclaim. As a result, the plaintiff paid may become subject to scrutiny in relation to approximately Stg£136,000 in costs despite his net costs at a later date. success. Ward LJ referred to the general rule that • The fact that a party unreasonably believes that costs follow the event but stated that the his case is ‘watertight’ is no justification for circumstances of the case might justify a departure refusing mediation; but the fact that a party from the general rule and that the conduct of the reasonably believes he has a watertight case may parties might be relevant. ‘Mediation well be a sufficient justification for a refusal to In the light of Halsey, the question was whether mediate, leaving the crucial question to answer: the defendants had acted unreasonably in refusing will become what is reasonable in the circumstances? mediation. On its application of the factors set out a recognised in Halsey, the Court of Appeal held in Burchell that ‘Fast track to a just result’ the defendants had acted unreasonably. Ward LJ alternative to It is clear that, in the UK, mediation is a firmly went on to observe that this was a small potentially established and expanding facet of procedural law. construction dispute, perfectly suited, he felt, to While the attitude of the Irish courts has yet to be mediation and that the merits of the case favoured long and defined, there is no doubt that the option of mediation as there was clearly room for give and expensive mediation must now be given careful consideration take. by legal practitioners at an early stage of any litigious court dispute. ‘Plain nonsense’ litigation’ In Halsey, its importance as a “fast track to a just He viewed the defendant’s refusal to mediate result running parallel to that of the court system” because the matters involved were too complex as was established. It is probable that, in time and in “plain nonsense”. Ward LJ said that the costs of the appropriate context, the Irish courts will regard mediation would have been inconsequential as persuasive the Halsey and Burchell precedents when compared with the cost of the trial, that the considering Section 15 of the Civil Liability & Courts approach that had been adopted by the plaintiff Act 2004 and Order 63A of the Rules of the Superior contractor suggested that mediation had a Courts in the context of a refusal of a party to reasonable prospect of success, and that the mediate. defendants were not entitled to rely on their own What is certain is that mediation will increasingly obstinacy in asserting that mediation did not have a become a recognised alternative to potential long reasonable prospect of success. and expensive court litigation. Litigators must However, in this instance, the Court of Appeal understand the process and be in a position to did not impose a costs sanction against the discuss it with their clients, particularly if proposed defendants, notwithstanding their successful by the opposition. counterclaim, as the refusal to mediate had to be To all litigators, the headline message must be: considered against the background of the case law ‘Ignore a proposal of mediating at your peril: it at that time. The Court of Appeal, however, gave a could transpire to be a very expensive mistake when clear warning to the legal profession in the it comes to the awarding of costs for your client – or following terms: for you.’ “The profession can no longer with impunity shrug aside reasonable requests to mediate. These defendants have Footnotes escaped the imposition of a cost sanction in this case but 1. [2002] All ER 850 defendants in a like position in the future can expect 2. [2003] 1 Lloyds Reports little sympathy if they blithely battle on regardless of the 3. [2004] EWCA Civ 576 alternatives. The importance of mediation has been 4 2005 EWCA Civ 358 G established as a track to a just result running parallel with that of the court system.” Mary Keane is a trainee solicitor in McCann FitzGerald.

33 Law Society Gazette November 2005 Member services

As the library prepares to extend its opening hours for the duration of the new PPCI winter course, Margaret Byrne reviews the services available to members

he library aims to collect and provide • The Irish statute book accurate current resources and • Europa information to solicitors and trainee • Copac – combined catalogues of TCD’s library solicitors in a timely manner. Its and the largest UK university libraries. T collection includes all Irish legal publications and law-related government There are links to these websites from the search publications, with multiple copies of many titles. It screens on the library’s on-line catalogue. For a also holds a wide collection of textbooks, journals, more comprehensive list of legal websites, click on law reports, encyclopaedic works and legislation ‘Links’ on the library pages in the members’ area of covering the jurisdictions of Northern Ireland, the Law Society website. England and Wales and the institutions of the European Communities. Requested materials that Textbook loans are not held in the library can be obtained from You may borrow up to five textbooks at a time, other libraries through inter-library loan services. either by calling in person to the library or by The collection is supplemented by a range of requesting them by letter, phone, fax or e-mail. You subscription-based on-line databases and CD- can also send a request for a book when you locate it ROMs, which solicitors and trainee solicitors can in the library catalogue (see below for more details). access directly on a PC in the library and which the The books will be sent out to you by DX/Cork library staff use when sourcing information in Express, by post, or left at reception for collection response to enquiries. The most important of these by a courier. The lending period is ten days and are: loans may be renewed once, on request, for a further • Sweet and Maxwell’s Current Legal Information ten days, provided no one else is waiting for the Service, which includes the Legal Journals Index, an books. There is no charge for this service. index to articles in all UK-published law journals More limited borrowing rules apply to students since 1986 and in Irish law journals since 1993. attending a current PPC. The service also includes the complete contents of the UK Current Law case citators and digests, Document supply • The Irish Reports, Irish Digests, and EU Celex Subject to copyright legislation, information databases (Justis), contained in the library can be photocopied, faxed or • The Casetrack database of transcripts of UK electronically transmitted. There is self-service judgments, photocopying and printing from PCs in the library. DOING THINGS • The Irish Times archive, A new photocopier/scanner has recently been installed • The Irish Taxation Institute’s TaxFind, which that enables you to scan a document and e-mail it to includes the full text of the institute’s Irish Tax yourself as a read-only Adobe Acrobat portable Review and its textbooks, document format (pdf). You can also send requests to • Butterworth’s Irish property law service, which the library by post, phone, fax or e-mail for copies of • Library services includes the full text of Laffoy’s Irish Conveyancing materials to be sent to you – for example, law reports, • Using the Precedents. unreported judgments, legislation, EU regulations catalogue’s and directives, precedent forms for drafting purposes, features On the internet, available on all PCs in the library, extracts from textbooks and journal articles. The • Print and the most frequently used and freely available copies can be sent to you in hard copy or by e-mail as electronic websites are: pdf documents that you can print from your own PC. resources • BAILII (British and Irish Legal Information Requested materials that are not held in the library

MAIN POINTS Institute) can be obtained from other libraries.

34 Law Society Gazette November 2005 Member services

BY THE BOOK There is a €9.50 handling charge per request, plus photocopying and fax charges. Full details of OPEN ALL HOURS charges are available from the library. For the duration of the PPCI winter course – from Monday 28 November 2005 to Friday 2 June 2006 – General enquiry service the library opening hours will be 8.30am to 10pm Many enquiries and requests to the library are of a (Monday to Friday). All services will be available to general rather than a specific nature. You can contact 10pm on each of these days and solicitors as well the library for lists of textbooks and articles on a as trainees are welcome to avail of the later particular subject, details of cases by subject, opening hours. information on legislation, names and addresses of At all other times, the library’s hours are 8.30am lawyers in other countries, and for advice generally to 6pm (Monday to Thursday) and 8.30am to 5pm on any aspect of legal information sources. The (Friday). following are some examples of the types of queries

35 Law Society Gazette November 2005 Member services

on ‘library’ in the drop-down menu and follow the links to the catalogue. If you don’t know your number, contact the library.

Personalised use of catalogue On the front screen of the catalogue you will see a further log-in, which is optional, prompting you to type in your user ID, which is your solicitor number, and your library PIN, which is available from the library. After logging in the first time with your user ID and PIN, you can change your PIN to match your user ID or any other number you prefer (to a maximum of ten digits). This further log-in allows you to use the personalised interactive functions of the catalogue, such as requesting a book on-line. To do this, just locate the book in the catalogue and click on the ‘place hold’ button to the left of the catalogue record. If the book is available, it will be regularly dealt with: sent out to you that day. If the item is already out on • What have you in the library on...? loan, a message will display and the book will be sent • Can I have copies of the recent cases on school inspectors’ out as soon as it comes back to the library. ‘My reports? account’ is another personalised function that allows • I believe there is new legislation on the proceeds of you to review your account to see what books you crime have on loan, renew your loans on-line or see what • What stage is the Registration of Deeds Bill at – has holds you have placed for books. You can skip this it been passed yet? further log-in option and go straight to searching • Has the Safety, Health and Welfare at Work the catalogue, and you will be given an option to log (Amendment) Act 2005 been brought into force yet? in at a later stage if you wish to use any of the • What regulations have been made under the Civil “‘My account’ personalised features. Liability and Courts Act 2004? is another The catalogue has been built up over the last • Has the EC Waste Electrical and Electronic seven years and is an index to three broad categories Equipment Directive been implemented into Irish personalised of material: law? function that • All textbooks, lecture/seminar papers (including • Have you a copy of a software licence agreement? all CLE and CPD papers) and government and • I have a client buying property in Budapest – can you allows you to other reports held in the library, give me the names of some law firms there and the review your • All High Court, Supreme Court and Court of address of the Hungarian Bar Association? Criminal Appeal reserved written judgments since • Where can I buy a copy of Murdoch’s Dictionary of account” 1990. Records of judgments include a short Irish Law, or how do I subscribe to Laffoy’s Irish summary of the case, a list of any cases mentioned Conveyancing Precedents? in the judgment, the law report citation if the case has been reported, and a link to the full text of the The library staff use all available indexes and other judgment (if available) on BAILII, sources, both paper and electronic, to answer these • All bills, acts and statutory instruments since queries, if possible on the same day. Some enquires 1997. The information on acts is updated to can be dealt with on the spot, but if the query takes include commencement dates and the information time and results in materials being copied, then a on bills is updated to show the present stage a bill handling charge and copying charges apply in the has reached in the Dáil or Seanad. Statutory same way as with the document-supply service. You THIS JUST IN instrument records indicate the section(s) of the will be advised if a case or piece of legislation is To see the library's enabling acts under which they are made, whether freely available on a website and you will be directed recent acquisitions, they are amending previous regulations or where to find it. click on ‘New Books’, whether they have been subsequently amended. ‘New Judgments’ or Acts and statutory instrument records include Library catalogue ‘New Legislation’ in the details of EC directives they may implement. One of the first places the library staff will search, in ‘Library Info’ list on the response to many queries, is the library’s own on-line front screen of the All fields of all records are fully searchable. Detailed catalogue. You can also access the catalogue directly catalogue to see what instructions on ‘How to Use the Catalogue’ can be in the members’ or students’ areas of the Law books, judgments or found on the ‘Catalogue’ pages on the website. Please Society website (www.lawsociety.ie). Click on the legislation have been contact the library if you need any assistance. G ‘Members and Students’ log-in button on the top added to the library in right-hand corner of the first page of the website. the previous three Margaret Byrne is the Law Society’s librarian. Contact Then log on to the members’ or students’ areas with months. the library on tel: 01 672 4843/4, fax: 01 672 4845, your surname and solicitor or trainee number. Click e-mail: [email protected].

36 Law Society Gazette November 2005 Books Book review Intellectual Property Law in Ireland (second edition) Robert Clark and Shane Smyth. Tottel Publishing Ltd (2005), Fitzwilliam Business Centre, 26 Upper Pembroke Street, Dublin 2. ISBN: 1-84592-020-1 (hardback). Price: €150.

n his foreword to the first the Industrial Designs Act 2001, grammes as copyright works, Iedition, Mr Justice Brian the concept of an unregistered databases, ownership and deal- McCracken referred to design right and the registra- ings in copyright works, Professor Bob Clark’s “vast” tion system for community defences to copyright infringe- knowledge of intellectual prop- designs. ment, remedies for copyright erty law, combined with “an The qualification of ‘intel- infringement and rights in per- enquiring mind”. Reference lectual’ before property used formances are the subject of was also made to Shane to frighten many young specific chapters. Several chap- Smyth’s career as a solicitor lawyers. We knew something ters also deal with trademark and “all the practical experi- about the law of property, but law, both Irish trademark law ence gained over many years as intellectual property was dif- and international conventions, a partner in the largest patent ferent. The word ‘intellectual’ including in particular the and trademark agents in the carried with it a connotation community trademark and the country”. of superiority. Yet many prac- Trade Marks Act 1996. As stat- The judge celebrated the titioners must now know ed, there are also chapters on arrival of the first edition as a about copyright and trade- the duty of confidence and book “well researched and mark issues generally, about remedies in tort. learned on the one hand and unregistered rights and the pages in this significant work. Many of the applicable practical and all-embracing on issue of passing off. We have The early chapters deal with treaties, conventions and EC the other”. He concluded there no excuse now: we have Clark patents, including the Irish instruments are also included would be a prima facie case of and Smyth to guide us. patent systems and interna- as appendices. There is a com- professional negligence against It is of interest that there tional conventions. The Patent prehensive table of references any solicitor, barrister, trade- are expanded chapters in the Act 1992 is considered in sev- to statutes, statutory instru- mark or patent agent who does book to take account of case eral chapters, under patentabil- ments, EU and international not have this book in their law on passing off, the duty of ity, acquisition of patent rights, legislation, as well as a compre- library. Rich praise indeed: confidence in a commercial maintenance and dealings in hensive table of cases. There is well-deserved praise. context, goodwill, misrepre- patents, infringements and also an impressive index. The authors in their preface sentation, injurious or mali- remedies, revocations and pro- Well written, packed with to the second edition refer to cious falsehood and unlawful ceedings before the controller detailed information and legal profound changes in many interference with economic and courts, and voluntary and analysis, engaging: Professor areas of intellectual property relations. These are areas compulsory licences. Clark and Shane Smyth have law since the first edition of where practitioners are often Copyright naturally receives written a ‘must-have’ for those their book in 1997. The asked for advice and appropri- considerable attention; several practitioners, academics and Copyright Act 1963 (with 60 ate legal action. chapters are devoted to the others who advise on intellec- sections) has been supplanted In a brief review such as law of copyright. The whole tual property matters. G by the Copyright and Related this, it is only possible to give issue of protected works – lit- Rights Act 2000 with 376 sec- an overview of what the book erary and artistic works, the Dr Eamonn Hall is the chief tions. Other examples include contains. First, there are 1,113 protection of computer pro- solicitor of Eircom Group plc.

SEMINAR FOR NOTARIES PUBLIC A Seminar dealing with various aspects of notarial practice and procedure has been arranged for the Clarion Hotel, Limerick on Friday 11th November 2005 commencing 2pm. All Notaries in the country have been invited to attend and a good them to a copy of E. Rory O'Connor's The Irish Notary and support- attendance is expected. Following on the change in procedure lead- ing documentation. Non-Notaries intending to attend should be pres- ing to the appointment of Notaries Public outlined on Page 38 of the ent at 1.45pm to facilitate registration. It is anticipated that the October 2005 Gazette, it is expected that there will be an increase in Seminar will end approx 5pm/5.30pm. the number of applications for appointment. Non-Notaries are wel- come to attend the Seminar on payment of €50.00 which will entitle For the avoidance of confusion, this Seminar attracts no CPD points. – Brendan Walsh, Registrar, The Faculty of Notaries Public in Ireland.

