27/10/2011 21:22
MAGAZINE OF THE YEAR BUSINESS TO BUSINESS €3.75 November 2011 Great train robbery train Great law does the What using say about actually ticket? a without train the
early to rise early the raids on dawn With every what here’s increase, know person should
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the Dark Side of copyright law copyright of Side Dark the
May the foRce foRce the May aBa’s greatest hit greatest aBa’s of the president The Association Bar American Gazette talks to the Law Society GazetteGazette Law
Law Society Gazette • Vol 105 No 9 NoVeMBeR 2011 Law Society of ireland cover november THIS.indd 1 Fostering successful partnerships www.benasso.com
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For more information please visit our website or contact Michael Benson bcl. solr. in strict confidence at: Benson & Associates, Suite 113, The Capel Building, St. Mary’s Abbey, Dublin 7. T +353 (0) 1 670 3997 E [email protected] Law Society Gazette www.gazette.ie November 2011 president’s message 1 concerns over legal services bill
he much publicised Legal Services Regulation Bill between the executive and 2011 was published on 12 October 2011. In his press the legal profession, offering Tstatement, Minister for Justice Alan Shatter mentioned the form of oversight by that the bill would provide three key entities: the judiciary, to guarantee a) A new independent Legal Services Regulatory Authority with the independence of the responsibility and oversight of both of the legal professions. regulatory machinery.” b) An Office of the Legal Costs Adjudicator, to assume the In addition, the President role of the existing Office of the Taxing Master, which will of the American Bar be conferred with enhanced transparency in its functions. Association, Bill Robinson “The Council is The legal cost regime will be brought out into the open III, was in Dublin on 11 with better public awareness and entitlement to legal cost October last, and he stated concerned that any information. that any perceived reduction increase in the cost c) An independent complaints structure to deal with complaints of the independence of about professional misconduct – this will be supported by an the legal profession could of regulation would independent Legal Professions Disciplinary Tribunal. have a negative impact on have to be passed on investment by multinational Under the bill, the new Regulatory Authority will: corporations. The Council to clients, which is a) Keep under review admission, education, and training, agrees with this statement. contrary to the whole b) Promote and assimilate information, The Council is also c) Deal with complaints of misconduct, concerned about the tenor of the bill” d) Conduct inspections of solicitors’ practices, increased costs of regulation e) Manage professional indemnity insurance, that could arise under the new Regulatory Authority. There f) Receive accountants’ certificates, was also a concern that any increase in the cost of regulation g) Make regulations on solicitors’ accounts, interest on clients’ would have to be passed on to clients, which is contrary to the money, PII and advertising. whole tenor of the bill. The Council of the Society also fully supports a move to a The minister can request the authority to prepare or approve a much more modern, transparent and predictable system for code of practice or professional code, and the authority shall do the assessment of costs in civil litigation. It welcomes many of so. The minister’s consent is also required for the authority to the recommendations relating to costs contained in the bill. amend, revoke or withdraw approval for a code of practice or Minister Shatter wrote to me on 12 October last, stating professional code. the following: “I would value the opportunity to meet with representatives of the Law Society to discuss any issues arising ‘Justified misgivings’ from the bill as the Society would like to raise. Similarly, I The Council of the Law Society debated the new provisions would be delighted to receive any written submissions on contained in the draft bill at a special Council meeting on the bill as the Society might wish to make. There are also a 14 October. In summary, the Council agrees with the editorial number of issues that I wish to raise as well, and look forward contained in The Irish Times of Saturday 15 October, which to a constructive dialogue with the Society with regard to the stated as follows: “There are justified misgivings about the bill.” model chosen by the minister, which gives the government We look forward to meeting the minister, shortly. The the power to appoint the new Regulatory Authority, which Council has also decided to appoint a Legal Services Regulation will then report to the Minister for Justice. This authority Bill Task Force, and this task force will be meeting urgently will have wide powers, including the drawing up and approval to assess the implications of the bill in detail. I would also like of codes of professional conduct. This is not the model to receive, and would welcome any comments that colleagues recommended by the Competition Authority, nor the one might have, in relation to the bill. Finally, we will also be followed in other jurisdictions, where normally a buffer exists discussing the bill at the AGM on 10 November next.
John Costello President 2 contents Law Society Gazette www.gazette.ie November 2011
Law Society Gazette Volume 105, number 9 Subscriptions: €57
Editor: Mark McDermott FIIC Deputy editor: Dr Garrett O’Boyle Designer: Nuala Redmond Society Law Editorial secretaries: Catherine Kearney, GazetteGazette Valerie Farrell
Commercial advertising: Seán Ó hOisín, tel: 086 811 7116, RegularS email: [email protected] 1 President’s message 51 Practice notes For professional notice rates (wills, title deeds, 53 Legislation update: 10 September – employment, miscellaneous), see page 60. 4 News 10 October 54 Justis update Published at Blackhall Place, Dublin 7, tel: 01 672 4828, fax: 01 672 4877. 12 Analysis 56 Eurlegal: The Google AdWords case; Email: [email protected] 12 News feature: The Legal Services recent developments in European law Website: www.gazette.ie Regulation Bill 60 Professional notices Printing: Turner’s Printing Company Ltd, 14 News feature: The American Bar Longford Association’s Fall Meeting in Dublin 16 Human rights watch: How does 61 Recruitment advertising Editorial board: Michael Kealey (chairman), Ireland’s criminal law deal with online Mark McDermott (secretary), Mairéad Cashman, hate speech? 64 Captain’s blawg Paul Egan, Richard Hammond, Mary Keane, Aisling Kelly, Tracy Lyne, Patrick J McGonagle, Ken Murphy, Andrew Sheridan 20 Comment 0 2 Viewpoint: A look at the Government’s The Law Society of Ireland can accept review of the Mental Health Act 2001 no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions 44 People and places expressed are not necessarily those of the Law Society’s Council, save where otherwise 47 Obituary indicated. No responsibility for loss or distress Padraic Gearty occasioned to any person acting or refraining from acting as a result of the material in 48 Books this publication can be accepted by the 48 Book reviews: Administrative Law in authors, contributors, editor or publishers. The editor reserves the right to make publishing Ireland, Corporate Fraud and Quick Win decisions on any advertisement or editorial Media Law Ireland article submitted to this magazine, and to 49 Reading room: All about genealogical refuse publication or to edit any editorial history requests material as seems appropriate to him. Professional legal advice should always be 50 Briefing sought in relation to any specific matter. 50 Council reports: 23 September and 14 October 64 FSC independently certified wood and paper products used by the Law Society Gazette come from ecologically managed forests. Visit: www.fsc.org
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The Law Society Gazette is a full participating member of the Press Council of Ireland and M supports the Office of the Press Ombudsman. R e s c ne This scheme, in addition to defending the free- ycl azi e Mag dom of the press, offers readers a quick, fair and free method of dealing with complaints that they may have in relation to articles that appear on our pages. To contact the Office of the Press Ombudsman go to: www.pressom- budsman.ie or www.presscouncil.ie. 44 45 Law Society Gazette www.gazette.ie November 2011 contents 3
14 33 cover story 22 The empire strikes back A long time ago, in a galaxy far, far away – or England in July – the British Supreme
Court gave welcome clarification to the definition of ‘sculpture’ under English copyright
Law Society Gazette • Vol 105 No 9 No 105 Vol • Gazette Society Law
aBa’s greatest hit law. Point five past light speed Glen Gibbons makes The president of the American Bar Association talks to the Gazette early to rise With dawn raids on the increase, here’s what every person should know Great train robbery What does the law actually say about using the train without a ticket?
LawGazetteGazette Society
features €3.75 November 2011
NoVeMBeR 2011 2011 NoVeMBeR
26 Knowing me, knowing you ABA President William Robinson was in Dublin in October at the organisation’s May the foRce 30 Fall Meeting. Lorcan Roche took the ireland of Society Law Be with you the Dark Side of copyright law opportunity to talk to him about the role cover november THIS.indd 1
BUSINESS TO BUSINESS of the lawyer in society MAGAZINE OF THE YEAR
27/10/2011 21:22 30 The crack of dawn 36 Pushing the boundaries Advising on regulatory/criminal law in The PRA’s digital mapping project a corporate environment is no longer an has come to a successful conclusion. unusual thing for a solicitor to have to do John Deeney, John O’Sullivan and – and with the explosion in the numbers Shay Arthur consider the system of of ‘dawn raids’, prevention is better than ‘non-conclusiveness’ of boundaries cure. Joe Kelly kicks the door in 40 Exam papers 33 Ticket to ride As examinership law moves from a The prospect of not having a train ticket position of obscurity to front-page to show to the collector is enough to news, Sinead Morgan highlights induce a cold sweat in most people. What the law as it currently stands, recent are your clients’ options? Gary Fitzgerald decisions made by the courts, and the hops on board focus of those cases 40
HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. Get more at lawsociety.ie Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] Gazette readers can access back issues of the magazine as far back as Jan/Feb 1997, right up PROFESSIONAL notices: send small advert details, with payment, to: Gazette to the current issue at lawsociety.ie. Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. You can also check out: All cheques should be made payable to: Law Society of Ireland. • Current news • Forthcoming events, including the seminar COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, ‘Getting the best return from your technology’ tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] in the Silver Springs Hotel Cork on 18 November HAVE YOU MOVED? Members of the profession should send change-of-address details to: • Employment opportunities • The latest CPD courses IT Section, Blackhall Place, Dublin 7, or to: [email protected] … as well as lots of other useful information 4 news Law Society Gazette www.gazette.ie November 2011 Nationwide Compiled by Kevin O’Higgins
Kevin O’Higgins is junior vice- Record numbers at bar association CPD day president of the monaghan Law Society and has been a There was a record turnout for law; Elizabeth Gormley BL, who spoke on regulatory Council member the CPD day organised by the who gave a presentation on the matters. President of the since 1998 Monaghan Bar Association on new Multi-Unit Development Act Dublin Solicitors’ Bar 14 October 2011. 2011; renowned criminal lawyer Association, Stuart Gilhooly, More than 200 solicitors Michael Staines, who spoke gave his insights on the new from Monaghan, the on advising clients in custody; Legal Services Regulation Bill DSBA elects surrounding counties – and and Evan O’Dwyer (Crean 2011. from as far afield as Cork and O’Cleirigh & O’Dwyer, Mayo) Judge John O’Hagan new president Wexford – attended the event, who focused on drink-driving concluded the evening with DUBLIN which was held in the Glencarn and the law. a practical presentation for Hotel in Castleblayney. Cavan’s county registrar solicitors on advocating on The new president of the DSBA The not-for-profit seminar Joe Smyth and Louth county family law matters in the is Geraldine Kelly. Geraldine was organised for the third registrar Mairead Ahern dealt Circuit Court. qualified in 1988 and practises successive year by Justine Carty with the subject of the taxation The master of ceremonies in Kimmage. The DSBA is the (Barry Healy & Company, of costs, probate law and case was Dundalk solicitor, Doc largest bar association in Ireland Monaghan) and Lynda Smyth progression. Colin Borland Lavery, who ensured that the and Britain, with close to 4,000 (Coyle Kennedy MacCormack, looked at tendering for legal event ran hitch-free. The members – predominantly in Castleblayney). contracts. day concluded with a superb Dublin. (The DSBA points out Speakers included Constance The Law Society was dinner, followed by country and that it is not affiliated to the newly Cassidy SC, who spoke about represented by Seamus western dancing for the more formed grouping of the Solicitors’ updates on liquor licensing McGrath and Linda Kirwan, vigorous attendees. Bar Associations of Ireland.) Geraldine was elected president at the association’s recent AGM, which also elected its new council of ten. These include Moving tribute to Padraic Gearty four newcomers, namely Tony longford O’Sullivan (Maples and Calder), P ic
Joe O’Malley (Hayes), Diego : Padraic had been involved courtesy Gallagher (Byrne Wallace) and in many Longford associations, Gregg Ryan, who practises in organisations and clubs,
Kilmacud. John Glynn becomes declan evidenced by the large number the new vice-president and Aaron of people who lined the route
McKenna becomes secretary. shanley on the day of his funeral. In her address at a packed The Midland Bar Association
