Contents GazetteLawSociety

Regulars Cover Story Up in smoke President’s message 3 12 The introduction of the smoking ban has given rise to concern about how it will operate in practice. Maura Connolly looks at the steps News 4 employers must take to ensure compliance Viewpoint 8 Book reviews 35 Ascent of a woman Briefing 38 16 Last year, the first-ever report on women lawyers in Ireland was published. Ivana Bacik Council report 38 summarises some of its findings Committee report 39 Practice direction 39 Reforming practice and procedure Practice notes 39 20 The nature of personal injuries litigation is changing, and the report of the Committee on Court Practice and Procedure is part-and- Solicitors parcel of this. Eamonn Hall outlines some of its key Disciplinary Tribunal 40 recommendations Legislation update 41 Toeing the line FirstLaw update 44 24 Occupational health and safety is steadily climbing the management Eurlegal 49 agenda. Geoffrey Shannon assesses some recent developments People and places 54 Blood, sweat and tears Professional DNA testing is an established part of the criminal information 60 28 justice procedure and the Innocence Project aims to keep it there, writes Paula Scollan

Hook, line and sinker 32 If you’ve always wanted to fish but never knew how, now is your chance to take the bait. Pat Molloy and John Geary try to reel you in

Editor: Conal O’Boyle MA. Assistant editors: Kathy Burke, Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 837 5018, fax: 884 4626, mobile: 086 8117116, e-mail: [email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial Board: Pat Igoe (Chairman), Conal O’Boyle (Secretary), William Aylmer, Tom Courtney, Eamonn Hall, Mary Keane, Ken Murphy, Michael V O’Mahony, Alma Sheehan, Keith Walsh

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 98, number 6 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: €57.15

1 Law Society Gazette July 2004

President’s message

Public service and the profession

was saddened to learn of the death of Donal I would urge Binchy last month after a long illness. Don was colleagues to involve a predecessor of mine, serving as president of themselves in their the Law Society in 1990/91. As I attended his local bar associations Ifuneral, in the company of a great many of his and, at national level, solicitor colleagues, from Clonmel and much further in the work of the Law afield, I was struck once again by what a unique Society. Stand for election, volunteer to serve on ‘We have profession we are. committees, give your time and expertise to Don Binchy, to me and to many of his colleagues as tutors or lecturers. Above all, play your never had a colleagues, typified the spirit that sets our part. stronger or profession apart from others. His was a life of The Law Society alone has, at last count, some 27 public service, to his local community, to his committees, nine task forces or working groups, and bigger profession and to his professional body. Such was representation on a wide range of other bodies. We profession, his stature and his reputation for integrity that, need your help to be able to carry on this work. We uniquely for a past president, he was asked to chair need your involvement. You are the lifeblood of the yet there has the Finance Committee in 1993 at a time when the profession, and without your active support and never been profession was under severe financial pressure involvement, it will wither away. following the spectacular collapse of a number of At Don’s funeral, his colleague Paul Morris, on a greater solicitors’ practices. The profession knew that it behalf of the profession in Clonmel, gave an oration need for could rely on Don to make the hard decisions but, at his graveside. This is part of what he said: more importantly, to make the right decisions. ‘The hallmark of Don Binchy’s dealings with his clients, collegiality’ Similarly, when the annual general meeting of his colleagues and the public at large was courtesy. He members demanded a root-and-branch review of the recognised each person’s innate dignity as a fellow human Law Society and its functions in 1994, it was Don being, as a valid moral entity, which is the very Binchy who was asked to chair the review group. foundation of our respect for human life itself and our Don was the kind of solicitor we all aspire to sense of justice. become. He was the kind of man whose approval we Don’s other eternal passion was his love of the law desired. He gave of his time, energy and wisdom to itself. He wore his knowledge of the law lightly and his colleagues and to his society, and sought nothing shared that knowledge with his colleagues generously and in return because, to him, that is what it meant to be with humility without any sense of condescension. a member of a profession. Fred and Donald may be justifiably proud of their And listening to his colleagues reminisce about father, who not only knew his law with rare depth, the man, I understood just how important it is to insight and understanding, but most importantly of all preserve and nurture that unique spirit in today’s could make it understandable to his clients and thereby solicitors’ profession. We have never had a stronger give good counsel’. or bigger profession, yet conversely there has never That is what it means to be a solicitor. And it is been a greater need for the kind of collegiality and still something we should all aspire to. voluntary service that has always made this profession so special. It is part of our wonderful legal Gerard F Griffin, heritage. President

3 Law Society Gazette July 2004 News NATIONWIDE News from around the country ■ CLARE New courthouse Good news from the Banner County, with the announcement that the old courthouse has been fully refurbished and is again open for business. ‘We had been having the District Court in the local GAA Éire Óg social room with the bar in the background for the past three President Mary McAleese and Dublin solicitors at the relaunch of the Solicitors’ helpline years, which is hardly worthy of the dignity of the court’, noted President McAleese members on the issues to be support and also support Ann Walshe, honorary secretary launches helpline covered and their courses will themselves by supporting their of the Clare Bar Association. Many Dublin solicitors were begin in September. ‘It is an local bar associations. It was a The official opening is greatly honoured to be received excellent stimulus and ensures case of the old cliché of ‘hang scheduled for 12 July. by the President of Ireland, that we continue our necessary together or hang separately’. Mary McAleese, in Áras an legal education’, he said. The dinner was attended by And new county registrar Uachtaráin recently. The two guests, chief superinten- Solicitors in Clare are also occasion was used to relaunch ■ LAOIS dents Pat Murray and Kevin happy that nearby Limerick and publicise the Solicitors’ Personal Injuries Ludlow. practitioner, Pat Wallace, has helpline. The president spoke of Assessment Board been appointed county registrar. the ‘giddy’ times through which The Laois Solicitors’ Delegation to the Dáil The position had been vacant the legal profession was living Association continues to hold A delegation from the since the death of Enda Brogan and the perception that perhaps meetings about PIAB and is association recently met three in 2002. lawyers had never had it so continuing to liaise with its members of the Dáil Justice ‘This is an important position good. She remarked that while counterparts in Limerick on Committee to make and should not have been left we are living in times of plenty, joint moves. Christina Dobbyn, submissions on the Civil vacant for so long, but the staff she felt that there also existed honorary secretary of the Liability Bill and Courts, 2004. and neighbouring county among our profession victims of association, has been meeting ‘Among the issues we raised is registrars all helped us to get this success. leading members of the the proposed reduction of the by’, Walshe said. The helpline was, she felt, a Limerick Bar Association. She statutory limitation time from worthwhile and necessary will shortly be reporting back to three years to one, which could ■ DUBLIN support which was managed and her association on proposals on lead to a denial of justice’, Chief justice retiring maintained by solicitor the way forward. according to the delegation’s On the eve of the forthcoming colleagues. She was more than leader Eugene Tormey. The retirement of Chief Justice happy to endorse it. In fact, she Judge Alan Mahon other delegates were Philip Ronan Keane, leading members drew from her own personal Laois solicitors recently Joyce and Maura Derivan. They of the Dublin Solicitors’ Bar experience of a solicitor friend welcomed back Judge Alan met Séan Ardagh TD, Peter Association met him in his of hers who had recently Mahon to the Circuit Court in Power TD and local TD Maura chambers in the Four Courts. committed suicide, which had Portlaoise during a break from Hoctor. Addressing him on behalf of the utterly shocked his family and his eponymous tribunal in 3,500 practising solicitors in friends as there were no Dublin. At the function, they Annual dinner Dublin, John O’Connor paid apparent reasons as to why he also honoured colleague Paul In a move that may be followed tribute to his extraordinary legal should have done so. Ryan of PP Ryan & Company, by other non-Dublin bar career both as a practitioner, a who has been in private practice associations, the Tipperary legal author and judicial ■ KERRY for 60 years. Solicitors’ Bar Association is colossus who has always been Continuing professional heading off to Budapest in held in the highest regard by development ■ TIPPERARY September for its annual the Dublin legal profession. A The CPD requirement on Solicitors’ support conference. The theme will be framed parchment was solicitors is proving a most Solicitors should support each European Union expansion and its presented to the chief justice, useful way of ensuring that we other in a threatened profession, legal implications. A line-up of together with a piece of are all up-to-date on legal Eugene Tormey, president of speakers is being arranged. G Dublin Crystal. The chief issues, according to Pat the Tipperary Solicitors’ Bar justice expressed his warm Sheehan, honorary secretary of Association, said at their recent Nationwide is compiled by Pat appreciation and high regard the Kerry Law Society. They annual dinner. Solicitors should Igoe, principal of the Dublin law for the solicitors’ profession. are still taking suggestions from realise the importance of mutual firm Patrick Igoe & Co.

4 Law Society Gazette July 2004 News Braiden promises early survey on support services for the profession

live Braiden, chairperson of solicitors who need them’, said ‘There are approximately 6,500 Opresident Gerry Griffin’s Braiden. solicitors in practice, and we Support Services Task Force, is ‘The Law Society needs to would like to hear from each of planning a survey of all be sure that they are them. A survey such as this is solicitors. She believes that this responding to the members’ unlikely to be repeated in the is an essential first step if the current needs. As times change, short term. services of the Law Society are needs change. A solicitor in ‘We have made a decision to to be developed. The survey practice today has a very issue this survey by post so that will identify the problems that different experience to the we can be sure that it arrives on solicitors have in their practice experience of a solicitor each individual solicitor’s desk. situations. practising 30 years ago. However, we are emphasising This is the first time that Solicitors are no different from that the survey can also be such a comprehensive survey any other group. The pressures answered on-line. It will be has taken place. Every solicitor of practice have grown available on the Law Society’s in the country is being given an enormously. The pace of life is website at www.lawsociety.ie. We opportunity to make a much faster and the demands of are encouraging solicitors to Braiden: solicitors’ needs statement about their needs in clients are much greater. change with the times respond on-line and we realise their particular circumstances. Clients can be quite aggressive that for a large number of This will help the Law Society in their dealings with solicitors. Griffin draws attention to the solicitors this will be the plan new services to meet the ‘Most solicitors cope well problems of solicitors who, for preferred option. needs of solicitors everywhere. with practice but would whatever reason, have already ‘We have tested the survey The survey will also review undoubtedly welcome more reached a point of crisis. ‘Most and are happy that it will only the effectiveness of the existing support. Every new service solicitors in practice come take between ten and 15 services provided by the Law which can be put in place, or across colleagues who are minutes to complete. This will Society and others. According every existing service which can among a small group of be time well spent. Who to Braiden: ‘While I am be further developed, ensures solicitors whose personal knows? Ten minutes spent by a encouraged by the number of that solicitors will continue to problems are affecting their solicitor now may save that services already in place, it cope. If support can be accessed professional lives and the lives solicitor many hours in the appears that these are under- as soon as a problem is of their clients’, he says. ‘These future because when that utilised. They would benefit identified by a solicitor, the people urgently need assistance. solicitor needs a particular from being promoted more problem can be dealt with and We must try to ensure that they service, it will be in place, ready actively. I know from speaking will not develop into a crisis. can be directed to appropriate and waiting to be accessed! to solicitors that they are not Early help is much more useful services, whether medical or ‘I look forward to a really aware of all the services that are than help when the solicitor has otherwise, which would best good response’. available’. reached a crisis’. help them to rehabilitation’. The survey will issue to the The survey will test the Law Society president Gerry And Olive Braiden adds: profession early in July. awareness of the services in the profession. Even doing the survey may help many solicitors New web area for training solicitors to become aware of services that they did not know existed. he Law Society website now training contract. If you are ‘My experience has been that Thas a new section dedicated looking for a trainee, this is the as soon as a service is put in to training solicitors, writes ideal place to find one. And if you place, the difficulty is not in apprenticeship officer Fionna Fox. require temporary assistance, promoting the service but This new section is available on some of the candidates on the rather in trying to put in place the members’ area and includes register might consider a resources to operate the service information on: temporary position. Time at an acceptable level to meet • Who is eligible to be a training working with a firm before the demand. I understand that over solicitor fees, and PPC1 starts in the autumn can the years each Law Society • How many trainees a • Secondments. act to reduce the length of time service and other services for solicitor can employ at any of the training contract. This is solicitors have been developed one time The site also displays the CVs of called obtaining ‘credit’, and in response to a particular need. • The training programme those students who are eligible details of how the credit system Those needs undoubtedly still •Trainee salaries to attend the PPC1 course but works is available on the exist. We need to ensure that •Tax relief in respect of course who have not yet secured a website. the services are reaching the

5 Law Society Gazette July 2004 News OVER 1,000 Overhaul urged for High ATTEND PIAB SEMINARS Court injuries actions

The single biggest ersonal injuries procedures the plaintiff and defendant educational seminar ever Pin the High Court need a should verify on oath the organised by the Law Society, comprehensive overhaul, contents of the pleadings. attended by some 360 according to a new report. The Among 23 recommendations solicitors, was held in the system currently in use is ‘not for changes in court practices, Silversprings Hotel in Cork on appropriate to modern the report says that case 31 May, writes Ken Murphy. personal injuries litigation’. management of personal By coincidence, it was the The report recommends that injuries actions should be day preceding the coming the necessary changes could be introduced ‘in appropriate into force, for employer made most effectively by cases’, that court rules should liability cases, of the amending the rules of court. have a more realistic, but more Personal Injuries Assessment The report, published by the strictly enforced, timetable for Board Act, 2003. Committee on Court Practice the different steps in pre-trial In total, over 1,000 and Procedure in late June, procedures, and that the parties solicitors attended Law says that there should be a Mrs Justice Susan Denham, who should lose control of the pace Society seminars, organised reduction, to two years, in the chaired the committee of the action and the courts free-of-charge for members, time allowed to lodge a should be more proactive in on this topic in Dublin personal injuries claim, greater introducing unnecessary expert moving the case on. (twice), Cork, Sligo, Galway enforcement of deadlines for witnesses. It also recommends • A more detailed analysis of the and, by video-link, Thurles. advancing cases, and penalties that people who bring false or committee’s recommendations can The seminar provided a very introduced in relation to costs exaggerated claims should be be found on p20 of this month’s detailed practical analysis of for causing delays or penalised, and advises that both issue. the PIAB legislation and rules. Two speakers, Ken Murphy and Stuart Gilhooly, spoke at all the seminars, Two years are better than one with Roddy Bourke and n response to intense bringing a personal injuries minister Michael McDowell. Patrick Groarke sharing the Ilobbying by the Law Society claim from three years to one Following a very constructive third speaker position. and a number of other year. The society immediately debate and urging from Chairmen at the various organisations, the period in opposed this as completely members on all sides of the venues included Ward which personal injury cases may impractical, unfair and unjust to Seanad, the minister was McEllin, Elma Lynch, Ernest be brought in future will be two accident victims and contacted persuaded and accepted an Cantillon, Peter Allen and years, writes Ken Murphy. This others who might share the amendment from Senator Maura Derivan. replaces than the one year orig- same views. Sheila Terry to increase the ‘This was the biggest inally provided for in the Civil A number of local bar limitation period in the bill number ever to attend a Law Liability and Courts Bill, 2004. associations (Tipperary in from one year to two. Society organised series of The bill had originally particular), together with Director general Ken CLE or CPD lectures. The reflected the desires of the accident victims’ groups such as Murphy believes that the level of interest was business and insurance lobbies Patient Focus and Cheshire lobbying produced ‘a phenomenal and the that the Statute of limitations be Ireland, as well as the State satisfactory outcome in the evaluation forms filled out by altered to reduce the period for Claims Agency, lobbied justice circumstances’. those who attended indicated a very high level of satisfaction with both presentation and content’, said the society’s CPD Four Courts or Fort Knox ? executive Barbara Joyce, who irport style’ security Law Society to discuss these the Four Courts building every organised the seminars. Her ‘Achecks and a reduced plans, but no final decisions day. colleague Lindsay Bond, who number of points of access to have been taken yet. ‘Any significant delays in organised the seminars held the Four Courts are among the The society is supportive of entering the Four Courts or outside Dublin, said: ‘It is ideas being considered by the measures to increase security reduction in the number of clear there will be a demand Courts Service as part of a within the Four Courts provided points of access would be for more seminars on PIAB major upgrade of security in the they are practical and do not matters of serious concern’, next year when some Four Courts. Representatives of unduly inconvenience the said director general Ken experience of its operation the Court Service have met the thousands of people who use Murphy. has emerged’.

6 Law Society Gazette July 2004 News

RETIREMENT TRUST SCHEME Reform of conveyancing Unit prices: 1 June 2004 Managed fund: 433.135c All-equity fund: 103.048c and land law on the cards Cash fund: 255.357c Long-bond fund: 111.748c he government has Tannounced plans to A&L GOODBODY APPOINTS modernise conveyancing and FIVE NEW PARTNERS land law. The project was Dublin law firm A&L Goodbody announced by justice minister has appointed five new Michael McDowell on 29 June partners. They are Michael and will be jointly carried out Barr (corporate and technology by his department and the Law law), Dominic Conlon (corpor- Reform Commission. ate and outsourcing law), According to the minister, James Somerville (corporate the project aims to repeal over tax law), Eamonn Conlon 100 pre-1922 statutes – the (projects and construction earliest of which date back to law), and Dudley Solan (pro- jects and construction law). the 13th century – and to Conveyancing: over 100 pre-1922 statutes could be repealed replace them, where necessary, This brings the total number of ‘with modern provisions that consultation paper in October as modernisation of the Land partners in the firm to 63. meet the needs of the 21st 2004, which will present the Registry and preparations for century’. results of the screening e-conveyancing. It will be open CHIEF JUSTICE SET FOR The project has three process and contain pointers to all those with an interest in PARCHMENT CEREMONY phases, the first of which for future reforms. the reform of conveyancing and In one of his last official began in early 2004 and has The second phase includes a land law. It is intended to functions before he retires on involved the screening of conference on Modernising Irish include a conference brochure 19 July, Chief Justice Ronan existing legislation with a view land and conveyancing law to be with further registration details Keane will be attending the to identifying statutes that can held on Thursday 25 in the August/September issue forthcoming parchment simply be repealed without November 2004 at the of the Gazette. ceremony on 15 July at replacement and those that O’Reilly Hall at UCD. The The final phase will involve Blackhall Place, where he is need to be replaced with conference, which will be the drafting of a bill (or bills) to expected to address the modern provisions. This phase addressed by international give effect to the proposals for graduands and their guests. will culminate in the guest speakers, will discuss the reform. The government hopes publication by the Law reform proposals identified in to have a draft of the new ECHR CONFERENCE Reform Commission of a the consultation paper as well legislation by August 2005. The Law Society is to host a conference in October on the effect of the ECHR Act, 2003, Society calls for an end to ‘rip-off’ which came into force from January of this year. The one- in house stage-payments system day conference is entitled ECHR incorporation review straightforward rip-off’ is commissioned survey, million a year. and human rights in gender ‘Ahow Cork solicitor Patrick conducted by the accountant Subsequent to Dorgan’s media law and will be held at the Dorgan recently described the and financial analyst Des Peelo, interviews on the subject, Senator society’s Blackhall Place system, which still prevails in which concluded that in an Paul Coghlan of Fine Gael intro- headquarters from 9.30am to many parts of Ireland, whereby average €250,000 house, the duced a bill in the Seanad seeking 4.30pm on Saturday 16 builders extract payments from cost of financing stage payments to prohibit stage payments. Al- October. The second part of buyers of new houses as the to the purchaser is about though support for the principle the conference will look at the houses go up, writes Ken Murphy. €7,000. ‘How many carpets and of the bill was expressed by contributions and limitations of He was speaking on RTÉ’s how many curtains and how senators from all parties, it was human rights law in the area Morning Ireland programme. many cookers can they buy for voted down by the government. of cohabitation, gender change Dorgan, a Law Society Council that money?, Dorgan asked. Minister of State Noel Ahern and same-sex unions. member and chairman of the According to Peelo’s report, said he supported the objective of Admission costs €25 society’s Conveyancing widely reported in the print and the bill but wished to see (concession rate €12) and Committee, denounced the stage broadcast media with comment whether it could be achieved by further information can be payments system as ‘unfair and welcoming the Law Society’s consultation with the building obtained from the society’s anti-consumer’ and called for highlighting of this issue, the industry before resorting to parliamentary and law reform legislation to outlaw it. total cost to the new house- legislation. He said he intended executive, Alma Clissmann, He was unveiling to the media buying sector, at current levels, to use the next six months to on tel: 01 672 4831 or e-mail: the results of a Law Society- could be of the order of €175 conduct this consultation. [email protected].

7 Law Society Gazette July 2004 Viewpoint The big question: to act or Now that the Personal Injuries Assessment Board has finally arrived, the big question that solicitors must ask is: to act or not? The answer is easy, writes Stuart Gilhooly

o PIAB is upon us. As you documents, which can be his Once you receive instructions Sknow by now, if your client solicitor’s office. In those to act, it is advisable to get has an accident at work and is circumstances, PIAB must – and authority from your client for suing his employer, he must has confirmed that it will – send you to act for them in this first refer the case to PIAB, copies of all correspondence to process and any subsequent unless proceedings have been a claimant’s solicitor. proceedings. This should issued in the case before 1 Therefore, when your client accompany your section 68 June. So, what do solicitors do comes in, it is business as usual letter. Having done that, a if a client comes in with such – just with a different letter-before-action is necessary, an accident and asks us to take procedure. The first thing to do as is the acquisition of a medical the case on? is to explain to the client that report. The medical report Rule number 1: don’t send you will act, but that if he should be in the form of the him away. He won’t thank you Gilhooly: ‘help your client – accepts the PIAB award, he will template laid down by PIAB at for it and he probably won’t that’s why he came to you in not receive costs, except in very www.piab.ie – or at least you the first place’ come back. Despite propaganda limited circumstances, and most should ask the doctor to put it to the contrary, solicitors can act section 7 of the act specifically probably not all of his outlay. It in that format. for claimants in the PIAB allows for a claimant to receive is also important to note that, in Once you have got the process. This is a claimant’s legal advice. many cases, the award will not medical report, it must fundamental right. There is a What will happen, as laid be made due to refusal of the accompany the application form common misconception that down by section 79 of the act, is respondent to consent to (also available from the website) solicitors are banned from – or that PIAB will correspond assessment, or either party may together with a cheque for €50. will be ignored by – PIAB. This directly with a claimant even reject the award, meaning that Attach copies of all inter partes is simply not the case. The where a solicitor is instructed. the client will have to issue correspondence, including the grounding act and subsequent However, it is crucial to note proceedings anyway. Most letter-before-action and all regulations are, in fact, entirely that, under the same section, clients will be happy to trust vouchers for special damages. silent on the issue of the claimant can nominate an you to look after their interests And you should send a covering representation except insofar as alternative address for service of and get the best deal for them. letter stating that you wish your Getting it right: Danish pa Agreeing the terms of an inter-state constitution was never going to be easy, and many of the issues that arose during Europe’s recent efforts mirror what went on in America over 200 years ago, writes Hugh O’Donoghue

flurry of inter- juridical doctrines, all of which Birth of a nation: signing the Declaration of Independence Agovernmental activity has emerged incrementally (the under the banner of the Irish so-called Acquis communautaire). presidency has now completed Moreover, the legal patchwork the work of the convention on has little in common with the the future of Europe, which has ideal of constitutional set the framework for the government, at least in the future political, legal, economic republican tradition. and social shape of the No doubt with those European Community. The imperfections in mind, result is a new constitution for comparisons have been drawn Europe, an outcome that might lately, not least by Valéry be considered long overdue. Giscard d’Estaing, between the At present, EC law appears convention of which he is the inchoate, consisting of an chairman and the much accretion or amalgam of celebrated Congress of treaties, bolstered by a body of Philadelphia, which paved the

8 Law Society Gazette July 2004 Viewpoint not to act in the PIAB? office to be the alternative address as allowed by section 79 An important point to note of the PIAB Act. is that the Statute of limitations It is vital to be aware that the is frozen from the date that the Statute of limitations only stops application is deemed to be running when the completed received by PIAB until six application form is deemed to months after the issue of the be received by PIAB and not authorisation. Please also be when you post it. Therefore, it aware that the liability can be is important to make your fully in issue in subsequent application as soon as possible proceedings, regardless of what to avoid possible statute happens in the PIAB process. difficulties. This is a whistle-stop tour of Once the application is PIAB. Please do not rely solely deemed to be received, you can on this article. There is much sit back and wait for the more that you need to know respondent to decide, inside 90 document that you use to issue days to accept the award and before advising your client days, whether to go to proceedings. If the respondent the claimant 28 days to do properly. Believe it or not, a assessment. If they do not does consent, the process likewise. If the respondent does great place to start is the PIAB respond within this time limit, continues through to an award, nothing, he is deemed to website. And read the act. It’s they are deemed to consent. A which must take place no later accept the award, while if the great bedtime reading. misconception is that consent than 15 months after consent claimant does nothing, he is Most importantly, though, to assessment is an admission of to assessment. deemed to reject the award. If help your client. That’s why liability. In fact, the opposite is If no award is forthcoming both sides accept or are he came to you in the first true. Liability is not admitted in by this time, then PIAB must deemed to accept the award, place. G this way. It remains open at all release the case by way of then the case is settled. If times. If the respondent refuses authorisation. In most cases, either side rejects or is deemed Stuart Gilhooly is a partner at the to consent to assessment, then however, PIAB will be anxious to reject the award, then an Dublin law firm HJ Ward & Co the claimant will receive an to make an award and will do authorisation will issue and and a member of the Law authorisation, which is a so, allowing the respondent 21 proceedings must ensue. Society’s PIAB Taskforce. stry meets American pie

way for the archetypal all the states to a convention in itself would elect the executive would be the same for all states. republican constitution of 1789. Philadelphia in May 1787. The and the judiciary. There were other less crucial The delegates to the European delegates took as their point of issues. For instance, the convention have been likened to departure a constitutional plan Patriot games southern states worried about the American founding fathers. that included a bicameral Battle lines were drawn from interference with the slave trade This comparison might be legislature (two houses of the start, behind which stood – a not inconsiderable considered an example of government). According to the the bigger states, opposed by apprehension given the hyperbole, but the parallels are Virginian plan, the the ranks of the less populated significance of this industry. striking. It is timely to look composition of these houses of ones. Like their present-day The case of Thomas Jefferson is again at these momentous parliament was to be European counterparts, the an example. He owned 55 slaves events, separated by over two apportioned among the states small American states did not in Virginia, yet paradoxically he centuries. according to their ‘free’ want to be overwhelmed, and was also the greatest proponent population. At that time, there the burning question centred of natural or human rights and Philadelphia cheese were only 400,000 or so free on representation. The impasse the author of the Declaration of In 1785, general dissatisfaction electors in that North that followed was overcome by independence. with the articles of American polity. The idea was the ‘great compromise’ – a In secret sessions, and within confederation stirred a number that the people would directly proposition sponsored by the three months, the convention of states to revisit them, but it elect the membership of the ‘American Socrates’, Benjamin in Philadelphia produced a was Virginia, with the help of first house, and that house in Franklin, that the lower house draft constitution for 13 the ‘brilliant and indefatigable’ turn would elect the second, be elected on the basis of independent legislatures. It Alexander Hamilton (the New both houses together making population and that included a provision for a York representative), that got up a national legislature that membership in the upper house brand-new legislature with