37 Law Society Gazette November 2005

Briefing Practice note RESTRICTIONS EASED ON USE OF FAMILY LAW COURT ORDERS ection 40(4) of the Civil duced in order to alleviate the and the persons specified in the copy is supplied shall not show or SLiability and Courts Act 2004 practical difficulty caused by the schedule to the order have been supply the copy to any person provides that “Nothing contained application of the in camera rule prescribed for the purposes of sec- other than a person to whom it is in a relevant enactment shall (adverted to in the decision in tion 40(4) of the act of 2004. necessary for it to be supplied or operate to prohibit a party to pro- Tesco v McGrath) to the provision A copy of such part only of an shown for the purpose of enabling ceedings to which the enactment for conveyancing purposes of order or extract from an order as the prescribed person to perform relates from supplying copies of, copies or extracts from court is necessary to enable the pre- his or her functions. or extracts from, orders made in orders in family law cases. scribed person concerned to per- Extracts from court orders in the proceedings to such persons The minister has now made the form his or her functions may be family law cases may now be and in accordance with such con- relevant order under Statutory supplied to any person listed in exhibited in family law declara- ditions (if any) as may be pre- Instrument No 338 of 2005 (enti- the schedule, including a solicitor tions without fear of breaching scribed by order of the minister.” tled Civil Liability and Courts Act and the Land Registry. The pre- the in camera rule. The above provision was intro- 2004 (Section 40(4)) Order 2005) scribed person to whom such a Conveyancing Committee

LEGISLATION UPDATE: 10 SEPTEMBER – 21 OCTOBER 2005 Details of all bills, acts and statu- enforcement order for uncontest- include additional entitlements income tax (and capital gains tax tory instruments since 1997 are ed claims. The regulations pro- that may be owed to employees under s58 of the Finance Act on the library catalogue – vide, among other things, that by an insolvent employer. 2005). The EC Pensions Funds www.lawsociety.ie (members’ and where a judgment, court settle- Commencement date: 8/10/ Directive comes into effect on students’ area) – with updated ment or authentic instrument on 2005 23/9/2005. information on the current stage a an uncontested claim has been bill has reached and the com- certified as a European enforce- Finance Act 2005 (Section Garda Síochána (Admissions and mencement date(s) of each act. ment order in a member state of 21(1)(e)(ii)) (Commencement) Appointments) (Amendment) origin, that judgment, court settle- Order 2005 Regulations 2005 SELECTED STATUTORY ment or authentic instrument Number: SI 570/2005 Number: SI 560/2005 INSTRUMENTS shall be of the same force and Contents note: Appoints 23/9/ Contents note: Make changes to District Court (EU Regulations) effect as a judgment of the High 2005 as the commencement date the rules governing entry to An Rules 2005 Court and may be enforced by the for section 21(1)(e)(ii) of the Garda Síochána. Replace the Number: SI 635/2005 High Court and proceedings taken Finance Act 2005. Section 21 requirement to hold a qualification Contents note: Amend order 11 of on it as if it were a judgment of amends part 30 of the Taxes in both Irish and English in the the District Court Rules 1997 (SI that court. Consolidation Act 1997, which Leaving Certificate or equivalent 93/1997) to prescribe procedures Commencement date: 21/10/ deals with the tax treatment of with a requirement to hold a qual- for regulation 1348/2000 on the 2005 Revenue-approved occupational ification in two languages, at least service within the member states pension schemes, retirement one of which must be Irish or of judicial and extra-judicial docu- European Communities annuity contracts and PRSAs by English. Provide that entry to An ments in civil or commercial mat- (Protection of Employees providing for tax relief for contri- Garda Síochána will be open to (i) ters; amend order 62 of the District (Employers’ Insolvency)) butions to EU pension plans in nationals of an EU member state, Court Rules 1997 to prescribe pro- Regulations 2005 certain circumstances. Section an EEA state or the Swiss cedures for regulation 1348/2000 Number: SI 630/2005 21(1)(e)(ii) of the Finance Act Confederation, and (ii) nationals and regulation 44/2001 on juris- Contents note: Give effect to 2005 facilitates Irish pension of any other state who are lawful- diction and the recognition and directive 2002/74, amending providers, authorised and ly present in Ireland and have a enforcement of judgments in civil directive 80/987, concerning the approved by the Pensions Board period of five years legal resi- and commercial matters. protection of employees in the to accept contributions from an dence in Ireland. Also broaden the Commencement date: 1/11/ event of insolvency of their undertaking located in another EU category of persons who may be 2005 employer. Amend the Protection of member state, in offering trust- recruited by the garda commis- Employees (Employers’ Insol- based occupational pension sioner under regulation 14 of the European Communities vency) Act 1984 by including a schemes to such undertakings Garda Síochána (Admissions and (European Enforcement Order) provision to cover employees who under the EC Pensions Funds Appointments) Regulations 1988 Regulations 2005 are employed in Ireland by an Directive 2003/41 on the activi- (SI 164/1988) to provide for the Number: SI 648/2005 employer who has become insol- ties and supervision of institu- recruitment of a person who has Contents note: Amend legislation vent under the laws, regulations tions for occupational retirement special aptitudes, knowledge, to provide for the administration and administrative procedures of provision by providing that the skills or technical qualifications. of council regulation (EC) another member state. Also investment returns from such a Commencement date: 12/9/ 805/2004 creating a European extend the coverage of the act to scheme will be exempt from 2005

39 Law Society Gazette November 2005

Briefing

Health (Miscellaneous Contents note: Appoints 31/8/ ply in relation to investing the Number: SI 591/2005 Provisions) Act 2001 (Section 2005 as the commencement resources of the scheme in accor- Contents note: Appoints 23/9/ 4) (Commencement) Order date for sections 1, 2, 3, 14, 16, dance with directions given by 2005 as the commencement 2005 17, 18 and 19 of the act; members. It also provides that date for part 3 (ss27 to 39 – Number: SI 628/2005 appoints 1/12/2005 as the com- where trustees comply with these amendments to the Pensions Act Contents note: Appoints 28/9/ mencement date for all other sec- requirements they will be exempt 1990), other than sections 38 2005 as the commencement date tions. Provides specifically that from any liability based on the and 39. Sections 27-37 of the for section 4 of the Health the exclusion contained in section members’ decisions. Social Welfare and Pensions Act (Miscellaneous Provisions) Act 5(1)(g) of the act – that the 2005 amend the Pensions Act 2001. Section 4 provides that the ombudsman shall not investigate Road Transport Act 1999 1990 in order to implement minister for health and children any complaint concerning an (Commencement) Order 2005 directive 2003/41 on the activi- shall, not later than nine months action referred to in section 6(1) Number: SI 611/2005 ties and supervision of institu- after the end of each year, begin- or 6(2) of the act if the action is Contents note: Appoints 30/9/ tions for occupational retirement ning with the year 2002, make a taken before the commencement 2005 as the commencement provision and to provide for relat- report to each house of the of the act – shall not have effect date for sections 4 to 8 and sec- ed matters. Oireachtas on the measures taken by reference to a date earlier than tion 11 of the Road Transport Act by health boards during the pre- 1/12/2005. 1999. Taxi Regulation Act 2003 (Part ceding year to prevent suicides. 3) (Commencement) Order Pensions (Amendment) Act Sheriff’s Fees and Expenses 2005 Land Registration Rules 2005 2002 (Section 42) Order 2005 Number: SI 610/2005 Number: SI 643/2005 (Commencement) Order 2005 Number: SI 644/2005 Contents note: Appoints 26/9/ Contents note: Amend rules 19 Number: SI 590/2005 Contents note: Increases the 2005 as the commencement and 35 and forms 3 and 15 of the Contents note: Appoints 23/9/ fees charged by sheriffs and date for part 3 (other than ss35, Land Registration Rules 1972 (SI 2005 as the commencement county registrars in the execution 36 and 44(5)) of the Taxi 230/1972) as amended. date for section 42 of the of court orders. Regulation Act 2003, except inso- Commencement date: 1/1/2006 Pensions Act 1990 insofar as it Commencement date: 1/11/ far as it is already in operation. inserts section 59(2) into the 2005 Part 3 (ss33-52) deals with small Ombudsman (Defence Forces) Pensions Act 1990. Section 59(2) public-service vehicle regulation. Act 2004 (Commencement) of the Pensions Act 1990 sets Social Welfare and Pensions Act Order 2005 out the requirements with which 2005 (Part 3) (Commencement) Prepared by the Number: SI 568/2005 trustees of a scheme must com- Order 2005 Law Society Library

41 Law Society Gazette November 2005 Briefing Legislation focus Safety, Health and Welfare at Work Act 2005 – continued

his is the second article on any risks to which employees any significant change in the Employers then have a duty to Tthe new Safety Health and might be exposed. Such per- matters to which it relates, or bring that statement to the Welfare at Work Act 2005 (the son(s) must be given adequate where there is reason to believe attention of all employees when 2005 act). It deals with issues time to perform their functions that the risk assessment is no they begin their employment ranging from protective and pre- without any loss of pay. To per- longer valid. It should be with the company, in addition to ventative measures, to penalties. form such functions, they must reviewed at least annually, or all other employees on at least also be given, inter alia, all infor- sooner if there has been any sig- an annual basis, or following any Part 3 – Protective and mation regarding factors that nificant change. Where neces- amendment to the statement. Preventative Measures will, or are suspected to, affect sary, the risk assessment must be Since the enactment of the the health and safety of employ- amended. Specific risk Safety, Health and Welfare at ees.5 Under the 1989 act, employ- Where there is a specific risk to Work Act 1989 (the 1989 act), ers had to prepare a safety state- any other person who might there have been a number of Co-operation ment.7 The 2005 act8 requires attend to the place of work, such specified ‘general duties’ appli- Where there are safety repre- that the statement must contain person should be made aware of cable to employers.1 While the sentatives within the organisa- more detail and include more the safety statement. In circum- 2005 act also lists ‘general tion, the employer must ensure headings than previously pro- stances where a task will pose a duties’ for employers, part 3 there are adequate arrangements vided for. serious risk to health and safety, provides for a number of protec- for co-operation between the In brief, the safety statement the relevant extracts of the safe- tive and preventative measures competent person(s) appointed must set out: ty statement must be brought to that are, in reality, additional and such representatives. 1) The hazards identified, the attention of those relevant duties. An employer has an addition- 2) The protective and preventa- employees and/or contractors. Among these provisions, an al duty to identify all hazards tive measures in place, There is also an obligation employer has a duty2 to appoint and assess any risks presented by 3) Any plans and procedures to that the statement in its latest one or more competent persons those hazards and, subsequently, be followed in case of emer- form should be available for (as defined3) from among to generate a written risk assess- gency or imminent danger, inspection at, or near, every employee numbers if possible,4 ment setting out any risks.6 and place of work to which it relates to deal with protection from, When carrying out this assess- 4) The employees’ duties, giving while work is ongoing in those and prevention of risks to, ment, it is incumbent on an details of names and job titles areas. health and safety in order to employer to take account of the of any employees responsible Where employers share a comply with all or any relevant type of work in conjunction for performing safety tasks, place of work, each employer statutory provisions. with the duties imposed by any together with arrangements must ensure that they co-oper- The number of competent relevant statutory provision. in place for the appointment ate in the compliance and imple- persons appointed will depend This risk assessment must be of safety representatives and mentation of health and safety on the size of the business and continually reviewed in light of for safety consultation. statutory provisions, and co- CONTROL OF THE WORKPLACE *Designers, manufacturers, cle, but a new provision has been research of the articles similar to work” and not just construction “of importers and suppliers of inserted requiring that persons “to the 1989 act. the place of work” as in the 1989 articles or substances used at whom the article is supplied” are act. In discussions with the depart- work provided with any revisions of any *Construction work project ment, I understand that they take Once again there was a similar pro- information that the supplier The 1989 act had a short section the view that this definition has vision in the 1989 act.1 The provi- knows to be a “serious risk” to dealing with the obligation of “any been effectively imported into the sion is that, insofar as design, safety and health. Note that the person who designs or constructs 2005 act by virtue of section 4(3) manufacture, importation and sup- obligation only arises where “seri- places of work” so that “they are, and (4). I am not sure that they are ply of any article is concerned, as ous risk” becomes known. This so far as reasonably practicable, correct in their view, but I do not far as reasonably practicable, any obligation could be far reaching, as safe and without risk to health”. propose in this article to advance article used for work is safe and there is no limit in time for the pro- The 2005 act2 removes any ref- my reasoning, given that I under- without risk to health when proper- vision of information. In theory, erence to “places of work” and sim- stand that new regulations will ly used. It must also comply with details of the consignee would ply refers to “construction work.”3 have been completed by the time any relevant statutory provision, have to be held indefinitely in case Construction work is defined in this article appears and will have including EC directives (the latter information came to light at some the Safety Health and Welfare at gone for public consultation with obligation being new). time in the future. Work (Construction) Regulations an expectation that the new regula- There is still the obligation to This section also has obliga- 2001 as “any building, civil engi- tions will be in place before the provide information about the arti- tions about the testing and neering or engineering construction end of the year.

42 Law Society Gazette November 2005 Briefing

ordinating protective and pre- employer’s compliance with rel- required. In this regard, employ- whereby an employee who is dis- ventative actions, as well as evant statutory provisions. ers have a duty to consider any missed for any of the above rea- informing employees and safety representations made by their sons is deemed to be unfairly dis- representatives of all or any Part 4 – Safety safety representative. missed for the purposes of the risks.9 Representatives and Safety Alternatively, employers can Unfair Dismissals Acts 1977- Consultation agree to the creation of a safety 200116 and (s)he can chose to Health surveillance The existence of safety represen- committee made up of persons make a claim under that legisla- There must be a system in place tatives and the need for consul- representative of the employer tion. In any dismissal claim, it will to ensure that health surveillance, tation has existed since the 1989 and employees for the purposes be a defence if an employer can appropriate to the risks, is avail- act12 and the 2005 act continues of consultation or representa- show that it was, or would have able to relevant employees. to emphasise the need for these tions on health and safety been, negligent for an employee Where employees are carrying practices. As in the 1989 act, issues.14 Any employees involved to take the steps in question.17 out tasks which involve a ‘serious’ employees are entitled to select a in these arrangements for con- The Rights Commissioner will risk, the employer must ensure safety representative(s) from sultation must be given time off hear the parties before either that these employees undergo among their number.13 Such without loss of pay to enable deciding that the complaint was assessment with a registered safety representatives have the them to acquire any knowledge or was not well founded, requir- medical practitioner to assess right to inspect the place of work and/or training necessary or to ing an employer to take a specific their fitness for that task.10 An on giving reasonable notice, or discharge those functions. course of action, or requiring an example of this might be testing immediately following an acci- employer to pay compensation to the hearing and sight of heavy dent, dangerous occurrence or Statutory protection the employee. Any appeal from goods drivers. imminent danger. They also For the first time, employees that decision is made to the An entirely new provision in have a role in investigating acci- have been given statutory protec- Labour Court (within six weeks the 2005 act allows for the dents or dangerous occurrences tion in order to prevent an of the date of the decision). Any implementation of a joint safety (or accompanying an inspector employer (or any person acting further appeal is on a point of law and health agreement. Trade when carrying out an inspec- on his behalf), by act or omission, only to the High Court. unions can enter into an agree- tion), as well as investigating from affecting an employee to When an employer, for what- ment with employers (or complaints made by other his/her detriment.15 It protects ever reason, does not carry out employers’ unions) in respect of employees relating to health and the employee from dismissal, the matters directed by the health and safety issues. In cer- safety. They can make represen- demotion, transfer of duties, dis- Rights Commissioner, an tain circumstances, an applica- tations to employers and/or cipline or intimidation where that employee can bring a complaint tion to the Health and Safety inspectors on any matters relat- employee is acting in compliance to the Labour Court if the time Authority (the authority) may be ing to safety and health, in addi- with any of the statutory provi- has passed for an appeal. Once made to approve a joint agree- tion to having the right to sions, performing a duty, or exer- the Labour Court issues (and ment. The 2005 act sets out the receive advice or information cising a right under the statutory publishes) its determination, if steps to be followed in order to from inspectors. Once the provisions. the employer refuses to carry out reach approval by the authori- nature and extent of hazards in Generally, all claims under this the matters therein within six ty.11 When there is an approved the workplace have been identi- section are brought before the weeks from that determination, joint agreement in place, it fied, employers and safety repre- Rights Commissioner within six an employee may apply to the should be taken into account by sentatives should agree on the months of the occurrence. Circuit Court for an appropriate an inspector when assessing an frequency of inspections However, there is an exception, order.

When the definition is pre- The person who carries out the con- health and welfare at work”. employee who has adequate or scribed, the new obligation will struction has obligation 2 and 4 A ‘competent person’ should not appropriate knowledge or experience require the person who commis- above. be confused with a ‘safety represen- for the functions conferred by the sions or procures a project to A ‘competent person’ is a term tative’, the latter being appointed employer. appoint a “competent person”, or used throughout the act and is by employees. (This is dealt with require the person who designs the defined as a person who has “suffi- above.) The competent person has Footnotes project, to ensure that the project, cient training, experience and knowl- to be given adequate time, without 1. Section 10 so far as reasonably practicable: edge appropriate to the nature of the loss of remuneration, to enable 2. Section 17 1) Is designed and is capable of work undertaken”, having regard to him/her perform such functions 3. Defined as “the carrying out of being constructed to be safe the task to be performed and taking specified by the employer. any building, civil engineering or and without risk to health, into account the size or hazards Note that, subject to the following, engineering construction work as 2) Is constructed to be safe and undertaken. the control over the competent per- may be prescribed”. without risk to health, Section 18 requires an employer son’s remit in safety, health and wel- 4. “Adequate having regard to the 3) Can be maintained safely and to appoint one or more4 competent fare matters remains with the emp- size of the place of work, the risks without risk to health when persons to “perform such functions loyer, that is, the employer must to which employees are exposed used, and as are specified by the employer, specify the functions to be per- and the distribution of those risks 4) Complies in all respects with rel- relating to the protection from and formed. The employer must appoint in the place of work” section evant statutory provisions. the prevention of risks to safety, an employee, unless there is no 18(2)(a).