AGM, Geraldine spoke of the , and local solicitors formed longford challenges that members are facing the guard of honour for the and reassured them that her focus, funeral cortege, while many
and that of the council, would be leader other organisations provided to ensure that colleagues’ concerns guards of honour along the are addressed by the Law Society route, including Co Longford and/or the newly proposed Legal Social Services, Slashers GAA, Services Regulatory Authority. Longford County Board, Co She also stated that the DSBA Longford Golf Club and Longford would be marshalling very closely Longford lost ones of its favourite “Huge crowds flocked to St Town FC. the Legal Services Regulation Bill sons on 5 October with the passing Joseph’s Care Centre in Longford Although he never sought the and would be making detailed of local solicitor Padraic Gearty on Friday evening where family limelight, his Trojan work was submissions to Government in on 5 October at the age of 77. members met with sympathisers for recognised and many honours relation to same. The Longford Leader reported over six hours. were awarded to him. He was The outgoing president and that crowds turned out in their “The following day [8 October], the Longford ‘Person of the Year’ council were warmly commended thousands to honour him and pay thousands of people attended Mr in 2000, an accolade bestowed by several speakers for the their respects to his wife, Brenda, Gearty’s funeral Mass, which took on him by the Longford Dublin significant amount of voluntary his daughters Deirdre, Naoimh and place in St Mel’s Cathedral Centre Association, and he was also work carried out by them Liadhan, his brother Gerard and the in the heart of his beloved Longford honoured by Longford GAA. (See throughout the year on behalf of extended Gearty family. town.” appreciation, page 47.) G DSBA members. Law Society Gazette www.gazette.ie November 2011 news 5 th Solicitor In News this month... 25 Hugh appointed Fitzpatrick 7 New mentor programme 9 Life outside legal practice as DPP 8 Recovery in legal recruitment 10 Electronic discovery Lecture 8 Autumn diploma programme 11 News from the Society’s Teh 9 Lawyer app offer committees and task forces Te5h 2 th FHugh M itzpatrick chairman of Lecture in Legal Bibliography, the Society’s in association with the RDS Criminal Law Speaker Series, will be delivered Committee, by Dr Angus Mitchell on ‘Roger Claire Head shop products face ban Casement’s Speech from the Dock Loftus, and the Archive of Inhumanity’. has been The lecture takes place on appointed Wednesday 16 November 2011 at the next 6pm. The venue is the library at Director of Public Prosecutions. the Royal Dublin Society, Merrion She is the first solicitor and the Road, Ballsbridge, Dublin 4. The first woman to be appointed to chairman will be Frank Callanan, the post. SC, with the welcome coming from Loftus will succeed James the chairperson of RDS Speaker Hamilton on 7 November. Her Series, John Holohan. Refreshments appointment means that, for the will be provided afterwards. The first time, the three most senior RDS is offering free parking, via the legal officers in the State – DPP, Merrion Road entrance, to those Chief Justice and Attorney General who attend. – are all women. Replies to Hugh M Fitzpatrick, Educated in UCD and Blackhall solicitor/library and information Place, Loftus qualified as a consultant, Lectures in Legal solicitor in 1992 and has close The minister with responsibility three-month timeframe. Bibliography, 9 Upper Mount Street, to two decades of criminal law for Ireland’s drugs strategy, In May 2010, approximately Dublin 2; tel: 01 269 2202, fax: 01 experience, most recently as the Róisín Shortall, has announced 200 substances were placed 661 9239, email: [email protected]. head of the directing division in that the Government has under the control of under the the DPP’s office. given approval to notify the Misuse of Drugs Acts. In August Welcoming the appointment, EU of its intention to make 2010, the Criminal Justice Law Society Director General Ken an order declaring a further (Psychoactive Substances) Act 2010 Murphy said: “Everyone in the range of so-called ‘legal highs’ made it a criminal offence to sell Law Society who knows her will to be controlled drugs under substances that have psychoactive be delighted, as I am, by her well the Misuse of Drugs Acts. The effects. Due to these concerted merited appointment to one of application is being made to the legislative actions, there has been the most senior legal offices in EU Commission in order to use a significant reduction in the the State. We wish Claire every an urgency procedure so that the number of headshops operating success and happiness in her legislation can be introduced in a throughout the country, from challenging new role.” three-week period, rather than a over 100 to approximately ten.
Swinford Courthouse no ‘Genetic discrimination’ longer under threat conference in Galway Swinford Courthouse is no of €17,700 a year based on 2010 The Centre for Disability Law The purpose of this conference longer under threat of possible expenditure. The newspaper and Policy in NUI Galway is co- is to examine the case for a closure, according to a recent reported a Courts Service hosting (in conjunction with the European-level legal and policy report in The Connaught spokesperson as saying that this Burton Blatt Institute, Syracuse response to protect the privacy Telegraph. However, the transfer proposal would be expected to University, USA) a one-day of genetic information and to of court business from Kiltimagh free up judicial and staff time conference entitled ‘Genetic prevent genetic discrimination, and Claremorris to Castlebar to deal with more cases over Discrimination – Transatlantic particularly in the employment remains under review. full days in Castlebar, saving Perspectives on the Case for a and insurance contexts. To Under draft proposals, time, reducing waiting lists to European Level Legal Response’. register, visit www.conference. the three areas of Castlebar, have cases heard – more easily The conference is taking place ie/Conferences/AddRegistration. Claremorris and Kiltimagh facilitating specific family law at NUI Galway on Saturday, 19 asp?Conference=139; or email would be amalgamated into one days, children’s hearings and November 2011. [email protected]. – generating estimated savings licensing courts. LAWYER APPS www.lawyerapps.co
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Venue: Silver Springs Programme Moran Hotel, Tivoli, Cork 1.45 Registration 3.45 Coffee Date: 18th November 2011, 2.00 Chairman’s Introduction – Frank Nowlan, 4.00 The “Paperless Office” – Does it really exist? 1.45pm. to 5.30pm Chairman Technology Committee Is it possible to function as a legal practice Fee: €95.00 2.15 Using Technology in Recessionary Times with minimal use of paper? A practitioner with CPD Hours: 3 hours & 15 minutes This session will provide an overview of key issues significant experience in this area will provide Management and Professional and developments in the use of technology within an overview of how he has introduced paperless Development Skills by Group Study the legal sector. The session will include an overview systems in his practice. The session will provide Most practitioners have invested substantially in office of how a firm can leverage developments in client practical experience in the set up and operation technology. This seminar will look at ways to ensure you get and practice management systems, accounts and of such systems. Laurence Fenelon, Leman the best return from your investment. What are the current other key applications to improve profitability and Solicitors issues and developments in technology as it applies to a legal cashflow. Donal Maher, Outsource Consultants 4.45 Online Marketing and the Legal Sector practice? How can you use innovative ways to communicate 3.00 Up in the Clouds – Can cloud computing assist The session will look at ways in which you can with clients? Is there really such a thing as the “paperless the legal profession? better communicate with clients and promote your office”? A practical and stimulating afternoon which will It looks like cloud computing is here to stay. This practice online. It will include an overview on how encourage new thinking in the use of existing session will identify what cloud computing actually to successfully and quickly build a web presence technology and assist you in operating consists of and how it is relevant to the legal using traditional web tools and blogs or wikis. The a cost efficient practice. profession. The session will consider practical issues session will also consider the potential for use of surrounding cloud computing including licensing social networking tools such as Facebook, Twitter For registration form, please email arrangements and security issues. Tom Heerey, and Linked In by the legal profession. Martin [email protected], or log onto the General Counsel, Legal & Corporate Affairs, Molony, Dublin City University events area of the Society’s website Microsoft Ireland 5.30 Questions & Answers Law Society Gazette www.gazette.ie November 2011 news 7 Ireland could save €120m a New mentor programme year by embracing mediation During his inaugural speech to qualified, find direction in relation Council in November 2010, Law to career issues, and to build their Society President John Costello confidence and knowledge about spoke about the most vulnerable in the legal profession, and to further the solicitors’ profession, including develop their professional skills. newly qualified solicitors. He The goal of the programme is spoke about his desire to extend to put new solicitors in touch with the Society’s existing mentor more senior colleagues so that programme to this sector of the they receive the value of their legal profession. experience. The programme’s “Newly qualified solicitors are success depends on experienced extremely vulnerable,” he said, solicitors of good standing who “because their career paths start are willing to commit their time to off very rocky in a lot of cases, and volunteer as mentors. At the CEDR launch were (l to r): Eileen Carroll (deputy chief executive, CEDR), so they may need the advice of a Many senior professionals Patrick Hanratty SC, Mr Justice Peter Kelly and Aoife Gaughan (Fishburns LLP) mentor quite independent of their derive a strong sense of purpose firm.” from the mentoring process. Not Over €120 million of savings a intractable of disputes being The existing mentor programme, only does it give satisfaction in year in management and legal resolved very effectively.” established by the Society in 2001, terms of passing on their hard- costs could be made by using He expressed his desire that is a nationwide register of 68 won knowledge and experience, alternative dispute resolution mediation would be embraced, not solicitors, over ten years’ qualified, but mentoring can provide more more effectively, says Dr Karl merely by lawyers but by those willing to act as mentors. It is seasoned practitioners with Mackie, chief executive of the in other disciplines. Mediation provided on request to solicitors insights from their younger Centre for Effective Dispute would be useful, he continued, who intend to set up in practice colleagues about the future Resolution (CEDR). not merely in the context of on their own account, or who have direction of the legal profession. Dr Mackie was speaking at the litigation, but also in other recently established a practice for Before solicitors’ names can official opening of the Ormond disputes – “in the engineering the first time, who can then make be placed on the register of Meeting Rooms in Dublin – the field, in the architectural field, the contact with a mentor of their mentors, they must complete an new base of CEDR Ireland – on accountancy field”. choice. induction training programme, 18 October. The event was the Details on the panel and The president has worked with through e-learning. This helps culmination of a series, where CEDR’s mediation and arbitration Society staff to design a new to ensure that mentors have the CEDR Ireland officially launched services can be found at www. mentor programme to help new relevant knowledge, skills and its full panel of 35 mediators, cedrsolve.ie. solicitors, less than three years’ competencies to effectively mentor along with new low-cost new solicitors. CPD credits are mediation and arbitration services awarded for successful completion for legal claims under €125,000 of induction training. (or £125,000 in Northern Second bite of spaghetti Once the Society has established
Ireland). a database of trained mentors, it
Law Society Gazette • Vol 105 No 8 No 105 Vol • Gazette Society Law
Readers of the Gazette’s cover blues with a feeling will invite new solicitors to apply Dr Mackie said that the Was the system of you’re fired solicitors’ undertakings Spelling out the ABCs Great white hope ever a good idea? of redundancy for The new ‘white-collar employers and workers crime act’ is a welcome estimate of €120 million a year in story in October, ‘Spaghetti step in the right direction to be matched with a mentor. Once savings for the Republic of Ireland Junction’, will be interested to matched, the mentor and new was based on CEDR’s existing know that all the Road Traffic LawGazetteGazette Society solicitor will work together, over a calculations on the current saving Acts have been recently restated €3.75 october 2011 12-month period, to confidentially
to the British economy from the (administratively consolidated). discuss issues through face-to-face october 2011 2011 october use of commercial mediation. They are available as pre- meetings, telephone and email. That figure had been extrapolated certified restatements on the Law Full details, including the guide for the Irish economy. In addition Reform Commission’s website. to the mentor support programme, to the management and legal costs Alma Clissmann, project and the mentor application form manager for statute law and agreement are available savings through mediation rather SpaGhetti juNctioN: than litigation, the State would restatement at the Law Reform ireland of Society Law on the members’ area, in the Getting your teeth into the also make “substantial savings by Commission, has contacted the Road Traffic Act 2011 ‘support services’ section, at www.