9 Law Society Gazette July 2004 Viewpoint power to tax the people, to raise jurisdiction to adjudicate on the directly by, the people. Like we constitution makers could and support armies, and to exercise of state governance. Europeans, the fathers of the themselves be participants. A declare war, as well as That novelty, the revered power new American republic shared second trump was thought to provisions creating the office of of judicial review, so-called by these worries. ‘It is the people’, lie in the fact that as soon as president. Moreover, the Hamilton writing in the said John Marshall, expressing nine of the 13 states voted document provided for a Federalist, was treasured in later the ideal, ‘that give power, and favourably, the constitution national judiciary spearheaded centuries as a shining jewel in can take it back’. would be triggered. However, by a ‘constitutional court’ with the crown of democracy. The American electors despite these structural appellate jurisdiction over all In light of our contemporary proved reluctant to approve the supports, only the promise of a cases involving the constitution, concerns, another feature of the draft constitution, nonetheless. Bill of rights saved it from an even those that began in the Philadelphia debate is of interest. Virginia herself only ratified the early grave. courts of the individual states. This is the ‘democratic deficit’ - document by ten votes. This Central to the new order was a the fear that laws will be enacted was remarkable given that Federal reserve system of checks and balances, by decision-makers who are approval was by special Why was it so hard to get the including the Supreme Court remote from, rather than elected convention in which the constitution through? The Letters Harney’s PIAB cheque likely to bounce From: A Gerard Moylan, motor insurance premiums. and who would pay the Loughrea, Co Galway Such claims are dubious, inevitable costs involved? His he much vaunted, highly naïve or deliberately deceptive. parents? Tcontroversial Personal Injuries As a solicitor with considerable Since the new law came into Assessment Board Act, 2003 experience in this area of law, I existence, I have had to tell became law on Tuesday 1 June would consider it professionally three different clients of mine 2004. Understandably, there is unwise to settle any significant that, since 1 June, their claims widespread outrage, anger and personal injuries case within cannot be formulated through bewilderment out there because the time-limit contemplated by the court system because the of this massively massaged, ill- PIAB. In some cases, it could new law requires them to deal thought-out, inadequately be professionally disastrous and directly with PIAB. They are debated and irresponsible piece certainly inimical to the best required to download all of legislation. Harney: yielded to the interests of a client. I wonder if procedural data and information PIAB is an independent multinational insurance sector any adequate consideration has from PIAB’s website. They are board of assessors who will deal been given to accidents not entitled to have their with all personal injuries claims negotiated settlement or by involving injuries to children or genuine claims prosecuted by resulting from accidents court determination, at no cost minors? In these cases, it me except at their own cost. happening in the workplace, to them. This will no longer be usually takes a minimum of 18 Needless to say, they knew motor and public liability the case. They are now on their months before a doctor or nothing about the new law. accidents. Since 1 June, it deals own, unless they engage a medical specialist can give a This did not surprise me in the with accidents happening in the solicitor and pay fees out of definitive and final prognosis. least, because why should it work environment, and later whatever compensation may be I have in mind a case for a impact on the average person this year it is intended to awarded to them by PIAB. six-year-old child who suffered until they have the misfortune embrace all accident claims The new legislation is the gross physical injuries to his to have an accident? resulting in personal injuries. It brainchild of tánaiste Mary lower limbs, and I am aware An tánaiste has claimed PIAB is envisaged that there will be a Harney, who, in true Pavlovian that I should not attempt to as her political magnum opus or strict time-limit of one year style, has yielded to the all- bring his case to a court hearing grande projet. I can say without from the date of an accident powerful multinational until the boy is skeletally fully equivocation that she has within which to bring a claim. insurance industry, whose formed at the age of 14 at the opened a very deep can of Claimants will not have the annual profits in Ireland alone earliest. How could the parents worms. PIAB simply will not professional guidance of a run into ever-increasing of this unfortunate child be work, and the public at large solicitor or barrister, except at millions. It is bombastically expected to prosecute a claim will suffer while it remains on their own cost. Prior to this, claimed by PIAB that accident on his behalf without the the statute books. Mary they had automatic access to victims will now get a better professional guidance and Harney’s promissory note is the courts through their deal and, as a carrot, they expertise of his solicitor? It will certain to bounce. Between this solicitor, whose fees were paid spuriously claim that claims will be at least eight more years and the election results last by an insurance company. be settled more quickly (nine before this boy’s claim can be month, she is likely to look back Claimants were guaranteed just months has been mentioned). brought to successful finality. on 2004 as the year when her and fair compensation either by They also claim that there will Under the PIAB system, who magnum opus became her annus way of a professionally- be very significant reductions in would look after this lad’s claim horribilis.

10 Law Society Gazette July 2004 Viewpoint overriding problem was then, themselves as ‘federalists’, road? Certainly, the focus will and thus shifted the centre of as now, one of sovereignty – while at the same time they be on ‘competences’ – a word gravity away from state to the location of ultimate stigmatised the reformers, that is practically a synonym union. But it was the popular constitutional power. That led correctly, as ‘nationalist’. Yet for sovereignty – and the magic generated by the Bill of to a bitter debate. The those very nationalists assumed extent of the powers of rights that ensured the long- enormous energy released in ‘federalism’ for themselves, individual states in relation to term political success of the the ensuing storm of words thus stealing the label if not the union. This includes the USA. seemed to centre on a the clothes from their more big question: who decides No doubt the present seemingly innocuous term orthodox brethren, and no where these powers ultimately sponsors of the European drawn from the vocabulary of doubt setting an early example reside whenever there is convention will bear that political science. At that time, of the elasticity and political ambiguity? In the past, the US component in mind. G those who were in favour of potential of the term as a Supreme Court, then independent state power, weapon of mass destruction! exercising a new competence, Hugh O’Donoghue is a partner at according to orthodox Can we expect the European fixed the boundaries between the Cork law firm HV terminology, described debate to go down the same state and federal government O’Donoghue. Letters Taking the VHI fight to the ombudsman From: Collins, Brooks & Associates, injury section of the claim form undertaking. However, the has not been resolved. However, Clonakilty, Co Cork signed by our client read, and undertaking (new form) solicitors should now look at the have written before on this we quote: subsequently sent to us refers to, undertaking contained in the Imatter. I brought a case to the ‘I hereby irrevocably authorise the and we quote: ‘subject to any court claim form completed by their insurance ombudsman, Caroline solicitor(s) representing me in order to the contrary to repay the clients and ascertain if it is in Gill. In essence, we had resisted making a claim to furnish to [the VHI Healthcare – out of the pro- the first form above referred. If the efforts of VHI to secure from company] an undertaking in the ceeds that come into our hands – all so, in my view, VHI is bound to us an undertaking on behalf of following form – “in consideration such monies paid by the company’. accept the undertaking which our client, notwithstanding what of [the company] discharging the The ombudsman pointed out solicitors are quite happy to percentage of our client’s losses hospital and medical expenses of that the undertakings were give, which fairly protects VHI’s were recovered from the my/our client [name], I/we hereby clearly different and her position. offending third party, to recoup undertake to include as apart of recommendation, therefore, was No doubt the claim forms to VHI their full outlays. my/our client’s claim the monies so that the undertaking contained in will be changed by VHI now The matter was determined in paid by [the company] (details of the injury section of our client’s and the battle will have to start favour of our client, the insured. which are now supplied to us by claim form should apply in over again and the matter will However, the main contentious [the company]) and, subject to any respect of this claim. have to be referred back to the issue of the form of undertaking order to the contrary, to repay to Regretfully, therefore, the ombudsman for determination to be completed in future cases is [the company] out of the proceeds main issue at this point in time of the main issue. not influenced by the findings of that come into our hands the net the ombudsman. amount recovered in respect of such The ombudsman decided that payments made by [the company]”.’ Solicitor athletes the undertaking contained in the This was the ‘old’ form of From: Arran Dowling Hussey, day solicitor athletes of great Law Library distinction. John Menton, a read with interest the article Dublin lawyer, competed at the Calling all Cork alumni Iin last month’s Gazette on Sydney Olympics in the discus, From: Mairead Enright, interim would be interested in helping solicitor and 1906 Olympic while solicitor Cathal Lombard, director, UCC Law Soc History us with our research. In gold medallist Peter O’Connor. a long-distance athlete and and alumni project particular, we are keen to It is, of course, the case that native of Cork, has qualified for he student Law Society at receive photographs, there are a number of present- the Athens Olympics. TUniversity College Cork is memorabilia and society 75 years old in the new records, and we would love to academic year. To celebrate this hear people’s stories of their Airbrushed from history special anniversary, the society time with the Law Soc. Those From: Ken J Byrne, Blackrock, Co keeping with the tenor of the is putting together a small book who are interested in Dublin article: outwardly respecting Ms on its history and alumni for contributing to our project note the airbrush was at work Campbell’s right to bodily launch at our planned 75th should write to Deirdre Duffy Iin eliminating the right nipple privacy while inwardly, per anniversary ball in spring 2005. at the Law Society History and of Naomi Campbell on the Dudgeon v UK (as recited), We would be delighted to alumni project, 6 Carrigside, front of your June issue, while recognising the entitlement to hear from past members and College Road, Cork, or e-mail leaving it on display on page 15 lift the veil due to the gravitas officers of the society who us at [email protected]. within. This presumably was in of the subject matter.

11 Law Society Gazette July 2004 Cover story

The introduction of the ban on smoking in the workplace has given rise to concern about how it will operate in practice. Maura Connolly looks at the formal steps that employers must take to ensure compliance with the legislation

hile Ireland has been to the • Public Health forefront in Europe in introducing (Tobacco) Acts, a ban on smoking in the 2002 and 2004 workplace, it is clear that a similar • Where the Wban is under consideration in smoking ban other jurisdictions. The BBC recently reported the applies results of a poll carried out by market analysts • Steps that Mintel, which found that there was more than 52% employers support for the introduction of a similar ban on should take smoking in public places in Britain.

MAIN POINTS Although many employers have introduced a ban on smoking in the workplace, there has been a less obvious compliance with other aspects of the legislation requiring prominent signage to be maintained. Many licensed premises have been preparing for this legislation for some time; other workplaces appear to be less aware of their obligations to display signage that declares the workplace to be ‘smoke-free’. In some cases, the signage is inadequate or does not specify a named manager to whom complaints can be made. In the wake of the ban, there are reports of increased littering, with cigarette butts being strewn outside public places. Employers should perhaps be aware of the impact of the Litter Pollution Act, 1997 and the regulations made under that legislation. The implementation of the ban will also require employers to develop anti-smoking policies and to train management in how to deal with breaches of the legislation.

Non-smoking workplace The Public Health (Tobacco) Act, 2002, as amended by the Public Health (Tobacco) Amendment Act, 2004, which took effect on 29 March, prohibits smoking in any workplace, with certain limited exceptions (see panel, page 14). The acts deal generally with the sale of tobacco products and set out certain restrict- ions on the advertisement and sale of those products. The ban on smoking in the workplace was introduced as a health and safety measure and must be considered in the context of the Safety, Health and Welfare at Work Act, 1989 (and the regulations made under that act). For example, employers are obliged to provide staff with a safe place of work, safe

12 Law Society Gazette July 2004 Cover story

Up in

13 Law Society Gazette July 2004 Cover story WHERE DOES THE SMOKING BAN APPLY? The prohibition on smoking applies to: •A prison •A place of work •A place or premises, or a part of a place or • An aircraft, train, ship or other vessel, public premises, that is wholly uncovered by any roof service vehicle or a vehicle used for the carriage whether fixed or movable of members of the public for reward, insofar as it • An outdoor part of a place or premises covered by is a place of work a fixed or movable roof, provided that not more •A health premises or a hospital that is not a than 50% of the perimeter of that part is health premises surrounded by one or more walls or similar • All or part of a school or college structures (inclusive of windows, doors or other • Any state-owned building to which the public has means of access or egress) access •A bedroom in a hotel or bed and breakfast or any •A cinema, theatre, concert hall or other place other premises where sleeping accommodation is normally used for indoor public entertainment offered to members of the public •A licensed premises insofar as it is a place of • Charitable accommodation work • Accommodation rooms in educational •A registered club insofar as it is a place of establishments work. •A nursing home •A hospice The prohibition does not apply to: •A psychiatric hospital •A dwelling • The Central Mental Hospital.

systems of work, and to control or eliminate hazards with the Tobacco Acts and permitting employees to in the workplace. smoke at work in breach of the ban could be Much publicity has been given to the offences regarded as exposing other employees to an unsafe introduced under the Tobacco Acts, where failure to working environment within the meaning of the comply is an offence which, on conviction, may lead Safety, Health and Welfare at Work Act, 1989. If, for to a fine of €3,000. Because of the need for example, an employer allowed a lax attitude to authorised officers to attend at the premises in order smoking at work, a non-smoking employee could to monitor compliance, there may be a perception argue that the employer had failed to properly that such convictions will be rare. protect him from hazards or did not maintain a safe Employers should be aware that non-compliance workplace.

14 Law Society Gazette July 2004 Cover story

A place of work is as defined in the Safety, Health and Welfare at Work Act, 1989 and includes any place, land or other location in, upon or near which work is carried on, whether occasionally or otherwise. This definition particularly includes: •A premises • Any installation on land and any offshore installation •A tent, temporary structure or moveable structure •A vehicle, vessel or aircraft.

There has been a great deal of discussion about manager who will be whether certain workplaces, particularly places of in charge of a premises. permanent residence, should be covered by the ban. Employers must put up signage in accordance This has led to the large number of exceptions listed with the Tobacco Acts. This will have the effect of in the acts. The fact that company vehicles are publicly demonstrating compliance and should also defined as a place of work may be regarded as assist in compliance. imposing an onerous and impractical obligation on A procedure must be developed to be used in employers to monitor compliance. Employers cases where there are breaches of the legislation. discharge their obligations under the Tobacco Acts by This should refer not only to employees but also to making ‘all reasonable efforts to ensure compliance’. ‘In the wake of visitors, sub-contractors and clients. It will be critical for them to show that they had In the case of employees, any breach of the policy adequate policies in place and that they took steps to the ban, there (and the legislation) should be regarded as a ensure that employees were made aware of the are reports of disciplinary matter that may lead to dismissal. In the requirement of these policies. For example, if a co- case of non-employees, the signage should indicate worker is required to share a company car with a butts being that breaches of the legislation will be acted upon by driver who smokes during the journey, there should strewn the occupier or the manager. If an employer takes be a clear procedure through which the co-worker disciplinary action against an employee on foot of a can lodge a complaint and for action taken to everywhere. breach of the smoking ban, then the employee will implement the ban. Employers be entitled to the protections of the Unfair Dismissals It can be anticipated that where employers have Acts, 1977 to 2001 and to fair procedures. Where an put in place temporary structures to facilitate should be employer does not have a specific disciplinary smoking outside the workplace, these may be subject aware of the procedure in place, the Labour Relations to scrutiny to see whether they come within the Commission code of practice on grievance and criteria described above. impact of the disciplinary procedures gives guidance as Litter Pollution to fair procedures. Sign of the times Further steps that may be Section 46(2) of the act provides that where smoking Act, 1997’ regarded as coming within the is prohibited, there must be displayed at all times a description of ‘reasonable sign clearly indicating: efforts’ would be to put in • That smoking is prohibited on the premises place smokers’ assistance •The name of the occupier or other person in programmes to help charge of the premises employees who wish to • The name of the person to whom a complaint stop smoking. may be made by a member of the public who After the initial observes a person smoking on the premises. publicity that followed the introduction of the Anyone who smokes in a specified place will be smoking ban, the guilty of an offence. Equally, where a smoking challenge for employers offence has been committed, the occupier or will be to ensure manager will each be guilty of an offence. compliance with the In proceedings brought for an offence under the legislation on an on-going basis act, it is a defence for a person to show that he made and to have in place proper all reasonable efforts to ensure compliance with this procedures that clearly set out section of the act. A person convicted of an offence the requirements of the is liable to a fine of €3,000 on summary conviction. legislation and the implications of any breaches. G Executive action As a priority, employers must draw up a ‘smoke-free Maura Connolly is a solicitor with the Dublin at work’ policy. Within this policy (which should be law firm Eugene F Collins and a member of the widely circulated, perhaps as part of an employee Law Society’s Employment and Equality Law handbook), the employer should identify the Committee.

15 Law Society Gazette July 2004 Legal profession ASCENTOF Last year, the first-ever report on women lawyers in Ireland was published by TCD’s law school. Co-author Ivana Bacik summarises some of its findings

n October 2003, President Mary McAleese • Women in launched Gender InJustice, a report on women in the legal the legal professions that was based on an 18- professions month study funded by the Department of • Gender IJustice, Equality and Law Reform, with support discrimination from the Law Society and the Bar Council. • Recommend- There has been a dramatic increase in the number ations for of women entering the law in recent years. Among professional the law class at Trinity College, male students are bodies clearly outnumbered almost two-to-one every year.

MAIN POINTS As academics and legal practitioners, we were keen to examine whether this ‘feminisation’ of legal education was mirrored in a more general feminising of the legal profession, particularly at the top levels. So we carried out an extensive postal survey of practising lawyers, including solicitors, judges and barristers, both women and men, to which we received 788 very detailed responses. We supplemented the valuable information gained from these by carrying out interviews and focus groups and by gathering comparative material about women lawyers from other countries.

International law A number of similar themes emerged from our review of the comparative literature, in which we concentrated on common-law jurisdictions. First, we found that in every country there are gender disparities among lawyers – at entry to the professions and in the career prospects, specialisation, and income differentials of men and women. Second, we found that the culture of the legal professions has not been accommodating for women, who routinely tend to experience exclusion from the sort of social networks that are necessary to further their legal careers. Third, in every jurisdiction, the dual burden of work and family life has been found to be a significant factor impeding women’s career advancement. Mothers invariably take on responsibility for childcare to a much greater degree than fathers, and this means that mothers are far more likely than fathers to take time out from their

16 Law Society Gazette July 2004 Legal profession A WOMAN careers for family reasons. Fourth, an assumption has emerged alongside the increase in women entering the professions in the last two decades everywhere: the assumption is that women’s progression is inevitable with time (the ‘trickle-up fallacy’). However, this view ignores the point that more women should surely have ‘trickled up’ the career ladder by now, if it were merely a matter of time. Finally, the self-regulating character of the legal professions, and the resistance among lawyers to invoking their legal rights where discrimination has occurred, tend to make legal practice a ‘lawless domain’ for women lawyers in many countries.

Home rule Having reviewed the comparative literature and identified these five key themes, we then sought to measure the extent of recent changes in the gender breakdown of lawyers in Ireland. We found that 66% of all full-time undergraduate enrolments in law at university nationally are now female. Not only that, but women have made up half of all law enrolments since the mid-1980s, and more than 30% since the mid-1970s. When we reviewed the figures for practising lawyers, we found that women make up 39% of all lawyers in Ireland, taking solicitors and barristers together. The figure is higher for solicitors, 41% of whom are women, almost double the figure of 22% that applied 20 years ago. By contrast, only 34% of barristers in Ireland are women, but this is up from a mere 16% 20 years ago. Women also now constitute 21% of all judges in Ireland. This is a relatively high figure when compared with the figure of 12% for women judges in the UK and United States. But it is still very low compared with the number of women now practising as lawyers in Ireland, and it masks the very low figures for women at certain levels. In the High Court, for example, there are only three women judges (11% of the total). It is also a low figure compared with Canada, where 26% of judges at federal level and one-third of judges at provincial levels are women. The Irish figure also compares unfavourably with much higher figures in EU civil law countries. In Finland, for example, 46% of judges are women; in France, 54%. When we looked at the senior levels of both professions in Ireland, we saw that women were

17 Law Society Gazette July 2004 Legal profession RECOMMENDATIONS FOR PROFESSIONAL BODIES • Gender issues should be incorporated into the training curriculum for firms and solicitor-employers to adopt, particularly addressing in each subject taught on both professional training courses, and issues of harassment and bullying, work/life balance and the a structured career guidance programme should be introduced to ‘long hours’ culture, pay equity, and gender-sensitive evaluation assist students setting out on legal practice in order to reduce methods and promotion criteria. The committee could also gender segregation in choice of specialisation organise the provision of training for members on gender equality • The professional training bodies should adopt clear policies and issues, including training in appropriate language-use and procedures on harassment and bullying, modelled on existing sensitivity, since it is clear that inappropriate or sexist comments codes used in the university system continue to be experienced by many women lawyers • Networks should be developed between generations of women • Solicitors’ firms should adopt statements or codes on equality, lawyers to provide role models, mentoring and support to modelled on the code produced by the Law Society. Support staff students embarking upon a legal career and locum cover should be provided where necessary by firms to • The professional bodies should bear greater responsibility in ease the pressures of the ‘long hours’ culture upon employees, promoting equality among practising lawyers, on behalf of their and firms need to introduce greater transparency and objectivity increasingly female membership. In particular, we recommend in their partnership selection process that each professional body should adopt an equality policy or •Proactive steps need to be taken both by the professional bodies code, to be incorporated into the rules of professional conduct and by law firms to improve work/life balance. The Law Society governing relations among members as well as between should ensure that all firms pay maternity leave at full salary and members and third parties. These equality codes should include that employees do not suffer disadvantage to their careers in reference to the legislative framework, procedures for dealing with taking statutory maternity leave or other forms of leave to harassment and bullying, and monitoring and implementation facilitate their childcare arrangements. Many solicitors’ firms do practices. In particular, data should be kept on the membership, not pay full salary on maternity leave – and this is not confined to according to gender, on applications for membership, entrants to small one-person operations. One woman partner in a large the professions, career progression and attrition rates. In light of commercial firm informed us that ‘it is only in the last two to the reluctance of lawyers to make formal complaints, structured three years that maternity leave is paid beyond the statutory confidential exit interviews aimed at establishing individuals’ minimum’ reasons for leaving legal practice should be introduced • Parental leave and flexible working arrangements should be made • The Law Society and Bar Council should each establish an available by firms to all solicitors, men as well as women. Men equality committee to ensure that equality policies are should be encouraged to take up leave and flexitime options, to implemented. The functions of the Law Society equality end the current double standard where such arrangements are committee should include the drafting of model equality policies seen as being available only to women.

more significantly under-represented. As of 1 greatest obstacle to women’s career progression in October 2003, we found that among the 12 largest law in Ireland is the difficulty of achieving a law firms in Dublin (each with between ten and 60 work/life balance within the ‘long hours’ culture that partners), only one had a female managing partner. exists within legal practice. Many women we The average proportion of women partners across all surveyed believe that it is simply not possible for 12 firms was only 24% (in one firm, only 8% of the women lawyers to ‘have it all’ as working mothers. partners were women). The highest percentage of In addition to this structural problem, many women female partners in any one firm was 32% per cent. lawyers also believe that an ‘old boys’ club’ exists within the profession. These findings reflect similar Surprising figures conclusions reached in other studies internationally. The consistently low figures for women at the top of In support of this belief, we found that far more the professions are particularly surprising, given that women than men tend to feel excluded from social the first woman graduated in law in Ireland as long networks within the law. Almost one-third (31%) of ago as 1888, when Letitia Walkington received her all women we surveyed had experienced exclusion degree from the Royal University of Ireland. She was in this way, such as not being invited to golf the first woman to graduate with a law degree in outings or other events. More than one-third Britain or Ireland. The first woman solicitor in (36%) also reported having experienced sex Ireland, Mary Heron, qualified in 1923. The first discrimination in the form of inappropriate two women barristers, Frances Kyle and Averil comments, such as being called ‘good girl’ or ‘love’ Deverell, were called to the bar in 1921 – again, by male colleagues, or being asked about their before any women were called to the bar in England. husband at interview. One woman solicitor had Women have therefore been working as lawyers in been told early in her career by a male colleague: ‘I Ireland for many years, but few have made it to the don’t know why we employ women; they go off and top until very recently. We wondered why this was have babies’. Another even reported that a male so, and sought to discover what more could be done judge had said to her in open court, in front of her to encourage the career progress of women. client and other colleagues: ‘you’re far too pretty to From our survey of practising lawyers, supplement- be taking this action’. In addition, 19% of women ed by focus groups and interviews, we found that the had been asked to perform inappropriate tasks such

18 Law Society Gazette July 2004 Legal profession as making tea, fetching files or buying personal the state, the university law schools, and consumers gifts on behalf of their employer. of legal services (see panel, page 18). Perhaps most worryingly, sexual harassment or Those recommendations most relevant to bullying had been experienced by 14% of women. solicitors are aimed at the Law Society. We focused This ranged from serious physical assault to the first on the issue of professional training, and found making of sexist jokes, innuendoes or ‘fairly constant that students had a uniformly positive experience of jibes’, as one woman solicitor described it. Another the solicitors’ training course at Blackhall Place. As wrote: ‘I was bullied by my boss during my one student who participated in a focus group for apprenticeship and he made inappropriate comments our study commented: ‘I thought Blackhall was great all of the time. I was too young/scared and … they try to make it as near to working life as inexperienced to do anything about it at the time’. possible. The tutors explain their real-life Worryingly, most women were very reluctant to experience, so you learn’. This was in marked make any complaint even where they had been contrast to the findings we made about the barrister harassed, due to fears that it would affect them training course at King’s Inns, and we recommended adversely in their careers. that the structure of the Inns course should be revised, on a similar model to those reforms in legal Paying the piper education already carried out by the Law Society. There was also a difference between men and It is undoubtedly true that while childcare women in terms of the area of work in which they continues to be seen as a ‘woman’s responsibility’, are likely to specialise. Unsurprisingly, far more women in every profession, including law, will women work in family law and men are more likely ‘A male experience particular problems in balancing work to work in criminal law and commercial law. Some and family commitments. In this respect, more 30% of women believe they are discriminated judge said fundamental societal change is ultimately required, against in terms of level of earnings. When we to her in notably a more equal shouldering of caring roles by examined the question of pay in more detail, we men and women. discovered that a significant gender pay gap does open court, We recognise, however, that structural exist, even where lawyers of the same age are in front of discrimination is difficult to address in any compared. Men over 50 years of age, we found, have profession, since it is insidious and manifests itself a 60% chance of earning more than €100,000 a her client through practices such as the use of inappropriate year, whereas for women of the same age the chance and other language and informal social exclusion. There are of earning this much is only 20%. some ingrained cultural attitudes that will certainly Our findings might be summarised by saying that, colleagues: take time to change. But the recommendations made despite the many advances made by women lawyers You’re far in our report, if adopted and implemented by the over the past decades, barriers to women’s career Law Society and other bodies, could lead to a progression remain, particularly in the form of too pretty to significant improvement in the position of women exclusionary practices, structures that impede be taking lawyers, and indeed an enhanced quality of life for work/life balance, and pay inequity. Clearly, many all legal practitioners. women believe that an ‘old boys’ club’ still exists this action’ What should happen next? It is important that within the professions, and they feel excluded from these issues are debated widely and that the sporting and social networks that are highly professional bodies take responsibility for moving influential in furthering a legal career. forward with the recommendations. The Law Disproportionately, it is women who have Society was extremely supportive at all stages of the experienced the use of inappropriate language in the research process, and we anticipate that changes will workplace, while harassment and bullying occur at be brought about to ensure greater representation of an unacceptable level. women at every level of the solicitors’ profession. However, it must be emphasised that the greatest Great progress has already been made in other obstacle to women’s career progression remains the countries, such as Canada, through the adoption of difficulty of achieving a work/life balance within the positive interventions by the professional bodies and ‘long hours’ culture that respondents the state. It is important for us to learn from the overwhelmingly agreed exists in the legal workplace. experience of other countries in seeking to achieve This culture particularly affects women where men gender equality. Women lawyers have come a long are not taking on an equal caring role. way in Ireland since Letitia Walkington graduated in 1888 – but more needs to be done to ensure that the Preventive action ‘old boy’ culture becomes a thing of the past. G It is incumbent upon the professional bodies, in particular, to take preventive action to remedy the Ivana Bacik is Reid Professor of Criminal Law at TCD. culture of discrimination experienced by many Copies of Gender InJustice, by Ivana Bacik, Cathryn women lawyers. Responsibilities for furthering Costello and Eileen Drew, are available for €20 (to cover equality within legal practice also need to be borne postage and packing), made payable to ‘TCD no 1 by other bodies and institutions, including the state. account’, from the Women in law project, Law School, Accordingly, based on our findings, we developed 50 Trinity College Dublin, www.tcd.ie/Law/Womenin recommendations aimed at the professional bodies, Law.html, e-mail: [email protected].