43 Law Society Gazette November 2005 Briefing

Part 6 – Regulations, Codes be taken, together with any ous.’26 Among the matters listed vide for liability of directors and of Practice and Enforcement other conditions within the as less serious offences are such officers in circumstances when Part 6,18 in addition to enforce- time specified, things as, inter alia, failure to an offence is committed by an ment issues, extends the provi- • Issue an improvement discharge a duty such as hazard undertaking, and where it can sions previously provided in the notice22 where the inspector identification and risk assess- be shown that the commission 1989 act19 concerning the moni- opines that there is, or has ment, failure to consider repre- of such an offence was autho- toring and the making of regula- been, a contravention of a sentations made by a safety rep- rised/consented to in some way tions and codes of practice. statutory provision, or a fail- resentative, preventing a person by a director, manager or other Where codes of practice are ure to submit an improve- from answering any question similar officer, and in such cir- relevant to any contravention ment (or revised) plan, (s)he posed by an inspector, failure to cumstances that both the person for which a person is being pros- may, by notice in writing, submit an improvement plan and the company will be guilty ecuted, that code may be used in issue such notice setting out within the time specified or to of an offence and liable to pros- evidence, in a prosecution under the action that must be taken implement such a plan ade- ecution. Summary proceedings the act, a code or codes of prac- to remedy such contravention quately. may be instituted in the District tice may be used as evidence of or failure to comply, The more serious offences Court. Any appeal from the non-compliance with the act. • Issue a prohibition notice23 include, inter alia, failure by an District Court is made to the While the 1989 act provided where an inspector is of the employer to discharge his gen- Circuit Court, whose decision a range of powers to inspectors, opinion that there is an activ- eral duties as set out in section 8 will be final and conclusive. the 2005act20 enhances those ity occurring, or likely to and failure to provide informa- The authority has the power powers and gives an inspector occur, that would involve a tion, instruction, training and to publish the names of any per- the authority to enter into, risk of serious personal injury. supervision for employees; and sons upon whom fines or other inquire, search, examine, This notice should detail the any obstruction or impeding in penalties are imposed or upon inspect, take measurements reasons for his opinion, the any way an inspector in exercis- whom a prohibition notice has and/or recordings and/or pho- activity in question, whether ing his functions, or forging been served.31 tos of any place and/or work the activity contravenes the documents or making false activity, installation, process or legislation, and prohibit the entries intentionally into record Footnotes procedure that is subject to rele- activity until the risk, or mat- books. 1. Section 6, 1989 vant statutory provisions. ter(s) likely to give rise to Any prosecution for the for- 2. Section 18 He may also require records such risk, is remedied, mer, less serious, offences shall 3. Section 2(2)(a) and (b) to be produced in a legible form, • Investigate and issue a special be brought in the District Court 4. Section 18(4) to inspect or take copies of any report.24 The authority can where, on summary conviction, 5. Pursuant to section 11 documents or computer records investigate and issue special a person will be liable to a fine 6. Section 19 and remove and retain such reports regarding circum- not exceeding €3,000.27 7. Section 12, 1989 records. stances surrounding any acci- In relation to the more seri- 8. Section 20 Furthermore, the inspector dent, incident, personal ous offences,28 liability on sum- 9. Section 21 may, by written notice, require injury, occurrence or situa- mary conviction will be a fine 10. Sections 22 and 23 that a specified person furnish tion, or any other matter not exceeding €3,000 or impris- 11. Section 24 information to the inspector. He related to the general purpos- onment for a term not exceed- 12. Section 13, 1989 may examine any person who he es of the act. Its inspectors ing six months, or both. If 13. Section 25 reasonably believes may be able may also make an ex parte convicted on indictment, a per- 14. Section 26 to assist in the search, examina- application to the High son will be liable to a fine not 15. Sections 27 to 31 tion, inspection or inquiry and Court in order to restrict or exceeding €3,000,000 or 16. Section 27(4) to have that person sign a decla- prohibit a place of work, imprisonment for a term not 17. Section 27(7) ration as to the truth of his where it considers that there exceeding two years, or both. 18. Sections 57 to 76 answers. If it is found that any is a risk to health and safety 19. Part IV, sections 27-31, 1989 such article or substance appears which is so serious that such On-the-spot fines 20. Section 64 to be, or has been, a risk to safe- place of work must be prohib- There is also an enabling sec- 21. Section 65 ty or health, the inspector can ited or restricted until such tion29 that allows the minister to 22. Section 66 require it to be dismantled or time as specified measures introduce regulations to allow 23. Section 67 subjected to further testing. have been taken to reduce for on-the-spot fines in certain 24. Section 70 Where it is thought that such risk to a reasonable circumstances. Such a fine 25. As set out in section 77(1) there is occurring, or likely to level. should not exceed €1,000 and, 26. As set out in section 77(2) occur, any activity which is like- once paid, a receipt should issue. 27. Section 78 ly to involve a risk of personal Part 7 – Offences and Where such a fine is paid, no 28. As set out in section 77(2) to injury or to health and safety, or Penalties prosecution in respect of the (8) and (9)(a) where there has been an acci- Most notably, unlike the 1989 alleged contravention should 29. Section 79 dent, etc, an inspector/the act, a breach of obligations in occur. If, for any reason, pro- 30. Section 80 authority may: the 2005 act is an offence that ceedings are nonetheless issued, 31. Section 85 G • Seek an improvement plan21 will attract criminal sanctions, the onus will be on the accused identifying the risk, and seek although the 2005 act separates to show that payment was made Boyce Shubotham is a member of the employer’s plan as to any two main categories of offence in respect of the notice. the Employment and Equality Law remedial action proposed to into ‘serious’25 and ‘less seri- The 2005 act30 goes on to pro- Committee.

44 Law Society Gazette November 2005 Briefing Update

News from Ireland’s on-line legal awareness service Compiled by Flore Bouhey for FirstLaw

CRIMINAL the applicant failed to estab- Extradition Act 1965 and upon postponement of the operation lish any particular prejudice which the respondent was subse- of the new procedures for the Delay relative to that delay. quently arrested and detained European arrest warrant to a Judicial review – prohibition – 2) Although there was an inordi- pending his extradition. From 1 date beyond the date of acces- delay – sex abuse – whether the nate delay between the date of January 2004, the European sion of the Czech Republic on 1 delay was such as to give rise to a the commission of the alleged Arrest Warrant Act 2003 was in May 2004. It followed that once real risk that the applicant would offences and the reporting of operation in the state. On 1 May the Czech Republic had been not receive a fair trial. same, that delay was explained 2005, the Czech Republic designated for the purposes of The applicant was a Christian and justified. Furthermore, became a member of the section 3 of the 2003 act, there Brother charged with a number the applicant failed to estab- European Union and, by the was no other arrangement for of counts of buggery, indecent lish specific prejudice in European Arrest Warrant Act extradition between that state assault and attempted buggery, regard to his capacity to 2003 (Designated Member States) and Ireland, and the Czech allegedly perpetrated against six defend himself against the Order 2005, the Czech Republic Republic ought to have with- minors, five of whom were resi- allegations by reason of that was designated as a member state drawn its prior request for extra- dents of Artane Industrial School delay. that had given effect to the dition and issued a fresh applica- and alleged to have occurred as 3) Any problems arising from European arrest warrant scheme. tion under the European arrest far back as 1961. The applicant the prejudicial publicity could Section 4(1) of the 2003 act pro- warrant. sought orders of prohibition in be dealt with by the trial judge vides that “this act shall apply in Attorney General v Klier,High respect of the charges, on the by way of an appropriate relation to an offence, whether Court, Mr Justice Peart, ground that due to the lengthy direction. committed or alleged to have 19/7/2005 [FL11216] delay between the dates of the A(S) v DPP,High Court, Mr been committed before or after alleged commission of the Justice O’Neill, 18/7/2005 the commencement of this act”. Proceeds of crime offences and the making of com- [FL11180] The respondent sought a dis- Whether gardaí failed to comply plaints in relation thereto, and charge of the High Court order with provisions of the Police further by reason of the delay in Extradition on the basis that, in those cir- (Property) Act 1897 – whether prosecuting the offences, he European arrest warrant – transi- cumstances, the 1965 act ceased insufficient evidence to recite belief could not receive a fair trial. tional arrangements – whether to be the appropriate legislative that respondent in possession of pro- Furthermore, the applicant application should have been made provision for the purposes of any ceeds of crime – whether statements alleged that his defence was prej- under provisions of European arrest request from the Czech Republic admissible in evidence – Proceeds udiced by the fact that essential warrant – European Arrest seeking extradition of any person of Crime Act 1996, s3. witnesses were either dead or Warrant Act 2003 (Designated from the state and that the cor- The plaintiff sought an order non-traceable and he also Member States) Order 2005 – rect way of proceeding was for pursuant to s3 of the Proceeds of alleged that he could not receive Extradition Act 1965, section the Czech Republic to seek the Crime Act 1996. The plaintiff a fair trial due to the large 26(1) – European Arrest respondent’s extradition by contended, firstly, that the gardaí amount of prejudicial press cov- Warrant Act 2003, sections 3, 4. means of a European arrest war- seized property but failed to erage of the Artane Industrial The authorities in the Czech rant. bring an application to comply School in recent times. Republic sought the extradition Peart J discharged the order with the provisions of the Police O’Neill J dismissed the appli- of the respondent. On 15 March that directed the arrest of the (Property) Act 1897; secondly, cation, holding that: 2005, an application for an arrest respondent to allow his extradi- that there was insufficient evi- 1) The delay in prosecuting the warrant was made to the High tion, holding that nothing in the dence to recite a belief that the applicant did not contribute Court, which was granted pur- EU Council framework decision respondent was in possession of to a risk of an unfair trial and suant to section 26(1)(b) of the permitted or contemplated a property that constituted the

FOR BOOKINGS CONTACT MARY BISSETT OR PADDY CAULFIELD TEL: 668 1806 Meet at the Four Courts LAW SOCIETY ROOMS Courtat the Four Courts 45 Law Society Gazette November 2005 Briefing proceeds of crime; and thirdly, remoteness of damage. The ber of years, the defendant was and had been unsteady on her that statements taken by the gar- plaintiff claimed damages for his client. The plaintiff sought a feet prior to the fall. daí and signed by the defendant financial loss arising from the declaration that he was entitled Herbert J dismissed the plain- were not admissible in evidence. loss of his properties and busi- to a legal and beneficial interest tiff’s claim against all three defen- Finnegan P granted the relief nesses carried out thereon, gen- in certain properties in Dundalk. dants, holding that the onus of sought, holding that: eral damages under common law The basis of the claim was an proof was on the plaintiff to 1) The 1897 act did not oblige in respect of events pre-dating alleged agreement between the demonstrate, on the balance of the gardaí to bring an applica- his being charged with the plaintiff and the defendant. The probabilities, that she fell and was tion pursuant to the 1897 act, offences by the gardaí, general parties brought various motions injured because she tripped over a but merely empowered them damages under section 9 of the that required the determination manhole cover that had been left to do so. 1993 act in respect of events of two issues, namely: whether elevated above the surface of the 2) The witness held the belief post-dating his charge, and aggra- the plaintiff had an arguable case footpath. On the balance of prob- and there were reasonable vated and exemplary damages. that he had an interest in the abilities, the plaintiff fell at a grounds for the belief and the Finnegan P awarded the property and therefore was enti- point removed from the manhole evidential burden then shifted plaintiff €1,923,871 in damages tled to retain the lis pendens and, cover and for reasons unassociat- to the defendant. (encompassing €550,000 for loss in the event of a sale, what por- ed with any misfeasance or negli- 3) The statements were admissi- of profits at the Point Inn, tion of the net proceeds should gence on the part of the defen- ble evidence in a civil case. €806,221 in respect of property be retained pending the resolu- dants. McK(FJ) v McD(S), High loss, €5,000 in respect of gener- tion of the proceedings. Cuddy v Laois County Council, Court, Finnegan P, 4/7/2005 al damages prior to his being Clarke J declined to vacate the High Court, Mr Justice [FL11244] charged, €500,000 general dam- lis pendens, holding that the Herbert, 28/7/2005 [FL11213] ages under the 1993 act, and plaintiff retained a claim to a €50,000 for exemplary dam- beneficial interest in the proper- Nuisance DAMAGES ages), holding that the plaintiff ty. In the event of a bona fide sale Injunction – whether serious issue to had established the required fac- on the open market, an appro- be tried – whether irreparable harm Assessment tual nexus between his malicious priate sum to represent the would be suffered by plaintiff – Miscarriage of justice – malicious prosecution by the gardaí and his plaintiff’s claim to a beneficial where balance of convenience lay – prosecution – causation – damages – conviction and the damage he interest together with an addi- whether interim injunction should be principles to be applied – classifica- suffered, including loss of liberty tional sum to represent the granted to abate nuisance. tion – whether grounds for award of and reputation, stress and other stamp duty would be retained. The plaintiffs carried on business aggravated damages encompassed mental and physical injury, McCourt v Tieran, High on a site adjacent to that owned by award of general damages under financial loss arising from a fire Court, Mr Justice Clarke, by the defendant. They com- statutory scheme for miscarriage of and the receivership of his prem- 29/7/2005 [FL11309] plained that the defendant justice – Criminal Procedure Act ises, which satisfied the test of allowed Travellers to create a nui- 1993, ss2 and 9. causation. While grounds for sance on its lands by, among The plaintiff had been impris- awarding aggravated damages TORT other things, parking and litter- oned for 27 months on convic- existed, they were encompassed ing there, and they failed to take tion of various charges of know- by the award of general damages Negligence any or any adequate steps to abate ingly allowing drugs to be used made under the Criminal Causation – plaintiff falling on pub- the nuisance. They sought an on his licensed premises, the Procedure Act 1993, as it was lic footpath – allegation of misfea- interlocutory injunction directing Point Inn. It subsequently tran- intended to take account of sance in leaving manhole cover pro- the defendant to abate the nui- spired that his conviction had injury to feelings, loss of dignity, truding as trap to unwary pedestri- sance and prevent further tres- been secured as a result of plant- humiliation, frustration, help- ans – whether cause of fall due to passes on its lands by the ed and perjured evidence by the lessness and despair, including manhole cover – whether case proven Travellers. gardaí. He obtained a certificate despair at the failure of the crim- on balance of probabilities. Gilligan J directed the defen- from the Court of Criminal inal justice system. The plaintiff, an 84-year-old lady, dant to abate the nuisance, hold- Appeal, pursuant to section 9(1) Shortt v Commissioner of An sought damages for personal ing that the responsibility that of the Criminal Procedure Act Garda Síochána,High Court, injuries suffered as a result of a attached to an occupier because 1993, that a newly discovered Mr Justice Finnegan, 12/10/ fall on a public footpath, which he had possession and control of fact showed that there had been 2005 [FL11272] she alleged had been caused by the property could not logically a miscarriage of justice in his the misfeasance and negligence be limited to the mere creation of case. The plaintiff then had the on the part of the defendants in the nuisance and should extend to option, under section 2(2) of the LAND LAW leaving a manhole cover protrud- his conduct if, with knowledge, act, of applying to the minister ing above the footpath surface he left the nuisance on his land. for compensation or of institut- Lis pendens – legal and beneficial during works thereon. One of the The plaintiff had made out a seri- ing an action for damages arising interest in property – whether defendant’s witnesses was a man ous issue to be tried, had demon- out of the conviction. The plain- plaintiff entitled to legal and benefi- who had witnessed the plaintiff strated irreparable harm and had tiff opted to institute an action cial interest in property – retention immediately prior to and after the shown that the balance of con- for damages. The defendant of sum if bona fide sale on open fall and who had come to her aid venience favoured the grant of an accepted that the matter should market. after the fall. His evidence was injunction, as the defendant had proceed as an assessment, the The plaintiff was a solicitor prac- that the plaintiff had fallen some not taken all reasonable steps to issues being causation and tising in Dundalk and, for a num- distance from the manhole cover abate the nuisance and remedy