cover october try1.indd 1 BUSINESS TO BUSINESS this change in practice”. Gazette to say that, when these MAGAZINE OF THE YEAR lawsociety.ie. Guest of honour at the event restatements have been certified 27/09/2011 14:49 A solicitor who wishes to be was Mr Justice Peter Kelly of by the Attorney General, they Statute Book website. considered as a mentor should the High Court, who admitted will have standing as prima facie This goes some way towards complete the mentor application to being a strong supporter of statements of the law under answering Robert Pierse’s call for form and agreement, and submit mediation. “I have become a the Statute Law (Restatement) consolidation of the Road Traffic it to Louise Campbell, support convert, because I have seen Act 2002 and be entitled to Acts 1961-2011 (50 years’ worth services executive, Law Society how effective it is as a way of judicial notice. They will then be of legislation) – obviously a very of Ireland, Blackhall Place, Dublin resolving disputes. I have seen published on the electronic Irish good idea! 7; tel: 01 881 5712, email: what appeared to be the most [email protected]. 8 news Law Society Gazette www.gazette.ie November 2011 Gradual recovery in legal recruitment in third quarter of 2011 The legal recruitment market status’ positions were created, in August as many key decision continued to recover gradually predominantly within the cross- makers took annual leave, with during the third quarter of 2011, border life and general insurance the pace of short-listing and according to recruitment agency sectors. For the most part, interviewing being notably slower Robert Walters, which has just these were a result of Solvency than previous quarters. Counter- published its market update. II requirements and overall offers remained prevalent at Its findings in the ‘legal and increased regulatory supervision. senior levels as organisations compliance’ sector indicate that Hiring in the banking sector sought to retain their most recruitment within the financial remained relatively stagnant, experienced staff. For contract services sector increased slightly, although a number of contract recruitment in compliance, there with asset management and fund compliance roles were created was an increase in the number of administration companies adding due to the implementation of completion bonuses being offered to their in-house teams. Larger regulatory projects. as part of the retention package. financial institutions sought A number of anti-money- Salary increases offered by senior candidates with strong laundering specialist roles were new employers are described experience in restructuring and advertised, although these as “largely conservative”. At insolvency. Successful candidates experience were hired. remained concentrated in the junior end of the spectrum, came from established in-house Trends show that a minimum international organisations with a candidates moving roles secured positions or top-tier private of three interview stages were multi-jurisdictional remit. marginal increases in basic practices. Demand for candidates observed for the majority of roles Within the company salary, with the main focus with experience in funds law as more stakeholders became secretarial market, there was a being on longer-term career remained steady. There was an involved. As businesses gained steady increase of permanent opportunities. At the mid level increase in financial services budget approval to recruit, and contract positions in both (five to eight years’ PQE), clients seeking qualified solicitors companies focused on permanent practice and funds service candidates maintained slightly with compliance/regulatory rather than contract hires. providers. stronger bargaining powers as experience. Competition at the newly- There was a slowdown in the emphasis on industry-specific Commercial in-house positions qualified to three years’ PQE compliance recruitment processes knowledge remained key. remained highly sought after level remained high, though in the third quarter – though corresponding salaries remained Role Permanent Salary few roles were advertised. A subdued. p/a € minimum of six years’ post- Compliance recruitment qualification experience (PQE) activity occurred primarily within Legal – Private Practice for candidates with both private life and pensions, insurance, fund 10 yrs’ PQE €110 - 150k practice and in-house experience administration, asset management 5 - 8 yrs’ PQE €75 - 110k were essential in order to and advisory firms. 3 - 5 yrs’ PQE €60 - 70k be considered, though some During the third quarter, a 1 - 3 yrs’ PQE €45 - 60k exceptional candidates with less number of ‘approved person In-house – Banking AND Financial Services 10 yrs’ PQE €100 - 150k 5 - 8 yrs’ PQE €70 - 100k 3 - 5 yrs’ PQE €60 - 70k Late bloomers for autumn 1 - 3 yrs’ PQE €45 - 60k TeLw h a Society’s autumn This will provide in-depth exposure 2011 diploma programme is and practical knowledge on some In-house – Commerce AND Industry well underway. It’s not too late, of the main areas of criminal 10 yrs’ PQE €90 - 140k however, to sign up for the course litigation in Ireland. It will focus on 5 - 8 yrs’ PQE €70 - 90k of your choice. November courses the ‘typical’ life cycle of a criminal 3 - 5 yrs’ PQE €65 - 75k include the Diploma in Trust and case, from an analysis of the 1 - 3 yrs’ PQE €45 - 65k Estate Planning, which starts on basic criminal law of detention, 12 November. The diploma is custody and attendance at garda Compliance offered jointly with the Society of stations, through to the procedural Head of compliance €110 - 130k+ Trust and Estate Practitioners and requirements of running cases in Senior compliance manager/compliance officer will assist practitioners in advising the District and other courts. (5-8 yrs’ exp) €75 - 95k+ clients on all aspects of the For further information on the Compliance manager/compliance officer creation of wills, the operation of full autumn 2011 programme, (3-5 yrs’ exp) €40 - 75k trusts, associated tax implications including course fees, application Compliance assistant (1-3 yrs’ exp) €28 - 42k and overall estate planning for process and entry criteria, visit Company secretarial clients. www.lawsociety.ie/diplomas, ICSA qualified (5+ yrs’ exp) €60k+ The Certificate in Criminal email: diplomateam@lawsociety. ICSA qualified (3-5 yrs’ exp) €35 - 60k Litigation starts on 19 November. ie, or phone: 01 672 4802. ICSA qualified (1-3 yrs’ exp) €25 - 40k Law Society Gazette www.gazette.ie November 2011 news 9 Lawyer app offer for outlaws DSBA members Life outside legal practice Law Society Council member eBrief is a secure, encrypted John Glynn has made a leap MARY facility that facilitates the forward in ‘app’ technology and is MULCHRONE storing and sharing of briefs. It offering his expertise to Dublin- Parenting delivers savings through reduced based colleagues for support postage, courier and storage next to nothing. A Mary costs. number of months qualified in For an annual license fee of ago, John developed 1985 and €250 plus VAT, eBrief users an app for personal specialised get instant access – anywhere, use, but due to in plaintiff anytime – to an online store of demand, customised litigation. She enjoyed this work their briefs, secured with latest it for some colleagues. and had good success in it for 20 technology. John claims to be years. Through eBrief, the client can able to have any firm A mother of six children, Mary became increasingly interested share partial or complete briefs up and running with their own • It’s free to clients to download, in psychology through parenting. with other users. The service app “within ten minutes”. Initially, • Information on accidents can While still working as a solicitor, also provides a diary facility to he is making the app available be recorded via a user-friendly Mary attended courses in child track and inform lawyers about solely to members of the Dublin interface, and adult psychology and also in how cases are progressing. Solicitors’ Bar Association (DSBA) • Photographs at the scene of an conflict resolution. – free of charge. accident can be easily included, A two-year certificate course NOELINE To learn more about the app, • Sound recordings can be made, in counselling followed. Then, in BLACKWELL DSBA members can register • Clients’ records of accident 2005, Mary completed a diploma FLAC online by visiting the website events can be emailed directly in parent mentoring, with clinical Noeline set www.lawyerapps.co. If this process to the participating solicitor, psychologist Dr Tony Humphreys. up a legal seems too daunting, members are who then receives instructions She followed this with a higher firm in invited to contact Eoin Glynn so that a file can be opened, diploma in adult relationship Dublin and at 1800 236 347. He will do the • This user-friendly interface can studies. successfully necessary administrative work to have positive benefits for the Mary provides a ten-week ran it for get your app up and running. client/solicitor relationship. over 20 years, all the time John describes the benefits of parenting and adult relationship certificate course to groups of 12 increasingly focusing on family his app as follows: Are there any catches? Only one to 14 people at a time. Hundreds law and refugee and immigration • The participating solicitor is – while a participating firm is not of people have completed these rights. given a code that he can give to required to include their logo, courses to date. She also does At the same time, she clients, or which can be used in there is a cost of €75 (plus VAT) workshops and one-on-one became increasingly involved marketing material, for those who do. mentoring sessions. as a volunteer in human rights Mary says: “The best way I can organisations. Noeline served on help children is through helping Amnesty International’s board for Restraint-free policy for parents.” six years – including two years as chairperson – and was also nursing homes DEREK part of the International Human Te h Government has published a new GATELY Rights Trust. national policy to eliminate the use eBrief For the last decade, Noeline of restraint in nursing homes, except eBrief is a has served on the boards of the for “exceptional emergency situations service that Immigrant Council of Ireland where it is absolutely necessary”. The provides and Front Line – an organisation document, which is titled Towards a lawyers with that seeks to protect defenders Restraint-free Environment in Nursing a significant of human rights who are at risk Towards a Restraint Free opportunity to around the world. Homes, was completed following Environment in Nursing Homes public consultation. reduce costs, while also improving The natural progression for One of the key objectives in effectiveness in litigation work, Noeline was to take on a more publishing the document is “to ensure says solicitor Derek Gately. central involvement in a human the dignity, safety and well-being of is deemed necessary, it should only Derek set up eBrief in early rights organisation. In 2005, she older people in residential care”. be applied in accordance with the law 2010, in partnership with a was appointed to the full time The policy’s fundamental aim is to and best professional practice.” technology expert. He also set up post of director general with eliminate the use of restraint. The Copies are being circulated to the in a legal partnership the same FLAC, the organisation working Minister for State for Older People, person in charge of each nursing year and has been busily involved to promote equal access to Kathleen Lynch, said: “Where the home. It can be downloaded at www. in running both businesses since. justice in Ireland. application of an episode of restraint dohc.ie/publications. 