19 Law Society Gazette July 2004 Personal injuries

REFORMING PRACTICE The nature of personal injuries litigation is changing, and the report of the Committee on Court Practice and Procedure is part-and-parcel of this. Eamonn Hall outlines some of the committee’s key recommendations

Justice is never anything in itself, but in the procedure in relation to personal injury actions dealings of men with another in any place whatever from the institution of proceedings to and at any time. It is a kind of compact not to harm determination. It then addressed the submissions of or to be harmed. those who made complaints about the shortcomings (Epicurus, Principal doctrines, xxxiii) of the system. Submissions were received from many predictable quarters: the Motor Insurance To none will we sell, to none deny or delay right or Advisory Board, the Irish Insurance Federation, the justice. Law Society, the Dublin Solicitors’ Bar Association, (Magna Carta) the Bar Council, the Mediators Institute Ireland and others. Oral evidence was presented by then Justice, sir, is the great interest of man on earth. It president of the Law Society Geraldine Clarke, is the ligament which holds civilised beings and director general Ken Murphy, and Roddy Bourke, civilised nations together. chairman of the society’s Litigation Committee. (Daniel Webster, funeral oration for Justice Story Others who presented oral evidence included (US Supreme Court), 12 September 1845) Dorothea Dowling of the Personal Injuries Assessment Board, members of the Bar Council, ome might start an article with one including Conor Maguire SC and Hugh Mohan SC, epigraph; I have written three. Perhaps and representatives of the Courts Service and the this is an indication of the importance Irish Insurance Federation. attached to the concept of justice and The problems in personal injury court procedure Sfairness in relation to fair and just – as perceived by those making submissions to the compensation for injuries caused by the negligence committee – related to, among other matters, delay, of others. cost, lack of effective court management, lack of This article focuses on the 29th report of the consistency in awards, the slow and cumbersome Committee on Court Practice and Procedure. The nature of discovery and the difficulty in striking out committee report was sent to justice minister unmeritorious claims or defences. The committee Michael McDowell in late June 2004. The listed a full litany of complaints by those who made committee itself is of some vintage, being one of the submissions. longest-serving committees on legal practice and procedure in Ireland. It was established in 1962 but Rays of light (in relation to this 2004 report) its specific terms of In the High Court, once the case is set down for reference were determined by minister McDowell in trial, it was reported that there were no significant • Personal 2002. The committee was charged with examining delays in Dublin, with cases given a date for hearing injuries all aspects of practice and procedure relating to within weeks of being set down. However, the litigation personal injuries litigation. In particular, the hearing may be subject to the availability of judges. • Committee on committee was to consider whether the present At venues outside Dublin, cases can usually be Court Practice system of practice and pleadings was appropriate to heard within three to six months of setting down. and Procedure modern personal injuries litigation. In short, the The only exception is Cork, where the delay is two • Main committee’s answer was ‘no’. years. recommend- The committee was conscious that section 13 of ations Perceived problems the Courts and Court Officers Act, 2002 makes

MAIN POINTS The committee set out the current practice and provision for the extension of the jurisdiction of the

20 Law Society Gazette July 2004 Personal injuries

&PROCEDURE

‘The committee was to consider whether the present system was appropriate to modern personal injuries litigation. In short, the answer was ‘no’

21 Law Society Gazette July 2004 Personal injuries

Circuit Court to €100,000 from its present promotes early co-operation, early exchange of jurisdiction of IR£30,000 (€38,092.14). That information between parties and early settlement of provision has not yet been brought into effect. cases. Draft rules to implement these Bearing in mind that 79% of the awards made in recommendations are included in the report. Also, the High Court during a period under review were case management of personal injuries litigation within the €0 to €100,000 range, if the Circuit should be introduced by the court in appropriate Court jurisdiction were extended (which could be cases. done easily), it would undoubtedly have a significant effect on the volume of personal injury Procedural changes litigation in the Circuit Court. This would require In relation to procedural changes, the committee adequate resources to be put in place in the Circuit recommended that: Court. • Court rules should have a more realistic The committee noted that 77% of the awards timetable for the different steps in pre-trial made in the Circuit Court during a period under procedures and should then be strictly enforced review were within the range €0 to €20,000. • The plaintiff should lose control of the pace of Section 14 of the Courts and Court Officers Act, 2002 the litigation, and the courts (through judges, makes provision for the extension of the jurisdiction masters of the High Court and county registrars) of the District Court to €20,000 from its present should be proactive in case management in jurisdiction of £5,000 (€6,348.69). If this were moving the case on effected, it would have a significant effect on costs •Pre-trial meetings to narrow the issues should be and related matters. compulsory in appropriate cases The committee considered that providing • Pleadings should be realistic and give greater litigants with a swift and efficient system of detail determination of personal injury claims could be •Pre-trial meetings should establish where written achieved by rules of court. The minister for justice, reports can be substituted for oral evidence however, sought to achieve some of the same • Notice to admit should be used more widely. recommendations of the committee in the Civil Liability and Courts Bill, 2004. Nevertheless, the Costs committee set out its advice, as they may assist the The committee also made several recommend- future development of rules of court. ations in relation to costs: • Judges should be given powers to determine the Principal conclusions amount of costs in appropriate cases In answer to the specific matters in the request • Costs of unnecessary expert witnesses should be from the minister for justice, the committee had disallowed three principal conclusions. First, the present • The taxation of costs should be modernised system of practice and pleadings in personal injuries • Parties using procedures to enhance costs rather litigation in the High Court was not appropriate to than advance the case should suffer a penalty, in modern personal injuries litigation and should be costs or otherwise changed. • Public information should be available on the Second, the plaintiff and defendant should verify cost of litigating personal injuries actions on oath the contents of the pleadings. The • As a matter of urgency, the minister for justice provision as to verification on oath, as distinct from should establish an independent study, to include the provisions creating criminal offences, should be all claims – not just those litigated – as to the provided by way of rules of court. legal costs in personal injuries actions and how Third, the present procedures do not provide costs could be reduced. This inquiry should be sufficient encouragement to litigants to avoid carried out with the full involvement of the Law litigation in the first place and to arrive at an early Society and the Bar Council settlement of litigation. However, pre-litigation • Section 68 of the Solicitors’ (Amendment) Act, mediation should not be made mandatory. 1994, in relation to solicitors providing clients The committee recommended that the rules of with particulars in writing of their charges, court on personal injury litigation be amended to should be enforced and developed. This could be enable a just, efficient and effective system that done by a practice direction requiring that, at the beginning of a case, a copy of the letter be given to the court. Equally, there should be a COMMITTEE MEMBERS practice whereby a schedule of fees would be Members of the committee included the chairman, Supreme Court judge Mrs provided by counsel (through the solicitor) to Justice Susan Denham, High Court judges Mr Justice John Quirke and Ms Justice the clients as to the potential fees counsel may Finlay Geoghegan, president of the Circuit Court Mr Justice Esmond Smyth, District charge in the case Court president Judge Peter Smithwick, and practising members of the legal •Taxing masters should consider a system of profession such as Richard L Nesbitt SC, Dr Gerard Hogan SC, and solicitors John publishing (through the Courts Service) a range Fitzpatrick and Ann C Walsh. of taxed bills of cost with no identifying information as to the parties.

22 Law Society Gazette July 2004 Personal injuries SHORTCOMINGS IDENTIFIED BY THE COMMITTEE

The committee found fault with the current system of personal injury • There are no incentives for the parties to bring an action to trial litigation and identified the following principal shortcomings: with reasonable expedition • The costs of personal injury litigation • There is an absence of recorded data on the level of the awards of •A culture has developed in which claimants perceive that the general damages institution of court proceedings will enhance the status of their • There is little use of videoconferencing technology to obtain claim and increase its value evidence, expert and otherwise • There is no sense of urgency in the initial processing of personal • There is room for further development of IT in the case injury actions management of personal injury pleadings, in the trial of personal • There are little or no incentives to settle an appropriate claim at an injuries actions and in the obtaining and analysing of statistics on early stage personal injuries •Procedures are used that prolong court proceedings and increase • There is an under-development of case management and a lack of the cost of the action sufficient appropriate officers such as masters and legally qualified • Rules of court are not adhered to or strictly enforced court officials • The lack of case management leaves the parties in control of the • The current time-limits for the serving of pleadings are unrealistic pace of the litigation and consequently cause expense in the seeking of an extension of • There is insufficient detail in the pleadings time • There are delays in bringing the pleadings to a close • The discovery process is in need of revision.

The committee also had various specific jurisdiction to another. recommendations with regard to information on On resourcing, the committee recommended awards, technology, transferring jurisdiction, and the appointment of a sufficient number of judges resourcing. to enable personal injuries litigation to proceed justly in an efficient and effective manner and also Court awards that resources should be made available to the In relation to information on court awards, the Courts Service for the appointment of court committee had four main recommendations. First, officials, and to train and develop court officials, information on awards in general damages in who may take an active part in modern case personal injuries litigation should be published. management. Second, the Judicial Studies Institute should Personal injury litigation will never be the same consider establishing a working group to gather, again. The Personal Injuries Assessment Board Act, compile and publish such information. Third, 2003, the Civil Liability and Courts Bill, 2004 (as resources should be made available to such a passed by the Seanad on 15 June 2004), when fully working group and the Courts Service to enable the enacted, and the implementation of this report on gathering of relevant information and its court practice and procedure in personal injury compilation. Finally, the committee recommended litigation will (or may) revolutionise the law, that rules of court should be amended to enable practice and procedure on personal injuries. If this counsel to bring to the attention of the court succeeds, other types of litigation will be modelled awards of general damages in earlier court decisions on the successful aspects of this reform. and (when completed) any relevant publication of Certainly, there have been some excesses in the the judicial studies board. past in the context of personal injury litigation. The committee also recommended the greater Some plaintiffs benefited more than was their due. use of information technology in the courts. But it would be foolish to speculate that the courts Videoconferencing technology should be developed will ignore the constitutional and human rights of in as many courts as possible in order to facilitate the deserving litigant. the giving of evidence, especially expert evidence, It would also be foolish to speculate that by witnesses in other locations in the state and solicitors would no longer be required in this internationally. important area of law. The solicitor will still have a vital role to play in the Personal Injuries Transferring jurisdiction Assessment Board and before the courts. We must In relation to transferring jurisdiction, the never forget that our constitutional and human committee said that judges should be proactive in rights law requires Ireland to provide a civil justice sending a case to a more suitable jurisdiction, not system that is fair to all. There is merit in reactive as at present. There should be more simplifying court procedure. A deserving case will penalties for proceedings in a higher court than was receive justice because it would be unthinkable were appropriate and those penalties should be more it otherwise. G vigorously applied. There should be a short and inexpensive procedure to move a case from one Dr Eamonn Hall is the chief solicitor of Eircom plc.

23 Law Society Gazette July 2004 Health and safety

TOEINGOccupational health and safety is steadily climbing the management agenda. This year brings the smoking ban, proposals for a new offence of corporate killing, and the promise of a new health and safety bill by autumn. Geoffrey Shannon assesses some recent developments

n employer’s duty of care to look after can be seen from the case of Saehan Media Ireland • Stress in the the health and safety of employees Ltd v A Worker ([1999] ELR 41), where the Labour workplace includes the reasonable prevention of Court acknowledged work-related stress as a health • Corporate stress-related injuries in the workplace. and safety issue and held that ‘employers have an killing AThe Health and Safety Authority obligation to deal with instances of its occurrence • Safety, Health defines workplace stress as arising ‘when the which may be brought to their attention’. and Welfare at demands of the job and the working environment on Health and safety law requires risks to be Work Bill 2004 a person exceeds their capacity to meet them’. The eliminated or reduced so far as is reasonably

MAIN POINTS European Commission document Guidance on work- practicable. The 1989 act also requires employers to related stress defines the condition as ‘the emotional, conduct risk assessments. Any such risk assessments cognitive, behavioural and physiological reaction to should include assessments of activities that could aversive and noxious aspects of work, work potentially cause unreasonable stress to workers. environments and work organisations’. Work-related Regulation 10 of the Safety, health and welfare at stress, according to the document, ‘is characterised work (general application) regulations 1993 provides by high levels of arousal and distress and often by that the results of these assessments should be feelings of not coping’. documented. An employer’s duty is not to provide a stress-free The recent decision of the House of Lords in environment, but to take reasonably practicable steps Barber v Somerset County Council (see panel, page to shield employees from exposure to stress and the 27) is unlikely to go unnoticed in this jurisdiction. It consequences of unreasonably stressful working emphasises the need for the employer to carry out a conditions. risk assessment on an on-going basis in order to Employers have both a statutory and common-law assess the individual employee’s ability to do the duty of care to protect their staff against stress. work for which he is employed. While there is a While few cases have been decided on this point, the detectable movement towards encouraging potential for litigation in this area is growing. This employers to manage health and safety issues, the House of Lords’ decision demonstrates that this is particularly pertinent when addressing the REASONABLY PRACTICABLE identification of stress in the workplace. In Boyle v Marathon Petroleum (Ireland) Ltd ([1999] 2 IR 160), O’Flaherty J identified the onerous obligation imposed on management by the ‘reasonably Corporate killing practicable’ standard as follows: In the future, it is likely that individual members of ‘I am … of the opinion that this duty is more extensive than the common-law management will face criminal charges arising from duty which devolves on employers to exercise reasonable care in various aspects deaths and injuries at work where it is possible to as regards their employees. It is an obligation to take all practical steps. That connect the individual failures of senior executives seems to me to involve more than that they should respond that they, as with the corporate body. Where an employee’s death employers, did all that was reasonably to be expected of them in a particular results from a failure by an employer to comply with situation. An employer might sometimes be able to say that what he did by way his or her statutory duties under the Safety, Health of exercising reasonable care was done in the “agony of the moment”, for and Welfare at Work Act, 1989, this will give rise to a example, but that might not be enough to discharge his statutory duty under the discrete offence under section 48(17) of the 1989 act. section in question’. This section attracts a maximum fine of €1,905. In its 2003 consultation paper on corporate

24 Law Society Gazette July 2004 Health and safety theLINE

killing, the Law Reform Commission (LRC) indictment and ‘which would make an organisation recommended that ‘where there has been seriously responsible for a death arising from its gross culpable conduct by a corporation leading to death, recklessness’. The Labour Party introduced a private the gravity with which this should be viewed can be member’s bill on corporate killing in April 2001, marked only by an offence of a similar gravity to the while the UK’s Law Commission proposed such an common-law offence of gross negligence offence in 1996. manslaughter’ (p165). The standard of culpability recommended by the It is interesting to note that the LRC consultation LRC accords with the test for gross negligence paper has recommended the introduction of a new manslaughter as laid down by Gavin Duffy J for the statutory offence of ‘corporate killing’ in this Court of Criminal Appeal in The People (Attorney jurisdiction, which would only be prosecuted on General) v Dunleavy ([1948] IR 95):

25 Law Society Gazette July 2004 DocMan (Ireland) Ltd & Abacus Systems Ltd SUPPLIERS OF

ARE PLEASED TO ANNOUNCE THE LAUNCH OF WinScribe Office WinScribe, developer of the world’s most widely used digital dictation workflow system, has announced the release of "WinScribe Office", a new version of its flagship product, especially designed for small organisations, legal and professional firms. The new software offers many of the renowned features of WinScribe's flagship digital dictation solution, at an attractive price point.

JOIN THOSE FIRMS ALREADY ENJOYING THE MANY BENEFITS OF WINSCRIBE WITH A VERSION THAT EVERYONE CAN AFFORD FREE NO OBLIGATION DEMONSTRATION

CONTACT: Tom Cook Eoghen Johnson DocMan (Ireland) Limited Abacus Systems Ltd Ballinvalley House 2 – 3 Mulcahy Keane Ind Estate Delvin Greenhills Road Co Westmeath Walkinstown 044 64708 Dublin 12 01 456 9587 Health and safety I DON’T LIKE MONDAYS Until recently, workers claiming compensation for stress in England sympathising but telling him to prioritise his work’. and Wales had to satisfy strict rules laid down by the Court of Appeal The House of Lords, quoting with approval the dicta of Swanwick J in February 2002. The Court of Appeal made it clear that no job was in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd ([1968] inherently dangerous to an employee’s mental health. In judgments 1 WLR 1776, 1783), held that each case will depend on its own that appeared to signpost a change in compensation awards for facts: stress in that jurisdiction, the court overturned damages claims by ‘The overall test is still the conduct of the reasonable and prudent four workers totalling nearly £200,000. Lady Justice Hale opined that employer, taking positive thought for the safety of his workers in the it should not be the responsibility of an employer to make exhaustive light of what he knows or ought to know; where there is a recognised investigations into the mental health of employees. Instead, the onus and general practice which has been followed for a substantial period was on the stressed worker to decide whether to leave the job or in similar circumstances without mishap, he is entitled to follow it, carry on working and accept the risk of a mental breakdown. unless in the light of common sense or newer knowledge it is clearly On 1 April 2004, the House of Lords overturned the Court of bad; but, where there is developing knowledge, he must keep Appeal’s judgment in Barber v Somerset County Council, which had reasonably abreast of it and not be too slow to apply it; and where he been one of the four cases heard as a composite appeal by the has in fact greater than average knowledge of the risks, he may be Court of Appeal ([2004] UKHL 13). While the House of Lords thereby obliged to take more than the average or standard approved the practical guidance issued by the Court of Appeal, it precautions. He must weigh up the risk in terms of the likelihood of held that the court had erred in concluding that the senior injury occurring and the potential consequences if it does; and he management team was not in breach of the employer’s duty of care: must balance against this the probable effectiveness of the ‘The senior management team should have made inquiries about precautions that can be taken to meet it and the expense and [the appellant’s] problems and seen what they could do to ease inconvenience they involve. If he is found to have fallen below the them, in consultation with officials at the county council’s education standard to be properly expected of a reasonable and prudent department, instead of brushing him off unsympathetically … or employer in these respects, he is negligent’.

‘A more unsatisfactory way of indicating to a jury the omissions led to an undertaking being found guilty high degree of negligence necessary to justify a conviction of corporate killing. The LRC defines a ‘high for manslaughter is to relate it to the risk or likelihood of managerial agent’ as ‘an officer, agent or employee substantial personal injury resulting from it, rather than of the undertaking having duties of such to attach any qualification to the word “negligence” or to responsibility that his or her conduct may fairly be the driver’s disregard for the life or safety of others … If assumed to represent the policy of the undertaking’ the negligence proved is of a very high degree and of such (p180). character that any reasonable driver, endowed with This new offence of corporate killing would, ordinary road sense, and in full possession of his faculties, therefore, facilitate the prosecution of company would realise, if he thought at all, that by driving in the directors and policymakers within an organisation manner which occasioned the fatality he was, without and render them liable for unlimited fines and lawful excuse, incurring, in a high degree, the risk of imprisonment for up to five years, as well as ‘possible causing substantial personal injury to others, the crime of disqualification from acting as a manager in an manslaughter seems clearly to be established’. undertaking for a defined period’. The LRC paper According to the LRC consultation paper (p92), recommends that ‘in imposing a fine, the court may for gross negligence manslaughter to occur, it must take into account the means of the undertaking and be proven that: the effect which a fine would have on the viability of • The accused was, by ordinary objective standards, the undertaking’ (p190). It would not cover the acts negligent and omissions of persons with only operational • The negligence caused the death of the victim responsibilities. On conviction, the LRC • The negligence was of a very high degree, and recommends that a court should be able to order an • The negligence involved a high degree of risk or undertaking to take preventive measures to avoid a likelihood of substantial personal injury to others. recurrence. Further sanctions recommended by the commission include community service orders and The LRC recommends a due diligence defence be adverse publicity orders. available to an undertaking ‘where its highest level of The government’s legislative agenda for 2004 management adduces evidence that it had done all includes a new Safety, Health and Welfare at Work that was reasonably practicable to prevent the Bill. Significantly, in the Dáil on 10 February this offence’ (p185). An undertaking is defined by section year, Frank Fahey, minister for labour affairs, 3(1) of the Competition Act, 2002 as ‘a person being signalled that this bill, which is due in the autumn, an individual, a body corporate or an unincorporated will provide for a statutory offence of corporate body of persons engaged for gain in the production, killing. G supply or distribution of goods or the provision of a service’. Geoffrey Shannon is the Law Society’s deputy director of It also recommends the imposition of criminal education. He is the author of Health and safety: law liability on a high managerial agent whose acts or and practice (Round Hall, 2002).

27 Law Society Gazette July 2004 Criminal law Blood, swea Sherlock Holmes knew the importance of using objective scientific evidence to investigate crime. Today, DNA testing is an established part of the criminal justice procedure and the Innocence Project aims to keep it there, writes Paula Scollan

irk Bloodsworth was the first person to be exonerated as a result of DNA testing in a capital conviction in the United States. A Baltimore court had found Mr KBloodsworth guilty of sexually assaulting and murdering nine-year-old Dawn Hamilton. The conviction was based on an anonymous tip, identification from a police artist’s sketch, eyewitness statements and other evidence. Later he was retried and again found guilty. But in 1993, more than eight years after his arrest, prosecutors compared DNA evidence from the scene to Mr Bloodsworth’s own Kirk Bloodsworth: guilty DNA and found that they did not match. He was until proven innocent subsequently released and pardoned. US senator Patrick Leahy stated at the time that the wheels of justice had broken down in the case and that Kirk Bloodsworth’s nightmare of wrongful conviction had been repeated again and again across the country. He stressed the importance of preserving DNA evidence and making it available to help ensure that the truly guilty are convicted and the truly innocent exonerated.