46 Law Society Gazette November 2005 Briefing the situation when it became an ex tempore judgment, that the (PIAB) and, accordingly, these and second-named defendants aware of it. trial judge did err, and amended proceedings were misconceived and the intention of joining Harrington Confectioners Ltd v the amounts. It also considered it and ought to be dismissed. The the third-named defendant Cork City Council, High Court, desirable that, in this case, an plaintiff contended that the was to recover damages for Mr Justice Gilligan, 5/7/2005 offer be made to the plaintiff. action was not a civil action negligence awarded against [FL11273] McCarthy v Walker, Supreme within the meaning of section 4 the uninsured first and Court, 3/6/2005 [FL11172] of the act of 2003 or, alterna- second-named defendants. Personal injuries tively, if it was such an action, it Accordingly, the action did not Road traffic accident – assessment of PIAB came within the exclusion con- come within the exception damages – whether principle in Personal Injuries Assessment tained in section 4(i). Finnegan provided for in section 4(l)(i). assessment by trial judge correct. Board Act 2003 – whether the P dismissed the proceedings, Campbell v O'Donnell and The plaintiff suffered injuries action that was the subject matter of holding that: Boyle and The Motor Insurers arising from a road traffic acci- these proceedings was a civil action. 1) The action against the third- Bureau of Ireland, High dent and received €45,000 for The plaintiff instituted pro- named defendant, while not an Court, Finnegan P, 26/7/2005 general damages and €4,500 for ceedings claiming damages for action for damages, was an [FL11163] G special damages. The appellant personal injuries suffered by action to recover damages and argued that the approach of the him due to the negligence of the in respect of damages and, The information contained here trial judge was wrong in princi- first and second-named defen- accordingly, was a civil action is taken from FirstLaw’s Legal ple, in that he took three separate dants arising out of a road traf- within the meaning of section Current Awareness Service, areas, then added them together fic accident. In its defence, the 4 of the act of 2003 and came published every day on the internet but failed to look at the amount as third-named defendant pleaded under the provisions of section at www.firstlaw.ie. For more infor- a whole. No offer in this case had that the plaintiff was not enti- 3(d) of that act. mation, contact bartdaly@ firstlaw.ie been made to the plaintiff prior tled to issue proceedings with- 2) The cause of action against the or FirstLaw, Merchant’s Court, to the appeal. out reference to the Personal third-named defendant was Merchant’s Quay, Dublin 8, tel: 01 The Supreme Court held, in Injuries Assessment Board the same as against the first 679 0370, fax: 01 679 0057.

CHRISTMAS CARDS IN AID OF THE SOLICITORS’BENEVOLENT ASSOCIATION

This is an opportunity to support the work of the Solicitors’ Benevolent Association, whose needs are particularly acute at Christmas time. Card A ADORATION OF THE MAGI Peter Paul Rubens GREETING PRINTED INSIDE EACH CARD: With Best Wishes for Christmas and the New Year

ORDER FORM

Firm: Contact: Card B Address: MAAM TURK MOUNTAINS, CONNEMARA Kate Noonan DX: Tel: Fax:

Each card sold in packets of 50 costing €70 (including overprinting of your firm’s name). Minimum order 50 cards. Add €5.50 for postage and packaging for each packet of 50 cards. Send order form and cheque to: I wish to order pack(s) of card A @ €70, pack(s) of card B @ €70. SBA Christmas Cards, Santry Printing Ltd, Unit 5, Text to be overprinted: Lilmar Industrial Estate, SAMPLE OF OVERPRINTED TEXT WILL BE FAXED FOR CONFIRMATION BEFORE PRINTING. Coolock Lane, Dublin 9. I enclose cheque for € payable to Santry Printing Ltd. Tel: 842 6444. Contact: Amanda

47 Law Society Gazette November 2005 TTAXAX SUPPORTSUPPORT Do you have a backlog of client C.A.T. matters that you have neither the time nor the enthusiasm to clear? Have you recently received notice of a C.A.T.Revenue Audit and are unfamiliar with the procedure? This consultancy service, provided by a solicitor, to solicitors, could help you with: Due to our resounding success ■ in assisting holiday house Advice on all areas of Capital Acquisitions Tax. ■ purchasers and investors with C.A.T. compliance service, from Inland Revenue their purchases in Spain and Affidavit to Clearance Certificate. Portugal, we are pleased to ■ Advice and compliance service for other taxes announce that we can now (Income Tax,VAT,Capital Gains Tax) which arise in provide the same service for the course of an Administration. your clients in FRANCE. We ■ Assistance in preparation for, and representation of take this opportunity to thank clients at, Revenue Audit. you for your referrals. ■ Estate Planning.

37 Upper Mount Street, Dublin 2, Ireland Catherine McGrath Phone: 353 1 661 0707 Fax: 353 1 611 4975 www.tmsolicitors.ie B.C.L.,M.BA., Solicitor, [email protected] Associate of Irish Taxation Institute Capital Acquisitions Tax In association with and Revenue Audit Consulting Tom McGrath Overseas Properties Ltd, Tel: 01 2847018. Mobile: 086 2455902 www.tmproperties.ie Email: [email protected]

Combined 21 st Century business in Legal 18 th Century elegance

Why not use this prestigious premises, designed by Thomas Ivory, Services for entertaining clients and staff? SMALL ENOUGH TO CARE BIG ENOUGH TO COPE

■ LAW SEARCHING ■ TOWN AGENCY ■ NATIONWIDE SUMMONS SERVING ■ COMPANY FORMATION AGENTS ● Exclusive 18th Century venue catering for up to 200 people ● Centrally located and easily accessible Combined Legal Services Limited ● Private grounds with extensive car-parking ● Argus House Full catering and bar services available ● Christmas parties Harolds Cross ● Christmas lunches Dublin 6W ● Annual dinners ● Retirement parties ● Telephone: 01 4733040 BBQs ● Family days Fax: 01 4530101 E-mail: [email protected] Contact DX: 222 004 HAROLDS CROSS CONTACT THE CATERING MANAGER Niall Kelleher Tel: 01 672 4800, fax: 01 672 4801 to discuss our E-mail: [email protected], website: www.lawsociety.ie FOR MORE INFORMATION PLEASE VISIT special price www.combinedlegal.ie packages Law Society of Ireland, Blackhall Place Briefing Eurlegal News from the EU and International Affairs Committee Edited by TP Kennedy, Director of Education, Law Society of Ireland

The State Aid Action Plan: issues for Innovation Ireland (part 2) he action plan’s emphasis on • Is the aid the minimum nec- of the €170 million aid for the To achieve this remarkable Tstrengthening the economic essary as regards both the development of the Intel plant time compression, the commis- analysis of state-aid measures is amount and the duration? at Leixlip as a prime example of sion plans to adopt more trans- seen in Brussels as long overdue a situation where there was no parent state-aid rules that will and a key tool to ensure that the Despite the fact that the com- market failure. From Brussels’ make it easier for national reformed state-aid policy con- mission is already using this perspective, the fact that Intel authorities to fill in the notifica- tributes to the revitalized Lisbon three-stage analysis to underpin announced that it was proceed- tion forms. This will help Agenda objectives. its most recent state-aid deci- ing with the investment two reduce the regular situations At this early stage of the four- sions, the chief economist has days after the commission had where the commission has to year reform, the types of issues warned that the complexity of told Dublin that it would open a dispatch several requests for that could benefit from a more the economic analysis in state- formal investigation into the information and analyse the refined economic analysis aid cases means that it will be planned aid underlines how the replies before the notification include: much easier to build economic action plan’s focus on ‘market can be declared complete. • Using economic principles principles into the expanded failures’ is needed to strictly More interestingly from the and guidance to increase the block-exemption regulations to limit those cases where large practitioner’s perspective, the effectiveness of state aids achieve the action plan’s key employers and dominant com- commission will seek to enhance • Identifying and, most impor- objectives than trying to apply panies in particular can per- the role of the national authori- tantly, better targeting ‘mar- the analysis in individual cases. suade governments to support ties on two different levels. ket failures’ an otherwise commercially- Firstly, the commission pleads • Simpler and more transparent Identifying and better viable investment. for a ‘change of mentality’ at and predictable state-aid targeting the ‘market member-state level by, for exam- measures and procedures. failures’ Rebuilding the procedural ple, appointing a central entity The Neelie Kroes approach to state-aid architecture to filter the quality of notifica- From the chief economist’s per- state aid can be summarised as The third key objective of the tions before they go to Brussels spective, the last of these may be one that seeks to identify and action plan is to achieve more while simultaneously allowing the most crucial aspect of the focus on those situations where effective state-aid procedures, the member state to build up a planned reforms for boosting spending public money can better enforcement, higher pre- valuable, central store of state- investment and jobs. Given the make a difference. According to dictability and enhanced trans- aid experience. At present in dynamic nature of state-aid the action plan, this occurs only parency of the state-aid rules most member states, that knowl- econometric analysis – which, where there are ‘market fail- (including sharing responsibili- edge and experience is dissipated unlike standard economic ures’. ty for enforcement with the across a wide variety of regional analysis in merger cases, must So what is a market failure? member states). and local granting authorities also take account of the social Officially, this is generally More effective procedures: and the central entity merely acts objectives of state aid written defined as one where the market According to the commission, as the ‘postman’ to Brussels. into the treaty – the key task for does not lead to an economical- the starting point is to achieve The commission is also the economist will be to max- ly efficient outcome. For exam- more predictable and shorter examining significantly increas- imise the efficiency of state-aid ple, according to the commis- timelines in its investigations. ing its use of the powers in the policy in achieving these eco- sion, in the risk capital markets Unofficially, the aim is to procedural regulation to issue nomic and social objectives by – where normal market condi- reduce the time taken to com- information injunctions and targeting market failures. tions typically mean that small, plete a second-phase investiga- implementation injunctions to This in turn requires the innovative and thus risky busi- tion – that frequently overruns require notifying authorities to economist to ask three funda- nesses face real problems in get- the 18-month backstop laid supply information to back up mental questions: ting funding – state support is down in the procedural regula- their notifications. • Does the particular aid meas- sometimes the only way to tion (regulation 659/1999, Better enforcement: As ure have an incentive effect or incentivise investors, to make Official Journal, L83 of underlined earlier on, the action does the aid solve the relevant them consider supporting inno- 27/3/1999, as amended) – to plan’s reliance on considerably ‘market failure’? vative ventures. between four and six months expanded block-exemption reg- • Is the aid measure the best- Unofficially, senior commis- (except in major cases and ulations will require the com- placed policy instrument to sion officials refer to the recent where the commission has to mission to strengthen its ex post remedy the market failure? withdrawal by the government call on external consultants). control of state-aid decisions or

49 Law Society Gazette November 2005

Briefing risk that the aid-measures osten- eficiaries and/or affected com- The data confirm that, in the sibly covered by the block plainants. country’s five most important exemption regulation do not ful- However, the action plan’s manufacturing R&D sectors fil the necessary exemption cri- aim to substantially increase the (electrical and electronic equip- teria. use of block-exemption regula- ment, pharmaceuticals, instru- In the light of the case law (for tions, coupled with enhanced ments, food, drink and tobacco, example, C-57/97 Belgium v oversight by the national courts and machinery and equipment), Commission [1999] ECR-I 3671), and/or independent competition Ireland is investing significantly the commission plans to further authorities, implies potentially less than the average of its strengthen its enforcement role significant procedural, com- OECD competitors and, in by adopting a much stricter plainant-friendly developments. some cases (pharmaceuticals), far approach as regards non-notifi- For example, national courts less than the European leaders in cation of aid measures that are prodded by complainants could R&D (in this case, Sweden). either not de minimis or not cov- play a greater role in verifying Almost two-thirds of Irish busi- ered by a relevant block-exemp- that individual aid measures ness R&D is performed in for- tion regulation. This ‘get tough’ Complainants: ‘the commission’s ostensibly covered by a block- eign-owned industry, mainly in attitude will also extend to more best friend’ exemption regulation or signifi- pharmaceuticals and electronics active monitoring of existing aid cantly higher de minimis thresh- and engineering. Since their decisions and recovery decisions provisional recovery of illegal old – and that have not therefore establishment in Ireland, many by the new Enforcement Unit (ie, non-notified) aid and the been notified to the commission multinational companies have within DG Competition. execution of formal recovery – actually fulfil the necessary set up either formal or informal To this end, in September decisions. exemption criteria. R&D activities but, in the main, 2004, the commission launched Rights of complainants: Beyond these developments, these are related to manufactur- a study of the national proce- Despite assurances by commis- the action plan refers to some ing process improvements and dures for enforcing state-aid sioner Kroes at a recent confer- equally interesting changes, rely on innovation generated decisions. The study has two ence that the complainant “was including a proposal to amend outside Ireland. broad aims: the commission’s best friend”, in the procedural regulation to •To give DG Competition a the action plan at least the com- allow the commission to apply to Market failures in better understanding of the mission has deliberately left out the European courts to impose innovation Ireland national procedures used for any discussion of enhancing the penalties on particularly recalci- The first part of this article the enforcement of state-aid procedural rights of third parties trant member states that fail to stressed the importance placed law, in order to enable them to (including complainants and notify their state-aid measures, by the European commission in assess whether those proce- affected competitors) during and to enhance the commission’s the action plan on the need to dures (in particular in protect- state-aid investigations. (In powers to carry out market focus state aid on ‘market fail- ing the rights conferred on joined cases T-228/99 and T- investigations to gather relevant ures’. competitors of the beneficiar- 233/99, Westdeutsche Landesbank sectoral information. According to the July 2004 ies of unlawful aid) allow the Girozentrale and Land Nordrhein- Enterprise Strategy Group immediate and effective exe- Westfalen v Commission (ECR Issues for innovation Ireland (ESG) report, “while the financial cution of the commission’s 2003 II-00435), the CFI reiter- In the first part of this article, I environment for enterprise has state-aid decisions imposing a ated that third parties, including noted that the first step in the improved considerably … there are recovery obligation complainants, are treated as rollout of the action plan was to still market failures in the … avail- •To determine whether the ‘information sources’ only and be the October publication of a ability of risk capital for start-up national authorities are taking do not enjoy the same rights to consultation on state aid for companies. In these situations, the all the necessary steps avail- be involved in the commission’s innovation. The Innovation potential wider economic and social able in their national legal sys- investigation as, for example, Communication, only launched benefit of investment is not fully tems to execute these recovery member states.) on 21 September, is already captured by private investors, and decisions. Not surprisingly, the commis- being portrayed as one of six key there is a need for some state inter- sion was anticipating a signifi- actions to make EU business vention.” Furthermore, since its launch, cant volume of comments on more competitive, alongside, for some senior commission officials this missed opportunity – espe- example, a new industrial policy State aid for innovation in have emphasised the references cially from the European bars – and the controversial Services Ireland in the action plan to various by the time consultation on the Directive. At first sight, the core provisions novel, if not, revolutionary ideas action plan closed on 15 According to European of the Innovation Communication’s to ‘decentralise’ the enforcement September 2005. While individ- Commission studies, financing recommended future treatment of state-aid decisions. In particu- ual officials may be inclined to innovation for highly innovative of public support for R&D activ- lar, the commission appears move further on this, the party SMEs is a significant challenge ities in Ireland would appear to intent on pursuing the sugges- line remains that the commis- in several key European indus- go some way towards removing tion in the action plan that inde- sion’s role of assessing the anti- trial sectors in Ireland. More any state-aid concerns associated pendent authorities (such as competitive effects of an aid generally, European business with government measures to Courts of Auditors in some measure does not require it to R&D expenditure has consis- remedy the innovation ‘market countries) could assist the com- intervene in any relationship tently been significantly lower failures’ identified in the ESG mission in the detection and the between member states and ben- relative to the US and Japan. report.