10 news Law Society Gazette www.gazette.ie November 2011 Electronic discovery doesn’t have to be expensive Gathering digital evidence through the discovery process has a reputation for being expensive – but that doesn’t have to be the case, a recent conference heard. ‘E-discovery Ireland 2011’ which was held in Dublin on 6 October, is the first such event in this country to look at the growing area of digital evidence in civil and criminal litigation, writes Gordon Smyth. The event was organised by Cernam, a Dublin-based start- up technology company that specialises in online evidence and investigations. The conference heard how the massive volumes of electronic documents that could potentially come under e-discovery have created the impression that the computers to prove that she had makes them far harder to search process is a costly one. In the used that alias to send emails and filter. This makes reviews opening address, Mr Justice Frank soliciting a hitman to murder her less efficient, Ernst & Young said. Clarke spoke of the risk that husband and his two sons. Most reviews of digital evidence overly broad discovery “becomes In the civil arena, the ‘pyrite’ don’t use filtering to reduce the so expensive that it becomes a case has become a watchword for number of documents to be barrier to access to the courts”. how not to handle e-discovery, reviewed, which consequently The potential return from taking where arguments about the pushes up the cost and time such a case also needed to be process took months, in a case that involved. considered, he said. took almost two-and-a-half years Ernst & Young also downplayed Barrister Ronan Lupton to be resolved. The case arose the perceived cost of e-discovery pointed to EMI v Eircom, a case from a dispute over structural and IT forensics, and dispelled about internet users who had defects in north Dublin houses, the notion that these techniques been illegally downloading music. between housing developer are only appropriate in very large “The amount spent on discovery Menolly Homes and Irish Asphalt, Liam Kennedy, head of dispute cases. “That, in my experience, was €700,000 and the amount part of the Lagan Group. resolution at A&L Goodbody is definitely not the case,” said recovered was €70,000,” he said. “The Lagan Holdings case Simon Collins, a senior manager Liam Kennedy, head of dispute shows the dangers of going into Consultants Ernst & Young at the firm’s fraud investigation resolution at A&L Goodbody, e-discovery badly prepared,” produced a report earlier this year and dispute services team. The put the issue in context, saying Kennedy said. While there are showing the extent of electronic hardware and software needed that there are very few cases that provisions to ask the court for a evidence use in Ireland. It found to run the e-discovery process is are not influenced by material variation on a discovery order, that electronic evidence is most not expensive, and using keyword produced in discovery. “We create it’s better to have this option in used by litigation practitioners, filters smartly can substantially so much digital information: reserve than to be relying on it, he then by competition and, finally, reduce the number of documents email, BlackBerry, text messages, added. “Best practice is to get it by employment lawyers. that need to be reviewed, he said. blogs and Twitter … all of it right at the start.” The report surveyed solicitors “The cost of the technology to constitutes a record. All of it That involves identifying who at the 14 leading law firms in do efficient search and review has could be caught within the the most important custodians Ireland. It found that every case come down a lot in recent years: discovery net,” he said. Whereas of the data are – and the range involving digital evidence relied 50% of cases can be done on a people tended to think before of data to be included, such as on email, closely followed by laptop with an annual licence for putting pen to paper, they were what email correspondence needs laptop and desktop PCs (95.2%). the software. If you get the right usually less guarded when writing to be included in the order? Shared file servers are investigated tools and technology for each case, electronically. “That can be very The process should also look to in 85.7% of cases. Just two-thirds it can save you money,” Collins significant in litigation,” Kennedy narrow down the search terms of cases involve a mobile device said. “For law firms, being on top added. and identify which key words like a BlackBerry or iPhone, of this issue can be a competitive are to be included and which can and backup systems containing advantage if you can tell a client: ‘I Lying eyes be excluded. Kennedy advised historical data are only checked can cut your discovery costs in half Examples abound. What became strongly against taking shortcuts. 61.9% of the time. by taking a structured approach’.” known as the ‘Lying Eyes’ case “They result in long delays, huge There is still a tendency to print against Sharon Collins hinged prejudice and huge expense,” he out electronic documents, cited See the next issue of the Gazette for on evidence recovered from said. by 33% of respondents, which an in-depth feature on this topic. Law Society Gazette www.gazette.ie November 2011 representation 11 n ewS from the law society’s committees and task forces Child Care (Amendment) Act 2011 FAMILY LAW COMMITTEE The Family Law Committee defined as premises, comprising of for, locating and taking children would like to draw the attention secure residential accommodation, into special care who are the of practitioners to the recent where care is provided to children subject of interim special-care or passing of the Child Care the subject of special care, or special-care orders. The 2011 act (Amendment) Act 2011. interim special-care, orders. also provides for criminal offences and provides for the transfer of The primary purpose of the The act grants specific powers for a refusal to comply with such the rights and liabilities of the 2011 act is to provide a legislative to the High Court to make orders orders, in addition to the court’s board to the Minister for Health. basis for the making of special- and directions to the gardaí for the inherent contempt jurisdiction. The 2011 act also makes certain care orders to allow for the execution of special-care orders, in The 2011 act also abolishes limited amendments to the care of children by the HSE in particular in relation to searching the Children Acts Advisory Board Adoption Act 2010. special-care units. Special-care orders are designed to replace the practice that had arisen whereby the High Court made orders In-House and Public Sector Committee for the detention of troubled children in secure residential Annual Conference accommodation. Those orders IN-HOUSE AND PUBLIC SECTOR COMMITTEE were based on the exercise by the High Court of what the court The In-House and Public Kevin Doherty, director of The conference will take place viewed as its inherent jurisdiction Sector Committee’s annual Compliance Ireland), from 2pm to 5.30pm, with in cases where detention was conference will take place on • ‘Influencing outcomes – CPD hours comprising two viewed as the only way to provide Friday 25 November at the reputation strategies and management and professional protection and care for certain Law Society’s headquarters in tactics’ (speaker: John Keilthy, development skills, plus one children. The 2011 act essentially Blackhall Place. This event will partner at ReputationInc), regulatory matters (by group provides a statutory framework provide invaluable guidance and • ‘Life as head of legal affairs study). The fee is €180 per person for such High Court orders and networking opportunities for with the International Rugby (with a discounted fee of €135 includes transitional provisions in all solicitors, including those Board’ (speaker: Susan Ahern, per person for Skillnet/public respect of previous High Court working in-house in private head of legal affairs, IRB), sector subscriptions only). Prompt orders. industry and in the public sector. • ‘How to deal with a Central booking is essential in order to Special-care orders may be The committee has selected Bank inspection – the dos and secure your place, as this event made by the High Court in speakers with extensive practical don’ts’ (speaker: Geraldine was oversubscribed last year. respect of a child who has attained experience from a variety McAlinden, solicitor, Central Full details, including booking the age of 11 years and whose of industries, including the Bank), form, are available on the LSPT behaviour requires that special financial, sports and leisure, • ‘Regulation – the implications pages of the Law Society’s care, as defined in the 2011 act, public relations and regulatory for the in-house and public website. Enquiries can be directed be provided. The HSE has an sectors. Topics covered will sector solicitor’ (speaker: John to the Law Society Professional obligation to provide special-care include: Elliot, Registrar of Solicitors Training team, Blackhall Place, units for the provision of this • ‘Corporate governance and director of regulation, Law Dublin 7; tel: 01 881 5727, specialised care. These units are code and beyond’ (speaker: Society of Ireland). email: [email protected].
Update your Law Directory 2012 details An email or letter was sent to all members of the same. You can also access the online form through Society on 27 October 2011, inviting them to the ‘News’ section of the Society’s website. update their solicitor details for the Law Directory Any previous notification to the Society in relation 2012. The email and letter highlighted that the to publishing this data will not be taken into account following details will not be published unless you for the publication of the Law Directory 2012. specifically request the Society to do so: The deadline for submitting amendments is • Direct office telephone number, and/or Monday 14 November 2011. • Mobile number. The Law Directory 2012 will only include solicitors who have a practising certificate and/ If you wish to have these contact details published, or hold membership for 2012. Any change to your or make any other changes, go to www.lawsociety.ie/ practising status that is known to the Society at lawdirectory2012 (login required). If you received the time of going to print will be reflected in your a letter, please amend your details on it and return Law Directory 2012 entry. 12 analysis Law Society Gazette www.gazette.ie November 2011
‘not even zimbabwe has a model like this’
It’s not just the legal profession that has grave reservations about the model for regulation of the profession proposed in the Legal Services Regulation Bill 2011 – as the Gazette finds out
ndependence of the 2011, immediately following legal profession is under the minister’s publication of his ‘Ithreat’ was the headline news release about the bill, the in the opinion piece in the Irish director general said: “I’d just Independent on 14 October 2011, like to put on the record that, written by that paper’s legal contrary to what people may editor, Dearbhail McDonald. think or sometimes allege, the “This is not just about lawyers legal profession, the solicitors’ and their fees,” she wrote. “The profession is by no means public good requires lawyers and opposed to all change, for judges who can act without fear example, the changes which are of political retribution.” being introduced now to make The lead editorial in The Irish legal costs – the costs of going to Times the following day opined: court – much more transparent “There are justified misgivings and predictable and modern. about the model for regulation Ken Murphy: “An independent legal profession is a hallmark of democracy” When the report recommending chosen by the minister. This is that came out several years ago, not the model recommended by Canada, as one senior Canadian model for the legal profession we welcomed it. We still welcome the Competition Authority, nor lawyer pointed out. He quoted proposed in the bill is unknown it – subject to sight of the details.” one found in other jurisdictions, the Supreme Court of Canada, in any democracy and threatens where there is normally a buffer which said in a decision in the independence of the legal Unprecedented between the executive and the 1982: “The profession, which However, he continued, “In the legal profession to guarantee the independence is a hallmark of any Competition Authority’s report independence of the regulatory of the bar from “This is free society.” in 2006, they recommended a machinery.” the state in all independent of The Society’s particular type of Legal Services It is not just the legal its pervasive the profession, director general, Authority – an independent profession, therefore, that has manifestations Ken Murphy, has regulator. The minister has grave reservations about the is one of the certainly – but it been constantly chosen something completely model for regulation of the hallmarks of is not independent engaged with the different, something really quite profession, proposed in the Legal a free society. broadcast and print fundamentally different without Services Regulation Bill 2011, the Consequently, of Government – media, articulating any consultation or explanation. text of which was published by regulation of the and our concern the Society’s “The legal profession in any the Minister for Justice, Equality members of the concerns about the free, democratic society is, to and Defence, Alan Shatter, on 12 law profession by is that this new bill – particularly some extent, independent of October 2011. the state must, in Authority will be in relation to government for the reason that so far as human the potential people can get advice which International concern ingenuity can a glove puppet of undermining they know is independent of the Concern was felt internationally, so design, be the Minister for of the citizen’s Government. This model, which with the result that the leadership free from state right to obtain the minister is introducing, is of the CCBE (the umbrella body interference.” Justice, and that’s advice from an unprecedented in North America, for all the national bars and law Law Society not in the public independent legal anywhere in the EU, anywhere societies of Europe) raised the President John interest” profession, and, in Australia. We have concerns issue at a meeting in Brussels Costello wrote to also, the likelihood about it for this reason.” with the EU Commissioner for all solicitors on of greatly excessive On RTÉ’s Prime Time on Justice, Viviane Reding. 19 October 2011, following the and uncontrolled cost in the 13 October 2011, Murphy The regulatory model special meeting of the Council regulatory model proposed. told the interviewer, Donagh proposed in the bill would almost in relation to the bill, saying: In studio with Brian Dobson on Diamond: “There is no evidence certainly be unconstitutional in “We believe that the regulatory RTÉ’s Six One News on 4 October whatsoever that the manner in Law Society Gazette www.gazette.ie November 2011 analysis 13