Until proven guilty Barry Scheck and Peter Neufield, of OJ Simpson fame, founded and now direct the pro bono Innocence Project at Benjamin N Cardozo law school. The project seeks the release of wrongly-convicted people, using DNA analysis to ascertain conclusive proof of innocence or guilt. Scheck and Neufield’s book, Actual innocence, • The Innocence documents some extraordinary cases where a mixture Project of racism, fraud and defence attorney incompetence • Wrongful has led to the conviction of innocent people. In a convictions system where some states use capital punishment, the • The use of DNA need to get things right is absolute. It has been shown evidence with modern DNA techniques that some who have

MAIN POINTS suffered the ultimate punishment were actually

28 Law Society Gazette July 2004 Criminal law t and tears

innocent. In this world of shadows, the Innocence thus narrow down the percentage of possible Project has become a beacon of hope for the matches. At the project clinic, the focus is on using wrongfully convicted. the differences in human DNA to exonerate innocent Interns are selected for the project from top people. Evidence is assessed before it is destroyed and universities in the United States and from similar this evidence is then used to mount appeals to institutions overseas. They are given a short but wrongful convictions. intensive course in the necessary skills so that they can handle the casework. They are then assigned Body of evidence their own cases to work on while supervised by a Most of the material required to perform DNA team of attorneys and clinic staff. testing is found in cellular material, blood, spermatozoa, hair, saliva and skin. In the early 1990s, Burden of proof DNA testing based on polymerase chain reaction Before the advent of forensic DNA testing, courts (PCR) was accepted by the courts. The newest forms had to rely on conventional serological testing when of DNA testing are short tandem-repeat-based dealing with biological samples. The conclusions testing and mitochondrial DNA testing. Repeated derived from serological testing (the analysis of blood sequences within the DNA strand are indicators of serums) are not nearly as probative as DNA analysis. coding that is different in every individual. These are In the past, prosecutors have put much more weight called tandem repeats. on these results than they deserve. In many cases, the Previously, in order to subject hair to DNA results of such testing – which simply included the testing, an attached root was required. Without the defendant in the percentage of the population that root, there was not enough cellular material to could have deposited a sample – was enough to be perform the test. But with mitochondrial DNA damaging, even if, statistically, they shed little light testing, the material in the shaft of the hair can be on the perpetrator’s identity. Results were also often tested. However, there are difficulties in this type of misinterpreted. testing. The mitochondrial DNA in a hair from the Some aspects of conventional serology are familiar. front of your head and one from the back may differ, The most common test determines international thus creating the possibility of false positive or ABO type. This test determines antigens that can be negative results. found on the cell membrane. There are three Two men were convicted in Oklahoma for a 1982 antigens in this system: A, B, and H. This gives rise rape/murder in which the state relied upon to four blood types, A, B, O and AB. Between 75% microscopic hair comparisons. One was five days and 85% of the population are ‘secretors’ – people away from being executed when a federal judge whose antigens can be found in other body fluids. ordered DNA testing. That testing not only Secretor status is very important in determining demonstrated that the two defendants were innocent whether or not a biological deposit can be attributed but it also resulted in a cold hit that led to the to a certain person. An example would be a rape case conviction of the actual perpetrator. How probative a where there is one perpetrator and one victim. The test is, whether it is serological or DNA testing, is perpetrator is known to have ejaculated and the dependent on the factors of the crime. Multiple victim has not had prior consensual sexual perpetrators, the question of whether a perpetrator intercourse in a month. The serologist finds that the ejaculated, prior consensual sex – all of these sample contains both A and B antigens, along with circumstances will complicate the issue of what the H. The victim is tested and is an A secretor. The test results actually tell us. defendant is tested and is an O secretor. Since this is a one-perpetrator, one-victim case, the defendant can Cruel and unusual be excluded as the contributor of the sperm. There is no better way to prevent wrongful As one narrows down the possible population by conviction than to provide competent defence characteristic, one is able to rule out more people and counsel. Wealthy defendants expect and receive this

29 Law Society Gazette July 2004 Following consultation with the Law Society of Ireland, the Irish Mortgage Council, our customer representative group and other interested parties, it has been agreed that after the registration of a new ownership, the Land Certificate, where it has already issued, will not be reissued in respect of the new ownership and will, instead, be cancelled. This will apply to applications for registration of transfers or transmissions on death (assents) lodged on or after 1 September 2004.

CONVEYANCING COMMITTEE ■ The Irish Mortgage Council, representing mortgage ■ The Conveyancing Committee of the Law Society lenders in Ireland (listed at the foot hereof) has fully supports the decision of the Land Registry to confirmed that the lending institutions no longer have cancel Land Certificates on a change of ownership. an automatic requirement that Land Certificates be bespoken in respect of property taken as security by The committee also notes that lending institutions no way of legal mortgage. The Irish Mortgage Council longer have an automatic requirement that new Land believes that this is a positive step towards simplifying Certificates be bespoken in respect of property taken conveyancing and mortgage transactions. as security by way of legal mortgage. Practitioners, therefore, should not bespeak a Land Certificate, unless they have specific instruction from Practitioners, therefore, should no longer bespeak a their client to do so. Land Certificate, unless they have specific instructions from their clients to do so. MEMBERS OF IRISH MORTGAGE COUNCIL ACC Bank, AIB Bank, Bank of Ireland, The next edition of the certificate of title Bank of Scotland - Ireland, EBS Building Society, First Active, ICS Building Society, IIB Homeloans, documentation will reflect the new position. Irish Nationwide Building Society, National Irish Bank, permanent tsb, Ulster Bank Criminal law kind of representation, but many defendants are poor. Michael Graham spent 14 years on death row in Louisiana for a crime he did not commit. Represented at trial by two inexperienced attorneys, one of whom abandoned the case before the sentencing phase, Graham was convicted of murder in 1987. The case against him consisted of three witnesses who later recanted their testimony and a prosecution that withheld evidence of his innocence. In March 2000, with the help of pro bono lawyers, Graham won a new trial. He was freed from prison. By the time of his release, he had spent half of his adult life on death row. And if Jimmy Ray Bromgard had had competent counsel with access to funds for investigators and experts, he would not have spent 15 years in a Montana prison before being cleared by DNA testing. In 1987, an eight-year-old girl was raped in Montana. Given the state of conventional serology at the time, the serologist could not determine a blood POST-ARREST EXONERATION type from the semen recovered – but 15 years later, In about 25% of the cases submitted to the FBI lab during the last decade, the DNA testing on those semen stains proved Mr crime-scene DNA did not match the DNA of the suspect. In other words, hundreds Bromgard’s innocence. The only scientific evidence of arrested people are exonerated before trial each year by DNA test results. For offered at trial was the testimony of the manager of example: the state crime laboratory. In 2002, top forensic •A man was arrested in Indiana last year for raping a young girl. Five months examiners confirmed that the statistics the manager later he was released from jail when DNA testing for evidence ruled him out as used were fraudulent. Back in 1987, Mr Bromgard a suspect was assigned an attorney from a county contract •A Brooklyn man accused of raping a teenage girl was cleared because of DNA system. The lawyer was a drunk and met with his testing. When the indictment was dismissed on the district attorney’s motion, client only once before trial. He hired no the defence attorney was quoted as saying ‘if not for DNA evidence, this man investigator, he retained no expert to challenge the quite possibly could have been convicted’. false scientific evidence, and he failed to conduct any investigation. POST-CONVICTION DNA TESTING Many court-appointed attorneys are incompetent When post-conviction DNA testing is conducted, the test results in about half the and are often very poorly paid. In Kentucky, a third cases further implicate the defendant. For example, William Hayes was convicted of those sentenced to death had been represented by in New York in 1989 for murder and sentenced to prison for life. When the victim’s lawyers who were later disbarred, suspended or body was found, crime-scene investigators obtained material from under her convicted of crimes. Post-conviction exonerations fingernails and kept it as evidence. The Innocence Project filed a motion on his are evidence that the court-appointed attorney behalf for post-conviction DNA testing of the still extant material in an effort to system is not working. Peter Neufield, co-director of prove his claim of innocence. The motion was granted and the evidence was the Innocence Project, has stated that, in the context tested. The testing of the material matched up with Hayes’s DNA profile and the of the administration of the death penalty, Innocence Project withdrew from his case. exonerations represent nothing less than a devastating breakdown in the meaning of justice. CLOSING OLD CASES DNA testing is capable of solving homicides that are decades old. For example, a The green mile woman was found shot to death in a field in California in 1971. Her murder went With every wrongful conviction, not only does an unsolved and almost forgotten for 32 years, until a cold-case squad detective sent innocent person suffer in prison or on death row, but some clothing stored in an evidence bag to the lab for DNA analysis. The profile the real perpetrator remains free to commit serious matched Philip Arthur Thompson, who was serving a long sentence in the crimes. In many of the post-conviction DNA California State Prison for a series of rapes in the early 1980s. It’s the oldest exonerations in the United States, the actual case solved by DNA in US history. perpetrator was identified through the same analysis, preventing more crime and protecting potential victims. commit should be intolerable to everyone. Most of Since its introduction in the late 1980s, DNA the project’s clients are poor, forgotten, and have testing has proven to be a very effective tool for both used up all of their legal avenues for relief. The the prosecution and the defence. While an inclusion project is their last hope. G by DNA testing is still contestable, an exclusion by DNA testing is conclusive (absent mitigating Paula Scollan is a trainee solicitor with the Dublin law circumstances and assuming the reliability of the test). firm Kenny Boyd and Company. She is currently on The prospect of innocents languishing in jail or secondment with the Innocence Project in New York as even being put to death for crimes they did not part of her traineeship.

31 Law Society Gazette July 2004 Lifestyle HOOK, LINE If you’ve always wanted to fish but never knew how or couldn’t find the time, now is your chance to take the bait. Pat Molloy and John Geary try to reel you in

lthough the name may suggest that it’s • Lawyers’ some sort of secret society, the Lawyers’ Fishing Club Fishing Club is far from it. This • New members sociable group has been in existence for needed Aquite a number of years and some of the • September present participants have been attending the club’s outing annual trip for over ten years. The club is unusual insofar as the participants are MAIN POINTS both barristers and solicitors and come from both Northern Ireland and the Republic of Ireland. There are usually a number of English lawyers who make the trip as well. Over the last number of years, there has been one annual trip a year, typically involving a long weekend spent at one of the great lakes in the West of Ireland, such as Conn, Corrib or Melvin. This year’s trip was well attended, with around 25 anglers making the journey. Having spent the last few years in Lough Corrib, a change of scene was decided upon and the venue selected was Lough Conn in County Mayo – the scene of many great fishing expeditions in the past. The group, together with a number of locally- based Mayo solicitors and barristers, enjoyed the hospitality of the Pontoon Bridge Hotel, situated by the sandy shores of Lough Conn. Fishing at this time of the year requires wind, rain and cloud cover, but conditions yielded something of a heat wave over the weekend of 21-23 May. Notwithstanding this, the legal eagles managed to have a good day’s fishing on the Friday and some excellent catches were enjoyed. These included a 2.5lb trout caught by Simon McAleese (from McAleese and Co in Dublin) on the wet fly and six good-size trout caught by Noel Phoenix (from Northern Ireland). Peter Mathison (chairman of the English lawyers’ fishing club) also had a good day, landing four plump trout on a variety of flies.

Scales of justice Clear blue skies on the Saturday made the fishing conditions difficult. A late start (much to do with the previous late night) and a couple of hours’ fishing Great anticipation: the boats head out on scenic Lough Conn

32 Law Society Gazette July 2004 Lifestyle AND SINKER

Simon McAleese proudly displays a little Lough Conn monster that he released back to the water

without much success led the merry band of lawyers to a relaxed long lunch on Glass Island, amid the ruins of the nearby 12th century Cistercian Abbey. The afternoon was a little uneventful in the catch stakes but the tranquil surroundings, together with watching the splash of free-rising trout and the occasional salmon, made for a terrific end to this year’s trip. The dinner, drinks and prize-giving that evening turned into a jovial affair while the sun set over the peaceful waters of Lough Conn in the shadow of Nephin Mountain. Nick Fenton tackles up The club is looking to expand its membership and invites both novice and experienced anglers from legal circles to enjoy the various forthcoming outings SPINNING A LINE IN SEPTEMBER and events. New anglers and complete beginners are A one-day outing in September at the famous Kildare Hotel and Country Club most welcome, particularly females who always (K Club) will take place on Saturday 25 September. New members are greatly wanted to learn the gentle art of fly fishing. encouraged to come along, and tuition will be provided by experienced guides. The club will have another trip next year around The fishing will be on two lakes surrounding the golf course, with some river the same time, and interested parties should contact fishing on the River Liffey which flows through the estate. Lunch, equipment and Patrick Molloy at [email protected] or tuition is included in the price, which will be approximately €100 per person. telephone him on 01 619 9000. G For further information, contact John Geary on 087 821 7368 as soon as possible so that numbers can be ascertained. Patrick Molloy is a partner and John Geary a solicitor in the Dublin law firm Matheson Ormsby Prentice.

33 Law Society Gazette July 2004

Books Book reviews Drunken driving and the law (third edition) Mark de Blácam. Thompson Round Hall (2003), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-287-7. Price: €95.

he lawyer who heads off to prosecutions. He conducts a refused the application without Tthe District Court to defend careful and detailed analysis of hearing the solicitor for the a client charged with drunken each of those proofs and defendant. The Supreme Court driving without being totally presents them in a style that is held that was in violation of the familiar with the third edition of very easy to follow and defendant’s constitutionally- Mark de Blácam’s Drunken comprehend. The exercise of guaranteed right to fairness of driving and the law should give highlighting what the procedures. careful consideration to staying prosecution must prove in such Such procedures require, in at home! This edition was cases inevitably leads you to the absence of exceptional published in 2003 and states the identify the lines of defence circumstances indicating abuse law as of 1 June 2003. This that may emerge. of process of the court, that a excellent book should be of In chapter 4, de Blácam deals pre-hearing application to a immense assistance to with the statutory procedure judge of the District Court for prosecution and defence lawyers from detection to arrest. The an order requiring the alike. treatment of the defendant in production of documents Many will share my the garda station is then and/or a request for inspection recollection of the proofs addressed in chapter 5. instance had a duty to ‘give a of equipment ought to be required for a successful Evidential breath-testing cases ruling in such a fashion as to entertained where the drunken driving prosecution are dealt with in chapter 6, and indicate which of the arguments documents sought or the long before the introduction of it is there that you will find the he is accepting and which he is equipment used are permitted breathalysers and intoximeters. scientific and technical aspects rejecting and, as far as by statute to be used for the In those days, I spent many an of the intoxilyzer and the practicable in the time purpose of producing a hour attempting to convince the procedures for its operation. available, his reasons for so statement of facts that are late District Justice William A Also, it is there that he analyses doing’. essential to the prosecution case To rmey that the defendant the likely outcome of the This is clearly something of and are deemed to be true whose breath smelt of alcohol prosecution where there is a which all district judges are unless rebutted. The court must had consumed only one or two failure to follow the operating aware! consider such an application drinks, that his incapacity to procedures. All the case law up to June and it is then a matter for the walk a straight line was due to a The statutory procedures 2003 is carefully considered judge, at his or her discretion, war injury or being kicked by a governing blood or urine- and put in context. It should be to decide whether to grant the farm animal shortly before the specimen cases are dealt with in noted that this book was order. garda arrested him, and that his chapter 7, penalties in the published before the decision Prosecution lawyers will look failure to touch his nose with following chapter, and the of the Supreme Court was to this book to alert them to his index finger was attributable procedures for the delivered on 1 March 2004 by what must be proved in drunken to a detached retina! We did not commencement of charges in Geoghegan J in Whelan v Kirby driving and related prosecutions. then have the benefit of erudite chapter 9. Within that, there is and the Director of Public Defence lawyers will be mainly legal texts such as Mr de an interesting and Prosecutions. In that case, the interested in identifying what Blácam’s book for the very comprehensive section dealing solicitor for a defendant possible lines of defence may be simple reason that we did not with delay. The remaining accused of an offence under available to them. The book will need them. chapters deal with the hearing section 49(4) of the Road Traffic not disappoint either of them. How things have changed in of the prosecution and appeals Act, 1961, as inserted by section Everything is covered. De the area of drunken driving, just and other review procedures 10 of the Road Traffic Act, 1994, Blácam is to be congratulated as they have in practically every respectively. In chapter 10, he indicated to the court that he for updating us on the law on other area of law. As in the refers to the interesting was seeking an order that the this subject. His book, which has earlier editions of this book, de decision of the Supreme Court intoximeter used in the garda a comprehensive index, is well Blácam once again sets out very in O’Mahony v Ballagh station be independently written and easy to follow. G clearly the essential elements of (unreported, Supreme Court, inspected by a suitably qualified the offences of drunken driving 13 December 2001) in which expert. There were a number Patrick Groarke is the managing and related offences and exactly the court recognised that a of adjournments of the matter, partner of the Longford law firm what proofs are required in such judge hearing a case at first and ultimately the judge Groarke & Partners.

35 Law Society Gazette July 2004 Books Irish planning law factbook Berna Grist BL and James Macken SC (eds). Thompson Round Hall (2003), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-357-1. Price: €345 (updates to this edition are currently available at €140).

he editors, in putting their ‘development’, which is protected structured. Tteam of writers together, fundamental to an Architectural conservation instructed them to ‘avoid jargon, understanding of the planning areas in their varying forms be it legalese or planning speak’ process. Both the statutory and and conservation of amenities as far as possible. The purpose regulatory provisions dealing by special amenity area orders, was to ensure that this book with exempted development landscape conservation areas would be accessible and valuable are comprehensively covered. and tree preservation orders to both lawyers and non- In chapter 6, Brogan deals are economically but effectively lawyers. To a large extent the with the structure of An Bord covered. authors, and that includes the Pleanála and the planning Chapter 8 deals with editors, have been admirably appeal mechanism in a clear infrastructure and covers topics true to the principle of ‘simple and effective manner. that are not always included in language’ but occasionally the Berna Grist, Hugh Mannion books dealing with planning turgid language of the statutes and Rachael Kenny law. Roads, water supply, gas, and regulations peeps through collaborated in writing chapter Figure 5.1, which is laid out on electricity and communications the text. 4, which deals with the two pages, sets out the are all included, as are Berna Grist BL has written a planning application. procedure between receipt of harbours, railways, airports and chapter entitled Who regulates Information on day-to-day application and final decision. development of the foreshore. planning?. The chapter draws matters is easily found among Information on all relevant Paragraph 8.1 gives the reader together a lot of information these pages. The types of time-limits is clearly stated and a very good introduction to that is usually spread through- permission in respect of which the question that we, as this chapter and shows how the out a planning textbook. This is an application can be made are practising solicitors, are often development of public a useful chapter and contains set out, including the new and asked to advise on is the infrastructure has, necessarily, much information that is not more useful system for outline question of further held a special position in its always easily accessed. permission. Outline permission information. Although an relationship with ordinary Colin McGill wrote on is dealt with in two distinct application may have been planning principles. The planning policies and, in the parts of this chapter, and I feel validated, a planning authority argument is on-going as to course of his chapter, he that it might have been clearer may require further whether or not the expedient summarises a host of planning to finish off the subject under information, and details of the ‘fast-track’ approach is one that guidelines dealing with all sorts one heading. For solicitors, the type of information and the should be adopted in relation of useful matters from most valuable part deals with procedures and time limits are to development that is guidelines on wind farms to the making of an application. set out in this chapter. Exam- considered to be of national guidelines on childcare Figure 4.1 provides an ples of standard conditions are and/or strategic importance. facilities. It is often difficult to overview of the whole process, also given and, in the case of Somehow, a balanced view lay your hands on planning and the chapter goes on to refusal, sufficient and adequate must be adopted – because if it guidelines and policy directives, provide information that gives reasons must be given. The is not, God help the Hill of and this is a useful chapter too. easily-found references to such new procedure dealing with Tara. Jim Brogan wrote chapters 3 matters as time limits, site refusals for past failures is also Macken’s final chapter deals and 6 entitled, respectively, Is notices, newspaper notices, the briefly summarised. with compensation under two planning permission required? and application form and other Chapters 7, 8 and 11 are by headings: Appeals. Chapter 3 deals both matters to be submitted with James Macken SC. Chapter 7 • Compensation under the with the meaning of develop- the application. It is important is entitled Conservation. Planning and Development ment and with the necessity to to remember that the fees to be Protected structures have Act, 2000, and obtain permission. The chapter lodged change fairly frequently. received some mention • Compensation under other also deals with material change If the wrong fee is submitted, elsewhere in this book but the acts where land is acquired of use, intensification and the application will be authoritative statement on by a planning, local or other abandonment. The new system invalidated. You should always them appears in this chapter. authority. of making submissions and check with the planning The information on protected observations, within five weeks authority before lodging any structures is logically and One might start off on a very of the application, is fully documents in respect of which amply set out. It makes it clear high note if you only had time explained and much of the fees are payable. The appendix that ownership of such a to read paragraphs 11.2.1 to chapter deals with exempted to this chapter contains forms structure carries onerous 11.2.8. When you get to grips development in its many and and precedents that are in responsibilities. Pre-contract with schedules 3, 4 and 5 of varied forms. This is the longest common use. planning searches are essential the PDA 2000, you suddenly chapter in the book and perhaps Chapter 5, by Rachael to establish whether or not a realise that there are a very a little more time should have Kenny, deals with the making structure is a protected considerable number of been devoted to the concept of of the planning decision. structure or a proposed restrictions.

36 Law Society Gazette July 2004 Books

Chapter 11 is particularly Scanaill’s publication is at an culture of enforcement, we will any practitioner’s library. It is well presented by the author, advanced stage. not have a quality planning easily readable and you can who is clearly very familiar with The law in this area is system’. get to grips with the basis and the whole concept of changing so rapidly that it is Planning enforcement is essentials of many planning compensation. There is just difficult to keep up to date. dealt with in a step-by-step and environmental issues in a about the right amount of Tom Flynn has given us a manner in this chapter and very short time indeed. There information, and a reading of very useful and workman-like includes both the warning is some repetition of various these 34 pages will be of great synopsis of the environmental letter and enforcement notice topics in some of the articles, advantage to anyone who is licensing system and of the and also the planning but I do not think that this is a about to advise a client on manner in which it is injunction. Another method of serious drawback. The book is compensation issues. controlled, principally under planning enforcement, which published in a binder, and Chapter 9 is written by Tom the Protection of the Environment heretofore has not been while I appreciate that it can Flynn, who has in the past Act, 2003. Undoubtedly, there commonly used, is detailed in be easily brought up to date, I given a number of planning is much more to be written paragraph 10.5 – namely, find that it is sometimes lectures to solicitors. Here about this act. criminal prosecution. The difficult to turn the pages again we see the increasing Chapter 10, by Berna Grist, PDA 2000 eases the path of the and the earlier pages tend to interaction between planning deals with enforcement. I planning authority in get damaged, and I am quite law and environmental law, an detect a slight note of prosecuting planning offences. depressed when I remember interaction that is fast disillusionment in Grist’s These prosecutions will be what happened to my copy becoming recognised by writing and it is a view I share. much more frequent in future. of O’Sullivan & Sheppard as writers of planning textbooks. One of the key aims of the Ms Grist draws attention to the I struggled to keep it up to Paragraph 9.2 is well worth PDA 2000 was to ‘deliver a fact that with offences under date. reading. It deals with the quality planning service’. the PDA 2000, section 151 I am sorry that the editors interaction between pollution Without effective enforcement, reverses the normal burden of did not consider a separate control and planning control. it is not possible to do so. proof and it is not a matter for chapter for social and Various types of licenses, Berna Grist draws attention to the prosecution to show that affordable housing. Much, but which are now becoming a the outspoken criticisms made the subject matter of the not all, of the information on regular part of conveyancing by the ombudsman, and in the prosecution constitutes this subject is contained in and commercial transactions, initial stages of PDA 2000 we development that is not the book but it is scattered are dealt with, including have certainly seen little to exempted development. That around and about. It is an integrated pollution-control encourage confidence in the burden rests with the accused. important subject for licences, waste licenses, water enforcement procedures. Mary When one considers that the solicitors, planners and pollution, air pollution, noise Moylan (the assistant secretary maximum conviction on an architects working in the area pollution and litter pollution of the development and indictment is €12,697,380 of housing development. G licenses. planning division in the and/or imprisonment not For some time, our Department of the exceeding two years, one can John Gore-Grimes is partner in profession has been without a Environment) is quoted, from a readily believe that offenders the Dublin law firm Gore & comprehensive textbook on paper she delivered to the Irish will soon sit up and take notice. Grimes and is the author of Key environmental law and I Planning Institute, where she The Irish planning law issues in planning and understand that Dr Yvonne concluded: ‘until we have a factbook is a useful addition to environmental law.