51 Law Society Gazette November 2005 Briefing

In particular, the Innovation position is that “state aid … to tion from notification for state- up the challenge of closing the Communication suggests that any large undertakings or to under- aid measures is necessary for two ‘innovation gap’ with our EU future general block-exemption takings with a high market share main reasons, because: (a) non- and foreign competitors. regulations, guidelines and/or may only be authorised after an technological innovation activi- Nevertheless, and before the other notices offering automatic investigation by the commis- ties could practically cover any public consultation period on exemption from the notification sion” (paragraph 24). (Under the routine activity of the beneficiar- the Innovation Communication obligation for innovation state- current Regional Aid Guidelines ies (thus potentially encompass- closes on 21 November, it would aid measures will cover three (2000-2006), the aid beneficiary ing operating aid that is invari- be sensible to consider to what distinct types of activities: would be ‘dominant’ if it ably prohibited under the state- extent the presumptions and • Supporting the creation and accounts for more than 25% of aid rules); and (b) of insufficient trends described in the growth of innovative start-ups the product concerned.) data concerning the significance Innovation Communication (for •Increasing the availability of Under community law, an of state-aid measures for innova- example, away from aid to large risk capital for innovation SME is currently defined as an tion in the services sector. companies and employers and, at •Aid for technological experi- enterprise that employs less than least initially, excluding aid for mentation and risks of launch- 250 people and has an annual Regional flexibility? innovation in the services sector) ing innovative products. turnover not exceeding €50 mil- The extent to which Ireland present particular difficulties in lion, and/or an annual balance could still benefit from any flexi- the light of the structure of the Nonetheless, any public support sheet total not exceeding €43 bility implicit in the Innovation Irish economy. for innovation that seeks the million. Communication allowing for a Looking beyond Ireland, it protection from the sanctions On the basis of the latest fig- more lenient approach to state may be legitimate to ask how a against illegal state aid, which ures available relating to R&D aid for large companies located ‘modernised’ state-aid regime would be the main advantage expenditure relative to company in assisted regions of the EU focused exclusively on identify- offered by such a general block size, most companies in Ireland remains to be seen. ing and allowing public support exemption regulation, will need are therefore likely to welcome Recently, the commissioner for ‘market failures’ as to be measured against the fol- the added legal certainty derived has suggested that, despite the described in the action plan and lowing four yardsticks set out in from the Innovation Communi- radical review of the Regional the Innovation Communication the action plan, namely: cation’s clear bias towards, and Assistance Guidelines after 2007 – will enable European compa- •There must be a well-defined presumption of pro-competitive- particularly in favour of the new nies (both large and small) to market failure ness for, state aid for innovation member states – it would be continuously move up the • State aid should be the appro- by SMEs. This should be espe- possible to allow the member value-chain to meet the chal- priate policy instrument, as cially helpful for any government states some room for manoeu- lenges from Indian and Chinese opposed to structural policy or efforts to stimulate large-scale vre to define some of their innovators. regulatory action R&D investment (in excess of €2 other regions as needing special For state-aid practitioners in • The aid must have an incen- million) by indigenous (as treatment and in the commis- Ireland, the procedural ramifica- tive effect and be proportion- opposed to foreign-owned) com- sion’s own words, “to promote tions of the action plan are likely ate panies in key sectors. the realisation of the objectives to prove most interesting. In the •Distortions of competition On the other hand, and as the and targets of the Lisbon absence of any suggestion in the must be limited. Intel controversy earlier this Agenda.” action plan of improvements to year demonstrated (noted in the Finally, Ireland produces third-party rights of access and When applying these tests, the first part of this article), the ini- fewer of the researchers neces- intervention in state-aid cases, proponents of the innovation tial presumption in the sary to support an innovation- the procedural changes mooted measure could take some com- Innovation Communication against driven economy than most of its by the commission hold out the fort from the fact that, in the state aid to large companies with OECD competitors. In the light prospect not just that potential light of the mounting evidence a dominant market position – of recent reports concerning the state-aid beneficiaries will of the EU R&D gap with the with the exception, perhaps, of recruitment difficulties in the require more assurances from US and Japan (and in the not- those in the biotech and pharma- Irish high-tech sectors, the pro- their advisers, but that the par- too-distant future, China and ceuticals sectors and/or where posed limits on state aid to ticular measures fulfill the rele- India), the European Commis- the companies are central to the attract researchers and engineers vant block-exemption regulation sion generally accepts the need establishment of so-called ‘poles to Ireland will probably feature criteria. for support measures for inno- of excellence’ – could still prove in the government’s response to In the event of a challenge, vation. politically difficult in Ireland. the Innovation Communication. the lawyers should also prepare However, the application of to protect the complainant’s these tests could still prove con- Aid for ‘technological Issues and questions rights under national law before troversial in Ireland. innovation’ only The proposals in the Innovation the national courts and/or the The Innovation Communication Communication for extending the independent competition bodies Large corporations need proposes that any general block legal benefits of a block-exemp- that will play a much greater role not apply exemption regulation would tion regulation or other form of in declaring the aid illegal and The Innovation Communication, only cover activities that relate guidance to public measures thus repayable. G as drafted, would only benefit to technological innovation supporting investment in R&D state aid for technological inno- (paragraph 25). According to the should be welcomed by the gov- Conor Maguire is a Brussels-based vation carried out by Irish commission, this restriction in ernment and the vast majority of solicitor. The first part of this article SMEs. The commission’s initial the scope of any de jure exemp- companies in Ireland that take appeared in last month’s ‘Eurlegal’.

52 Law Society Gazette November 2005 Briefing Recent developments in European law COMPETITION LAW sales monopoly on medicine was an opportunity for the producers nation against such medicines. It contrary to EC law. The ECJ held of products that are not selected is, therefore, in principle contrary Case C-438/02, Krister Hanner, that Apoteket is a state monopoly to ascertain the reasons for the to EC law. The grant of exclusive 31 May 2005. Since 1970, the of a commercial character within selection and to contest selec- rights contrary to EC law may be retail sale of medicine in Sweden the meaning of EC law. EC law tions decisions before an inde- justified. This is in the case of an has been entrusted to Apoteket, a does not require total abolition of pendent supervisory authority. exclusive right granted to an company that is under state con- such monopolies but requires Apoteket appears to be entirely undertaking providing services of trol and has a monopoly on the them to be adjusted in such a way free to select a product range of general economic interest in cir- sale of medicine in Sweden. In as to ensure that no discrimina- its choice. This agreement does cumstances where the task 2001, Bringwell International AB tion exists between nationals of not ensure that all discrimination undertaken in the general interest sold 12 packages of nicotine member states. For sales monop- is ruled out and the Swedish gov- can only be carried out through patches and nicotine chewing olies, the court had held that ernment has not claimed that any the grant of such a right and pro- gum in Stockholm. As these prod- monopolies arranged in such a other measure exists that might vided that the development of ucts are regarded as medicines in way that trade in goods from other compensate for that lack of safe- trade is not affected to such an Sweden, this was in breach of member states is placed at a dis- guards. The ECJ held that extent as would be contrary to the Swedish law. Criminal proceed- advantage, compared with trade Apoteket’s system of selecting interests of the EC. However, in ings commenced against Mr in domestic goods, are not medicines is liable to place medi- the absence of a selection system Hanner, the general manager of allowed. The agreement between cines from other member states that excludes all discrimination Bringwell. The Swedish court the Swedish state and Apoteket at a disadvantage, and its sales against medicines from other referred a number of questions to does not provide for a purchasing monopoly is not arranged in such member states, the sales monop- the ECJ to ascertain whether the plan for calls for tender, providing a way as to rule out any discrimi- oly in question cannot be justified.

COMPACT OFFICE IN THE HEART OF THE LEGAL QUARTER Are you a Dublin Solicitor who wants to have an office in the legal quarter or country practise expanding into Dublin?

● 97 North King Street is within easy walking distance of the Four Courts, Children's Courts, Kings Inn, Law Library, Blackhall Place, Richmond Court complex and borders Smithfield. ● Accessible for clients and staff, 90 metres from the Luas Line connecting Heuston station/Busarus and 150 metres from the main bus routes on the Quays. ● Prominent street level position with good internal ambiance and natural lighting. ● 110 Square metres, including 2 toilets ● 4 secure parking spaces available. Ample adjacent on street parking. ● Rent free introductory period

Contact Ross Mac Mahon on 086-2349788 or Eugene Murray The Property Shop on 01-8388444

53 Law Society Gazette November 2005 LAW SOCIETY COMPANY FORMATION SERVICE

Your Company Formation Service forms approx 1,100 companies every year for over 300 solicitors’ firms. We achieved ISO 9001:2000 NSAI in 2002.

WHY USE US WE FORM ! Fast efficient service ! Private companies limited ! Competitive prices by shares ! 5 day electronic filing ! Single member companies ! 10 day ordinary filing ! Guarantee companies ! Charitable status companies ! Unlimited companies

SCHEDULE OF FEES

Private and single member companies limited by shares and unlimited companies: 5 day €330 10 day €278 Guarantee/charitable status companies from €215

For further information, application form and form A1 see our website www.lawsociety.ie or contact us directly by e-mail: [email protected] or tel (01) 6724914/6 or fax (01) 6724915 People and places Wicklow Bar Association in the dock ocal members of the LWicklow Solicitors’ Bar Association (WSBA) found themselves in the unusual position of standing in the dock of a German courthouse recently. However, it was not for any untoward reason, but to experience a piece of history. Thirteen members of the WSBA and two counsel took part in the second annual trip to Europe (last year being Finland). This year’s venue was Nuremberg, Germany. These trips encourage legal and cultural exchange. Contact BL PHOTO: KEVIN STAUNTON (Back, from left): Richard Cooke, Fergus Kinsella, Edmund Louth, Mary Miley, Bernard O’Beirne, Cathal Louth with Nuremberg was made by (president) and David Tarrant; (front, from left): Damien Sheridan BL, Ian Munnelly, Donal O’Sullivan, Tom Ian Munnelly, solicitor in the Honan, Jennifer Haughton, Karl Cearney and Pat O’Toole law department of Wicklow County Council, with Members were treated to a the famous Nuremberg Rallies which will be one of the venues Nuremberg lawyer, Norbert visit to the opera, to the were held by Hitler, and to for the forthcoming World Oswald. stadium (now in ruins) where Nuremberg football club, Cup. Nuremberg was the venue The hospitality far exceeded for the famous trials of Nazi our usual céad míle fáilte. The war criminals after World War highlights of the trip for two II. The dock in which our members of the association was lawyers found themselves was to take Mr Oswald’s BMW M the same dock used by war Sports car to the limit on the criminals during their trial. autobahn (where there is no The courtroom is still used for limit). trials. The WSBA would like to thank their German hosts for their hospitality and kindness SOLICITORS’ and look forward to a HELPLINE reciprocal visit from our Nuremberg colleagues in the The Solicitors’ near future. G

Helpline is available PHOTO: M MORIARTY Tipperary Star! to assist every Rosario Joyce is congratulated by her husband Philip member of the (currently Junior Vice-President of the Law Society) after she profession with any took silk on 7 October problem, whether personal or professional 01 284 8484

The real deal In the October Gazette (page 61), we inadvertently published a pic- ture that was not Alex Findlater, great-grandnephew of William Findlater, founder of the Law School’s Findlater Scholarship. So here’s Alex in all his glory. The Chain of gold, grip of steel person responsible for the error THE SERVICE IS COMPLETELY The new president of the Dublin Solicitors’ Bar Association is Brian will not be named and shamed, CONFIDENTIAL AND TOTALLY Gallagher, who received the chain of office from outgoing president but she knows who she is and INDEPENDENT OF THE LAW Orla Coyne has been severely dealt with SOCIETY

55 Law Society Gazette November 2005 STANHOPE STREET LAW SCHOOL

For over 20 years Stanhope has prepared generations of students for the FE1 exams Enquire about our reputation – it speaks for itself!

NEXT ANNUAL COURSE 28 October 2005 – 19 February 2006 For Spring and Autumn FE1s www.stanhopelaw.com www.stanhopelaw.ie UKTyping

Specialising in the provision of outsourced and off-shore typing and transcription support to Lawyers and Courts. A service provided by lawyers to lawyers.

We can reduce a law firms typing overhead by up to 70%. We turnaround all typing within 24 hours with near perfect quality. Over 600 satisfied lawyers use us daily. www.uktyping.com Tel: +44 208 204 3000 [email protected] Apprentices’ page SADSI

Solicitors Apprentices Debating Society of Ireland Planet of the babes or those of you in the itself was informal, more like a discussion, and Tom and John Fprofession who are making casual discussion than any kind didn’t let the proposition your own money or indeed of an organised debate, which down, especially when it was making loads of money for worked well, considering that proposed that women are too somebody else, you may have this was the new members’ first emotional to be in a dominant long forgotten your days in the outing. position. Solicitors’ Apprentices’ That said, the meeting did The ‘best speaker’ award Debating Society of Ireland. step up a notch when the first went to Damien Glancy, who, However, for those who are motion hit the table. That while speaking incisively, starting on the professional motion, proposed by Julie managed to avoid alienating path, you must first tackle the Shackleton, was “That this either sex. Maybe this was the Law School. house believes that the people secret of his success and truly Having taken part in some of present at this meeting should Top boffins predict the future of the way forward in the greater the student orientation tutorials get preference on the SADSI the profession may look gender debate. recently, I get the feeling that all trip to Toronto”. Needless to something like this Now you’ll understand why the students coming behind me say, there were many opinions, I say that those who are may well be my employers in most for the motion and only motion was the winner of ‘best coming behind us could well the future – none more so then two against. (Well, some motion of the evening’, and it be the force to be reckoned the fresh-faced recruits who people felt that they should was no surprise that this with in the future. took part in the SADSI debate generate some kind of a debate motion exacerbated the sexual In conclusion, a great night on whether the legal profession and represent the people who divide. Those who did oppose was had by all and the future is becoming too feminised. are not the newest recruits.) the motion did a fine job of it, looks bright for SADSI. So I’ll The meeting took place in But the discussion hit a high especially when Ciara and Zoe leave you by saying thanks to the Blue Room of the main point when Daragh Burke highlighted the fact that many our sponsors, Bank of Ireland, building (which, I might add, is proposed “That this house male decision makers are Michael Benson Recruiting and a superb venue for our debates) believes the legal profession is unable to make decisions for of course the Law Society. G on 29 September. The meeting becoming too feminised”. This themselves. But it was a heated Liam Fitzgerald, auditor Whose copy of the Gazette are you reading? Why not subscribe ...

I would like to subscribe to the Law Society Gazette

I enclose my cheque for €57.15 Please charge my Access Visa Mastercard Eurocard

Credit card number Expiry date: 57.15 MONTH/YEAR € FOR

Name: 10 ISSUES

Address:

Telephone:

Signature: Please return to Law Society Gazette, Blackhall Place, Dublin 7.