“The independence of the bar from the state in all its pervasive manifestations is one of the hallmarks of a free society. Consequently, regulation of the members of the law profession by which complaints are handled the ultimate decision-maker in model like this.” International will have the least effect on legal this entire system will be the He continued: the state must, in Law Section fees. There is no evidence for Minister for Justice – not the “This is a model so far as human of the that, and I don’t think that that’s Authority.” of regulation of 400,000-strong even asserted by the Competition the profession ingenuity can lawyer Authority. I would say that this Effective sanction which, as I say, is so design, be association. Mr model is something that people Challenged by the presenter, Pat unprecedented in free from state Robinson stated should be concerned about. Kenny, on whether he accepted any democracy. to The Irish The legal profession stands in that lack of effective sanction It was seriously interference” Times: “When the gap between the relative from the Law Society over the considered multinational powerlessness of the individual years had led to this state of and analysed in a report, the corporations move around the and the overwhelming power of affairs, Murphy responded: “First Clementi Report, in England world, they are looking for the state. The individual must of all Pat, that’s your assertion and Wales and it was rejected. stability and predictability, in the have confidence that there is not – that’s not true. There has And one of the reasons it was rule of law as well as operational improper influence coming from been plenty of effective sanction rejected was because it was so manufacturing facilities. the state on them.” over the years and, in fact, inimical to an independent legal “They have to be sure of On The Frontline programme even currently, the complaints- profession. This is independent independent counsel who are on RTé television on 17 handling committee has a lay of the profession, certainly – not controlled by government, October 2011, in a programme majority. but it is not independent of not conflicted, not afraid of in which Minister Shatter was “But we are now talking about Government – and our concern standing up to government also a contributor, the director a model being put in place for is that this new authority will be when issues arise – as they will, general said: “To call something the regulation of the profession a glove puppet of the Minister for example, with employment independent doesn’t make it that has no precedent in any for Justice, and that’s not in the law, environmental law, tax law, independent, and all of the democratic system across the public interest.” immigration law.” indications are – we could go world. I’m involved with a Another voice of concern in According to the ABA through them again: all of the group of chief executives of law relation to the proposed changes president, any perceived powers of the minister, all of the societies all over the world. I sent was that of the President of the reduction of the independence of powers of the Government in this model out to 80 international American Bar Association, Bill the legal profession could have a relation this Authority – suggest jurisdictions. Nowhere, frankly, Robinson, who was in Dublin negative impact on investment by to me, in fact make it clear, that not even Zimbabwe, has a for the Fall Meeting of the multinational corporations. G 14 analysis Law Society Gazette www.gazette.ie November 2011
ireland celebrates ‘most successful’ aba meeting
The first visit to Dublin of the American Bar Association’s Section of International Law took place from 11 to 14 October. Over 1,100 delegates attended from 60 countries – the largest turnout ever for a Fall Meeting, writes Micheál Grace
he American Bar Association dispute resolution/litigation, public former Chief Justice John L Murray. (ABA) is the largest voluntary- international law/rule of law, Friday’s lunch saw Kingsley Aikens, Tmembership professional regulatory, and young lawyers. former president and CEO of the organisation in the world, with over worldwide Ireland 400,000 members. Its Section of Highlights Funds, provide International Law boasts about 26,000 One of the highlights “Taoiseach Enda a light-hearted global members, including many from was the opening Kenny spoke of yet informative Micheál Grace is Ireland. plenary session with exploration of what a senior associate Proceedings began on 10 October President Mary the role that Irish Ireland needs to in the financial with a very successful Belfast module, McAleese, who emigrants had to play do to exploit its services department which culminated with a dinner at delivered the keynote diaspora for the of Mason Hayes & Stormont Castle addressed by First speech to a packed in the development country’s benefit, Curran Minister Peter Robinson. During auditorium on 11 of the United States and the importance the days that followed, conference October. Later in of Ireland delegates were based at the National the afternoon, Mary and reminded them reconnecting with Convention Centre in Dublin, where Robinson, former of President O’Bama’s all those who claim more than 70 CLE (CPD) accredited President of Ireland Irish lineage!” Irish ancestry or programmes were on offer, as well as and former UN high heritage. numerous social and networking events commissioner for At the end of each evening. human rights, addressed a lunchtime each day, social events were organised The programme included gathering on issues surrounding ethical to provide ample networking topics on cutting-edge issues in globalisation. opportunities for delegates. On international law, spanning five fields, At lunchtime on Thursday, the main Tuesday night, the offices of Matheson including corporate/transactional, speaker was Supreme Court judge and Ormsby Prentice hosted a ‘welcome to Dublin’ reception, followed on Wednesday by the section’s committees’ reception and dinner at the Mansion House. The social highlight of the week, however, was the reception and dinner held at the Guinness Storehouse, which was addressed by Taoiseach Enda Kenny. In step with what all Irish attendees were stressing to their international colleagues throughout the week, Mr Kenny noted that Ireland was “open for business” and encouraged the invited guests to return to Ireland again and to sample all that the country has to offer. He spoke of the role that Irish emigrants had to play in the development of the United States and reminded them of President The co-chairs at the Fall Meeting met the President of Ireland (l to r): John Costello (Law Society President), Kieran O’Bama’s Irish lineage! The closing Cowhey, Gabrielle Buckley, Michael Burke (section chair), President Mary McAleese, Mark O’Sullivan, Tony Burke and reception on Friday night took place Elisa Kearney in the beautiful rotunda at City Hall, Law Society Gazette www.gazette.ie November 2011 analysis 15 P ic : E ric L uke , courtesy T
ireland celebrates ‘most he I rish T successful’ aba meeting imes
“One of the highlights was the opening plenary session with President Mary McAleese, who delivered the before the keynote speech to a for its protection. 2011-2012, Michael E Burke, was practitioners. This was co-chaired after-hours’ packed auditorium Human rights were its chief planner, ably assisted by by Russell Dombrow (Legal reception in often advanced five meeting co-chairs: Gabrielle Aid Society of Mid-New York Buck Whaley’s on 11 October” against what M Buckley (Vedder Price PC, Inc), Nancy H Matos (Baker & brought the was, at the time, Chicago), Tony Burke (Mason McKenzie, Amsterdam) and Paul curtain down on a thoroughly popular opinion.” He continued: Hayes & Curran), Kieran Kennedy (Dillon Eustace), and successful Fall Meeting. “Where will we go if not to Cowhey (Dillon Eustace), Elisa me. independent courts – which have Kearney (Davies Ward Phillips Apart from the work of the Do no harm to be properly funded – and an & Vineberg LLP, Toronto) and section’s full-time staff (many The presence of the ABA in independent legal profession?” Mark O’Sullivan (Matheson of whom decamped to Dublin Ireland coincided with the At one of the Friday sessions, Ormsby Prentice). for the week), the section’s publication of the Legal Services Law Society President John largest ever volunteer steering/ Regulation Bill 2011. Sharing the Costello noted his appreciation Commemorative plaque planning committee for a views of most solicitors in Ireland, that the ABA supported the Law At Friday night’s closing seasonal meeting was established, ABA President Bill Robinson Society’s views in respect of the ceremony in City Hall, Michael with representatives from many III was quick to comment: “As Legal Services Bill, and the impact presented each of the co-chairs Irish firms and members of a matter of core constitutional it could have on the profession as with a special commemorative the Law Library taking part at democratic values, do no harm a whole. plaque, marking their outstanding various levels. Each contributor to the independence of the Organising an event of this contribution to what had been a should be rightly proud of profession and do no harm to the magnitude required significant hugely successful week. Praise was their involvement in what most independence of the judiciary. input from a large number of also lavished on the International delegates considered to have History has shown these are in individuals from around the Practice Boot Camp – a daylong been the most successful ABA the best interests of the public world. The section chair for programme targeted at younger seasonal meeting ever. G 16 human rights watch Law Society Gazette www.gazette.ie November 2011
‘face-booked’: anti-social networking and thE law
A landmark prosecution of a man accused of inciting hatred against the Traveller community on Facebook was the first in Ireland to address incitement to hatred online. Its dismissal calls into question the efficacy of our criminal law in dealing with online hate speech, argues Siobhan Cummiskey
landmark prosecution under posted on a Facebook page, entitled: a week and a bit to get your s*** the Prohibition of Incitement ‘Neil Lennon [manager of Celtic together, otherwise I’m blowing the A to Hatred Act 1989 of a man football team] Should Be Banned’. The airport sky high!!” accused of inciting hatred against the comments he posted included: “Hope These prosecutions indicate quite Traveller community on Facebook, they all die. Simple. Catholic scumbags clearly that comments and messages by creating a page entitled ‘Promote ha ha” and “Proud to hate Fenian posted to social networking sites are the Use of Knacker Babies for Bait’, tattie farmers”. In handing down the subject to the criminal law. Siobhán was dismissed at Killarney District sentence, the sheriff stated: “The use Cummiskey Court on 30 September 2011. The of modern communications to spread ‘Promote the Use of Knacker is managing prosecution was the first in Ireland to or support abuse or target groups Babies for Bait’ solicitor with the address incitement to hatred online. Its of people because of their ethnic or Killarney District Court heard that the Irish Traveller dismissal calls into question the efficacy racial background has no place in our accused set up the Facebook page on a Movement of our criminal law in dealing with modern society.” date between October and November Independent online hate speech. Last year, a British court found 2009. Under ‘Information/description’ Law Centre In October, just two weeks ‘tweeter’ and trainee accountant on the page, he wrote: “Instead of subsequent to the failed prosecution Paul Chambers guilty of sending a using animals for shark bait, they could in Killarney, a football fan was handed “menacing message” for posting the use knack babys [sic]. Also as food at an eight-month prison sentence at following on Twitter in anticipation of feeding time in the zoo. And for testing Glasgow Sheriff Court for religiously the cancellation of his flight: “Robin new drugs and viruses.” The accused and racially motivated comments he Hood airport is closed. You’ve got sent the page to three of his friends and, eventually, the page had 644 members. The court heard evidence from the accused that he set up the page after a negative encounter with a group of Travellers, who became aggressive after he refused to serve them after hours in the pub in which he worked. The judge indicated that this was an important element of the defence regarding intention to incite hatred, though the court pointed out that it had not been verified by gardaí. The court also heard testimony from two witnesses from the Traveller community living locally, who told the court that they felt frightened for themselves and their children after coming across the page and reported it to their local garda station. They stated that they had no evidence that they had been subjected to any threat or hate as a result of the page.