First Law Online Current Awareness Service ACCESS TO AN UP-TO-DATE LIBRARY FOR LESS THAN €1.99 A DAY

INFORMATION “It's a godsend, as it’s like having an WHEN up-to-date library at your finger tips, thus saving YOU research time and therefore money” NEED IT – SOLE PRACTITIONER

For a free 10 day no-obligation trial, log on to www.firstlaw.ie

37 Law Society Gazette July 2004 Briefing Report of Law Society Council meeting held on 28 May 2004 Motion: interest on clients’ powers were now being exercised oaths by solicitors and whether Refurbishment of bed and monies regulations by the society. solicitors should be allowed to breakfast accommodation area ‘That this Council approves the draft Mr O’Connor referred the administer oaths and take statuto- at Blackhall Place regulations cited as the Solicitors Council to the eight action steps ry declarations for their own The Council approved a proposal (interest on clients’ monies) regu- taken during 2003 by the society clients. John P O’Malley reported to upgrade the bed and breakfast lations 2004’. and cited, with approval, by the on an examination of the issue by accommodation area at Blackhall Proposed: Simon J Murphy independent adjudicator in his the Guidance and Ethics Place. Seconded: Orla Coyne report. These included the Committee, which had concluded achievement of the ISO quality that there should be no change to Indemnities sought by Simon Murphy explained that, mark by the Complaints Section the current prohibition on solici- banking institutions essentially, the regulations were a in March 2003, the customer sur- tors administering oaths or taking The Council discussed corre- matter of housekeeping, with ref- vey conducted by the society, declarations for their own clients. spondence from the Irish erences in the old regulations to which disclosed ‘a gratifying level In addition, it was the recom- Bankers’ Federation, in response the Solicitors’ accounts regulations of of satisfaction with the services mendation of the committee that to a letter from the society outlin- 1984 being replaced by references provided’, contacts made by the there should be strict adherence ing the society’s grave concerns to the Solicitors’ accounts regulations Complaints Section with local to all the formalities required by about the form of indemnity 2001. In addition, a minor authorities and libraries with a law, both by the deponent’s own being sought by banks to facilitate amendment had been made to view to raising the profile of the solicitor and by the solicitor faxed and telephone instructions regulation 5, so that a solicitor Complaints Section among mem- administering the oath or taking in relation to the transfer of funds was not liable to account for bers of the public, and the inclu- the declaration. Furthermore, the and electronic transfers. The IBF interest amounting to less than sion on the society’s website of Law Society should educate solic- had responded that, while it was €100, rather than €95, which the details of how to lodge a com- itors as to the importance of the happy to bring the issues to the had been the limit under the 1984 plaint against a solicitor. proper administration of oaths. attention of its members, it was a regulations. The Council The society should prepare a matter for each individual and his approved the regulations. Administration of oaths client information pamphlet or her financial institution to The Council discussed the diffi- about oaths and declarations, resolve. Annual reports of the culties presented by the increas- explaining the matter in simple The Council agreed that the independent adjudicator and ing numbers of documents terms, and the note contained in president should write to the the lay members of Registrar’s requiring the administration of the Law directory in relation to the chairman of the Irish Bankers’ Committee taking of oaths should be expand- Federation seeking an urgent John O’Connor briefed the ed to clearly set out the duties of meeting to discuss the matter. Council in relation to the sixth In briefing both the deponent’s own solicitor annual report of the independent and the solicitor administering PIAB adjudicator, together with the this the oath. Finally, the society Ward McEllin reported that tenth annual report of the lay month... should ensure that the fee for the members of the task force had members of the Registrar’s administration of oaths or the met with members of PIAB on Committee. Mr O’Connor noted ■ Council report page 38 taking of declarations was the eve of the press launch of that the independent adjudicator’s reviewed on an on-going basis so PIAB on 12 May 2004. The report was a very positive ■ Committee that the fee reflected the impor- meeting had been attended by endorsement of the society’s com- report page 39 tance of the task. Dorothea Dowling, chairperson plaints-handling system. He had James MacGuill suggested that of PIAB, and Patricia Byron, ■ identified two issues requiring Practice the society might examine the chief executive officer of PIAB, as action: a) the constraints on the direction page 39 range of documents that was well as a number of departmental society investigating complaints required to be sworn and seek to officials. ■ Practice notes page 39 in relation to solicitors involved reduce the list to the minimum, Civil Liability and Courts Bill, in family law proceedings, and b) ■ Solicitors with an increase in the use of cer- the number of solicitors attract- Disciplinary tification as a means of validating 2004 ing multiple complaints, many on Tribunal page 40 documents. The Council approv- The president reported that the a regular and on-going basis. Mr ed the recommendations of the society continued to press for a O’Connor noted that the former ■ Legislation Guidance and Ethics Committee number of amendments to the issue was to be dealt with by the update page 41 and also agreed that a fact-finding bill, particularly in relation to the Civil Liability and Courts Bill, cur- exercise should be conducted to proposed reduction in the limita- ■ rently before the Oireachtas, and FirstLaw update page 44 identify those documents that tion period from three years to the latter issue had been were required by statute to be one year, which the society ■ Eurlegal page 49 addressed in the 2002 Solicitors sworn and those that had evolved regarded as too short and as (Amendment) Act, and the new as a matter of practice. unfair to claimants. G

38 Law Society Gazette July 2004 Briefing Committee report

BUSINESS LAW for implementation into Irish needed to make investment deadline for implementation of law is 12 October 2004. decisions. The deadline for the new directive in Ireland is The following measures have implementation in Ireland is 1 30 April 2006. been adopted as part of the EU Directive 2003/71/EC on July 2005. financial services action plan prospectuses. This directive Directive 2004/25/EC on (FSAP) and will be implement- aims to harmonise the rules Directive 2004/39/EC on takeover bids. The Takeover ed into Irish law in the coming applicable to prospectuses investment services and reg- bids directive was formally adopt- months. (offering documents for securi- ulated markets. The directive, ed on 21 April 2004. It includes ties), making it easier and commonly known as the second harmonised rules governing the Directive 2003/6/EC on mar- cheaper for companies to raise Investment services directive, gives bid procedure and provisions to ket manipulation and insider capital throughout the EU on investment firms a ‘single pass- protect minority shareholders. dealing. The directive is the basis of approval from a reg- port’, allowing them to operate The directive is viewed as a designed to prevent fraud or ulatory authority in just one throughout the EU on the basis compromise document by the market manipulation in any member state. It reinforces pro- of authorisation in their home European Commission, which way, shape or form on European tection for investors by guaran- member state. It amends cur- tried to broker a far more ambi- capital markets. It will aid inte- teeing that all prospectuses, rent EU rules of the provision tious agreement. It is to be gration of European financial wherever in the EU they are of investment services (imple- implemented in Ireland by 20 markets and build investor and issued, provide them with clear mented by the Investment May 2006. G public confidence. The deadline and comprehensive information Intermediaries Act, 1995). The Business Law Committee

SOLICITORS’ Practice direction HELPLINE

WRITTEN JUDGMENTS TRANSMITTED BY ELECTRONIC The Solicitors’ MEANS (NO HC 33/2004) Helpline is available here it is intended to required to certify as follows on parties should bespeak an to assist every Wproduce to the High Court the printed version: ‘I certify attested copy of the judgment a copy of an unreported judg- that this is a copy of a judgment in the Central Office. member of the ment which has been issued by issued electronically by the profession with any the High Court Central Office by Central Office of the High Joseph Finnegan, electronic means, counsel or Court’. President of the High Court, problem, whether the solicitor on record is In the event of any doubt, 9 June 2004 personal or professional Practice notes 01 284 8484

DATING OF CERTIFICATE OF TITLE he Conveyancing Committee given to a lending institution in the date of parting with the loan Twould like to remind the pro- relation to a client’s mortgage funds. fession that a certificate of title transaction should be dated as of Conveyancing Committee

ATTORNEY GENERAL’S SCHEME ractitioners will be aware both junior and senior counsel of the affidavit. Practitioners Pthat, heretofore, the Chief had marked fees for them. This should note that the CSSO has State Solicitor’s Office resulted in practitioners receiving recently agreed to pay fees to THE SERVICE IS (Accounting Section) has refused no payment where they had done practitioners for the drafting of COMPLETELY CONFIDENTIAL AND to pay practitioners in respect of a great deal of work in research- such affidavits but will pay one TOTALLY affidavits drafted by practitioners ing the material for the affidavits counsel only in relation to same. INDEPENDENT OF and settled by counsel where and had drafted the first version Criminal Law Committee THE LAW SOCIETY

39 Law Society Gazette July 2004 Briefing

PRACTICE NOTE PURCHASERS’ SOLICITOR’S FEE PAID BY THE VENDOR: CONFLICT OF INTEREST? his is an issue which has aris- arrangement is that the builder When a purchaser instructs a chasers require the protection Ten in the context of certain will pay the purchasers’ solicitor solicitor, it is implied in the which, arguably, the employment arrangements which individual all the legal fees for the individ- instructions that the purchaser of an independent solicitor of builders are making with solici- ual purchases. is, firstly, asking the solicitor to their choice would give. There tors. Such an arrangement does take the necessary steps to should be some recognition of A typical arrangement involves not contravene any regulation. It achieve a proper conveyance of the fact that most purchasers a builder who is developing a is to be distinguished from SI 85 the property; secondly, to advise, are not legal experts and accord- housing estate. He has his own of 1997, which places a restric- as necessary, as to the best ingly will be attracted to the solicitor. He approaches a sec- tion on solicitors acting in a con- course of action, in particular cir- arrangement on the basis of the ond solicitor in the locality sug- veyancing transaction on behalf cumstances, especially if difficul- reduced fees only, with no appre- gesting that the second solicitor of both the builder and purchas- ties arise in the course of the ciation of difficulties which might makes himself/herself available er of residential units. In the transaction; and, thirdly, that the arise. to act on behalf of all the pur- arrangement under discussion, solicitor has no conflict of inter- Currently, there is no prohibi- chasers of the houses in the the builder has his own solicitor. est in accepting instructions. It tion in relation to these arrange- estate. The builder wants to have However, the view of the is in the context of advice that ments. Solicitors are free to this arrangement in place to Guidance and Ethics Committee the potential conflict lies. make their own professional avoid, as the builder sees it, is that solicitors who enter into Solicitors who enter into such judgement in relation to the mat- unnecessary delay. Undoubtedly such arrangements may be plac- arrangements say that they will ter. However, solicitors who enter when each purchaser has a dif- ing themselves in an impossible have no difficulty in carrying out into one of these arrangements ferent solicitor, each solicitor position. In the event that their their clients’ instructions. They should consider the matter very may raise at least some different purchaser-clients become dissat- must be sufficiently independent carefully and, if they decide to queries in relation to the title and isfied, solicitors may not be in a to pursue their clients’ interests proceed, do so fully aware of the other matters so that in total position to demonstrate that as necessary. They must stand potential pitfalls. there are numerous queries to they have been professionally their ground against the builder Solicitors must realise that be dealt with by the builder’s independent, and it may be diffi- and delay the completion of any their professional duty is to the own solicitor. If every purchaser cult to argue against a conclu- sale should this be necessary. purchaser, their own client, and could be encouraged to go to the sion that a conflict of interest Such arrangements undoubt- must represent the client’s inter- one solicitor, it would mean that existed to the extent that the edly appeal to the consumer est without taking into account the number of queries is min- interests of the clients were com- because of the possible saving the interest of the builder. imised. Crucially, part of the promised. in legal fees. However, pur- Guidance and Ethics Committee SOLICITORS DISCIPLINARY TRIBUNAL This report of the outcome of a Solicitors Disciplinary Tribunal inquiry is published by the Law Society of Ireland as provided for in section 23 (as amended by section 17 of the Solicitors (Amendment) Act, 2002) of the Solicitors (Amendment) Act, 1994 In the matter of Thomas the Solicitors Acts, 1954 to guilty of misconduct in his prac- The tribunal ordered that the Flood, solicitor, carrying on 2002 [4412/DT415] tice as a solicitor in that he had: respondent solicitor: practice under the style and Law Society of Ireland a) Failed to reply to the corre- a) Do stand censured title of Esmond Reilly (applicant) spondence of the society b) Pay a sum of €2,500 to the Solicitors at Dargan House, Thomas Flood b) Failed to attend at the Reg- compensation fund Fenian Street, Dublin 2, and (respondent solicitor) istrar’s Committee meetings c) Pay the whole of the costs of in the matter of an application c) Failed to respond to his client the Law Society of Ireland as by the Law Society of Ireland On 6 April 2004, the Solicitors d) Failed to refund fees as direct- taxed by a taxing master of the to the Solicitors Disciplinary Disciplinary Tribunal found that ed by the Registrar’s Com- High Court in default of Tribunal, and in the matter of the respondent solicitor was mittee in a timely manner. agreement. G

FOR BOOKINGS CONTACT MARY BISSETT OR PADDY CAULFIELD TEL: 668 1806 Meet at the Four Courts LAW SOCIETY ROOMS Courtat the Four Courts

40 Law Society Gazette July 2004 Briefing LEGISLATION UPDATE: 19 MAY – 21 JUNE 2004

Details of all bills, acts and statu- art 35.4 of the constitution or ii) part 4, and schedule 5 of the act offer that are exempt from the tory instruments since 1997 are pursuant to s39 of the Courts of (per SI 215/2004) additional services requirements, on the library catalogue at Justice Act, 1924 or s20 of the as provided for by s48(2)(b) of the www.lawsociety.ie (members’ and Courts of Justice (District Court) Health (Amendment) Act, 2004 Credit Union Act, 1997 as amend- students’ areas) with updated Act, 1946, and provides for relat- Number: 19/2004 ed by item 26 of part 24 of sched information on the current stage a ed matters Contents note: Provides that the 1 to the Central Bank and bill has reached and the com- Date enacted: 2/6/2004 members of the health boards Financial Services Authority of mencement date(s) of each act. Commencement date: 2/6/2004 established under the Health Act, Ireland Act, 2003 1970 as well as the Eastern Commencement date: 1/6/2004 ACTS PASSED Copyright and Related Rights Regional Health Authority, the Child Trafficking and (Amendment) Act, 2004 Northern Area Health Board, the European Communities (milk Pornography (Amendment) Act, Number: 18/2004 East Coast Area Health Board and quota) (amendment) regulations 2004 Contents note: Inserts a new sub- the South-Western Area Health 2004 Number: 17/2004 section 7A into section 40 of the Board shall cease to hold office Number: SI 208/2004 Contents note: Amends the Child Copyright and Related Rights Act, upon the commencement of this Contents note: Amend the Trafficking and Pornography Act, 2000 in order to remove any act; provides that the functions of European Communities (milk 1998 to provide that nothing in doubt as to the right of any person those bodies shall be performed quota) regulations 2000 (SI that act shall prevent: a) the giving to place literary or artistic works by their chief executive officers 94/2000), as amended, by modi- of a direction by a committee of protected by copyright or copies and, in certain circumstances, by fying some of the definitions and either or both of the houses of the thereof on public exhibition with- the minister for health and chil- some of the provisions relating to Oireachtas under s3 of the out committing a breach of copy- dren; removes the distinction milk-quota transfers, milk-produc- Committees of the Houses of the right as provided for by part II of between reserved and executive tion partnerships, dormancy, tem- Oireachtas (Compellability, the Copyright and Related Rights functions; amends the Health Act, porary transfers, milk-purchaser Privileges and Immunities of Act, 2000 1970, the Health (Amendment) obligations and producer records; Witnesses) Act, 1997 or compli- Date enacted: 3/6/2004 (No 3) Act, 1996, the Health give effect to reg 1788/2003 and ance with such a direction, or b) Commencement date: 3/6/2004 (Eastern Regional Health reg 595/2004 the possession, distribution, print- Authority) Act, 1999 and other Commencement date: 6/5/2004 ing, publication or showing by Electoral (Amendment) Act, enactments and provides for relat- either house, a committee (within 2004 ed matters European Communities the meaning of that act) or any Number: 15/2004 Date enacted: 8/6/2004 (reorganisation and winding-up person, of child pornography in Contents note: Provides for the Commencement date: 15/6/ of credit institutions) regulations connection with the performance conduct of European Parliament, 2004 (per SI 378/2004) 2004 of the functions conferred on local and presidential elections Number: SI 198/2004 those houses by the constitution and referendums using voting SELECTED STATUTORY Leg-implemented: Dir 2001/24 or by law, or on a committee by machines and electronic vote INSTRUMENTS Commencement date: 5/5/2004 resolution of those houses or a counting. Provides for the estab- An Bord Bia (Amendment) Act, resolution of either house lishment on a statutory basis of 2004 (commencement) order Finance Act, 2003 Date enacted: 2/6/2004 the Commission on Electronic 2004 (commencement of chapter 1 of Commencement date: 2/6/2004 Voting to report on the secrecy Number: SI 220/2004 part 2) order 2004 and accuracy of the chosen elec- Contents note: Appoints 1/7/ Number: SI 373/2004 Committees of the Houses of the tronic voting and counting system 2004 as the commencement date Contents note: Appoints 1/7/ Oireachtas (Compellability, for the European and local elec- for part 3 (other than ss21 and 2004 as the commencement date Privileges and Immunities of tions in June 2004. Amends and 22) and part 4 (other than for chapter 1 (ss73-86) of part 2 Witnesses) (Amendment) Act, extends the Electoral Acts, 1992 s24(a)ii) of the act of the Finance Act, 2003. This 2004 to 2002, the European Parliament chapter consolidates and updates Number: 16/2004 Elections Acts, 1992 to 2004, the An Bord Bia (Amendment) Act, the law of excise duty on alcohol Contents note: Amends s3 (power Presidential Elections Acts, 1992 2004 (transfer day) order 2004 products, to be known as alcohol of committee to obtain evidence) to 2001, the Local Government Number: SI 221/2004 products tax of the Houses of the Oireachtas Acts, 1925 to 2003, the Local Contents note: Appoints 1/7/ (Compellability, Privileges and Elections Acts, 1974 to 2002 and 2004 as the transfer day for the Finance Act, 2003 (section 102) Immunities of Witnesses) Act, the Referendum Acts, 1992 to purposes of part 2 of the act (commencement) order 2004 1997 to provide that, notwith- 2001 Number: SI 232/2004 standing s3(4) of that act, the sec- Date enacted: 18/5/2004 Credit Union Act, 1997 (exemp- Contents note: Appoints 28/5/ tion shall apply to a judge of a Commencement date: Com- tion from additional services 2004 as the commencement date court specified in that sub-section mencement order(s) to be made requirements) regulations 2004 for section 102 of the Finance Act, where a committee is established (per s1(8) of the act); 19/5/2004 Number: SI 223/2004 2003 (amendment of s131 [regis- for the purposes of a matter relat- for part 1 (ss1-3), part 3 (ss17- Contents note: Prescribe services tration of vehicles by revenue com- ing to that judge arising: i) under 29), sections 33, 34 and 35 of that individual credit unions can missioners] of the Finance Act,

41 Law Society Gazette July 2004 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 €57.15 Expiry date: FOR MONTH/YEAR 10 ISSUES

Name:

Address:

Telephone:

Signature:

Please return to Law Society Gazette, Blackhall Place, Dublin 7. wwwwww.lawsociety.ie.lawsociety.ie

Have you accessed the Law Society website yet?

DOYLE COURT REPORTERS LTD

VERBATIM TRANSCRIPTS 2 Arran Quay 7. Tel: 872 2833. Fax: 872 4486 Accurate shorthand recording of the Email: [email protected] High Court, Public and Private Inquiries, Web: doylecourtreporters.com AGM’s, Conferences etc. Briefing

1992 to provide for the issue of a not already in operation, with the ence no 9 in part 1 of the first European Convention on Human new single vehicle registration cer- exception of ss3(b), 3(c) and 3(d) schedule to the Road Traffic Act, Rights Act, 2003 shall arise in any tificate by the minister for the of the act. This means that from 2002 proceedings, the party having car- environment, heritage and local 1/6/2004 all personal injury riage of the proceedings shall government) claims arising from workplace acci- Road vehicles (registration and forthwith serve notice upon the dents (where an employee is seek- licensing) (amendment) attorney general and the Human Intoxicating Liquor Act, 2003 ing compensation from his/her regulations 2004 Rights Commission. Such notice (section 21) regulations 2004 employer) must be referred, in the Number: SI 213/2004 shall state concisely the nature of Number: SI 271/2004 first instance, to the Personal Contents note: Facilitate the the proceedings in which the issue Contents note: Designate nation- Injuries Assessment Board introduction of a single document, arises and the contention or al sporting arenas and prescribe called a registration certificate, to respective contentions of the areas of the arenas for the sale Personal Injuries Assessment be issued by the minister for the party or parties to the proceedings and consumption of alcohol under Board (fees) regulations 2004 environment, heritage and local Commencement date: 7/4/2004 s21 of the Intoxicating Liquor Act, Number: SI 251/2004 government under s131 of the 2003 Contents note: Prescribe the Finance Act, 1992 as amended by Solicitors (interest on clients' Commencement date: 1/7/2004 charges the Personal Injuries s102 of the Finance Act, 2003, moneys) regulations 2004 Assessment Board may make on which replaces the two docu- Number: SI 372/2004 Local Government Act, 2001 claimants and respondents in ments (the vehicle registration Contents note: Make provision in (commencement) order 2004 respect of the processing by the certificate and the vehicle licens- relation to the liability of a solici- Number: SI 217/2004 board of applications under sec- ing certificate) used when regis- tor to account for interest on Contents note: Appoints 19/5/ tion 11 of the Personal Injuries tering and taxing a vehicle for the clients’ money; revoke SI 2004 as the commencement date Assessment Board Act, 2003 first time 108/1995 as amended by SI for section 5(1) of, and part 1 of Commencement date: 1/6/2004 Leg-implemented: Dir 1999/37 504/2001 sched 3 to, the Local Government Commencement date: 28/5/ Commencement date: 1/7/ Act, 2001 for the purposes of the Personal Injuries Assessment 2004 2004, with saver for continuation repeal of s21 of the Local Board rules 2004 in force of Solicitors (interest on Government Act, 1955 and for the Number: SI 219/2004 Rules of the Superior Courts clients’ moneys) regulations 1995 purposes of the repeal of s25 Contents note: Prescribe the (amendment to order 118) 2004 (SI 108/1995) in relation to (other than s25(6)) of the Local rules of procedure for the making Number: SI 253/2004 clients’ monies received prior to Elections (Petitions and of applications for assessment Contents note: Amends order 1/7/2004 Disqualifications) Act, 1974; under s11 of the Personal Injuries 118 (sittings and vacations) of appoints 21/5/2004 as the com- Assessment Board Act, 2003 and the Rules of the Superior Courts Taxi Regulation Act, 2003 mencement date for s169 (other for related matters by the substitution of a new rule 2 (section 37(1)) (commence- than s169(4)(a)ii and s169(4)(b)(ii) Commencement date: 12/5/ and a new rule 4(2). The effect of ment) order 2004 and references to a code of con- 2004 these amendments is to provide Number: SI 260/2004 duct in ss166(1), 167(2), 170(1) that the offices of the Supreme Contents note: Appoints and 174(6); appoints 1/1/2005 Road Traffic Act, 2002 (com- Court and High Court will be open 2/8/2004 as the commencement as the commencement date for mencement of certain provi- for public business from 10.30am date for s37(1) of the act. This s169(4)(a)(ii) and s169(4)(b)(ii) sions) order 2004 to 4.30pm throughout the year, section requires the production of and 171(1)(b) Number: SI 248/2004 during the court vacations as well a tax clearance certificate to the Contents note: Appoints 4/6/ as during the sittings licensing authority by an applicant Merchant shipping (pleasure 2004 as the commencement date Commencement date: 21/5/ for the grant or renewal of a small craft) (lifejackets and operation) for ss8 and 22 of the Road Traffic 2004 public-service vehicle drivers or (safety) regulations 2004 Act, 2002 insofar as they apply to vehicle licence Number: SI 259/2004 offences under s52 of the Road Rules of the Superior Courts Contents note: Make provisions Traffic Act, 1961 (as substituted (right of attorney general and Valuation (revisions and new val- governing the operation of pleas- by s50 of the Road Traffic Act, Human Rights Commission to uations) (fees) regulations 2004 ure craft and personal watercraft, 1968), and so much of part I of notice of proceedings involving Number: SI 381/2004 including provisions relating to age the first schedule (penalty points) declaration of incompatibility Contents note: Prescribe fees for restrictions, the carriage and use to the Road Traffic Act, 2002 as issue) rules 2004 (1) an application to the commis- of lifejackets and restrictions on relates to the offence of careless Number: SI 211/2004 sioner of valuation under s27 of the use of alcohol and drugs driving specified at reference no 9 Contents note: Insert a new order the Valuation Act, 2001; and (2) Commencement date: 3/6/2004 of that part; appoints 4/6/2004 60A (right of attorney general and each additional entry on the valu- as the commencement date for Human Rights Commission to ation list resulting from an appli- Personal Injuries Assessment s25(2) of the Road Traffic Act, notice of proceedings involving cation referred to at (1) above; Board Act, 2003 (commence- 2002 insofar as it applies to declaration of incompatibility revoke SI 64/2002 ment) (no 2) order 2004 ss36(1) and 36(2) of the Road issue) to the Rules of the Superior Commencement date: 19/5/ Number: SI 252/2004 Traffic Act, 1961 (as amended by Courts. The order provides that if 2004. G Contents note: Appoints s49(1)(d) of the Road Traffic Act, any issue as to the making of a 1/6/2004 as the commencement 1994) in respect of the offence of declaration of incompatibility with- Prepared by the Law date for the provisions of the act careless driving specified at refer- in the meaning of s1(1) of the Society Library

43 Law Society Gazette July 2004 Briefing Update

News from Ireland’s on-line legal awareness service Compiled by Karen Holmes for FirstLaw