57 Law Society Gazette November 2005 Professional information

LOST LAND of Cork; Co Cork of Oldcourt and barony of Regd owner: Kevin Broder; folio: CERTIFICATES Regd owner: Margaret Cronin; Uppercross; Co Dublin 26336; lands: townland of (1) folio: 43597F; lands: plots of Regd owner: John Connaughton Carra, (2) Lurganmore and Registration of Title Act 1964 ground being part of the town- Limited (limited liability com- barony of (1) Leitrim, (2) An application has been received land of Greenhills in the barony pany); folio: DN19351; lands: a Longford; area: (1) 23.1480 from the registered owners men- of Barretts and county of Cork; plot of ground situate on the hectares, (2) 0.5615 hectares; tioned in the schedule hereto for Co Cork north side of the Blessington to Co Galway the issue of a land certificate as Regd owner: Annie Monica Kelly; Tallaght road, in the parish and Regd owner: Dorothy Herzer; stated to have been lost or inadver- folio: 27638; lands: plots of town of Tallaght, being part of folio: 10348F; lands: townland tently destroyed. A new certificate ground being part of the town- the townland of Jobstown and of Drummaveg and barony of will be issued unless notification is land of Shrone in the barony of barony of Uppercross; Co Moycullen; area: 0.2379 received in the registry within 28 Bear and county of Cork; Co Dublin hectares; Co Galway days from the date of publication Cork Regd owner: Patrick and Pauline Regd owner: Concepta Langan; of this notice that the original cer- Regd owner: Andrew Murphy; Doolin; folio: DN13259F; folio: 49807F; lands: townland tificate is in existence and in the folio: 2915L; lands: plots of lands: property situate in the of Shantallow and barony of custody of some person other than ground being part of the town- townland of Carrickmines Great Galway; Co Galway the registered owner. Any such land of Ballincollig in the and barony of Rathdown; Co Regd owner: John Costello; folio: notification should state the barony of Muskerry East and Dublin 36623; lands: townland of grounds on which the certificate is county of Cork; Co Cork Regd owner: Judith Houston (for- Cloonmore (ED Belclare) and being held. Regd owner: National Trailers merly Murray); folio: Cloonaglasha and barony of (Register of Titles), Central Office, Land Agricultural and Commercial DN74506L; lands: property Clare and Dunmore; area: Registry, Chancery Street, Dublin Limited; folio: 19343F and known as 33 Lower Leeson 17.4390 hectares and 0.9560 (Published 4 November 2005) 19344F; lands: plots of ground Street, situate on the west side hectares; Co Galway being part of the townland of of the said street in the district Regd owner: Thomas Walsh; Regd owner: Joseph Mescall and Acres in the barony of Fermoy of south central, parish of Saint folio: 11178; lands: townland of Mary Mescall; folio: 8361F; and county of Cork; Co Cork Peter; Co Dublin Prospecthill and Garraun lands: townland of Breaghva Regd owner: John Ryan and Regd owner: Edward Keeley; folio: Lower and barony of (ED Moyarta) and barony of Margaret Ryan; folio: 30029; DN88900F; lands: property sit- Dunkellin; area: (1) 24 acres, 1 Moyarta; Co Clare lands: plots of ground being part uate in the townland of rood, 39 perches, (2) 4 acres, 2 Regd owner: Don and Margaret of the townland of Ballylangley Glenamuck South and barony of roods, 8 perches; Co Galway Buckley; folio: 77706F; lands: in the barony of Carbery East Rathdown; Co Dublin Regd owner: Bridget Dempsey; plots of ground being part of (east division) and county of Regd owner: Liam Keeling; folio: folio: 19783; lands: townland of the townland of Sleveen East in Cork; Co Cork DN3591F; lands: property situ- (1) Abbeyland Great, (2) the barony of Muskerry West Regd owner: Mary Boyle, Ardlagh- ate in the townland of Brazil and Clonfert (Butson) and barony and county of Cork; Co Cork an, Cloghan, Co Donegal; folio: barony of Nethercross; Co of Longford; area: (1) 11.7662 Regd owner: James Clement 8978; lands: Kinletter; area: Dublin hectares and (2) 1.1002 Casey; folio: 9101F; lands: plots 40.4685 hectares; Co Donegal Regd owner: Elizabeth McCaffrey; hectares; Co Galway of ground being part of the Regd owner: James Boylan; folio: folio: DN85417F; lands: prop- Regd owner: Patrick Ferris; folio: townland of Fahane in the DN2737; lands: property situate erty situate on the north side of 10727F; lands: townland of barony of Carbery West (west in the townland of Townparks Chapel Street in the town and Dunloe Lower and barony of division) and county of Cork; and barony of Balrothery East, parish of Balbriggan; Co Dunkerron North; Co Kerry Co Cork situate on the south side of the Dublin Regd owner: Daniel and Regd owner: Denis and Julie Station Road in the town of Regd owner: John MacNeill; folio: Catherine Foley; folio: 6562F; Coleman; folio: 36876F; lands: Skerries and parish of DN10958; lands: property situ- lands: townland of Muing West plots of ground being part of Holmpatrick; Co Dublin ate in the townland of and Trughanacmy; Co Kerry the townland of Dromin in the Regd owner: James Boylan; folio: Commons East and barony of Regd owner: Alacoque Wright; barony of Muskerry East and DN16249; lands: property situ- Nethercross; Co Dublin folio: 3058L; lands: townland county of Cork; Co Cork ate in the townland of Regd owner: Sean McDermott of Common and barony of Regd owner: Susan Creamer and Townparks and barony of and Fiona Daly; folio: Connell; Co Kildare Noel Murphy; folio: 99755F; Balrothery; Co Dublin DN34368F; lands: property sit- Regd owner: Senan Daly; folio: lands: plots of ground being Regd owner: Churchdown uate in the townland of Seatown 8616F; lands: townland of part of the townland of Limited (limited liability com- West and barony of Ticknevin and barony of Townparks (ED Cloyne) in the pany); folio: DN9563; lands: Nethercross; Co Dublin Carbury; Co Kildare barony of Imokilly and county property situate in the townland Regd owner: Tony McMahon; Regd owner: Eugenie T Stokes; folio: DN68492F; lands: prop- folio: 11802F; lands: townland erty situate in the townland of of Celbridge and barony of Salt Templeogue and barony of North; Co Kildare Confidential Digital Printing - Colour & B&W Uppercross; Co Dublin Regd owner: Michael Egan; folio: Legal Documents - Scanned & Indexed Regd owner: John Nolan; folio: 6272F; lands: Knockroe and DN91552F; lands: property sit- barony of Crannagh; Co Litigation document management uate to the west of Adamstown Kilkenny Road in the town of Lucan; Co Regd owner: Laurence Gibbons Database design & administration Dublin and Mary Gibbons; folio: Regd owner: Michael O’Brien and 13340F; lands: Gowran Marian O’Brien; folio: Demesne and barony of DN79402F; lands: property sit- Gowran; Co Kilkenny uate in the townland of Regd owner: Herbert Harper; Mooretown and barony of folio: 2125F; lands: Annamult Nethercross; Co Dublin and barony of Shillelogher; Co Regd owner: Ray Gannon; folio: Kilkenny Tallaght Business Centre, Dublin 24 DN29179F; lands: property sit- Regd owner: Rory M Hogan; tel: 01-506 0767 uate in the townland of Balally folio: 13217; lands: Beeline and email: [email protected] and barony of Rathdown; Co Rogerstown and barony of Dublin Iverk; Co Kilkenny

58 Law Society Gazette November 2005 Professional information

Regd owner: William Holohan; Regd owner: Patrick O’Malley; folio: 16968; lands: Coan West folio: 25983F; lands: townland LawSociety and barony of Fassadinin; Co of Cross West and barony of Gazette Kilkenny Kilmaine; area: 0.114 hectares; Regd owner: Andrew Townsend; Co Mayo folio: 6453; lands: Ballyclovan Regd owner: Thomas Conlon, PROFESSIONALNOTICE RATES and Ballyclovan Meadows and Baltinoran, Kinnegad, Co Notice rates in the Professional information section are as follows: barony of Callan; Co Kilkenny Westmeath; folio: 23765; lands: • Lost land certificates – €121 (incl VAT at 21%) Regd owner: Gerard Woodcock; Knockersally or Colehill and Wills – €121 (incl VAT at 21%) folio: 17745; lands: Booly and Baltinoran; area: 45.7522 • Lost title deeds – €121 per deed (incl VAT at 21%) barony of Shillelogher; Co hectares and 8.6602 hectares; • Kilkenny Co Meath • Employment/miscellaneous – €121 (incl VAT at 21%) Regd owner: Patrick Fitzpatrick; Regd owner: Patrick Smith, HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €30 EXTRA (deceased); folio: 2231; lands: Ardlonan, Carlanstown, Kells, Dysart and barony of Co Meath; folio: 9798; lands: All notices must be paid for prior to publication. Deadline for December Gazette: Maryborough East; Co Laois Ardlonan; area: 12.4264 25 November 2005. For further information, contact Catherine Kearney or Valerie Regd owner: Thomas Edward hectares; Co Meath Farrell on tel: 01 672 4828 (fax: 01 672 4877) Stephenson, West Barrs, Regd owner: Hugh Goulding, Glenfarne, Co Leitrim; folio: Peterstown, Trim, Co Meath; 11296; lands: Moneenageer; folio: 3131F; lands: Peterstown; Regd owner: Bridget Mullaney; county of Waterford; Co area: 5.2508 hectares; Co area: 17.5205 and 0.2807 folio: 5454; lands: townland of Waterford Leitrim hectares; Co Meath (1) Cloysparra, (2) Drumfad Regd owner: Kieran and Louise Regd owner: Patricia Enright; Regd owner: Patrick Molloy and barony of Carbury; area: Brophy; folio: 23385F; lands: folio: 14120; lands: townland of (deceased); folio: 11421; lands: (1) 2.1245 hectares, (2) 4.0342 plots of ground being part of Bushyisland and barony of Puttaghan and barony of hectares; Co Sligo the townland of Ballinamona in Kenry in the county of Ballycowan; Co Offaly Regd owner: Thomas and Rosie the barony of Gaultiere and Limerick; Co Limerick Regd owner: James Murphy Oates; folio: 8745F; lands: county of Waterford; Co Regd owner: Jeremiah Newman (deceased); folio: 11475; lands: townland of Abbeyquarter Waterford (deceased) and Joseph O’Beirne Castletown and Glinsk and North and barony of Carbury; Regd owner: Brigid Bannon, (deceased) and Joseph barony of Ballybrit; Co Offaly Co Sligo Corbally, Gaybrook, Mullingar, Dempsey; folio: 1976F and Regd owner: Kevin and Margaret Regd owner: Gerard Bailey and Co Westmeath; folio: 6103; 5634F; lands: townland of Hynes; folio: 3066F; lands: Maria Bailey; folio: 34781F; lands: Corbally; area: 27.6577 Newcastle and barony of Killurin and barony of Geashill; lands: townland of Kilshane and hectares; Co Westmeath Clanwilliam, Co Limerick; Co Co Offaly barony of Clanwilliam, Co Regd owner: William Gaffney, Limerick Regd owner: Cronan Kelly; folio: Tipperary; Co Tipperary Delvin, Co Westmeath; folio: Regd owner: Patrick Sheehan; 4073; lands: Ballynasrah and Regd owner: Regina Carroll; 57R; lands: Mabestown; area: folio: 2383F; lands: townland of barony of Garrycastle; Co folio: 3051L; lands: townland of 62.3520 hectares; Co Drombanny and barony of Offaly Burgagery Lands West and Westmeath Clanwilliam; Co Limerick Regd owner: Michael Costello; barony of Iffa and Offa East; Regd owner: John Carroll, Regd owner: Bernard Gunshinan, folio: 2203; lands: townland of Co Tipperary Dublin Road, Kilbeggan, Co Lettergullion, Drumlish, Co (1) Cornashinnagh, (2) Regd owner: Susan and Pascal Westmeath; folio: 2860; lands: Longford; folio: 128R; lands: Corradrehid and barony of (1) Mansfield; folio: 32192; lands: Kilbeggan; Co Westmeath Lettergeeragh; area: 0.3410 and (2) Ballintober South; area: townland of Derrygarth Lower Regd owner: James McKenna; hectares; Co Longford (1) 5.3241 hectares, (2) 0.4527 and barony of Iffa and Offa folio: 14663 and 14664; lands: Regd owner: Josephine Feeney, hectares; Co Roscommon West; Co Tipperary Ballaghblake and barony of Clondra, Co Longford; folio: Regd owner: Vincent Murray; Regd owner: George and Ann Shelmaliere East; Co Wexford 195F and 9976; lands: folio: 1202F; lands: townland of Gandy; folio: 1091L; lands: Regd owner: Francis Albert Hillis Aghnagore and Clogher and Muff and barony of Athlone townland of Carrickbeg and (deceased); folio: 1975; lands: Rinn; area: 1.5757, 2.1372, North; area: 0.0935 hectares; barony of Upperthird; Co Fannystown and barony of 0.0809 and 0.4040 hectares; Co Co Roscommon Tipperary Bargy; Co Wexford Longford Regd owner: Kevin Naughton; Regd owner: Nancy Mahony; Regd owner: William Stanley Regd owner: Liam M Rice, ‘Ben folio: 4983; lands: townland of folio: 1221; lands: plots of Mowbray (deceased); folio: Vista’, Stapleton Place, Tonroe or Creen and barony of ground being part of the town- 7575F; lands: Forth Commons Dundalk, Co Louth; folio: 68; Frenchpark; area: 7 acres, 3 land of Beallough in the barony and barony of Forth; Co lands: Bellurgan; area: 3.7838 roods, 24 perches; Co of Upperthird and county of Wexford hectares; Co Louth Roscommon Waterford; Co Waterford Regd owner: John Condon; folio: Regd owner: Kieran Feeney; Regd owner: Mary Naughton; Regd owner: Joseph Power; folio: 3872F; lands: Dunanore and folio: 27693; lands: townland of folio: 18646; lands: townland of 8817F; lands: plots of ground barony of Bantry; Co Wexford (1), (2) and (3) Carrowmore (1) and (2) Ballyconboy (part) being part of the townland of (ED Kilmaine), (4) Cregmore and barony of (1) and (2) Gaulstown in the barony of Registration of Title Act 1964 – (Browne) and (5) Bloomfield Castleragh; area: (1) 8 acres, 2 Middlethird and county of dispense with production of and barony of (1), (2), (3), (4) roods, 28 perches, (2) 11 acres, Waterford; Co Waterford land certificate and (5) Kilmaine; area: (1) 2 roods; Co Roscommon Regd owner: Patrick Tobin; folio: An application has been received 4.0923 hectares, (2) 1.8640 Regd owner: George Francis Cass- 12212F; lands: plots of ground from Dublin City Council for an hectares, (3) 5.1369 hectares, erly; folio: 3947F; lands: town- being part of the townland of order to dispense with the pro- (4) 7.0440 hectares, (5) 0.5109 land of Rathnaglye and barony Knockaunacuit in the barony of duction of a land certificate in hectares; Co Mayo of Roscommon; area: 0.2885 Coshmore and Coshbride and respect of the lands specified in Regd owner: Anthony Healy; hectares; Co Roscommon county of Waterford; Co the schedule hereto, which the folio: 10076; lands: townland of Regd owner: Thomas Waterford original land certificate is stated (1) Scotchfort, (2) Deelcastle McLoughlin; folio: 12078; Regd owner: Patrick Tobin; folio: to have been lost or inadvertently and barony of (1) and (2) lands: townland of Lisroyne 7818; lands: plots of ground destroyed. An order to dispense Tirawley; area: (1) 13.3647 (parts), electoral division of being part of the townland of with the production of the land hectares, (2) 0.3186 hectares; Strokestown and barony of Knocknafallia in the barony of certificate will be issued unless Co Mayo Roscommon; Co Roscommon Coshmore and Coshbride and notification is received in the reg-