Targeting hate speech Modern international human rights law sought to target hate speech in the aftermath of the Holocaust. The Law Society Gazette www.gazette.ie November 2011 human rights watch 17
“It is becoming increasingly apparent to those who use these sites enactment of Ireland’s hate speech • The material had been inchoate offence sent to just three legislation arose as a direct result published, of ‘incitement’ that they inhabit the people, the page of Ireland’s ratification of the • It was threatening, abusive (inciting or real, and not the was set up under International Covenant on Civil and or insulting to the Traveller encouraging a virtual world, and ‘privacy type’ as Political Rights and the International community, and crime). ‘open: all content Convention on the Elimination of All • It was intended or likely to stir In dismissing are subject to real is public’. It was Forms of Racial Discrimination. Both up hatred against the Traveller the case, the judge laws – both civil therefore made conventions require member states community. ruled that there open to hundreds to prohibit hate speech by law. was reasonable and criminal” of millions of Section 2(1) of the Prohibition of It is the third hurdle that the doubt that there people to view. Incitement to Hatred Act 1989 states: prosecution failed to overcome in was an intention to incite hatred It is unknown how many viewed “It shall be an offence for a per- this case. towards members of the Traveller the page. What is known is that son to publish/distribute/display community. The court relied on 644 people joined the page by written material … if the written ‘Incitement to hatred’ the fact that the accused had not becoming members of it. In material is threatening, abusive or Remarkably, the phrase added to, or commented on, the other words, people responded insulting and [is] intended or, hav- ‘incitement to hatred’ is used in page after creating it in deciding and contributed to the material ing regard to all the circumstances, the title of the act but does not that the remarks were a ‘once- published on the page by the [is] likely to stir up hatred.” appear in the body of the act, off’. The court concluded that accused. One such contribution According to the act: “‘hatred’ which instead uses the words the once-off insertion of material read: “They should all be shot means hatred against a group of ‘stir up hatred’. Neither of these could not be deemed to be an in there [sic] f***ing ugly inbred persons in the State … on account phrases is defined in the act. incitement to hatred. faces”. of their race, colour, nationality, Furthermore, as ‘hatred’ is not It may be argued that this religion, ethnic or national origins, a standalone crime, this offence analysis neglects to recognise the ‘Likely to stir up hatred’ membership of the travelling is a curious animal, in that it ubiquitous nature of online hate While the ‘likely to stir up’ community or sexual orientation”. criminalises the incitement speech. While it may have been aspect of the offence has been There were, therefore, three of a non-criminal wrong. It a once-off insertion, the material criticised as being too broad, hurdles for the prosecution to thus falls outside of the more endured for several months. it does not appear to stray clear in this case, namely that: familiar definition of the general While the page may have been from the well-settled concept We promise we’ll never COMPANY FORMATIONS put a healthy dog down. € FROM 219+VAT n EXPRESS SERVICE n COMPANY REGISTER n HAND SEAL n BOUND M&A n CERT OF INCORPORATION
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M&K_LSG/LD 91X123 AW.indd 1 24/02/2011 16:40 Law Society Gazette www.gazette.ie November 2011 human rights watch 19 of ‘recklessness’ in criminal stir up’ test. It is also clear that, grounds, and on the internet, incited against them was more law. Indeed, other common given the requirement of the is also currently making its than 20 years in existence, but law jurisdictions have adopted offence that the publication is way through the Scottish was still sufficiently robust similar definitions of the ‘likely’ to stir up hatred – not parliament. In contrast – and to continue to provide that offence. For example, under the that it did stir up hatred – it despite announcing a review of protection. The government Queensland Anti-Discrimination would appear that no weight the law in September 2000 – went on to state that, following Amendment Act 2001, it is should be attached, in this Ireland’s legislation has not been a detailed examination of Irish an offence to “knowingly or context, to the reviewed or legislation, Ireland is satisfied recklessly incite hatred towards evidence of the “Remarkably, the updated since that it is in compliance with the [protected groups]”. Other two Traveller its enactment framework decision by virtue of jurisdictions, on the other hand, witnesses that phrase ‘incitement 20 years ago. the act. have rejected the ‘recklessness/ the material to hatred’ is used in Ireland It seems that we have just likely’ element of the offence. did not result recently started to prise open the Following much controversy in hatred or the title of the act but informed the Pandora’s Box of troubles that on the matter in Britain, the threats against does not appear in the first meeting can arise from comments posted inclusion of the wording the Traveller of the Expert on social networking sites. It is ‘possibility of incitement’ in the community. body of the act, which Group on becoming increasingly apparent Racial and Religious Hatred Bill The instead uses the Council to those who use these sites that was rejected by the House of jurisdiction of Framework they inhabit the real, and not Commons in 2006, and the law, England and words ‘stir up hatred’. Decision the virtual world, and that the as enacted, requires an intention Wales updated Neither of these 2008/913/JHA, comments posted on them are to incite in order to secure a its laws relating phrases is defined in on combating subject to real laws – both civil and prosecution. to hate speech certain criminal. Despite the assertions The extremely broad reach with the Racial the act” forms and of Government, and in light of of the Facebook page at issue in and Religious expressions this recent failed prosecution this case, which remained openly Hatred Act 2006. Further of racism and xenophobia by under the Prohibition of Incitement accessible to anyone worldwide legislation aimed at behaviour means of criminal law (on 22 to Hatred Act, it is clear that the for the several months of its deemed to “incite religious, February 2010 in Brussels), capacity of our hate-speech laws existence, cannot be overstated racial or other forms of that its legislation protecting to deal with this emerging area is in the context of the ‘likely to hatred” in and around football minority groups having hatred now gravely in doubt. G
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Castlemartyr Resort Hotel Co Cork re gister online at www.lawsociety.ie 20 viewpoint Law Society Gazette www.gazette.ie November 2011
mt en al health act 2001 iS In the dark on human rights
A mnesty International’s Colm O’Gorman welcomes the Government’s review of the Mental Health Act 2001, but says that the law should be updated to support a cultural shift in how mental health services are managed and delivered
he Minister of State for of the act and believes that this and who have genuinely consented to Mental Health, Kathleen opportunity must be used not only their admission to an approved centre TLynch, launched the to update the law, but to support a and continue to consent. Voluntary Government’s review of the Mental cultural shift in how mental health patients should have the right to leave Health Act 2001 last month. The services are managed and delivered. the approved centre at any time. Government has committed to a We can really change the out-of- The committee also highlighted the full and thorough review – which date attitudes and promote the need to amend the act in relation to Colm O’Gorman is urgently needed, as the act is not understanding, championed in the the use of electro-convulsive therapy is executive human rights’ compliant and must be CRPD, that the whole of society and the lack of an independent director of Amnesty updated and amended. will benefit if people with mental capacity assessment. International The act sets out the circumstances health problems have their rights Ireland. The in which a person may be admitted fully respected and are given the ‘Best interests’ organisation has to, detained and treated in a hospital opportunity to recover within their Another key issue is that the term ‘best been campaigning against their will, and was introduced communities. interests’ is not defined within the act. in the area of to ensure Ireland was compliant with This has led to overly paternalistic mental health in the European Convention on Human Deprivation of liberty interpretations and to inadequate Ireland since late Rights. However since then, there have At the most fundamental level, the protection of the right to respect for 2003 been a number of developments – both act can deprive people of their liberty individual autonomy. domestically and internationally – because of a severe mental health The use of tribunals – which which make the case for review all the problem. Such powers need to be independently assess whether the more urgent. carefully monitored correct procedure for admission These include the and must meet and detention under the act has publication of new “The act as it is international human been followed, and accordingly mental health policy currently framed rights standards. whether detention should continue in 2006, A Vision Inpatient treatment – also needs to be examined and for Change, and the means that Ireland’s must be a last resort. updated, because there are many introduction of the mental health service To assist the reported inconsistencies in their UN Convention on process, Amnesty application. There needs to be much the Rights of Persons is overly focused on has conducted its stricter guidelines controlling the with Disabilities inpatient care” own detailed review administration of treatment against (CRPD) in 2007, of the act. As part people’s will. Amnesty believes that the which includes of this review, the act should be extended to cover the people experiencing mental health organisation has heard from a number use of chemical restraint, as there is problems. The European Court of individuals who have faced appalling clearly a risk that medication is being of Human Rights itself has made situations under the act, including used to control people, rather than to decisions in relation to other countries, allegations from voluntary patients aid recovery. which raise doubts about whether the that they were told they would be More generally, the act as it is Irish act complies with certain aspects made involuntary patients should they currently framed means that Ireland’s of the European convention. choose not to comply with treatment, mental health service is overly focused International human rights bodies highlighting the lack of protections for on inpatient care. This, despite have also highlighted the urgent need voluntary patients. successive Mental Health Commission to reform the act. In June, the UN The 2011 report from the European reports pointing to the fact that the Committee Against Torture told the Committee for the Prevention of over-reliance on hospital-based care Irish Government that the Mental Torture also highlighted the lack of and medication in Ireland is not the Health Act 2001 was not human protection for voluntary patients. best approach for recovery. rights compliant, and made a series of Amnesty believes that the definition With the review underway, now is recommendations about how it should of ‘voluntary’ under the act is the time to take into consideration be updated. problematic, and should be amended the wider mental health context. It is Amnesty International Ireland to include only those persons who have acknowledged that our mental health welcomes the Government’s review the capacity to make such a decision system needs a radical overhaul. While Law Society Gazette www.gazette.ie November 2011 viewpoint 21 mental health act 2001 iS In th arke d on human rights
“There have been allegations from voluntary patients that they were told they would be made involuntary patients should they choose not to comply with treatment, highlighting the lack of protections for there has been of A Vision for capacity legislation needs to address ‘best interests’ significant voluntary patients” Change also progress in recommended Te h introduction of capacity bringing a person to a position certain important areas, such that consideration should be legislation is proposed to bring where they would be able to make as closing old institutions and given as to how legislation would Irish law into line with the a decision themselves. And where building new child and adolescent assist with implementation of our Convention on the Rights of a decision is taken to administer facilities, there remains much that mental health policy as part of the Persons with Disabilities (CRPD), treatment or provide medication urgently needs to change. planned review. and to enable ratification of to someone who has been found We need a system where The Programme for the convention, which the Irish to lack decision-making capacity, people can be treated in their Government promises action Government signed in 2007. stringent safeguards need to be own community wherever on mental health. A progressive While Amnesty International in place. possible, by teams that include review and ensuring that Ireland welcomes the work Amnesty also believes that the a cross-section of disciplines, community services are realised being undertaken to introduce law needs to more fairly reflect including, for example, social can be a central part of this a Capacity Bill that is in line an ‘ordinary’ decision-making workers, occupational therapists change. with the CRPD, it is, however, process and cover more informal and psychologists, in addition to Ultimately, people experiencing concerned that the current and formal supports that a person medical staff. Yet fully staffed, mental health problems must scheme of the Capacity Bill does relies on when making decisions. multidisciplinary community be supported when they need not adequately adopt the changes It also believes that the law should mental health teams have not it. They need autonomy to required by article 12 of the provide for binding ‘advance been developed across the make decisions about their own CRPD. directives’ – instructions given country, despite this being healthcare, and they need to have Modern capacity legislation by individuals specifying what Government policy since the early no fear about the treatment they must emphasise the supports actions should be taken for their 1980s. might receive. Fundamentally, people should get so that they health in the event that they are no in Ireland, we need a response to can make decisions themselves, longer able to make decisions due Major role for legislation mental health that fully respects and relegate substitute decision- to illness or incapacity. The World Health Organisation the human rights of people with making to a last resort. Such a The development of this bill has recognised that legislation can mental health problems. G move would ensure compliance is an important opportunity, and play a major role in promoting with the CRPD. Amnesty International would community-based care for people To read Amnesty International Among our concerns is the strongly welcome new law that with mental health problems and Ireland’s full review of the Mental application of the term ‘best fully recognises the supports that reducing involuntary admissions. Health Act 2001 and its submission interests’. We believe the new people need in order to enjoy The latest report from the on the Mental Capacity Bill, log law should, instead, focus on legal capacity. Independent Monitoring Group onto www.amnesty.ie/mentalhealth. 22 cover story Law Society Gazette www.gazette.ie November 2011