COMPENSATION prohibition of prosecution of offences of the constitution on the evidence before the High Court – whether applicant prejudiced as grounds that his detention was consisted of the oral evidence of Judicial review result of delay – whether prosecution unlawful. It was contended that the plaintiff, the oral evidence of Alternative remedies – scheme of of offences should be prohibited the assistant commissioner of An her surgeon, Mr Barry, and two compensation for personal injuries The applicant had been convict- Garda Síochána who endorsed medical reports, one from Dr criminally inflicted – judicial review ed of sexual offences, which he the warrants was not entitled to Connolly, the plaintiff’s general of first instance decision of the appealed and which appeal was do so pursuant to section 43 of practitioner, and one from Mr respondent – whether applicant allowed. A re-trial was directed the Extradition Act, 1965, since Scannell, who examined the failed to exhaust alternative reme- by the Court of Criminal the section was spent following plaintiff on behalf of the defen- dies by not bringing appeal as envis- Appeal. He then applied to pre- the coming into force of the dants. In giving his judgment, aged under scheme vent the respondent from pro- European Arrest Warrant Act, the trial judge referred to the The applicant was the wife of a ceeding with the re-trial on the 2003. The central issues con- fact that he felt the plaintiff had man who died as a result of an grounds that he had been preju- cerned the interpretation of the given very strong evidence of the assault. She was awarded com- diced by the delay in prosecuting word ‘produced’ in section various types of pain that she had pensation under the scheme. the offence. The applicant fur- 43(1)(b) of the 1965 act and suffered. He did, however, go on However, she was dissatisfied ther argued that there was inex- whether the transitional to say that pain was subjective with the award made in respect of cusable and culpable prosecutor- arrangements on the coming and on medical evidence her case loss of earnings. She decided ial delay and that the capacity of into force of the 2003 act did not appear to be as bad as against appealing the award as the applicant to defend himself applied. other similar cases that he had envisaged under the scheme and had been impaired. The respon- Peart J refused the application heard that day. The trial judge applied for judicial review, con- dent alleged that the com- for release, holding that, in also emphasised the viva voce evi- tending that the respondent had plainant delay was due to the interpreting a statute, the court dence of Mr Barry, in which he erred and acted ultra vires in cal- dominion exercised by the appli- had to, where necessary, refer to described degenerative changes culating the award. The respon- cant over the complainant. the entire act in order to glean in the plaintiff’s back shown in dent contested the applicant’s Murphy J granted an injunc- the intention of the legislature. her MRI scan. The trial judge application on the merits and also tion restraining the respondent The receipt of warrants in the awarded €30,000 for pain and argued that, regardless of the from prosecuting the applicant, office of the commissioner of An suffering up to the date of the merits, the court ought to refuse holding that, in assessing the Garda Síochána constituted the hearing in the High Court and to entertain the application delay, the court had to look not warrants being ‘produced’ and €50,000 for pain and suffering because the applicant had failed to the date of the original trial therefore the applicant’s deten- into the future. The defendants to exhaust alternative remedies. but to the date of the pending tion was lawful since it was cov- appealed the quantum of dam- Kelly J refused the application, re-trial. The court also had to ered by the transitional arrange- ages. holding that the court should not take into account the prejudice ments set forth in section 50(2) The Supreme Court intervene before the process suffered by the applicant due to of the 2003 act. (McGuinness, Geoghegan, envisaged under the scheme had having suffered anxiety and O’Rourke v Governor of McCracken JJ) dismissed the been exhausted. The applicant served a prison sentence. Cloverhill Prison, High Court, appeal, holding that: should have exercised her right of JH v Director of Public Mr Justice Peart, 26/2/2004 1) There were objective signs of appeal before applying for judi- Prosecutions, High Court, Mr [FL9025] the plaintiff’s injury. This was cial review. There was no time- Justice Murphy, 2/4/2004 not merely a soft tissue injury limit in the scheme for the bring- [FL9006] showing no objective signs. In ing of an appeal against a deter- DAMAGES giving evidence, Mr Barry mination, so the applicant was Detention pointed out that the MRI scan not prejudiced in that regard. Application for release – whether Personal injuries showed degenerative changes To mlinson v Criminal Injuries detention lawful – whether transi- Road traffic accident – general in the discs of both L45 and Compensation Tribunal, High tional arrangements on coming into damages – damages for pain and L5SI level, with some loss of Court, Mr Justice Kelly, force of European Arrest Warrant suffering into the future disc space and some disc 3/3/2004 [FL9020] Act, 2003 applied – interpretation The plaintiff was involved in an bulging. He further stated of ‘produced’ in s43(1)(b) of accident on 20 May 2000 in that the presence of some Extradition Act, 1965 – which she sustained injuries to degenerative change in the CRIMINAL Bunreacht na hÉireann 1937, her neck and back. Liability was discs would be relatively less article 40.4.2 conceded and so the matter in common in a younger person Delay, judicial review The applicant applied for his the High Court proceeded sole- than an older person. Mr Prosecutorial delay – application for release pursuant to article 40.4.2 ly on the issue of damages. The Barry’s evidence as to contin-

44 Law Society Gazette July 2004 Briefing

uing degenerative change was order to reposition the chains. features putting this case so Immigration Act, 1999 as fairly strong However, the employees did not dramatically in a different amended by section 10(b) of the 2) The sum awarded by the trial have any fall protection. category from any of the Illegal Immigrants (Trafficking) judge for pain and suffering Consequently, one of the recorded cases in Ireland or Act, 2000. Garda Whelan gave to the present day was a rea- employees was involved in a Britain. Furthermore, the evidence that she arrested the sonable sum and the court fatal accident when he fell 30 failure of the court to attempt applicant because she had rea- would not interfere with it feet from the roof. As a result of to obtain evidence of the sonable cause to suspect that he 3) There was evidence that that accident, the applicant was means of the company was an was a person who had sought degenerative change was like- prosecuted for five offences error of principle asylum in the state on 14 ly to continue. The plaintiff’s contrary to the Safety, Health 3) The courts are required to December 2000 in the name young age was a factor to be and Welfare at Work Act, 1989. work within the framework Ady Singeorz and in respect of taken into consideration. The Those five charges were actually provided by the leg- whom a deportation order had sum awarded for pain and brought against the applicant islature and, when exercising been made by the minister for suffering into the future, company by summons and were their power to impose a fine, justice, equality and law reform although somewhat on the returnable to the District must impose a fine that is on 8 November 2001. high side in the face of the Court at Charlestown on 22 proportionate to the level of It was stated by Garda evidence, did not exceed the November 2002. On that date, fault and to the means of the Whelan that she was informed normal range sufficiently for the Health and Safety Authority offender by Detective Garda Cullen that the court to interfere with it. was willing to proceed summar- 4) The principal factor in a notice under section 3(3)(b)(ii) Breen v Fagan and MIBI, ily but the district judge assessing a penalty for the of the 1999 act, as amended, had Supreme Court, 14/5/2004 refused to accept jurisdiction. type of offence as occurred in been served on Ady Singeorz [FL9094] Subsequently, the applicant this case is the degree of fault. but that he had not presented company entered signed pleas The second factor is the con- himself to the Garda National of guilty and the matter came text of the company itself, Immigration Bureau as required HEALTH AND SAFETY before the Circuit Court on 3 that is to say, its record and by the notice. The applicant July 2003. On that date, the cir- how it has behaved since the possessed a passport that had Fatal accident cuit judge imposed a fine of events in issue. The third fac- been issued on 19 April 2001. Fatal accident at work – fine – pro- €500,000 on the first count and tor is the ability of the com- That passport contained an portionality – Safety, Health and took the others into considera- pany to pay any particular Irish visa issued at Bucharest Welfare at Work Act, 1989 – tion. Consequently, the appli- fine and a visa issued at Dublin. He whether the fine imposed on the cant sought leave to appeal on 5) The fact that a fatality also possessed a Romanian and applicant company was grossly the basis that the fine was gross- occurred was an aggravating an Irish driving licence, a Garda excessive ly excessive, that it was dispro- factor in relation to the National Immigration Bureau On 3 September 2001, three portionate to the offence, that it amount of the fine imposed. certificate of registration and a employees of the applicant were was disproportionate and incon- Other relevant factors are the work permit, all of which were at a client’s site in Charlestown, sistent with levels of fines failure to heed warnings and in the name Adrian Singeorzan. Co Mayo, for the purpose of imposed in other cases, and that the presence of risks run The applicant submitted that replacing a cracked roof gutter, it failed to reflect the mitigating specifically to save money. the visas and work permit sus- which weighed two-and-a-half factors. People (DPP) v Oran Pre-Cast pended the operation and effect tonnes. That gutter was to go The Court of Criminal Limited,Court of Criminal of the deportation order and on the side of a building, access Appeal (Hardiman, O’Sullivan, Appeal, 16/12/2003 [FL9058] that the respondents were to which was restricted by the Herbert JJ) allowed the appeal estopped from seeking to rely narrowness of the space and varied the order of the upon it. between it and a neighbouring Circuit Court judge by impos- IMMIGRATION AND Consequently, the applicant building. A mobile expandable ing a fine of €100,000 on the ASYLUM applied for an order directing work platform was placed and first count and taking the others his release from detention by elevated in order to replace the into consideration. It held that: Deportation virtue of article 40(4)(2) of the gutter. 1) Where a fine is unlimited as Immigration – deportation order – constitution. Two of the employees suc- it was in this case, care and asylum – legitimate expectation – Herbert J determined that cessfully removed the gutter restraint must be used in the Illegal Immigration Act, 1999 – there were lawful and bona fide from the building and elevated exercise of the power to fine. Illegal Immigrants (Trafficking) grounds for the applicant’s the new gutter to roof level. It The actual level of fault is the Act, 2000 – article 40, section 4, detention and, accordingly, the was only then that they discov- principal consideration, and sub-section 2 of the constitution – applicant was not entitled to the ered that insufficient roof sheets the financial state of the com- whether the applicant had a legiti- relief sought. He held that: had been removed to allow for pany to which the fine relates mate expectation to remain in the 1) A member of An Garda the proper placement of the cannot be irrelevant and can- state following the issuing of a work Síochána was required to new gutter. The removal of the not be ignored, unless of permit and visa have reasonable cause to sus- roof sheets had been done by a course the court were The applicant is a native of pect that a person against roofing sub-contractor on the informed that any level of Romania. He was arrested on 7 whom a deportation order instructions of the client. fine could be absorbed February 2000 by Garda was in force failed to comply Accordingly, the two men were 2) There was insufficient effort Whelan pursuant to the provi- with any provisions of the required to go onto the roof in to isolate gravely aggravating sions of section 5(1) of the order or with a requirement

45 Law Society Gazette July 2004

Briefing

in a notice under section tation of or on behalf of the motion, the respondent made a views contained in the tech- 3(3)(b)(ii) before arresting first-named defendant to the decision to grant planning per- nical reports, it would have such person. The informa- applicant that he could law- mission for the proposed devel- been necessary for the coun- tion conveyed to Garda fully re-enter this state. opment and he issued an order cillors to have evidence to Whelan from Garda Cullen Singeorzan v The Minister for to that effect on 13 July 2000, support their contention and caused her to have a genuine Justice, Equality and Law subject to five conditions. That to reject the technical advice suspicion that the applicant Reform, High Court, Mr decision was made without any given to them was an evader. A reasonable Justice Herbert, 24/2/2004 prior notification to the appli- 3) The applicant, in relying person in her position, [FL9100] cant. As a result of that decision, upon the ground that the assumed to know the law the members of the county proposed development was and possessed of the informa- council considered that the likely to cause serious air pol- tion which, in fact, she did PLANNING AND democratic will of the county lution, had no basis for refus- possess, would believe that DEVELOPMENT council had been ignored and ing to accept the advice of there was reasonable and the members called a special experts either in the form of probable cause to arrest the Certiorari, judicial review meeting of the council. A fur- an opinion from another applicant Planning permission – material ther section 4 motion was pro- expert or a reasoned judge- 2) The evidence adduced contravention of development plan posed and a fresh resolution was ment as to why the advice of proved that the applicant was – City and County Management passed, but again the executive the expert officials was incor- the same person as Ady (Amendment) Act, 1955 – Local of the county council refused to rect. Furthermore, in relying Singeorz, who was the sub- Government (Planning and comply with the motion. upon that ground as a basis ject matter of a deportation Development) Acts, 1963 to Proceedings were instituted for refusing the planning per- order made on 8 November 1999 – Local Government Act, seeking leave to apply by way of mission, the applicant failed 2001 and, accordingly, he 1991 an application for judicial to have regard to the restric- returned unlawfully to the The second-named notice review for an order of certiorari tion contained in section 98 state. The applicant’s knowl- party applied for planning per- of the respondent’s decision to of the Environmental edge or lack thereof of the mission for a proposed develop- grant to the second-named Protection Agency Act, 1992 in existence of the deportation ment, which consisted of the notice party planning permis- relation to the risk of envi- order and/or the notice did conversion of a milking parlour sion for the aforementioned ronmental pollution from the not affect the validity of those and the installation of a crema- proposed development. proposed development documents, which were tor at Oghill, Redcross, Co Furthermore, an appeal was 4) There was material before deemed to have been validly Wicklow. Patrick Doran, who taken to An Bord Pleanála from the respondent that entitled served on him by virtue of was an elected member of the decision of the respondent him to conclude that the res- section 6(2) of the Wicklow County Council, gave by aggrieved members of the olution arising from the sec- Immigration Act, 1999. There evidence that he received a large public. tion 4 motion was invalid and was no evidence that the number of representations from O Caoimh J refused to grant was not binding upon him. applicant informed the members of the public who leave, holding that: The applicant councillors authorities to whom he had expressed concern about the 1) In order to be granted leave, failed to establish substantial applied for the visas and work nature of the proposed develop- the applicant was required to grounds to show that the permit that he had previously ment. The majority of the con- advance to the court substan- conclusion of the respondent applied for asylum in this cerns related to health issues, tial grounds for contending was incorrect and, according- state under the assumed but concern was also expressed that the decision of the ly, the respondent was enti- name of Ady Singeorz. Those that the proposed development respondent was invalid inso- tled to treat the section 4 documents were obtained by constituted a material contra- far as he considered the reso- motion as being invalid and deceit or misrepresentation vention of the Wicklow county lution of the applicant to be not binding upon him. and, accordingly, could not development plan. invalid and not to be binding 5) Obiter: that a section 4 reso- be relied upon by the appli- Consequently, Mr Doran and upon him. The decision of lution may not direct a coun- cant other councillors formulated a the respondent would only be ty manager to refuse to grant 3) In relation to the applicant’s motion pursuant to section 4 of capable of being valid if he planning permission. arguments regarding legiti- the City and County (Amend- was entitled to disregard the Wicklow County Council v mate expectation, he had not ment) Act, 1955 directing the section 4 resolution Wicklow County Manager, High adduced any evidence that he respondent to refuse the plan- 2) The respondent was entitled Court, Mr Justice Ó Caoimh, actually had that expectation. ning permission sought. That to consider the views 26/2/2003 [FL9024] G Furthermore, there were no motion came before a meeting expressed that there was not substantial grounds to show of the county council and sufficient demand for a pet The information contained here that the applicant’s expecta- there was a wide-ranging dis- incinerator and that medical is taken from FirstLaw’s Legal tion to remain in the state by cussion concerning the motion. waste would be incinerated at Current Awareness Service, reason of the work permit A vote was taken on the motion the proposed development to published every day on the internet and visas was objectively jus- and the unanimous view was be irrelevant matters to a at www.firstlaw.ie. For more tifiable. The issuing of the that the respondent manager proper consideration of the information, contact bartdaly@ visas and additionally or should refuse the planning per- planning application. Fur- firstlaw.ie or FirstLaw, Merchants alternatively the work permit mission sought. Notwith-stand- thermore, if a decision was to Court, Merchants Quay, Dublin 8, did not amount to a represen- ing the passing of the section 4 be taken in opposition to the tel: 01 679 0370, fax: 01 679

47 Law Society Gazette July 2004 WHERE THERE’S A WILL THIS IS THE WAY… LAW SOCIETY COMPANY FORMATION SERVICE When a client makes a will in favour of the Society, it would be appreciated if the bequest were stated in the following words: Your Company Formation Service forms approx 1,100 “I give, devise and bequeath the sum of X euros to the Irish companies every year for over 300 solicitors’ firms. Cancer Society Limited to be applied by it for any of its We achieved ISO 9001:2000 NSAI in 2002. charitable objects, as it, at its absolute discretion, may decide.” WHY USE US WE FORM All monies received by the Society are expended within the ■ Fast efficient service ■ Private companies limited Republic of Ireland. ■ Competitive prices by shares ■ 5 day electronic filing ■ Single member companies “Conquer Cancer Campaign” is a Registered Business Name ■ 10 day ordinary filing ■ Guarantee companies and is used by the Society for ■ Charitable status companies some fund-raising purposes. The ■ Unlimited companies “Cancer Research Advancement Board” allocates all Research Grants on behalf of the Society. SCHEDULE OF FEES

Private and single member companies limited by shares and unlimited companies: 5 day €330 10 day 278 5 Northumberland Road, Dublin 4. Tel: (01) 231 0500 € 15 Bridge Street, Cork. Tel: (021) 4509 918 Web: www.cancer.ie Guarantee/charitable status companies from €215

Irish Stenographers Ltd

Director: Sheila Kavanagh Experts in Overnight Transcripts

Specialists in Court Reporting Medical Cases / Arbitrations Conferences / Board Meetings

Contact: Hillcrest House, Dargle Valley, Bray, Co. Wicklow. Telephone/Fax: (01) 286 2184 For further information, application form and form A1 see our or 4b Arran Square, Dublin 7 website www.lawsociety.ie or contact us directly by e-mail: [email protected] or Telephone: (01) 873 2378 tel (01) 6724914/6 or fax (01) 6724915 Briefing Eurlegal News from the EU and International Affairs Committee Edited by TP Kennedy, director of education, Law Society of Ireland

Implementation of EU competition rules

he Council of Ministers remedies including damages. initiate proceedings before the competition rules Tadopted a regulation to The Irish competition rules courts seeking various remedies, • The circumstances where implement the main EU compe- are contained primarily in the including damages. national competition laws are tition rules that are set out in Competition Act, 2002. Section The former framework for excluded article 81 and 82 of the EC treaty 4(1) of the act prohibits all the implementation of article 81 • The exceptions to the above (council regulation 1/2003 of 16 agreements between undertak- was largely set out in regulation exclusions of national compe- December 2002 on the imple- ings, decisions by associations of 17/62, which provided a cen- tition law, and mentation of the rules on com- undertakings, and concerted tralised system under which the • The concept of trade petition laid down in articles 81 practices that have as their commission was effectively between member states. and 82 of the treaty, OJ 2003 object or effect the prevention, given exclusive jurisdiction to L1/1). The regulation is the restriction or distortion of com- grant individual and block Obligation on national most significant change to the petition in trade in any goods or exemptions and under which competition authorities and implementation of EC competi- services in the state or any part the commission was the execu- national courts to apply EU tion rules since 1962. The new of the state. An agreement, tive body principally responsi- competition law regulation came into force on 1 decision or concerted practice ble for the enforcement of EU Article 3 of the regulation May 2004. that infringes the above prohi- competition law. The above cre- imposes an obligation on the Article 81(1) of the EC treaty bition is void and unenforce- ated a largely notification-based competition authorities of the prohibits agreements between able. An agreement, decision or system, where the parties to an member states and the national undertakings, decisions by asso- concerted practice may be agreement notified the commis- courts to apply article 81 of the ciations of undertakings, and exempted by satisfying certain sion of an agreement requesting EC treaty to agreements, deci- concerted practices that affect conditions set out in section a decision that the agreement in sions or concerted practices in trade between member states 4(5) of the 2002 act. The question was either not an circumstances where they apply and which have as their object or Competition Authority is infringement of EU competi- national competition law to effect the prevention, restriction empowered to issue declarations tion law or that it qualified for agreements, decisions and con- or distortion of competition to a defined category of agree- the grant of an exemption. certed practices that may affect within the EU. An agreement, ments and practices, which, if Furthermore, the above result- trade between member states decision or concerted practice applicable, provide an automat- ed in the commission receiving within the meaning of article that infringes the above prohibi- ic exemption to the relevant many complaints of breaches 81(1) of the EC treaty. Similarly, tion is void and unenforceable. agreements and practices con- of EU competition law. The the national competition Article 81(3) allows for the grant cerned. Section 5(1) of the 2002 regulation is designed to authorities and the national of exemptions from the prohibi- act prohibits any abuse by one decentralise the implementation courts are obliged to apply arti- tion in article 81(1) if certain or more undertakings of a dom- of EU competition rules so cle 82 of the EC treaty when conditions are met. The com- inant position in trade for any that implementation occurs applying national competition mission is empowered to adopt goods or services in the state or principally at a national as law to any abuse prohibited by block exemption regulations that in any part of the state. The opposed to European level. article 82 of the EC treaty. grant an automatic exemption to entry into or implementation of Decentralisation is designed to a defined category of agree- an agreement, or the making or allow the commission to con- Exclusion of national ments. Article 82 prohibits com- implementation of a decision, or centrate its resources on com- competition law panies that hold a dominant the engagement in a concerted bating the most significant The regulation specifically position in a product or service practice, or acting in a manner breaches of EU competition excludes the application of market in the EU or a substan- that is an abuse of a dominant law, such as price fixing cartels. national competition laws to the tial part of the EU from abusing position constitutes an offence Below, we summarise the following agreements, decisions that position. The commission is by the undertakings concerned, rules set out in article 3 of the and practices: empowered to impose fines for a punishable by given sanctions. regulation regarding the rela- • Those that may affect trade breach of the above rules, and Directors and other persons tionship between EU and between member states but third parties may initiate pro- may also be personally liable for national competition law, under do not restrict competition ceedings before the national a breach of the above prohibi- the following headings: within the meaning of article courts asserting a breach of the tion and exposed to given sanc- • Obligation on national com- 81(1) of the EC treaty. The competition rules, which, if suc- tions in certain circumstances, petition authorities and above principle excluding the cessful, may result in the grant of and ‘any person aggrieved’ may national courts to apply EU application of national com-

49 Law Society Gazette July 2004 Briefing

petition law is significant in Exceptions to the exclusion of certed practice is caught by arti- agreements, the aggregate practice, in that if an agree- national competition law cle 81(1) of the EC treaty if it (a) annual community turn- ment is entered into and it is There are a number of excep- appreciably affects trade over of the undertakings clear that the agreement has tions to the above, which can be between member states and (b) concerned in the products an appreciable affect on trade summarised as follows: appreciably restricts competition covered by the agree- between member states and • The regulation specifically in the EU. The commission’s ment must not exceed that it does not involve a provides that member states current thinking on the circum- €40,000,000. In the case of breach of article 81(1) of the are not precluded from adopt- stances where an agreement will agreements concerning the EC treaty, there will, as a gen- ing and applying on their ter- be viewed by the commission as joint buying of products, eral rule, be no need to exam- ritory stricter national laws appreciably affecting trade the relevant turnover is the ine whether or not the agree- that prohibit or sanction uni- between EU member states (as parties’ combined purchase ment complies with the lateral conduct engaged in by opposed to appreciably restrict- of the products covered by national law equivalent of undertakings. As a result, in ing competition) are set out in the agreement, or article 81(1) of the EC treaty our example involving the the recently published commis- b) In the case of vertical in the relevant jurisdictions. appointment by a German sion notice on the ‘effect on agreements, the aggregate The application of the above supplier of an Irish distribu- trade’ concept contained in arti- annual community turn- in an Irish context would tor, the Competition Author- cles 81 and 82 of the treaty (OJ over of the supplier in the mean that the relevant agree- ity or any other complainant C 2004 C101/81). The notice products covered by the ment would not have to be could assert that the distribu- sets out the circumstances in agreement must not exceed considered under section 4(1) tion agreement infringes sec- which the commission considers €40,000,000. In the case of of the 2002 act tion 5(1) of the 2002 act an agreement unlikely in general licence agreements, the rel- • Agreements, decisions or • The regulation provides that to be capable of appreciably evant turnover is the aggre- concerted practices that fulfil gate turnover of the the conditions for an exemp- licensees in the products tion under article 81(3) of the incorporating the licensed treaty, or technology and the licen- • Those that are covered by a sors’ own turnover in such block exemption regulation. products. With regard to The above is significant from agreements concluded a practical perspective in that, between a buyer and sever- if an agreement can be shown al suppliers, the relevant to fall within the parameters turnover is the buyer’s of an EU block exemption combined purchases of the regulation and therefore arti- products covered by the cle 81(1) of the EC treaty is agreement. disapplied, there will in many cases be no need to look at the In its notice, the commission domestic competition rules of specifies that the above negative a member state in order to see presumption shall apply where, whether or not its provisions the competition authorities affecting trade between member during two successive calendar are being infringed. For and the courts of the member states (the non-appreciable years, the above turnover example, if a distribution states are free to apply nation- affectation of trade or ‘NAAT’ threshold is not exceeded by agreement involving an Irish al merger control laws. As a rule). In its notice, the commis- more than 10% and the above distributor and a German result, part 3 of the 2002 act sion specifies that it will apply a market threshold is not exceeded supplier has an appreciable regarding mergers and acqui- negative rebuttable presumption by more than two percentage effect on trade between mem- sitions is still applicable, that agreements are not capable points. ber states and involves an notwithstanding the possible of appreciably affecting trade The €40,000,000 threshold is appreciable restriction of application of articles 81 between member states when calculated on the basis of the competition contrary to arti- and/or 82 of the EC treaty the following cumulative condi- total community sales (excluding cle 81(1) of the EC treaty, and • The regulation provides that tions are met: tax) during the previous financial falls within commission regu- the competition authorities • Market share – the aggregate year by the undertakings con- lation EC 2790/1999 of 22 and the courts of the member market share of the parties on cerned of the product covered by December 1999 on the appli- states are also free to apply any relevant market within the agreement, and sales cation of article 81(3) of the national laws that predomi- the community affected by between the entities that form treaty to categories of vertical nately pursue an objective dif- the agreement does not part of the same undertaking are agreements and concerted ferent from that pursued by exceed 5%, and excluded. practises (OJ 1999 L336/21, articles 81 and 82 of the EC • Turnover – the turnover of It is important to note that in the vertical restraints block treaty. the parties must not exceed the case of networks entered into exemption), there is no need the following thresholds, by the same supplier with differ- to examine the application of The concept of trade between depending on the nature of ent distributors, sales made section 4(1) of the 2002 act to member states the agreement: through the entire network are the agreement concerned. An agreement, decision or con- a) In the case of horizontal taken into account. The notice