59 Law Society Gazette November 2005 Professional information

Chapterhouse, Friars Mill Road, Carrigrohane, Co Cork. Would Mullingar, Co Westmeath any person having knowledge of a forensic accountants will made by the above deceased, O’Sullivan, David (deceased), who died on 11 December 2004, late of Kilmurry, Slieverue, please contact Coakley Moloney, Ferrybank, Co Kilkenny. Would Solicitors, 49 South Mall, Cork; tel: any person having knowledge of 021 427 3133, fax: 021 427 6948 the whereabouts of a will dated 31 Be Sure. Trust our experience. March 1978, executed by the Ward, Thomas J (deceased), late above named deceased who died of 97 Hyde Park Road, Prospect, 5 Union Quay, Cork Tel:021 431 9200 Fax:021 431 9300 on 14 May 1993, please contact T Limerick, and formerly of 11 60 Lower Baggot Street, Dublin 2 Tel:01 475 4640 Fax:01 475 4643 Kiersey & Co, Solicitors, 17 Sycamore Heights, Patrickswell, e-mail: [email protected] Web: www.jhyland.com Catherine Street, Waterford; tel: Co Limerick and also of Harrisons 051 874 377, fax: 051 870 390 Place, Charleville, Co Cork. Would any person having knowl- istry within 28 days from the date Would any person having knowl- Pingston O’Neill, Marie J edge of a will made by the above of publication of this notice that edge of the original will dated 7 (deceased), late of 106 named deceased, who died on 17 the original certificate is in exis- June 1991 made by the above Walkinstown Road, Dublin 12. June 2005, please contact Colbert tence and in the custody of some named deceased, who died on 9 Would any person having knowl- & Associates, Solicitors, Old person. Any such notification January 2005, please contact edge of the whereabouts of a will Limerick Road, Charleville, Co should state the grounds on which Patrick Mullins, Dillon Mullins made by the above deceased, who Cork; DX 73 007 Charleville; tel: the certificate is being held. and Co, Solicitors, Lower died on 4 July 2005, please contact 063 30759, fax: 063 30755 (Registrar of Titles), Chancery St, O’Connell Street, Kinsale, Co Frizelle O’Leary & Co, Solicitors, Dublin. Date: 4 November 2005 Cork; tel: 021 477 2000 Slaney Place, Enniscorthy, Co Wexford; tel: 054 33547; ref: MISCELLANEOUS Schedule: Regd owner: Patrick Kelly, Margaret (deceased), late PIN0001/1 JOL.SW Costigan and Maureen Costigan; of 5 Carndonagh Lawn, Northern Ireland agents for all folio: DN63016F; lands: St Donaghmede, Dublin 13. Would Sheehy, Johanna Christina contentious and non-contentious Catherine’s and barony of North anyone with any knowledge of a (deceased), orse Johanna matters. Consultation in Dublin if Central in the county of Dublin; will made by the above named Christine Sheehy, orse Chrissie required. Fee sharing envisaged. area: three square metres as per deceased please contact Mary Sheehy, publican, late of Contact Norville Connolly, D&E map attached to dealing Dorgan, Solicitor, 15 South Ballylooby, Cahir, Co Tipperary. Fisher, Solicitors, 8 Trevor Hill, D2005DN004688G; Co Dublin Te rrace, Cork; tel: 021 497 5651 Would any person having knowl- Newry; tel: 048 3026 1616, fax: edge of the whereabouts of a will 048 3026 7712, e-mail: norville@ Schedule: Regd owner: Patrick McCarthy, David (deceased), made by the above named danefisher.com Costigan and Maureen Costigan; late of 5 Chapel Street, Cloyne, Co deceased, who died on 10 January folio: DN63016F; lands: St Cork. Would any person having 2005 at Ballylooby, Cahir, Co London solicitors will be pleased Catherine’s and barony of North knowledge of a will made by the Tipperary, please contact John to advise on UK matters and Central in the county of Dublin; late David McCarthy, who died on Kelly, Donal T Ryan, Solicitors, undertake agency work. We han- area: as per map attached to deal- 4 May 2005, please contact Castle Street, Cahir, Co dle probate, litigation, property ing D2004DN044451W; Co Diarmaid Falvey, Solicitors, Tipperary; tel: 052 41244, fax: 052 and company/commercial. Parfitt Dublin Church Street, Cloyne, Co Cork; 42050, e-mail: [email protected] Cresswell, 567/569 Fulham Road, tel: 021 465 2590, fax: 021 465 London SW6 1EU; DX 83800 2868 Shields, Sean (otherwise known Fulham Broadway; tel: 0044 2073 WILLS as John) (deceased), late of 48 St 818311, fax: 0044 2073 816723, e- McGinn, Patricia (née Fahy) Brigid’s Park, Blanchardstown, mail: [email protected] Creighton, Nicholas (deceased), (deceased), late of 6 St Agnes Dublin 15. Would any person hav- late of Lower Main Street, Rush, Road, Crumlin, Dublin 12, previ- ing knowledge of the whereabouts Offices to let: 27 Lower Bridge in the county of Dublin. Would ously of 48 Park Crescent, of any will made by the above Street, City Gate, Dublin 8; 1,200 any person with any knowledge of Blackhorse Avenue, Dublin 7 and named deceased, who died on 18 sq ft net. Own door, mid-terrace a will executed by the above named 7 Sheltin Drive, Dublin 7. Would October 2004 at 48 St Brigid’s office property arranged over deceased, who died on 16 April any person having knowledge of a Park, please contact Eimear ground, first and second floor, with 2005, please contact Ryan Smyth will executed by the above named Sampson of Lavelle Coleman, two car park spaces to the rear, & Co, Solicitors, Park House, deceased, who died on 21 June Solicitors, 51/52 Fitzwilliam available for immediate letting. Upper Kilmacud Road, Dublin 14; 2005, please contact Fagan Bergin, Square, Dublin 2; tel: 01 644 5800, Enquiries to F Doyle, tel: 086 257 tel: 01 298 0753. There is a reward Solicitors, 57 Parnell Square West, fax: 01 644 5848, e-mail: esamp- 9628 of €10 offered for the return of the Dublin 1; tel: 01 872 7655, fax: 01 [email protected] original will 873 4026, e-mail: info@faganlaw. Waterford general practice for com Stephens, Mary (deceased), late sale as going concern. Please con- Fleming, Kathleen (deceased), of 204 Ard Foyle, Moville, Co tact at first instance: David Dore & late of 169 Glasaree Road, Finglas, McLoughlin, Mary (otherwise Donegal and formerly of Co, Accountants, 7a Newgate Dublin 11. Would any person hav- Molly) (deceased), originally Tullynavin, Redcastle, in the coun- Street, Waterford ing knowledge of a will executed from Glackstown, Collinstown, ty of Donegal, widow. Would any by the above named deceased, who Co Westmeath and late of Holly person having knowledge of a will died on 26 September 2004, please Road, Northampton, Northamp- made by the above named TITLE DEEDS contact Frank Ward & Co, tonshire, England, and who died at deceased, who died on 10 January Solicitors, Equity House, Upper the Thorncliffe Grange Nursing 2005, please contact MacBride In the matter of the Landlord Ormond Quay, Dublin 7; tel: 873 Home, 2 Windmill Lane, Denton, Conaghan, Solicitors, Malin Road, and Tenant Acts 1967-1994 and 2499, fax: 873 3484, e-mail: eve- Manchester, England. Would any Moville, Co Donegal; tel: 074 938 in the matter of the Landlord [email protected] person having knowledge of a will 2184/938 2269, fax: 074 938 2256, and Tenant (Ground Rents) (No made by the above named e-mail: [email protected] 2) Act 1978: an application by Kearney, Catherine (deceased), deceased, who died on 29 August Christopher Singh late of 106 Knockpogue Avenue, 2005, please contact Kelly Twohig, Winifred (deceased), Ta ke notice that anyone having an Farranree in the city of Cork. Caulfield Shaw, Solicitors, 1 late of ‘The Paddocks’, Templehill, interest in the freehold estate of

60 Law Society Gazette November 2005 Professional information

Publication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland. UNITED STATES LAWYERS Kleeman, Abloeser & DiGiovanni, P.C. is a prominent U.S. law firm that specializes in providing the following legal services in the United States: 1 Travel law: Representing foreign visitors seriously injured in the United States SPANISH LAWYERS 2 Personal injury litigation in the United States RAFAEL BERDAGUER Contact Michael Kleeman, Esq., at ABOGADOS (toll free) 00-800-221-56970 or by e-mail at [email protected] TWENTY YEARS ADVISING CLIENTS IN REAL ESTATE TRANSACTIONS IN SPAIN For more information about our law firm visit our website at www.kleemanlawfirm.com PROFILE: FIELD OF PRACTICES: panish Lawyers Firm focused on eneral Practice, Administra-tive Sserving the need of the foreign GLaw, Civil and Commercial Law, the following property: all that investors, whether in company or Company Law, Banking and Foreign and those the hereditaments and property transactions and all atten- Investments in Spain, Arbitration, premises known as 24 Mountjoy NORTHERN dant legalities such as questions of Taxation, Family Law, International Square in the city of Dublin, IRELAND inheritance, taxation, accounting and Law, Litigation in all Courts. being a portion of the premises SOLICITORS bookkeeping, planning, land use and held under indenture of fee farm litigation in all Courts. grant dated 9 March 1870 and We will engage in, made between May Collins and and advise on, Avda. Ricardo Soriano, 29, Eacy Kennedy of the one part and all Northern Ireland- Edificio Azahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain George Thorpe of the other part related matters, and therein described as “all that particularly personal injury Tel: 00-34-952823085 Fax: 00-34-952824246 parcel of ground situate on the litigation. e-mail: [email protected] east side of Mountjoy Square with Web site: www.berdaguerabogados.com the messuage or dwellinghouse Consultations where erected on part thereof known as convenient. number 24, together with the gar- den yard coach house and stable lying behind the said messuage or OLIVER M dwellinghouse, which premises are particularly described on the LOUGHRAN plan drawn hereon, being coloured pink thereon, and are & COMPANY situate in the lordship of St 9 HOLMVIEW TERRACE, Mary’s Abbey, parish of St OMAGH, George, and county of the city of CO TYRONE Dublin, together with all cellars, Phone (004428) 8224 1530 vaults, areas, passages, water- Fax: (004428) 8224 9865 course rights, easements and e-mail: appurtenances thereon to belong- [email protected] ing thereon or with the same usu- ally held occupied or enjoyed.” Take notice that Christopher the city of Dublin for directions Singh intends to submit an appli- as may be appropriate on the basis cation to the county registrar for that the person or persons benefi- the city of Dublin for the acquisi- cially entitled to the superior tion of the freehold interest in the interest including the freehold aforesaid properties, and any reversion in each of the aforesaid party asserting that they hold a premises are unknown or superior interest in the aforesaid unascertained. premises (or any of them) are Date: 4 November 2005 called upon to furnish evidence of Signed: FH O’Reilly & Co (solicitor title to the aforementioned prem- for the applicant), The Red Church, ises to the below named within 21 North Circular Road, Phibsborough, days from the date of this notice. Dublin 7 In default of any such notice being received, Christopher In the matter of the Landlord Singh intends to proceed with the and Tenant Acts 1967-1994 and application before the county reg- in the matter of the Landlord istrar at the end of 21 days from and Tenant (Ground Rents) (No the date of this notice and will 2) Act 1978: an application by apply to the county registrar for John Meagher

61 Law Society Gazette November 2005 Professional information

county registrar at the end of the ty of Donegal for the acquisition the Landlord and Tenant FAMILY LAW 21 days from the date of this of the freehold interest and any (Ground Rents) (No 2) Act 1978: PRACTICE FOR notice and will apply to the coun- intermediate interest in the afore- an application by Alan SALE IN ty registrar for the county of the said property, and any party McGrory and Terence SOUTH DUBLIN city of Dublin for directions as asserting that they hold a superior McGovern may be appropriate on the basis interest in the said aforesaid Take notice that any person hav- All replies treated in strictest that the person or persons benefi- premises or any of them are called ing an interest in the freehold confidence. cially entitled to the superior upon to furnish evidence of title estate of the following property: Contact: David Rowe at interest including the freehold to the aforementioned premises Bridge Street, in the barony of Outsource reversion in the aforesaid proper- to the below named within 21 Swords, Co Dublin, and more ty are unknown or unascertained. days from the date of this notice. particularly described along with 01 6788 490 [email protected] Date: 4 November 2005 In default of any such notice other property in an indenture of Signed: MacGinley (solicitors for the being received, the said Patrick lease dated 10 September 1850 applicant), 3 Inns Quay, Chancery Doherty and Christopher and made between Philip PRACTICE WISHING TO Place, Dublin 7 Flanagan intend to proceed with O’Dwyer Greene of the first part, EXPAND SEEKS TO the application before the county William Greene of the second ACQUIRE AN ESTABLISHED In the matter of the Landlord registrar at the end of the 21 days part and George Waters of the DUBLIN CITY CENTRE and Tenant Acts 1967-1994 and from the date of this notice and third part for a term of 200 years BASED GENERAL PRACTICE in the matter of the Landlord will apply to the county registrar from 25 March 1850, subject to and Tenant (Ground Rents) (No for the county of Donegal for the yearly rent of £5 thereby All replies treated in strictest 2) Act 1978 and in the matter of such directions as may be appro- reserved and to the covenants on confidence. the lands and premises in the priate on the basis that the person the part of the lessee and the con- Contact: David Rowe at townland of Ardaravan, parish or persons beneficially entitled to ditions therein contained. Outsource of Lower Fahan, barony of the superior interest including the Take notice that Alan McGrory 01 6788 490 Inishowen and county of freehold reversion in the aforesaid and Terence McGovern intend to [email protected] Donegal: an application by premises are unknown or are submit an application to the coun- Patrick Doherty and unascertained. ty registrar for the county/city of Christopher Flanagan Date: 4 November 2005 Dublin for the acquisition of the SOLICITOR LOOKING TO Take notice that any person hav- Signed: CS Kelly & Co (solicitors for freehold interest in the aforesaid ACQUIRE A DUBLIN BASED ing any interest in the freehold the applicant), Market House, property, and any party asserting LITIGATION OR GENERAL estate of or superior interest in Buncrana, Co Donegal that they hold a superior interest PRACTICE WITH TURNOVER the following premises: all that in the aforesaid property are BETWEEN €200-600K PER ANNUM and those that plot or parcel of In the matter of the Landlord called upon to furnish evidence of All replies treated in strictest ground situate at the Shore Road, and Tenant Acts 1967-1994 and title to the aforementioned prop- confidence. Buncrana, with a frontage to the in the matter of the Landlord erty to the below named within 21 said road of 141 feet, 6 inches or and Tenant (Ground Rents) (No days of the date of this notice. Contact: David Rowe at thereabouts, and in the rear 67 2) Act 1978: an application by In default of any such notice Outsource feet, 6 inches or thereabouts, and William Rogers and Lisa being received, Alan McGrory 01 6788 490 [email protected] extending from front to rear on Rogers and Terence McGovern intend to the north-west side adjoining the Take notice that any person hav- proceed with the application grounds of Rockfort, the property ing any interest in the freehold before the county registrar at the Take notice any person having an of the lessor, 163 feet, 6 inches or estate of the following property: end of the 21 days from the date interest in the freehold estate in thereabouts, and on the east side all that and those the piece or plot of notice and will apply to the the following property: all that adjoining the lane leading to the of ground with the buildings county registrar for the and those the shop and premises cottage the property of the thereon now known as 11a county/city of Dublin for such known as 6 Mary’s Abbey in the trustees of the estate of the late Edward Street, Newbridge, in the directions as may be appropriate city of Dublin, bounded on the Robert Colhoun, deceased, 163 county of Kildare. on the basis that the person or north by portion of the holding of feet or thereabouts, which said Take notice that William Rogers persons beneficially entitled to Messieurs George John Alexander plot or parcel of ground is situate and Lisa Rogers intend to submit the superior interest, including and Company’s holding and on lying and being in the townland of an application to the county regis- the freehold reversion in each of the west by said premises number Ardaravan, barony of Inishowen, trar for the county of Kildare for the aforesaid premises, are 7 Mary’s Abbey, containing in parish of Lower Fahan and coun- the acquisition of the freehold unknown or unascertained. front to Mary’s Abbey 18 feet, in ty of Donegal, held under an interest in the aforesaid property, Date: 4 November 2005 the rear 16 feet and in depth from indenture of lease dated the 23 and any party asserting that they Signed: Patrick W McGonagle & Co front to rear 42 feet, 10 inches be November 1918 made between hold a superior interest in the (solicitors for the applicants), North the said several admeasurements Isaac Trew Colquhon of aforesaid premises are called upon Street, Swords, Co Dublin more or less. Rockford, Buncrana in the county to furnish evidence of title to the Take notice that John Meagher of Donegal, solicitor, of the one aforementioned premises to the In the matter of the Landlord intends to submit an application part and the British Foreign below named within 21 days from and Tenant Acts 1967-1994 and to the county registrar for the Sailor’s Society, incorporated, the date of this notice and will in the matter of premises situ- county of the city of Dublin for having their registered office at apply to the county registrar for ate at 1-9 Alexandra Road, St the acquisition of the fee simple Commercial Road, London in the county of Kildare for directions Luke’s Cross, Cork: an applica- interest in the aforesaid property, England of the other part for a as may be appropriate on the basis tion by Michael O’Brien and any party asserting that they term of 585 years from 1 May that the person or persons benefi- Take notice that any person hav- hold a superior interest in the 1918, subject to the yearly rent of cially entitled to the superior inter- ing an interest in the freehold or aforesaid property is called upon ten pounds sterling. est including the freehold rever- intermediate estate of the follow- to furnish evidence of title to the Take notice that the applicants, sion in the aforesaid premises are ing property: all that and those aforementioned property to the Mr Christopher Flanagan and Mr unknown or unascertained. the nine cottages and premises on below named within 21 days from Patrick Doherty, being the per- Date: 4 November 2005 Alexandra Road, formerly known the date of this notice. sons entitled under sections 8, 9 Signed: HC Browne (solicitors for the as Warhams Lane, being part of In default of any such notice and 10 of the Landlord and Tenant applicants), Malahide Road/Kilmore the lands of Glanmire in the being received, the applicant, (Ground Rents) (No 2) Act 1978, Road Corner, Artane, Dublin 5 parish of St Anne Shandon and John Meagher, intends to proceed intend to submit an application to In the matter of the Landlord city of Cork, held under an inden- with the application before the the county registrar for the coun- and Tenant Acts 1967-1984 and ture of lease dated 12 May 1844