A long time ago, in a galaxy far, far away – or England in July – the British Supreme Court gave welcome clarification to the definition of ‘sculpture’ under English copyright law. Point five past light speed Glen Gibbons makes
n a battle reminiscent of the confrontation between the Rebel Alliance and the Galactic Empire, British prop designer and father-of-two Andrew Ainsworth proved to be the eventual victor – employing the Force of the British legal system against the might of Lucasfilm. The recent British Supreme Court judgment in Lucasfilm Limited v Ainsworth dealt with the issue of whether the defendants had infringed the plaintiffs’ copyright in the Glen Gibbons is I helmets of the Imperial Stormtroopers that featured prominently in the a barrister and first Stars Wars film. author of Trade Ainsworth was commissioned by George Lucas to produce several Marks Law, prototype vacuum-moulded helmets. Given the huge commercial published by Oak success of the Stars Wars films, Ainsworth in 2004 designed further Tree Press helmets and other artefacts using his original tools. This resulted in US litigation by the plaintiffs and a default judgment of $20 million against the defendants. Thereafter, the plaintiff commenced litigation against the defendants in the English High Court. Mann J in the High Court held that the defendants had not infringed English copyright law, as the helmet was not a work of sculpture for the purpose of copyright protection under the Copyright, Designs and Patents Act 1988. A copyright counterclaim was also “The High Court dismissed. The US judgment of $20 million was held to be unenforceable. held that the However, Mann J held that English courts defendants had had jurisdiction to hear US copyright claims and further held that the defendants not infringed had infringed US copyright law. English copyright The Court of Appeal agreed with Mann J on the interpretation of sculpture law, as the under the 1988 act, but disagreed with the helmet was not a analysis confirming that English courts had jurisdiction to hear US copyright claims. work of sculpture The Court of Appeal allowed these issues for the purpose Fast facts as points of appeal to the Supreme Court. of copyright > Did the defendants infringe The phantom menace protection” the plaintiffs’ copyright in The majority and combined judgment in the helmets of the Imperial the Supreme Court was provided by Lord Stormtroopers? Walker and Lord Collins. Phillips and Hale LJJ concurred with the > The court held that the combined judgment. Lord Mance agreed with the majority judgment helmets>> were utilitarian in on the interpretation of the term sculpture, but reserved his position, nature and not a sculpture in part, on the jurisdiction of the English courts to hear foreign for the purpose of the intellectual property disputes. 1988 act Under section 4(1) of the 1988 act, an ‘artistic work’ is defined as > There is no reported including a sculpture. Under section 4(2), ‘sculpture’ is defined as interpretation of ‘sculpture’ including a cast or model made for the purposes of sculpture. under Irish copyright law at The legislative history and defences to artistic work copyright under present, and it is likely that section 51 (design documents and models) and section 52 (regarding the ratio in Lucasfilm will the industrial exploitation of an artistic work) were outlined by Lords be strongly persuasive on Walker and Collins. In seeking a definition of sculpture under the Irish courts 1988 act, the court referred to comparative jurisprudence, including > You are part of the Rebel Wham-O Manufacturing Co v Lincoln Industries Ltd, Wildash v Klein, and Alliance and a traitor. Take the earlier English decisions of Breville Europe Plc v Thorn EMI Domestic her away. Law Society Gazette www.gazette.ie November 2011 cover story 23 the empire stk Ri es back
>> 24 cover story Law Society Gazette www.gazette.ie November 2011
A ppliances Ltd and Metix (UK) Ltd v GH the force is strong in this one... Maughan (Plastics) Ltd. The court held that the helmets were Despite Lucas being backed by directors of the product”. utilitarian in nature and not a sculpture for Steven Spielberg, James Cameron and Peter George Lucas has always argued that the purpose of the 1988 act. Lord Walker Jackson, the British High Court and Court of Britain should offer full copyright protection and Lord Collins stated (at paragraph 44), Appeal found in Mr Ainsworth’s favour, with the to the works of art. A Lucasfilm spokeswoman in relation to an analogy with helmets used Supreme Court following suit. said: “We believe the imaginative characters, for other films, “the Star Wars films are set Incidentally, the 27-year-old designer was props, costumes, and other visual assets in an imaginary, science fiction world of paid £20 per helmet and £385 per armour that go into making a film deserve protection the future. War films set in the past (Paths for his Star Wars work in 1976 – objects in Britain. The UK should not allow itself to of Glory, for instance, depicting the French he sells today for around £500 and £1,000 become a safe haven for piracy.” army in the First World War, or Atonement, respectively. The Star Wars commission, “on George Lucas and his Hollywood supporters depicting the British Expeditionary Force a handshake and word of mouth”, also led to have also argued that the ruling poses a at Dunkirk) are at least based on historical work on Superman, Alien and Flash Gordon. “significant threat” to the British film industry, realities. The actors and extras in the The Supreme Court ruling means that as filmmakers would be deterred from using trenches or on the beaches may be wearing Andrew Ainsworth is free to continue his British prop makers for fear of copyright real steel helmets or (because real steel business of making and selling Star Wars infringement. helmets of the correct helmets and suits. According to Somewhat ironically, Andrew Ainsworth style are unobtainable in his lawyer, Seamus Andrew, it says that, had it not been for his Stormtrooper sufficient numbers) they may “The court also opens a Pandora’s Box for George sales, he would not have been able to fund be wearing plastic helmets rejected the Lucas, since anyone is now free the case. painted khaki. In either ‘elephant test’, to make models outside of the US. “The way we’ve funded [the case] is to case, the helmets are there Other prop makers encouraged by make the characters, which is the ironic thing as (in the judge’s words) as set out in the the ruling may now decide to take about it. It’s really the Empire striking back,” ‘a mixture of costume and Court of Appeal’s advantage. The lawyer believes that he joked. “During the period of the court case, prop’ in order to contribute the director pursued his client so I’ve made about 2,000 and sold them around to the artistic effect of the judgment – that hard because of the “authenticity the world.” film as a film. They are part is, if its looks of a production process, as Laddie J said in Metix like a sculpture, at p721, citing Whitford J then it is one” like a sculpture does not make stated (at paragraph 49): “There are good in Davis (J&S) (Holdings) it a sculpture under copyright policy reasons for the differences in the Ltd v Wright Health Group Ltd [1988] RPC law – a court should read and hear evidence periods of protection, and the court should 403, 410-412. In this case, the production (including expert evidence), consider sub- not, in our view, encourage the boundaries process was the making of a full-length missions, and then reach a conclusion on of full copyright protection to creep feature film.” the issue. outwards.” The court also rejected the ‘elephant test’, The court added another factor, not as set out in the Court of Appeal’s judgment addressed by the Court of Appeal, in Attack of the clones – that is, if its looks like a sculpture, then it bolstering its view that the Stormtrooper In Ireland, section 2 of the Copyright and is one. Instead, the court held, at paragraph helmets were not sculptures. Clear policy Related Rights Act 2000 defines a sculpture 48, that a multi-factorial approach must be reasons dictate shorter time periods for in similar terms to its English statutory employed – simply because an item looks designs rather than copyright. The court equivalent. It states that an ‘artistic work’ Law Society Gazette www.gazette.ie November 2011 cover story 25
Great, kid. Don’t get cocky
the droids you’re looking for Look it up The Lucasfilm judgment is also noteworthy In effect, the British Supreme Court deems such for its clarification of the law surrounding actions justiciable in England. However, the Cases: the jurisdiction of the English courts to hear judgment should not be construed as a total • Breville Europe Plc v Thorn EMI Domestic foreign intellectual property disputes and, in acceptance of litigating all types of foreign Appliances Ltd [1995] FSR 77 particular, a claim brought in England against intellectual property disputes in England (for • Lucasfilm Limited & Ors v Ainsworth & the defendants for breach of US copyright law. example, the validity of a US patent). Anor (High Court) [2008] EWHC 1878 (Ch) [2009] FSR 2; (Court of Appeal) [2009] EWCA Civ 1328, [2010] 1 Ch 503, [2010] EMLR 12; (Supreme Court) [2011] UKSC 39 includes, among other things, irrespective of rights and on utilitarianism as a principal • Metix (UK) Ltd v GH Maughan (Plastics) their artistic quality, “sculptures (including interpretative factor. A standard definition Ltd [1997] FSR 718 any cast or model made for the purposes of the utilitarian is “designed to be useful • Wham-O Manufacturing Co v Lincoln of a sculpture)”. There is no reported rather than decorative or luxurious, severely Industries Ltd [1985] RPC 127, [1984] 1 interpretation of ‘sculpture’ under Irish practical”. NZLR 641 copyright law at present, and it is likely While the helmets designed for the Stars • Wildash v Klein (2004) 61 IPR 324 that the ratio in Lucasfilm will be strongly Wars film were undoubtedly utilitarian, persuasive on Irish courts. other cases facing the courts in the future Legislation: The restrictive interpretation of Lucasfilm may be more problematic, and the use of this • Copyright and Related Rights Act 2000 places strong emphasis and concern on interpretative factor may only be of limited • Copyright, Designs and Patents Act 1988 ‘jurisdiction creep’ by copyright over design assistance. G (Britain) 26 profile Law Society Gazette www.gazette.ie November 2011
knowing me, knowing you President of the American Bar Association – and recent Irish citizen – William Robinson was in Dublin in October at the organisation’s Fall Meeting. Lorcan Roche took the opportunity to talk to him about the role of the lawyer in society
here are those who practise law almost How did that realisation come about? “I explain it this Lorcan Roche is a as a means to an end. They didn’t want way: we choose our best friend; we choose the person we writer and award- it be thus, but daily exigencies somehow marry; the way we pray to God. It is all done intuitively, at winning freelance overwhelmed. Part of a production line, an inner level. Sometimes it is not much related to intellect journalist these individuals engage, at best, fitfully. – there is just that conviction, inside, and so we accept it. Then there are those for whom a career in It was in this manner I realised it was not for me. But from Tthe law is and always will be a ‘vocation’. These ones relish that moment on, I realised what I really wanted to be was the chance to advocate, to represent – even after 40 years. … a lawyer. The president of the American Bar Association, William “There is no profession that provides a more positive T Robinson III, belongs in the latter camp. Squarely. So opportunity to make a difference in the lives of others; much so, he might have been dispatched from ‘central that is the definition of success that I have always adhered casting’ for a screen adaptation of a Grisham novel: the to. The profession is a vocation in that it is a call to serve slow-talkin’ but fast-thinkin’, fly-fishin’, God-fearin’, others, so going from the seminary to the practise of one-woman-lovin’ Kentuckian, whose sense of justice is as law was, for me, a logical next step consistent with my resolute as the hatred in the hearts of the good ol’ boys he background and training.” encounters (and so on, as per Hollywood cliché). Does he ever get disappointed with the selfishness of other lawyers, those who feel no need to ‘give back’? Take a chance on me “Well, no one is perfect. If everyone were, I’d be in some In reality, the notion of the law as a vocation did not derive other line of work! But I can only speak about lawyers in from Hollywood, or even from exposure to an influential America where, apart from pro bono work, it is virtually legal figure – Robinson’s genuinely humble background impossible to find a legitimate non-profit organisation (his father, a WWII veteran, was a janitor) dictated that that does not have at least one lawyer giving time, money, he was well into his 20s before he clapped eyes on, let leadership or service.” alone spoke with, a member of the exalted legal profession. Instead, the notion of “higher service” was a “logical next I have a dream step” for a youngster who at 14 had, of his own volition, Robinson is an “eternal optimist”. His belief in the intrinsic already enrolled in the local seminary. It was a residential goodness of his fellow human (and the generosity of his programme, with little else to do but study and pray. fellow professionals) emanates from a deep faith. But there Robinson says he spent “five wonderful years” there, is, he argues, a historical context to his convictions: “It really before realising it was “not for me”. goes back to the beginning of our country. To something Law Society Gazette www.gazette.ie November 2011 profile 27