50 Law Society Gazette July 2004 Briefing provides that contracts that form resale by buyers to customers incorporated into a product c) Agreements between sup- part of the same overall business in other member states. The by the parent companies. The pliers and distributors that arrangement constitute a single commission points out that in notice provides that trade is provide for resale price agreement for the purposes of the case of restrictions on likely to be capable of being maintenance and that cover the NAAT rule. imports/exports, there is an affected where the input in two or more member states The commission points out inherent link between the question was previously • Abuses of a dominant posi- that where the agreement con- alleged restriction of competi- sourced from suppliers in tion covering several mem- cerned is an emerging and there- tion and the effect on trade, other member states, where ber states. The commission fore not yet existing market and since the very purpose of the the parents previously pro- divides abuses into two cate- where, as a consequence, the restriction is to prevent flows duced the input in other gories, namely exclusionary parties neither generate relevant of goods and services between member states or where the abuses (for example, loyalty turnover nor accumulate any rel- member states that otherwise final product is traded in rebates and conduct aimed to evant market share, the commis- would be possible. The com- more than one member state. eliminate a competitor) and sion will not apply the above mission points out that it is The notice points out that the exploitative abuses (price dis- presumption. The commission immaterial whether the parties assessment of appreciability crimination). The commis- points out that in such cases, to the agreement are located requires that account be taken sion points out that a domi- appreciability may have to be in the same member state or in of the parents’ sales of prod- nant undertaking that engages assessed on the basis of the posi- different member states ucts related to the agreement in exclusionary or exploitative tion of the parties on the related • Cartel agreements covering and not only those of the joint abuse in more than one mem- product markets or their several member states. The venture entity created by the ber state will normally, by its strength in technologies relating commission points out that agreement, given that the very nature, be capable of to the agreement. cartel agreements such as joint venture does not operate affecting trade between mem- The commission specifies that those involving price-fixing as an autonomous economic ber states. it will apply a positive rebuttable and market-sharing covering entity on any market presumption that trade may be several member states are, by • Vertical agreement imple- Agreements or abuse covering affected within the meaning of their nature, capable of affect- mented in several member a single, or only part of, a article 81(1) of the EC treaty to ing trade between member states. The commission member state agreements that by their very states points out that vertical agree- With respect to agreements that nature are capable of affecting • Horizontal co-operation ments and networks of similar cover the territory of a single trade between member states to agreements covering sever- vertical agreements imple- member state, the commission an appreciable extent where al member states. The com- mented in several member points out that it may be neces- either – as opposed to both – of mission refers to joint-venture states are normally capable of sary to make a more detailed the above turnover or market- agreements. It points out that affecting trade between mem- inquiry into the ability of the share thresholds are met. The joint ventures that perform ber states in the following sit- agreement or abusive practice to commission identifies various on a lasting basis all the func- uations: affect trade between member types of agreement that would tions of an autonomous eco- a) If they cause trade to be states. The commission confirms be regarded by their very nature nomic entity are covered by channelled in a particular that it is not necessary for trade as being capable of affecting the EU Merger control regula- way. The commission pro- to be reduced to establish an trade between member states. tion and are therefore outside vides the example of net- effect on trade between member the scope of articles 81 and 82 works of selective distribu- states. The notice specifies that Agreements and abuse of the EC treaty, except in tion agreements imple- in many cases involving a single covering or implemented in cases where article 2(4) of the mented in two or more member state, the nature of the different member states Merger control regulation is member states that channel alleged infringement, and in par- The commission points out that applicable. The notice points trade in a particular way ticular its propensity to foreclose agreements covering or imple- out that joint ventures that because they limit trade to the national market, provides a mented in several member states engage in activities in two or members of the network, good indication of the capacity are in almost all cases, by their more member states or that thereby affecting patterns of the agreement or practice to very nature, capable of affecting produce an output that is sold of trade affect trade between member trade between member states. by the parents in two or more b) Vertical agreements that states. The commission provides The commission continues by member states affect the have foreclosure effects. the following examples of agree- giving examples of such types of commercial activities of the The commission provides ments that are confined to the agreements: parties in those areas of the the example of agreements territory of single member state • Agreements concerning community and are therefore whereby distributors in but can be considered to be imports and exports. The normally, by their very several member states capable of affecting trade commission points out that nature, capable of affecting agree to buy only from a between member states: this category includes agree- trade between member states. particular supplier or to sell • Cartels covering a single ments between undertakings The notice points out that only its products. The member state. The notice in two or more member states trade may also be capable of commission points out that specifies that horizontal car- and agreements that impose being affected where a joint foreclosure may result from tels that cover the whole of restrictions on imports and venture produces an input for individual agreements or the member state are normal- exports, including restrictions the parent companies, which from networks of agree- ly capable of affecting trade on active and passive sales and are subsequently processed or ments between member states

51 Law Society Gazette July 2004 Briefing

• Horizontal co-operation may, in particular, be capable ‘fairly limited weight’. Even if • Abuse of a dominant posi- agreements covering a sin- of affecting patterns of trade the parties have a high market tion covering only part of a gle member state. The com- between member states when share in a properly defined member state. The commis- mission points out that hori- they make it more difficult for regional market, the size of sion states that if the domi- zontal co-operation agree- undertakings from other the market in terms of volume nant position covers part of ments and, in particular, non- member states to penetrate may still be insignificant when the member state that consti- full function joint ventures the national market in ques- compared to total sales of the tutes a substantial part of the that are confined to a single tion either by means of products concerned within common market and the member state and that do not exports or by means of estab- the member state in question. abuse makes it more difficult directly relate to imports and lishment (foreclosure effect). The commission points out for competitors from other exports are not by their very The commission points out that the best indication of the member states to gain access nature capable of affecting that foreclosure may, for capacity of the agreement to the market where the trade between member states, example, occur when suppli- appreciably to affect trade undertaking is dominant, and that therefore a careful ers impose exclusive purchas- between member states is trade between member states examination of the capacity of ing obligations on buyers. considered to be the share of a must normally be considered the individual agreement to The notice points out that national market in terms of capable of being appreciably affect trade between member vertical agreements that cover volume that is being fore- affected. The notice states states may be required. The the whole of the member state closed that regard must be had in commission states that hori- and relate to tradable prod- • Abuses of dominant posi- particular to the size of the zontal co-operation agree- ucts may also be capable of tions covering a single market in terms of volume. ments may, in particular, be affecting trade between mem- member state. Where an The commission states that capable of affecting trade ber states even if they do not undertaking holding a domi- trade may not be capable of between member states where create direct obstacles to nant position in the whole of a being appreciably affected if they have foreclosure effects, trade. The commission states member state engages in the abuse is purely local in and in this context the com- that agreements involving exclusionary abuses, trade nature or involves only an mission provides the example resale price maintenance may between member states is insignificant share of the of agreements that establish have direct effects on trade normally capable of being sales of a dominant undertak- sector-wide standardisation between member states by affected. The commission ing. and certification regimes that increasing imports from other points out that in the case of either exclude undertakings member states and by exploitative abuse such as Agreements and abuses from other member states or decreasing exports from the price discrimination and involving imports and exports are more easily fulfilled by member state in question excessive pricing, the situation with undertakings located in undertakings from the mem- • Agreements covering only may be more complex. Price third countries and agree- ber state in question. The part of a member state. The discrimination between ments and practices notice also points out that commission states that the domestic customers will not involving undertakings trade may be affected where a assessment of agreements that normally affect trade between located in third countries joint venture results in under- cover only part of the member member states. However, if The commission confirms that takings from other member state is to be made in the same the buyers are engaged in articles 81 and 82 apply to agree- states being cut off from an way as agreements covering export activity and are disad- ments and practices that are important channel of distribu- the whole of the member vantaged by the discriminato- capable of affecting trade tion or source of demand, and state. The commission ry pricing, or if the practice is between member states even if the notice gives the example acknowledges that the above used to prevent imports, trade one or more of the parties are of two or more distributors, two categories must be distin- may be affected. The commis- located outside the EU. Articles established in the same mem- guished, given that in this sion points out that for so 81 and 82 apply irrespective of ber state and accounting for a context, only part of the long as an undertaking is in a the location of the undertakings substantial share of imports of member state is covered by dominant position that covers or the place where the agree- the products in question, who the agreement. The propor- the whole of the member ment has been concluded, pro- establish a purchasing joint tion of the national territory state, it is normally immateri- vided that the agreement or venture combining purchases susceptible to trade must be al whether the specific abuse practice is either implemented of the product and resulting taken into account. The engaged in by the dominant inside the EU or produces in the reduction in the num- notice specifies that where an undertaking only covered part effects inside the EU. It suffices ber of distribution channels, agreement forecloses access to of its territory or affects cer- that the agreement or practice thereby limiting the possibili- a regional market, the volume tain buyers within the nation- involving third countries or ty for suppliers from other of sales affected must be sig- al territory. The notice points undertakings located in third member states gaining access nificant in proportion to the out that if the abuse is purely countries is capable of affecting to the national market in overall volume of sales of the local in nature or involves cross-border economic activity question products concerned inside the only an insignificant share of inside the EU. The commission • Vertical agreements cover- member state in question for the sales of the dominant states that it is necessary to ing a single member state. trade to be appreciably affect- undertaking within the mem- ascertain the object of the agree- The notice specifies that ver- ed. The commission points ber state in question, trade ment or practice as indicated by tical agreements that cover out that the market share of may not be capable of being its content or the underlying the whole of a member state the parties must also be given appreciably affected intent of the undertakings

52 Law Society Gazette July 2004 Briefing involved. Where the object of other’s home markets or ed. The commission points ucts charged in the communi- the agreement is to restrict com- entering into reciprocal exclu- out that it is relevant to exam- ty and those charged outside petition inside the community, sive distribution agreements), ine the effects of the agree- the community and that the the requisite effect on trade and in the case of exports this ment or practice on customers price differential must not be between member states is more category includes cases where and other operators inside the eroded by customs duties and readily established than where undertakings that compete in community that rely on the transport costs. Furthermore, the object is predominantly to two or more member states products in question. The the volumes exported com- regulate competition outside the agree to export surplus quan- notice specifies that trade may pared to the total market of community. The commission tities to third countries with a also be capable of being those products in the territory looks at the following in the con- view to co-ordinating their affected when the agreement of the common market must text of this category: market conduct inside the prevents re-imports into the not be insignificant. The • Arrangements that have as community community. The commission commission points out that their object the restriction • Other arrangements. The provides the example of verti- regard must be had not only of competition inside the commission points out that in cal agreements between com- to the individual agreement community. With respect to the case of agreements and munity suppliers and third- between the parties but also to imports, this category practices whose object is not country distributors imposing the cumulative effect of simi- includes agreements that to restrict competition inside restrictions on resale outside a lar agreements concluded by bring about an isolation of the the community, it is normally given territory, including the the same and competing sup- internal market (for example, necessary to proceed with a community. The commission pliers. G the sharing of markets by more detailed analysis of points out that for such effects competitors in the communi- whether or not cross-border to be likely, there must be an Marco Hickey is head of the EU ty and in third countries by economic activity inside the appreciable difference and Competition Law Department agreeing not to sell in each EU is capable of being affect- between the price of the prod- of LK Shields Solicitors. Recent developments in European law ESTABLISHMENT learned that Italy did not recognise tion of degrees awarded after earned income, which was charge- ESE as authorised to organise uni- completing its courses is of con- able to Finnish taxes. Ms Lindman Case 153/02 Valentina Neri v versity-level courses and that it siderable importance. The Italian argued that this should not be European School of Economics would not recognise degrees practice of non-recognition of regarded as earned income in (ESE Insight World Education obtained through study of this degrees obtained in this manner Finland or alternatively should be System Ltd), 13 November 2003. nature, even though these is likely to deter students from regarded as income from capital, Ms Neri enrolled at Nottingham degrees were legally recognised in attending these courses and thus which is taxed at a lower rate. Trent University (NTU) to acquire a the UK. Ms Neri sought a refund of seriously hinder the pursuit by ESE Prize income from Finnish lotteries BA degree in international political the fees she had paid (over of its economic activity in Italy. is not liable to tax. The Finnish studies. The course was actually €2,000). The Italian court made a court referred the matter to the provided by ESE, a UK limited reference to the ECJ, asking SERVICES ECJ, querying the compatibility of company with branches in other whether the Italian practice of the tax legislation with article 49 member states, including 12 in refusing to recognise degrees of Case C-42/02 Diana Elizabeth of the EC treaty. The court held Italy. ESE organises courses with universities in other member Lindman, 18 November 2003. Ms that the Finnish legislation was study plans validated by NTU and states where the course of study Lindman is a Finnish national who incompatible with article 49. The NTU awards a final degree. The was not undertaken in that state resides in Finland. In early 1998, Finnish legislation manifestly dis- quality of the course was validated was compatible with articles 39, she won a prize in the Swedish lot- criminated between prizes won by the UK Quality Assurance 43 and 49 of the treaty. The ECJ tery. She had purchased her ticket from lotteries established in Agency for Higher Education. After held that there was a breach of during a stay in Sweden. The Finland and those established in she had enrolled with ESE, she article 43. For ESE, the recogni- Finnish state regarded this as other member states. G

We are the professionals in all aspects of thoroughbred racing and breeding. We can provide independent professional bloodstock management, advisory and valuation services to Solicitors acting in the Administration of Estates and Trusts. For further Kilwarden Lodge, information contact Declan Murray B. Comm. FCA. Kill, Co. Kildare

Tel: 045 877001 Fax: 045 877688 [email protected]

53 Law Society Gazette July 2004 People and places Meeting of the Law Society Council The May meeting of the Law Society Council was an historic occasion – the first meeting ever held in Dundalk. Aidan O’Reilly reports

n Friday 28 May, for the natural resources Dermot Ofirst time in its 152-year Ahern also dropped by en route history, a Law Society Council from Brussels, where he was meeting was held in Dundalk attending to government town. The meeting took place business. in Dundalk Courthouse, which The holding of the meeting was made available by kind in Dundalk forms part of an permission of the Courts initiative by the president to Service Board, county registrar have contact and consultation Mairead Ahern and with the with as many members of the assistance of Hugh Clarke. profession as possible. The Delegations from the Louth, president took advantage of the Drogheda, Meath and Cavan occasion to congratulate the bar associations attended as Courts Service Board for its observers. continuing programme of On the previous evening, the modernisation and renovation president of the Law Society, of courthouses throughout the Gerard Griffin, chaired a meeting for the local bar associations. Members were briefed on a number of issues, including the commencement of the Personal Injuries Assess- ment Board, the Civil Liability and Courts Bill, 2004 and the Competition Authority’s study of the profession. The meeting was followed by a reception in the Dermot Lavery and Derek Williams courthouse, which was attended by Dundalk solicitors and barristers, local politicians, members of the judiciary and by the popular singing group The Corrs, currently riding high in the hit parade with their seasonal sensation, the country. He said that the board past and I have full faith that it snappily titled Summer sun. was to be commended for the will continue to do so in the The minister for Pauline Barry, Alison Quail and very significant progress that future’. communications, marine and Patricia Hickey had already been made in its The reception was followed relatively short history. by a visit to the Spirit Store on Addressing local solicitors, George’s Quay, where the Griffin noted that the Council was treated to a profession was undergoing a production of Hickock’s last ride period of unparalleled change. starring Dermot ‘The Doc’ ‘These are certainly Lavery. With more double challenging times’, he said, entendres than you could shake ‘but we will survive because, at your stick at, the cast pulled the end of the day, the off a virtuoso performance. ordinary member of the public A fantastic night was had by is increasingly aware of the all. G need for impartial legal advice. Tim Ahern, Roger McGinley, Donal P O’Hagan, John Woods, Don The legal profession has always Aidan O’Reilly is the Law Society’s McDonough and Louth Bar Association president James Murphy adapted well to change in the policy development executive.

54 Law Society Gazette July 2004 People and places at Dundalk Courthouse, May 2004

President Gerard Griffin and Louth Bar Association president James Murphy

Niall Lavery, Council member James MacGuill and Council member John Fish

The Council of the Law Society in session

Brian Berrills, Pat O’Reilly, president Gerard Griffin and Paul Brady

Junior vice-president John D Shaw, deputy director general Mary Keane, director general Ken Murphy, president Gerard Griffin, senior vice-president Owen Binchy and County registrar Mairead Ahern and director general immediate past president Geraldine Clarke Ken Murphy

55 Law Society Gazette July 2004 EUROPEAN INTELLECTUAL PROPERTY EXPERTS

Core Services

Patent Application Preparation

International & Domestic Patent Protection

Brand Clearance & Searching

International & Domestic Trademark Protection

Design Registration & Protection

Licensing, Ownership & Technology Exchange

Enforcement of IP Rights

FULL DETAILS OF OUR SERVICES, TECHNICAL EXPERTISE & CLIENTS ARE AVAILABLE ON OUR WEBSITE WWW.TOMKINS.COM

5 Dartmouth Road T 01 660 5033 Dublin 6 F 01 660 6920 E [email protected] W www.tomkins.com

st 21 Century business in THE LEADING ACCOUNTS PACKAGE FOR LEGAL FIRMS 18 th Century elegance

Why not use this prestigious premises, designed by Thomas Ivory, for entertaining clients and staff? HARVEST LAW for WINDOWS

● Exclusive 18th Century venue catering for up to 200 people ■ Complete management accounts ● Centrally located and easily accessible ■ Full upgrade paths for existing ● Private grounds with extensive car-parking ● Full catering and bar services available DOS users ■ Free conversions from other accounting systems where possible ● Christmas parties ■ ● Christmas lunches Contact us for a free ● Annual dinners demonstration CD ● Retirement parties ● BBQs ● Family days HARVEST SOFTWARE, UNIT 37, JOHNSTOWN BUSINESS PARK, WATERFORD TEL 051-872111 FAX 051-872880 E-MAIL [email protected] CONTACT THE CATERING MANAGER Tel: 01 672 4800, fax: 01 672 4801 E-mail: [email protected], website: www.lawsociety.ie THETHE GOLDEN GOLDEN PATH PATH TO TO PROFIT PROFIT Law Society of Ireland, Blackhall Place People and places

Not such a long way after all Law Society president Gerard Griffin and director general Ken Murphy visited Thurles recently for a meeting of the Tipperary Bar Association. Pictured are the TBA council and (seated, from left) TBA honorary secretary Maura Hennessy, Law Society president Gerard Griffin, TBA president Eugene Tormey and Law Society director general Ken Murphy. Also pictured (standing, from left) are Brendan Hyland, Law Society Council member Donald Binchy, Paul Kingston, Law Society Council member Philip Joyce, Tim Treacy, Joe Kelly, Peter Reilly, Brendan Looby, Donal Smyth, Mark Hassett and Maura Derivan

Yes, prime minister Law Society president Gerard Griffin and director general Ken Murphy in discussion with (left) Slovenian prime minister Anton Rop and Slovenian Celebrity in Slovenia Law Society president Miha Kozinc, at the annual conference of the Law President Gerard Griffin gives an interview to Slovenian television, on Society of Slovenia in Moravske Toplice in June. Griffin and Murphy were justice and the rule of law in Ireland, following his address to the annual special guests at the ‘Days of Slovenian lawyers’ in the first annual con- conference of Slovenian lawyers in Moravske Toplice. The president ference to be held since Slovenia’s accession to the EU on 1 May. chose to speak in English rather than Slovenian On that date, Miha Kozinc had been a guest of the Law Society of Ireland in Dublin

Czech mates Among the speakers at a conference in Praguen organised by the Law Commercial break Society of the Czech Republic in June were Vladimir Jirousek, president Pictured at the recent CPD seminar on The new Commercial Court were of the Czech law society, Peter Williamson, president of the Law Society (from left) Law Society CPD co-ordinator Barbara Joyce, Mr Justice Peter of England and Wales, the vice-president of the Law Society of Slovakia, Kelly and former Law Society president Geraldine Clarke and president Gerry Griffin

57 Law Society Gazette July 2004 People and places Calcutta Run 2004

his year’s event took place Blackhall Place for a monster The event will reach its and Fr Peter McVerry’s Arrupe Ton Saturday 29 May at barbeque, with entertainment fund-raising target of Society for homeless boys in Blackhall Place. There were over provided by the Guinness Jazz €200,000. This brings the Dublin will also receive 1,500 runners/walkers who Band, a samba band and a DJ. total raised over six years to €100,000. followed a 10km course through The gods were good and the sun €1m. GOAL’s orphanage in Put it in your diary for May the Phoenix Park, finishing up in shone. Calcutta will receive €100,000 2005!

Member services At the recent Beauchamps Solicitors conference Representing your members effectively were (from left) Gary Rice, public and regulatory law Men in black partner at Beauchamps, Bar Council director Jerry Carroll, and Des Hugh Hannigan (left), recently appointed partner in Simon McAleese Cummins, chief executive of the Driving Instructor Register of Ireland Ltd Solicitors, with the firm’s managing partner Simon McAleese

58 Law Society Gazette July 2004 People and places The view from the summit solicitors’ ‘summit meeting’ Atook place in Blackhall Place last month. The leaders of the 135,000 solicitors in Ireland and Britain meet twice a year in either Dublin, Belfast, London or Edinburgh, with each society hosting the event once every two years. Among the issues discussed over the two-day meeting in Dublin were the Clementi review of regulation of legal services in England and Wales, regulatory models, complaints and discipline, governance and accountability, alternative business structures, competition issues, the Personal Injuries Assessment Board and the possible effect Pictured are (front row, from left) Duncan Murray, president of the Law Society of Scotland; Peter Williamson, on the legal profession and the president of the Law Society of England and Wales; president Gerard Griffin; John Pinkerton, president of the public of developments in the Law Society of Northern Ireland. Standing are (from left) Attracta Wilson, vice-president, Law Society of Northern Ireland; Aidan O’Reilly, policy development executive, Law Society of Ireland; Ed Nally, senior law on conflicts of interest and vice-president, Law Society of England and Wales; Janet Paraskeva, chief executive, Law Society of England solicitor/client privilege. and Wales; director general Ken Murphy; Caroline Flanagan, senior vice-president, Law Society of Scotland; Douglas Mill, secretary and CEO, Law Society of Scotland; and senior vice-president Owen Binchy DSBA Young Members’ Ball judge of the High Court, the 19 June. After a generous band started, power of a sponsors: BrightWater ADSBA president and vice- banquet and even more different sort surged as the Selection, Ellis & Ellis, president, an honorary senator generous supply of wine, John Young Members invaded the Rochford Brady, First American from Louisiana and a host of O’Connor launched the event, dance floor and occupied it until Title Insurance, as well as young solicitors all wearing their followed by Judge Michael the batteries went dead. The Behan & Co, Vodafone Ireland finest clobber turned up at the Peart, who electrified the Young Members Committee plc, McCann FitzGerald, Gresham Hotel for the inaugural audience with 10,000 volts of would like to thank the guest Orpen Franks and John Schütte DSBA Young Members’ Ball on judicial guidance. Once the speakers and all the main & Co.

Scene, not herd Dancing in the moonlight Pictured (from left) are DSBA Young Members Committee Pictured (back row, from left) are Deirdre Walsh, Tony O’Sullivan, vice-chairman John Hogan, Pauric Heraghty, chairman Keith Walsh, BrightWater Selection’s Ciara O’Loughlen, John O’Connor, Kevin Claire O’Regan, Tony O’Sullivan, Áine Burke, Deirdre Crowley, Martin O’Higgins and Keith Walsh; (front row) Eileen Malone of BrightWater Hayes, Darragh Lenehan and John O’Malley Selection and John Glynn