62 Law Society Gazette November 2005 Professional information and made between Hayward St ests of the property known as 15 Ledger and others of the one part Mountjoy Street in the city of and John Warham of the other Dublin, held under an indenture LEGAL PRACTICE part for the term of 200 years of lease made 5 May l877 between from 25 March 1844, subject to Patrick Murray of the first part FOR SALE the yearly rent of £12 thereby and Thomas Stuart of the other reserved and to the covenants and part for the term of 390 years General practice based in Galway city with conditions therein contained. from 1 May l877 at the annual client base in city and West of Ireland. Take notice that Michael rent therein reserved and subject Sole practitioner retiring. O’Brien intends to submit an to the covenants and conditions application to the county registrar therein contained. Please contact John Lyons, for the city of Cork for the acqui- Take notice that any person Lyons Keenan Kilemade, Chartered Accountants, sition of the freehold interest in having an interest in the freehold Church Street, Longford. the aforesaid property, and any estate or any intermediate inter- Ph: 043 41900 Email: [email protected] party asserting that they hold a ests of the property known as 4 St superior interest in the aforesaid Mary’s Place in the city of property are called upon to fur- Dublin, held under an indenture one part and Patrick Doran of the nish evidence of title to the afore- of lease made 12 July l875 other part for the term of 390 mentioned property to the below between Patrick Murray of the years from 1 March l874, subject named solicitor within 21 days one part and Vincent O’Brien of to the yearly rent of £5 and sub- from the date of this notice. the other part (hereinafter called ject to the covenants and condi- In default of any such notice ‘the lease’) for the term of 395 tions therein contained. being received by the below years from 12 July l875 at the Take notice that Brian M named solicitors, the said Michael annual rent of £9 sterling, and Durkan & Co Limited intends to O’Brien intends to proceed with take notice that any person hav- submit an application to the coun- the application before the county ing an interest in the freehold ty registrar for the city of Dublin registrar at the end of 21 days estate or any intermediate inter- at Áras Uí Dhálaigh, Inns Quay, from the date of this notice and ests of the property known as 5 St Dublin 7 for the acquisition of the will apply to the county registrar Mary’s Place in the city of freehold interest and all interme- for the city of Cork for directions Dublin, held under an indenture diate interests in the aforesaid as may be appropriate on the basis of lease made 22 July l948 and properties, and any party asserting that the person or persons benefi- made between Marks Brass of the that they hold the fee simple or cially entitled to the superior first part and John McGrath of any intermediate interest in the interest including the freehold the other part for the term of 300 aforesaid properties are called reversion in the aforesaid proper- years from 12 January 1948 at the upon to furnish evidence of title ty are unknown or unascertained. annual rent of £5 sterling, and to the said properties to the below Date: 4 November 2005 subject to the covenants and con- named solicitors within 21 days McMillen of the one part and Signed: John J Murphy & Co (solic- ditions therein contained. from the date of this notice. Harold Senier of the other part itors for the applicant), Courthouse Take notice that any person In default of any such notice for the term of 999 years from 1 Chambers, 27-29 Washington having an interest in the freehold being received, Brian M Durkan May 1919 (save the last day there- Street, Cork estate or any intermediate inter- & Co Limited intends to proceed of), subject to the rent of £8.6.8 ests of the property known as 6 St with the application before the per annum and to the covenants In the matter of the Landlord Mary’s Place in the city of Dublin, county registrar at the end of 21 on the part of the lessee and the and Tenant Acts 1967-1994 and held under an indenture of lease days from the date of this notice conditions therein contained. The in the matter of the Landlord made 28 January 1948 between and will apply to the county regis- interest of Thomas McMillen and Tenant (Ground Rents) (No Marks Brass of the first part and trar for the city of Dublin for being held under an indenture of 2) Act 1978 and in the matter of Agnes Tormey of the other part directions as may be appropriate lease dated 14 July 1914 and made an application by Brian M for the term of 300 years from 12 on the basis that the person or between Ada S Berman of the one Durkan & Co Limited and in January 1948, at the annual rent persons beneficially entitled to the part and Thomas McMillen of the the matter of the properties of £5 sterling, and subject to the intermediate interests, including second part for a term of 999 years known as 14 Mountjoy Street, covenants and conditions therein the fee simple, in the aforesaid from 1 July 1914, subject to the 15 Mountjoy Street, 4 St contained. properties are unknown or rent of £25 per annum and to the Mary’s Place, 5 St Mary’s Place, Take notice that any person unascertained. covenants on the part of the lessee 6 St Mary’s Place, 7 St Mary’s having an interest in the freehold Date: 4 November 2005 and the conditions therein con- Place, 8 St Mary’s Place (all in estate or any intermediate inter- Signed: Messrs Kelly Noone & Co, tained. the city of Dublin) ests of the property known as 7 St Taney Hall, Eglinton Terrace, Take notice that Kieran Argue Take notice that any person hav- Mary’s Place in the city of Dublin, Dundrum, Dublin 14 and Seamus Comer intend to ing an interest in the freehold held under an indenture of lease submit an application to the estate or any intermediate inter- dated 20 February l874 and made In the matter of the Landlord county registrar for the city of ests of the property known as 14 between Patrick Murray of the and Tenant Acts 1967-1994 and Dublin for the acquisition of the Mountjoy Street in the city of one part and Patrick Doran of the in the matter of the Landlord freehold interest in the aforesaid Dublin, held under an indenture other part for the term of 390 and Tenant (Ground Rents) (No property, and any party or parties of lease dated 30 August l872 and years from 1 March l874, subject 2) Act 1978: an application by asserting that they hold a superi- made between John Arnott, James to the yearly rent of £5 and sub- Kieran Argue and Seamus or interest in the aforesaid prem- Fitzgerald Lombard and Edward ject to the covenants and condi- Comer ises are called upon to furnish evi- McMahon of the one part and tions therein contained. Take notice that any person hav- dence of title to the aforemen- Patrick Murray of the other part Take notice that any person ing an interest in the freehold tioned premises to the below for the term of 400 years from 30 having an interest in the freehold estate of the following property: named within 21 days from the August 1872 at the annual rent of estate or any intermediate inter- all that and those the premises date of this notice. £10 sterling and to the covenants ests of the property known as 8 St now known as 1B Sandymount In default of any such notice and conditions therein contained. Mary’s Place in the city of Dublin, Avenue, Ballsbridge, Dublin 4, being received, Kieran Argue and Take notice that any person held under an indenture of lease being the premises held under an Seamus Comer intend to proceed having an interest in the freehold dated 20 February l874 and made indenture of lease dated 8 October with the application before the estate or any intermediate inter- between Patrick Murray of the 1919 and made between Thomas county registrar at the end of 21

63 Law Society Gazette November 2005 Professional information days from the date of this notice dated 14 July 1914 and made RECRUITMENT Ballycasey Park, Shannon, Co and will apply to the county reg- between Ada S Berman of the one Clare; e-mail: pendredandco@eir- istrar for the city of Dublin for part and Thomas McMillen of the Apprenticeship urgently com.net directions as may be appropriate second part for a term of 999 years required to enter PPC1 course at on the basis that the person or from 1 July 1914, subject to the end of November 2005; LLB, BSc Solicitor required for busy persons beneficially entitled to rent of £25 per annum and to the (Pharm Sc), MIAPR. All eight Killarney practice. The success- this superior interest including covenants on the part of the lessee Law Society entrance examina- ful candidate should have at least the freehold reversion in the and the conditions therein con- tions and first Irish passed. Willing three years’ PQE in general prac- aforesaid premises are unknown tained. to pay own fees; tel: 087 056 4072 tice. Good conditions and salary. or ascertained. Take notice that Kieran Argue Apply in writing to Liam F Date: 4 November 2005 and Seamus Comer intend to sub- Apprenticeship required: MA, Coughlan & Co, Solicitors, Signed: Eamonn Greene & Co, 7 mit an application to the county MLib, information professional ‘Woodhaven’, Ballycashen Upper, Northumberland Road, Ballsbridge, registrar for the city of Dublin for seeks legal apprenticeship. Superb Killarney, Co Kerry Dublin 4 the acquisition of the freehold interpersonal, IT and project- interest in the aforesaid property, management skills. All FE1s and Solicitor required for busy mid- In the matter of the Landlord and any party or parties asserting first Irish exam passed, studying lands office; please reply to box no and Tenant Acts 1967-1994 and that they hold a superior interest for AITI. I am someone who is 90/05 in the matter of the Landlord in the aforesaid premises are highly motivated, organised and and Tenant (Ground Rents) (No called upon to furnish evidence of responsible. All locations consid- Commercial solicitor required – 2) Act 1978: an application by title to the aforementioned prem- ered. Available immediately. Lavery Kirby Gilmartin require a Kieran Argue and Seamus ises to the below named within 21 Contact Margaret at 085 713 1897 commercial solicitor with zero to Comer days from the date of this notice. or e-mail: [email protected] three years’ PQE. Based in Take notice that any person having In default of any such notice Glasthule, Co Dublin, the role an interest in the freehold estate of being received, Kieran Argue and Apprentice solicitor available. A offers very high-calibre commer- the following property: all that and Seamus Comer intend to proceed mature graduate (BA, H Dip Ed) cial work with great quality of life; those the premises now known as with the application before the seeks trainee position. Hard- attractive remuneration package 1C Sandymount Avenue, county registrar at the end of 21 working and enthusiastic with commensurate with experience – Ballsbridge, Dublin 4, being the days from the date of this notice superb interpersonal skills. Passed reply in confidence to Neil premises held under an indenture and will apply to the county regis- all FE1s and first Irish exam. All Keenan at [email protected] or of lease dated 8 October 1919 and trar for the city of Dublin for locations considered. Please con- tel: 01 231 1430 made between Thomas McMillen directions as may be appropriate tact Brendan on 087 960 4739 or of the one part and Brendan on the basis that the person or e-mail: [email protected] Locum solicitor required for MacCarthy of the other part for persons beneficially entitled to busy Ennis practice; experience the term of 999 years from 1 May this superior interest including Locum solicitor required for in conveyancing essential. 1914 (save the last day thereof), the freehold reversion in the Shannon, Co Clare. Three/four Commencing mid-December subject to the rent of £8.68 per aforesaid premises are unknown months to cover maternity leave or at latest January 2006. May annum and to the covenants on the or ascertained. commencing February 2006. suit newly qualified candidate part of the lessee and the condi- Date: 4 November 2005 Good conveyancing experience with good apprenticeship experi- tions therein contained. The inter- Signed: Eamonn Greene & Co, 7 required (minimum three years). ence. E-mail: sharoncahir@cahir- est of Thomas McMillen being Northumberland Road, Ballsbridge, Reply with full curriculum vitae to: solicitors.com or tel: 065 682 held under an indenture of lease Dublin 4 Penred & Co, Solicitors, 2 8383 Meet at the Four Courts FOR BOOKINGS CONTACT MARY BISSETT OR PADDY CAULFIELD TEL: 668 1806

CourtLAW SOCIETY ROOMS at the Four Courts

64 Law Society Gazette November 2005 Recruitment

65 Law Society Gazette November 2005 66 Law Society Gazette November 2005 Recruitment

67 Law Society Gazette November 2005 Recruitment

AT STELFOX LEGAL WE PRIDE CURRENT OPPORTUNITIES INCLUDE: OURSELVES IN THE FACT THAT WE ARE A LEGAL RECRUITMENT Private Practice In House AGENCY RUN BY LEGAL PEOPLE ■ General Practice Solicitor ■ In House IP Solicitor FOR LEGAL PEOPLE. A DIVISION Dublin City Centre, 3yrs PQE. €56,000 A progressive European top ten consumer RUN BY SOMEONE WITH FIVE ■ Conveyancing Solicitor health company located on Dublin's North- YEARS LEGAL EXPERIENCE WE Dublin City Centre, 1-3 yrs PQE. Neg. side is looking for a solicitor/barrister with KNOW THE DEMANDS OF BOTH ■ Conveyancing Solicitor 2-4 yrs PQE in Intellectual Property Law. THE INDUSTRY AND THE PEOPLE Cork City, 2-4 yrs PQE. €38,000 - Willingness to travel regularly to Europe is WHO WORK IN IT. WE CANNOT €47,000. necessary. This role offers excellent potential STRESS ENOUGH HOW ■ SERIOUSLY WE RESPECT BOTH Commercial Solicitor for advancement as well as an above CANDIDATES AND CLIENTS Dublin Southside, 3 yrs PQE. €57,000 industry standard salary and attractive ■ CONFIDENTIALITY. WITH General Practice Solicitor benefits package. ■ STELFOX LEGAL, YOU'RE IN THE Limerick, min 2 yrs PQE. €39,000. In House Tax Solicitor ■ DRIVING SEAT. Employment Law Solicitor A leading international company are seeking Dublin City Centre, 2-4 yrs PQE. a solicitor with a minimum of three years WE HAVE A NUMBER OF €45,000 - €63,000 PQE and a background in taxation to begin POSITIONS FOR ALL LEVELS OF ■ Banking/Financial Services Solicitor as an in house solicitor. The role will involve SOLICITORS AS WELL AS Dublin 7, 2-5 yrs PQE. €45,000 - dealing with CGT and CAT. Salary €60,000+ EXPERIENCED SUPPORT STAFF. €70,000. depending on experience and qualifications.

If you are interested in finding the right position in the right firm with an agency who genuinely respects your need for confidentiality do not hesitate to call Stephen Kelly B.A., LL.B. at Stelfox Legal on (01) 679 3182 or email your CV to [email protected] or log on to our website for more opportunities www.stelfox.ie

68 Law Society Gazette November 2005 Recruitment

69 Law Society Gazette November 2005 Recruitment

COMMERCIAL PROPERTY SOLICITOR Excellent opportunity for commercial property solicitor with 6-10 years relevant PQE to join growing practice. We would urge highly motivated senior solicitors with proven ability and client development skills to apply. Caldwell & Robinson Solicitors is a six- High quality work includes acting for financial institutions in all aspects of solicitor Derry-based cross-border practice taking commercial property and corporate security and acting for commer- specialising in the family & child and cial property investors, developers and a wide range of clients. Excellent commercial & property spheres. career prospects await the successful candidate. Salary commensurate with experience. We are seeking a solicitor to join our Apply in absolute confidence to Gartlan Furey, 20 Fitzwilliam Square, commercial & property team. Dublin 2 (DX 51) Ref. S.J. or by e-mail to [email protected]. The successful candidate will have a sound RESIDENTIAL CONVEYANCING SOLICITOR commercial legal outlook, ROI property Our growing practice requires an additional conveyancing solicitor with 5- experience and be sufficiently self-starting & 8 years relevant PQE. The successful candidate will deal primarily with all aspects of residential conveyancing, some commercial conveyancing and ambitious to grow with our expanding probate work. As a senior solicitor the successful candidate should demon- practice. Remuneration and prospects will strate proven ability coupled with client development skills. Excellent be commensurate with the candidate. career prospects await the successful candidate. Salary commensurate with experience. Please contact Philip Gilliland, Partner at [email protected]. Apply in absolute confidence to Gartlan Furey, 20 Fitzwilliam Square, Dublin 2 (DX 51) Ref. S.J. or by e-mail to [email protected].

Where are you going this year?Ireland’s legal job portal IS YOUR FIRM LOOKING FOR THE BEST LEGAL STAFF? Look no further!

Advertise your vacancies in the Law Society Gazette, the only magazine that has 100% penetration of the Irish legal market.

Talk to Sean O hOisin about your advertising needs on 01 837 5018, 086 811 7116 or e-mail: [email protected].

70 Law Society Gazette November 2005 Recruitment Recruitment

72 Law Society Gazette November 2005