59 Law Society Gazette July 2004 Professional information

LOST LAND Council; folio: 8110F; lands: town- CERTIFICATES land of Cloghleagh and barony of LawSociety Islands; Co Clare Gazette Registration of Title Act, 1964 Regd owner: Castlelyons Co-op An application has been received from Creameries Ltd; folio: 21307; lands: the registered owners mentioned in plots of ground being part of the ADVERTISING RATES the schedule hereto for the issue of a townland of Curraghdermot in the Advertising rates in the Professional information section are as follows: land certificate as stated to have been barony of Barrymore and county of lost or inadvertently destroyed. A new Cork; Co Cork • Lost land certificates – €46.50 (incl VAT at 21%) certificate will be issued unless notifi- Regd owner: Fermoy Urban District • Wills – €77.50 (incl VAT at 21%) cation is received in the registry with- Council; folio: 33038; lands: plots of • Lost title deeds – €77.50 (incl VAT at 21%) in 28 days from the date of publication ground being part of the townland • Employment miscellaneous – €46.50 (incl VAT at 21%) of this notice that the original certifi- of Duntahane on the barony of cate is in existence and in the custody Condons and Clangibbon and HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – €30 EXTRA of some person other than the regis- county of Cork; Co Cork All advertisements must be paid for prior to publication. Deadline for tered owner. Any such notification Regd owner: Timothy Humphreys; August/September Gazette: 20 August 2004. For further information, contact should state the grounds on which the folio: 25093; lands: known as the Catherine Kearney or Valerie Farrell on tel: 01 672 4828 (fax: 01 672 4877) certificate is being held. townland of Monard situate in the (Register of Titles), Central Office, Land barony of Cork and the county of Registry, Chancery Street, Dublin Cork; Co Cork Regd owner: Agnes O’Brien; folios: Devlin, Magherenture, Buncrana, (Published 9 July 2004) Regd owner: Ralph and Mary Hill; 51890, 1240; lands: plot of ground Co Donegal; folio: 28764F; lands: folio: 6028L; lands: plots of ground being part of the townland of Ballymacarry; Co Donegal Regd owner: Pierce Brophy; folio: being part of the townland of Ballycolman in the barony of Regd owner: William Costigan and 4676F; lands: Killinane and barony Coolroe in the barony of Muskerry Imokilly and county of Cork; Co Kathleen Costigan; folio: DN of Idrone West; Co Carlow East and county of Cork; Co Cork Cork 110681F; lands: property known as Regd owner: William Shannon; folio: Regd owner: David and Elia Kirwan; Regd owner: Dolores Condon; folio: 47 Ellenfield Road, Whitehall, in 9199F; lands: Tullowphelim and folio: 22475; lands: plot of ground 24277F; lands: a plot of ground the parish and district of Clonturk; barony of Rathvilly; Co Carlow situate on the east side of South being part of Ballyvongane and Co Dublin Regd owner: Patrick Griffin; folio: Abbey in the town of Youghal and barony of Muskerry East in the Regd owner: Martin Carey and Emily 11678F; lands: Grangewat, the barony of Imokilly and county county of Cork; Co Cork Carey; folio: DN51114L; lands: Slaneyquarter, Straboe and barony of Cork; Co Cork Regd owner: Henry Crone; folio: property known as no 4 Seagrange of Carlow, Rathvilly; Co Carlow Regd owner: Industrial Development 13516L; lands: plot of ground situ- Avenue situate, in the parish and Regd owner: Philip and Nora Clarke, Authority; folio: 36933; lands: plots ate to the south-west of Dock district of Baldoyle; Co Dublin Institute Road, Bailieborough, Co of ground being part of the town- Cottages, being part of the town- Regd owner: Knapsack Limited (lim- Cavan; folio: 17513; lands: land of Foxhole in the barony of land of Maulbawn in the town of ited liability company); folio: Coppanagh; area: 11.741 hectares; Imokilly and county of Cork; Co Pasage West and county of Cork; DN80073L; lands: property known Co Cavan Cork Co Cork as unit 235A Level 2, The Square, Regd owner: Patrick J Dixon and Regd owner: Patrick Madden Regd owner: Michael and Mary Wall; Tallaght, Dublin; Co Dublin Maura Dixon; folio: 888F; lands: (deceased); folio: 23210F; lands: folio: 15619; lands: plots of ground Regd owner: Stephen Murray and townland of Cappagh More and plots of ground being part of the being part of the townland of Orna Murray; folio: DN54256L; barony of Bunratty Upper; area: 1 townland of Ballyfoyle in the Ballinlegane in the barony of lands: property situate in the town- rood, 30 perches; Co Clare barony of Kinalea and county of Barrymore and county of Cork; Co land of Balally and barony of Regd owner: Ennis Urban District Cork; Co Cork Cork Rathdown; Co Dublin Regd owner: Joseph and Louise Regd owner: Thomas McQuaid; folio: Whyte; folio: 59179; lands: county 100268F; lands: property known as Cork; Co Cork 27 St Fintan’s Crescent, in the DUBLIN SOLICITORS’ Regd owner: Denis and Mary townland of Sutton South and PRACTICE OFFERS O’Sullivan; folio: 7694F; lands: barony of Coolock in the county of ABACUS AGENCY WORK plots of ground situate on the west Dublin; Co Dublin IN NORTHERN side of Meadow Park Road, being Regd owner: Patrick O’Connell; folio: BOOK KEEPING part of the parish of St Anne’s, DN3697L; lands: property known IRELAND Shandon, and county borough of as 99 Errigal Road, Crumlin, situ- SERVICES * All legal work undertaken Cork; Co Cork ate on the west side of the said road on an agency basis Regd owner: Tadgh Finnegan; folio: in the parish and district of * All communications to clients 9758F; lands: plots of ground being Crumlin; Co Dublin SPECIALISING IN through instructing solicitors part of the townland of Kilcolman Regd owner: Chee Hong Cheng; * Consultations in Dublin if required in the barony of Duhallow and folio: DN54092F; lands: property LEGAL ACCOUNTS, Contact: Séamus Connolly Moran & Ryan, Solicitors, county of Cork; Co Cork situate in the townland of NORTH EASTERN Arran House, Regd owner: Rosaleen Tonson Rye; Kiltalown and barony of REGION 35/36 Arran Quay, Dublin 7. folio: 54053F; lands: townland of Uppercross; Co Dublin Farnanes and barony of Muskerry Regd owner: Western Health Board; Tel: (01) 872 5622 East; area: 0.4124 hectares; Co folio: 12074F; lands: townland of For further information, Fax: (01) 872 5404 Cork Lackagh More and barony of please contact Regd owner: Andrew J Carr, Clare; area: 0.073 hectares; Co e-mail: [email protected] Meenadreen, Glencolmbkille, Co Galway Fleur @ or Bank Building, Hill Street 042-9382157 Donegal; folio: 32604; lands: Regd owner: Bridget Feehan; folio: Newry, County Down. Meenadreen; area: 9 acres, 2 roods 11902F; lands: townland of Knock- 086-8147270 Tel: (0801693) 65311 and 20 perches and four undivided aunhcarragh and barony of Galway; Fax: (0801693) 62096 33rd parts of 110 acres, 1 rood and area: 0.413 hectares; Co Galway [email protected] E-mail: [email protected] 33 perches; Co Donegal Regd owner: Dr John C Horan; folio: Regd owner: Sean Porter and Carol 9175F; lands: townland of (1) and

60 Law Society Gazette July 2004 Professional information

(2) Townparks and barony of (1) and Regd owner: Shannon Development; Regd owner: Kevin Hurley; folio: Regd owner: Oliver Maher; folio: 9835; (2) Dunmore; area: (1) 0.156 acres, folio: 2761F; lands: townland of 11033; lands: townland of Ballymote lands: townland of Woodland and (2) 0.038 acres; Co Galway Towlerton and barony of and barony of Corran; area: 0.0252 barony of Newcastle; Co Wicklow Regd owner: Thomas Murphy and Clanwilliam; Co Limerick hectares; Co Sligo Bridget Murphy; folio: 3901; lands: Regd owner: John McNulty; folio: Regd owner: Patrick Nicholson (decd); townland of Bullaun (Clare By) and 19198; lands: townland of (1) and (3) folio: (1) 5151 and (2) 5252; lands: WILLS barony of Clare; area: 16.5465 Doontrusk, (2) Knockalegan, (4) and townland of Mountirvine and hectares; Co Galway (5) Treet, (6) Glendahurk, (7) barony of Coolavin; area: (1) 12 Behan, Peter (deceased), late of St Regd owner: Mary Downing; folio: Glenthomas, (8) Srahacorick and acres, 3 roods, 8 perches and (2) 1 Patrick’s Park, Rathangan, Co 32780; lands: townland of barony of (1) to (8) Burrishoole; acre, 1 rood, 2 perches; Co Sligo Kildare. Would any person having Gortrooskagh and barony of area: (1) 8.5768 hectares, (2) 3.3336 Regd owner: James Patrick Golden; any knowledge of a will made by the Glanarought; Co Kerry hectares, (3) 128.1589 hectares (two folio: 23289; lands: townland of above named, who died on 21 April Regd owner: Donal James McCarthy; undivided 16th parts), (4) 163.2224 Doonmadden and barony of 1991 at St Vincent’s Hospital, Athy, folio: 33941; lands: townland of hectares (an undivided moiety), (5) Tireragh; area: 5.6403 hectares; Co Co Kildare, please contact Stephen Cromane Upper and barony of 322.7950 hectares (one undivided Sligo Maher, Solicitors, Newbridge, Trughanacmy; Co Kerry 58th part), (6) 485.8099 hectares (one Regd owner: Ms Anna Kingma Boltjes; Co Kildare; tel: 045 432 220, fax: 045 Regd owner: John F Sayer; folio: undivided 58th part), (7) 0.7335 folio: 474F; lands: townland of 434 203 34047; lands: townland of Faha and hectares (an undivided moiety), (8) Ballinunty and barony of barony of Iveragh, Co Kerry 0.3794 hectares (an undivided moi- Slievardagh; Co Tipperary Cannon, Sean (farmer) (deceased), Regd owner: Peter and Lisette Kal; ety); Co Mayo Regd owner: John Bourke; folio: late of Lakeview, Frenchhill, Castlebar, folio: 18300F; lands: townland of Regd owner: Joseph and Mary 17154; lands: Garraun and barony of Co Mayo. Would any person having Clogherane and barony of Armstrong; folio: 1810F and Middlethird; Co Tipperary knowledge of a will made by the above Glanarought; Co Kerry 24252F; lands: townland of Srahwee Regd owner: Martin Reddan; folio: named deceased please contact Sean Regd owner: John Hartnett; folio: and (folio 24252F) Derrygarve and 16736; lands: townland of O’Ceallaigh & Co, Solicitors, 363 27741; lands: townland of Canfee barony of Murrisk; area: (folio Ballyhaugh and barony of Lower North Circular Road, Dublin 7; tel: 01 and barony of Glanarought; Co 1810F) (1) 18.675 acres, (2) 245 Ormond; Co Tipperary 830 0565 Kerry acres, 2 roods, 33 perches (one undi- Regd owner: Jonathan and Frederique Regd owner: Kerry Co-operative vided tenth part) and (folio 24252F) Coreau Hogg; folio: 33951F; lands: Dempsey, Eileen (formerly Eileen Creameries Ltd; folio: 1024; lands: 8.547 hectares; Co Mayo townland of Dromineer and barony Nugent) (deceased), late of 32 The townland of Ballyea and Barony of Regd owner: Andrew Creighton; folio: of Lower Ormond; Co Tipperary Grove, Celbridge, Co Kildare. Would Trughanacmy; Co Kerry 3003MY; lands: Clare and barony of Regd owner: John Lennon (deceased); any person having knowledge of a will Regd owner: Daniel Graham; folio: Clanmorris; area: 1.7200 hectares; folio: 4669; lands: plots of ground made by the above named deceased, 12166; lands: townlands of Boston Co Mayo being part of the townland of who died on 11 April 2003, please con- and Clonaghlis and baronies of Regd owner: Philip Gilsenan, Lemybrien (ED Comeragh) in the tact Cannons Solicitors, 1-3 Sandford South Salt; Co Kildare Gibbonstown, Crosskiel, Kells, Co barony of Decies without Drum and Road, Ranelagh, Dublin 6; tel: 01 497 Regd owner: Renley Engineering Meath; folio: 21517; lands: county of Waterford; Co Waterford 6555, fax: 01 497 1409, e-mail: can- Limited; folio: 11808F; lands: town- Gibbonstown; Co Meath Regd owner: Jean and Marlene [email protected] land of Kilcullenbridge and barony Regd owner: Pierce Nevin, Rijckmans; folio: 2186F; lands: of Naas South; Co Kildare Kellystown, Slane, Co Meath; folio: Ramstown and barony of Shelburne; Kenny, Margaret (deceased), late of Regd owner: Richard Holohan; folio: 1942; lands: Kellystown, Co Wexford Fortfield, Castlebar, Co Mayo and 548; lands: Whitecastle Lower and Monknewtown; area: 69.962 acres, 1 Regd owner: William Kavanagh; folio: Hanstown, Ballinea, Mullingar, Bowersacre and barony of acre; Co Meath 1231; lands: Craan (ED Ferns) and Co Westmeath. Would any person Knocktopher; Co Kilkenny Regd owner: Owen Sherry, barony of Scarawalsh; Co Wexford having any knowledge of a will Regd owner: William Fitzpatrick; folio: Drumhillagh, Monaghan, Co Regd owner: James McDonald & Son made by the above named deceased, 3880; lands: Doon and barony of Monaghan; folio: 5916; lands: Limited; folio: 14865; lands: who died on the 29 January 2004 Clandonagh; Co Laois Drumhillagh; area: 4.522 hectares; Kildermot and barony of at Mayo General Hospital, please Regd owner: Patrick Lynch; folio: Co Monaghan Ballaghkeen North; Co Wexford contact Mary Cowhey & Co, 2476F; lands: Lowran and barony of Regd owner: William Burke; folio: Regd owner: Wexford County Solicitors, Main Street, Maynooth, Upperwoods; Co Laois 4609; lands: Ballygaddy and barony Council; folio: 21701; lands: Co Kildare; tel: 01 6285711; fax: 01 Regd owner: Patrick Bateman; folio: of Clonlisk; Co Offaly Coolcots and barony of Shelmaliere 6285613 4953; lands: townland of Castleerkin Regd owner: Mary Ann Gallagher; West; Co Wexford North and barony of Clanwilliam; folio: 34862; lands: townland of (1) Regd owner: Philip and Josephine Murphy, John Anthony (deceased), Co Limerick Coolnageer, (2) Castlesampson and McGarr; folio: 14843F; lands: late of 8 Kerry Park Terrace, Regd owner: Harry Coyne and barony of (1) and (2) Athlone; area: Middletown and barony of Waterford. Would any person having Philippa King; folio: 30082F; lands: (1) 10.9214 hectares, (2) 0.2883 Ballaghkeen North; Co Wexford knowledge of a will made by John townland of Dooradoyle and barony hectares; Co Roscommon Regd owner: Antoinette Kiernan, Anthony Murphy, who died on 22 of Pubblebrien; Co Limerick Regd owner: Philip Hunt and Mary Ballinaleck, Mullingar, Co December 2003, please contact Regd owner: Kathleen Gallagher; folio: Ellen Hunt, Kiltymane, Frenchpark, Westmeath; folio: 12436; lands: Hegarty & Company, Solicitors, 4 St 43484F; lands: Templeathea West Co Roscommon; folio: 10866; lands: Rathbennett, Cappagh; area: 0.0280 Andrew’s Terrace, Waterford; tel: 051 and barony of Shanid; Co Limerick Kiltymane, Frenchpark, Co hectares, 0.6829 hectares; Co 841 577 or fax: 051 841 579 Regd owner: Valfleur Limited; folio: Roscommon; area: 16 acres, 1 rood Westmeath 17056F; lands: St Munchin’s; Co and 25 perches; Co Roscommon Regd owner: Michael Rynn (senior) Limerick Regd owner: Marcella Porter; folio: and Michael Rynn (junior), EMPLOYMENT Regd owner: Joseph G Chambers; 310R; lands: townland of Kinard and Millcastle, Castlepollard, Co folio: 27101F; lands: Lord Edward barony of Roscommon; area: 3 acres, Westmeath; folio: 11299F; lands: Apprenticeship required. Law gradu- Street and parish of St Michael’s; Co 3 roods, 25 perches; Co Lickbla; area: 18.350 hectares; Co ate (2.1). Ranking top five in class, Limerick Roscommon Westmeath hard-working, honest and reliable with Regd owner: Michael McNamara; Regd owner: Lucy Brennan; folio: Regd owner: Kevin Tuke; folio: 5419F; legal advice experience. Passed all eight folio: 10960F; lands: townland of 17637; lands: townland of lands: townland of Killeagh and FE1s. Excellent computer skills, willing Caheranardrish and barony of Cornageeha and barony of Carbury; barony of Ballinacor South; Co to pay own fees. Available now, all areas Pubblebrien; Co Limerick area: 16 perches; Co Sligo Wicklow considered; tel: 087 676 4730

61 Law Society Gazette July 2004 Professional information

Solicitor with some PQE experi- Slattery & Co, Chartered ence sought for busy medium-sized Accountants, Springfield Court, firm in a large midland town. Ennis, Co Clare. Principals only Excellent opportunity for a versatile Apprenticeship required; all areas Solicitor required for medium-sized multi-disciplined applicant with ability Wanted: seven-day pub licence; tel: considered. A dynamic, personable, Offaly practice – up to three to five to take on varied case load. Please 087 645 4663 or 061 311 133 hard-working individual with excellent years’ post-qualification experience reply to box no 62/04 references available for immediate preferred for senior position. Replies Seven-day publican’s licence for start. Strong academic background to box no 60/04 in strict confidence immediate sale. Full seven-day pub- including honours law degree. All MISCELLANEOUS lican’s licence. No endorsements. eight FE1s and first Irish exam passed. Solicitor required for busy midlands North Cork area. Offers: James Lucey Extensive work experience with IT general practice. Up to three years’ Northern Ireland solicitors provid- & Sons, Solicitors, Kanturk, Co Cork; skills; tel: 087 904 2256 PQE preferred. Please reply to box no ing an efficient and comprehensive tel: 029 50300, fax: 029 50738, e-mail: 61/04 legal service in all contentious/non- [email protected] Cork city: solicitor required for con- contentious matters. Dublin-based veyancing work with some probate, Solicitor required for Cork city prac- consultations and elsewhere. Fee two years’ PQE required. Immediate tice. Experience particularly in con- apportionment. ML White, Solicitors, TITLE DEEDS start. Apply with full CV in writing to veyancing, probate and family law. 43-45 Monaghan Street, Newry, Co Patrick Casey, Patrick Casey & Co, Replies in writing to Colm S O’Riain Down; tel: 080 1693 68144, fax: 080 In the matter of the Landlord and 30-31 Washington Street, Cork, or & Co, Solicitors, 4 Washington Street 1693 60966 Tenant Acts, 1967-1994 and in the e-mail to [email protected]. West, Cork; e-mail: [email protected] matter of the Landlord and Tenant Contact: Patrick Casey, tel: 021 427 Northern Ireland agents for all con- (Ground Rents) (No 2) Act, 1978: an 4282, fax: 021 427 7947 Solicitor seeks part-time or locum tentious and non-contentious matters. application by Charles Fleury and position in Dublin area in general pra- Consultation in Dublin if required. Denise Fleury Experienced solicitor required for ctice. Has one year of PQE (approx). Fee sharing envisaged. Offices in Take notice that any person having commercial and residential conveyanc- Computer literate. Tel: 01 668 6901 Belfast, Newry and Carrickfergus. any interest in the freehold estate of ing and general civil litigation work Contact Norville Connolly, D&E the following property: all that prem- with young rapidly expanding and Solicitor with four years’ PQE Fisher, Solicitors, 8 Trevor Hill, ises known as no 28 Hanover Lane sit- dynamic practice. Excellent salary and required for conveyancing practice. Newry; tel: 080 1693 61616, fax: 080 uate in the parish of St Nicholas in the prospects for right candidate. Apply in Excellent prospects for progression in 1693 67712 county of the city of Dublin. writing to principal. Catherine Allison this rapidly expanding firm. Please Take notice that Charles Fleury & Co; Solicitors, Roden House, reply by post to PJF McDwyer & Co, England and Wales solicitors will and Denise Fleury intend to submit Roden Place, Dundalk, Co Louth; tel: Solicitors, Belturbet, Co Cavan or e- provide comprehensive advice and an application to the county registrar 042 932 0854, e-mail: c.allison@ mail: [email protected] undertake contentious matters. for the county of the city of Dublin eircom.net Offices in London, Birmingham, for the acquisition of the freehold Via Ahascragh, the Gaeltacht and Cambridge and Cardiff. Contact interest in the aforesaid property, Law graduate seeks apprenticeship. Cork, solicitor with PQE available Levenes Solicitors at Ashley House, and any party asserting that they Over two years’ experience as a legal to work part-time, commercial con- 235-239 High Road, Wood Green, hold a superior interest in the afore- executive in litigation, conveyancing veyancing, only in greater Dublin London 8H; tel: 0044 2088 17777, fax: said premises are called upon to fur- and probate. Passed all eight FE1s. area; tel: 087 671 3671 or e-mail: 0044 2088 896395 nish evidence of title to the afore- Excellent communication, administra- [email protected] mentioned premises to the below- tive and computer skills. Preferably London solicitors will be pleased to named within 21 days from the date Dublin but all areas considered. Please EXCITING OPPORTUNITY advise on UK matters and undertake of this notice. reply to 086 892 0228 Residential conveyancing solicitor agency work. We handle probate, In default of any such notice being with at least two years’ PQE requir- litigation, property and company/ received, Charles Fleury and Denise Seeking apprenticeship for immedi- ed for Limerick city practice. Ideal commercial. Parfitt Cresswell, 567/ Fleury intend to proceed with the ate start at any location. Extensive edu- candidate will work with a dynamic 569 Fulham Road, London SW6 application before the county registrar cational background – BA (Cork), MA team with a modern approach, 1EU, DX 83800 Fulham Broadway; at the end of 21 days from the date of (Limerick), LLB (Galway), 2.1 stan- excellent remuneration package and tel: 0044 2073 818311, fax: 0044 2073 this notice and will apply to the coun- dard. Also broad employment history commissions guaranteed. We 816723, e-mail: arobbins@parfitts. ty registrar for the county of the city including a permanent role with a require a highly motivated ambi- co.uk of Dublin for directions as may be large multinational company. Please tious self-starter who can work on appropriate on the basis that the per- phone Fiona on 086 306 7115. A copy his/her own initiative. Please apply Solicitor’s practice for sale. Dublin son or persons beneficially entitled to of my CV can be forwarded at your by e-mail to: [email protected] city, general practice consultancy con- the superior interest including the request sidered. Reply in writing only to freehold reversion in the aforesaid premises are unknown or unascer- tained. TO LET Legal life Date: 9 July 2004 Pier 19 Ushers Island, Dublin 8. www.snaglists.ie outside Dublin? Signed: KMB Solicitors (solicitors for the High profile legal location. Modern applicant), 20 Northumberland Road, ground floor, own door, self con- ■ NEW AND EXISTING HOME Solicitors practice for sale in Co. Dublin 4 tained office suite. Adjacent to SNAGLISTS PREPARED Luas, Four Courts, Law Library. Donegal. Excellent opportunity ■ Flexible terms. c.107.2sqm (1153 BUILDING WORK & to acquire a thriving practice. In the matter of the Landlord and WORKMANSHIP INSPECTED sq.ft.). Finishes include: Recept- Tenant Acts, 1967-1994 and in the ■ EXPERT WITNESS SERVICE Please contact: ion, board room, 4 cellular offices, David Rowe matter of the Landlord and Tenant 1 file store, 1 w.c./1 w.h.b. Outsource (Ground Rents) (No 2) Act, 1978: an Storage heating, double glazed CONTACT: 43 Fitzwilliam Square application by Roy Coogan windows, internal roller shutters/ RORY O CONNOR B/Eng, Dip Law Dublin 2 Take notice that any person having security blinds and carpets. [email protected] any estate in the freehold of or superi- PH: 086 834 6708 Tel: 01 6788490 Excellent natural lighting. or interest in the following premises: Quinn Agnew 01 662 3113 Email: [email protected] all that and those the dwelling house,

62 Law Society Gazette July 2004 Professional information

Publication of advertisements in this section is on a fee basis and does not the below named solicitor within 21 represent an endorsement by the Law Society of Ireland. days from the date of this notice. In default of any such notice being received, the applicant intends to pro- LAW AGENCY SERVICES ceed with the application before the ENGLAND & W ALES NORTHERN county registrar at the end of 21 days from the date of this notice and will IRELAND apply to the county registrar for the SOLICITORS county of Kilkenny for directions as SOLICITORS may be appropriate on the basis that Established 1825 We will engage in, the person or persons beneficially and advise on, entitled to the superior interest all Northern Ireland- including the freehold reversion in the related matters, premises are unknown or unascer- particularly personal injury tained. litigation. Date: 9 July 2004 Consultations where Signed: Reidy & Foley (solicitors for the •Fearon & C o act for Irish residents in the fields of convenient. applicant), Parliament House, Parlia- probate, property and litigation ment Street, Kilkenny; REF: C633/ • Each solicitor is available by direct line, fax or e-mail. EF/RH Conferences can be easily arranged •Fearon & C o is committed to the use of information In the matter of the Landlord and technology to help improve both the quality and OLIVER M Tenant Acts, 1967-1994 and in the speed of service for the benefits of all clients both at matter of the Landlord and Tenant home and abroad LOUGHRAN (Ground Rents) (No 2) Act, 1978: an • The firm’s offices are within half an hour of London application by Smallacre Holdings W aterloo station and within a short travel from both & COMPANY Limited Gatwick and Heathrow airports, with easy access from Take notice that any person having the London orbital M25 motorway an interest in the freehold estate of 9 HOLMVIEW TERRACE, the premises known as no 128 OMAGH, Harold’s Cross Road, formerly PHONE NOW FOR A BROCHURE CO TYRONE W estminster House known as no 103 Harold’s Cross in 12 The Broadway, Woking, Surrey GU21 5AU England the barony of Donore and county of Phone (004428) 8224 1530 Fax: +44 (0)1483 725807 Dublin, being the property held Email: [email protected] www.fearonlaw.com Fax: (004428) 8224 9865 LITIGATION PROPERTY PROBATE e-mail: under a lease dated 18 April 1918 Martin Williams John Phillips Francesca Nash [email protected] and made between Joseph George Tel: +44 (0)1483 776539 Tel: +44 (0)1483 747250 Tel: +44 (0)1483 765634 Thompson Carruthers and Ada Jane Lorentz Eliott of the one part and backyards, out offices and gardens William Brennan and Ellen Brennan bounded on the east by High Street, of the other part for the term of 99 on the west by the garden in the pos- years from 25 March 1918 at a year- session of Peter Duggan/his succes- ly rent of £9. sors in title, on the north by the gar- Take notice that Smallacre den and premises in the possession of Holdings Limited intends to submit Nicholas Russell/his successors in an application to the county registrar title and the houses and premises in for the city of Dublin for the acquisi- the possession of Mary Farrell/her tion of the freehold interest in the SPANISH LAWYERS successors in title, on the south by the aforesaid property, and any party or house and yards in the possession of parties asserting that they hold a supe- RAFAEL BERDAGUER Willoughby H Connor and by Agnes rior interest in the aforesaid premises ABOGADOS Biddy/their successors in title and by are called upon to furnish evidence of a yard in the possession of Andrew title to the aforementioned property TWENTY YEARS ADVISING CLIENTS Ryan/his successors in title, and to the below named within 21 days IN REAL ESTATE TRANSACTIONS IN SPAIN which said premises are situate and from the date of this notice. PROFILE: FIELD OF PRACTICES: known as no 19 High Street, High In default of any such notice being panish Lawyers Firm focused eneral Practice, Administra- Street in the parish of St Mary and received, Smallacre Holdings Limited Son serving the need of the for- Gtive Law, Civil and Commercial city of Kilkenny, being the property intends to proceed with the applica- eign investors, whether in compa- Law, Company Law, Banking and comprised in an indenture of lease tion before the county registrar at the ny or property transactions and all Foreign Investments in Spain, dated 15 June 1937 and made end of 21 days from the date of this attendant legalities such as ques- Arbitration, Taxation, Family Law, between Edwin Angus Swanton of the notice and will apply to the county tions of inheritance, taxation, International Law, Litigation in all one part and John H Fennell of the registrar for the city of Dublin for accounting and bookkeeping, Courts. other part. directions as may be appropriate on planning, land use and litigation in Take notice that the applicant, Roy the basis that the persons or persons all Courts. Coogan, intends to apply to the coun- beneficially entitled to the superior ty registrar for the county of Kilkenny Avda. Ricardo Soriano, 29, interest including the freehold rever- Edificio Azahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain for the acquisition of the freehold sion in the aforesaid premises are interest in the aforesaid property, and unknown or unascertained. Tel: 00-34-952823085 Fax: 00-34-952824246 any party asserting that they hold an Date: 9 July 2004 e-mail: [email protected] interest superior to the applicant in Signed: McEvoy Partners (solicitors for Web site: www.berdaguerabogados.com the aforesaid property are called upon the applicant), Canada House, 65-68 St to furnish evidence of title to same to Stephen’s Green, Dublin 2

63 Law Society Gazette JuneJuly 20042004 Recruitment