“Far too great a percentage of the public at large does not appreciate, or even understand, that has been called ‘habits of the heart’. There Europe to garner support for know, that lawyers can offer has always been, in the legal community in the American effort to become the role of the leadership – both in and out of a America, an exceptionally high level of what independent. That, for me, courts” courtroom. is now termed ‘dedicated volunteerism’. For defines the volunteer aspect of When he took up office example, John Adams, the second president American lawyers. Do they occasionally make in August, one of the key areas Robinson of the United States – and in his own right mistakes? Of course: they are human beings.” was determined to highlight was the lack of a tremendous lawyer who, controversially, Robinson believes dedicated volunteerism diversity in the US legal system – women make and at great risk to his reputation, defended needs to be highlighted, if only to counter up just over half of the US population, and half numerous wounded British soldiers – out of his the deficit in credibility the profession can of the numbers entering law schools, but they own pocket, paid his way back and forth from so readily suffer. People, he says, need to represent only a third of the lawyer population. Final countdoWn Only 35 working Winner of the 2011 Irish days to obtain your Institute of Training CPD Scheme hours & Development (IITD) for 2011 Awards - Networks & Groups Category
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LSPT ad Gazette Nov 2011.indd 1 12/10/2011 14:36 Law Society Gazette www.gazette.ie November 2011 profile 29
when all is said and done Racial and ethnic minorities make up approximately one-third of the population, but The ABA is the largest voluntary membership It was also successful in the passage of represent only 10% of the lawyer population, professional association in the world. It is legislation to clarify that lawyers are exempt and less than 16% of judges. “Diversity also among the most powerful. It has almost from a Federal Trade Commission rule requiring enriches our society, our profession, and our 400,000 members, over 900 staff, over 3,500 creditors to develop costly programmes to ability to be competitive,” he adds. separate operating units, as well as offices in detect and report any ‘red flags’ of identity theft Chicago (over 700 employees) and Washington of their clients. (Although this burden does Money, money, money DC (over 200 employees). It is funded primarily not exist in the lawyer/client relationship, the He also resolved to tackle the very real crisis by membership dues. ‘Red Flags Rule’ “would have imposed upon of court underfunding: “In New York alone, According to Bill Robinson, the association lawyers millions of dollars in compliance costs there was a $178 million cut in the state advocates to “preserve the independence and and subjected them to a measure of federal court system budget. That means, almost effectiveness of the profession” and is the regulation that does not now exist,” says immediately, that almost 500 people were national bar advocate for “a fair and impartial Robinson). laid off from that state’s court judiciary, providing guidance for state and With one notable exception, system. We now have six local bars in responding to infringements on every US president since Dwight “Courts are separate states closing court for the courts, and promoting public awareness Eisenhower has requested inherently one day a week, and we have of the need for an independent, adequately that the ABA, through its one state where courts were funded, third, co-equal branch of government”. Standing Committee on the important to closed for single jury cases for The ABA has a Governmental Affairs Office Federal Judiciary, evaluate the the quality of more than a year due to a lack in Washington DC, which consists of eight professional qualifications of of funds. This is not acceptable. non-partisan lawyer lobbyists. This unit individuals being considered for freedom and Courts are inherently important is responsible for coordinating all of the nomination to the lower federal justice. People to the quality of freedom and association’s advocacy efforts before Congress. courts. The standing committee’s fought and died justice. People fought and died The ABA “consistently and vigorously” opposes vetting process was “designed to for that freedom. This goes to federal legislation that would undermine shield presidents from pressures for that freedom” the heart and soul of America’s traditional state court regulation of lawyers, to repay political debts by constitutional democracy, and interfere with the confidential attorney/client appointing individuals who might we are letting it slip away … and relationship, or otherwise impose excessive be lacking in the professional qualifications to that is why the ABA is stepping up.” federal regulations. The ABA recently “helped exercise the important responsibilities of the Why has the issue of state underfunding persuade” Congress to include language in federal judiciary”. During the administration of of courts been so under-reported? the legislation forming the Consumer Financial George W Bush, however, the ABA provided this “Essentially, due to lack of awareness. Even Protection Bureau (the Dodd-Frank Act) to service only after each nomination had been in the profession itself, there is now only exclude thousands of practising bankruptcy submitted to the Senate. an awakening – an appreciation for how lawyers, litigators, tax lawyers and other The Obama administration has since dire the situation has become. We have not lawyers holding client trust accounts from requested the ABA standing committee to carry really had civics taught in the States for more expanded federal oversight. out its “historic pre-nomination function”. than a generation and a half. Far too great a percentage of the public at large does not appreciate, or even understand, the role of the courts.” (Robinson is on record as being super trouper dismayed that so many young people can name all the judges on American Idol but not William t (‘Bill’) Robinson III is a graduate of president of the Kentucky Bar Foundation, one member of the US Supreme Court.) Thomas More College and the University of founding chair of Kentucky’s Interest on Lawyer He continues: “There is also an Kentucky College of Law, where, in 2004, he Trust Accounts and president of the National increasingly smaller percentage of lawyers was inducted into the Alumni Hall of Fame. He Caucus of State Bar Associations. He is the in the state legislature; we think that is is member-in-charge of the Northern Kentucky 135th fpresident o the ABA. something to do with the situation. But offices of Frost Brown Todd LLC, practising civil He is a fellow of the American Academy editorial support is growing. I believe we will litigation at trial and appellate levels, medical of Appellate Lawyers, sustaining attorney see progress on this issue. We have already malpractice defence, environmental litigation member of the Product Liability Advisory seen restoration of funding in some states.” and product liability defence. Council, sustaining member of the American Robinson’s maternal grandmother hails Throughout his 40-year career, Robinson has Law Institute, a founding board member of the from Tuam, Co Galway. Asked why he took been a volunteer leader in his profession and Appellate Judges Education Institute at Southern out Irish citizenship last year, he replies: his community, working with organisations such Methodist University, fellow of the Litigation “Essentially to remind myself, my family as Bridges for a Just Community and The United Counsel of America, member of the International and my extended family of the fact that we Way. Association of Defence Counsel, fellow of the are immigrants. That, in America, we are An ABA member since 1972, he has served International Society of Barristers, and a life all immigrants. I believe it is important to as president of the Kentucky Bar Association, member of the US Sixth Circuit Court of Appeals. remember that, especially when a sense of entitlement might begin to develop.” G 30 corporate law Law Society Gazette www.gazette.ie November 2011
the crack of DAWN Advising on regulatory/criminal law in a corporate environment is no longer an unusual thing for a solicitor to have to do – and with the explosion in the numbers of ‘dawn raids’, prevention is better than cure. Joe Kelly kicks the door in
t seems a long time since corporate law firms, One particular case comes to mind, where there Joe Kelly is a or indeed any other law firm, disclaimed any was a contemporaneous visit by a regulator to four partner in A&L knowledge of criminal law because it was an area different client locations spread around Dublin city. Goodbody in which the firm chose not to provide advice to To effectively respond required the firm to dispatch a its clients. Responding to increasing regulation, separate legal team to each location. At one stage, there increasing regulatory activity, and client demand, were 28 lawyers on the ground – engaging with the Isolicitors everywhere are putting more resources into regulator, advising the client, recording the investigator’s providing top-line advice and assistance that clients require activities, managing and recording the flow of data/ and value in these changing and challenging times. documents to the regulator from the client, and ensuring One obvious example of how this area of law has been that appropriate cooperation was being provided in evolving is in the sphere of unannounced visits by the accordance with the legislation governing the activity gardaí or regulators to clients’ premises, colloquially of the particular regulator. The firm also had to ensure known as ‘dawn raids’. While dawn raids were once an that the client did not inadvertently breach its private uncommon feature of the Irish legal landscape, there was law obligations and its obligation to keep confidential an explosion in unannounced visits by regulators to clients’ sensitive commercial information. premises two to three years ago, to the point where this When a dawn raid occurs, it can be a shattering firm was responding to client calls on an average once experience for any business. This arises from the every five or six weeks over a period of approximately 12 suddenness of the visit and the anxiety flowing from the months. knowledge that your business is under investigation. A significant feature of the dawn-raid activity was that Without very tight management of all of the it was not confined to agencies or regulators typically circumstances, there can be detrimental effects on staff thought of as being at the sharp end of law enforcement, morale and on customer and trading relationships. like the Criminal Assets Bureau or the Garda Bureau of Fraud Investigation. Among the regulators encountered International dimension in dawn raids of clients’ premises were the Competition Ireland is not unique in terms of increased regulation, Authority, the Office of the Director of Corporate legislation and regulatory activity. This increasing Enforcement, the Financial Regulator, the Data Protection regulation is a trend that has occurred worldwide, and Commissioner and the Environmental Protection particularly in those countries that represent our major Agency. That regulatory activity necessarily required a trading partners, the US, Britain and other countries response from the businesses under investigation and in the EU. Solicitors know from their interaction with their solicitors. As dawn raids usually involved the absence lawyers in other jurisdictions that a white-collar criminal of any warning, the most enormous pressure was put on law practice has been a feature of most full-service US the resources of clients and their solicitors to manage the law firms for the last couple of decades. It is also now an response to a raid. embedded feature of British law firms, and it has become Law Society Gazette www.gazette.ie November 2011 corporate law 31
Fast facts
> The Companies Acts now contain over 300 offences that are punishable by criminal law sanctions > In the last few years there has been an explosion in unannounced visits by regulators to clients’ >>premises > This increasing regulation is a worldwide trend > Of key importance is to know the law relevant to the area of regulatory activity being pursued by the investigator
“When a dawn raid occurs, it can be a shattering experience for any business. This arises from the “At one stage, there were 28 lawyers on the ground” suddenness of the visit and the anxiety flowing from the knowledge that visible in the Irish market over the last way related to defective from their corporate decade or so. products produced your business is under employers; advising but Over 15 years ago, I recall being elsewhere in the world, investigation” not alarming people approached to advise and assist a client who including Ireland. As one about their engagement was struggling to cope with an investigation can imagine, engaging with US investigators with US investigators (the FBI in that initiated in the US, but which included – and bearing in mind the very significant case); and balancing the requirement for a number of other countries in which criminal law penalties attaching to a US voluntary cooperation, where necessary, were located subsidiaries of the parent conviction – was an enormously worrying with invoking the protections afforded by US company. The subject matter of the prospect for the employees of the Irish Irish law, including the privilege against investigation related to deaths/injuries subsidiary. self-incrimination. The obligation of sustained by US citizens and the claim Great care had to be taken in advising the employee to provide cooperation in that those deaths/injuries were in some individual employees, separate and distinct line with the request of its employer, and 32 corporate law Law Society Gazette www.gazette.ie November 2011 the voluntary nature of the engagement their investigation. The most obvious with the FBI, made this quite a tricky manifestation of this (which will resonate assignment. While all employees wanted with other solicitors) is the willingness of to preserve their jobs and knew that, in investigators to go to a private room when order to do so, they should provide the conducting an unannounced visit rather than cooperation requested by their employer, remaining in the public reception area. nevertheless, employees were nervous about However, sometimes it can be perceived engaging with a foreign investigator. People that a solicitor is ‘getting in the way’ of needed to have compete confidence in their an investigation, and tensions can and do Irish legal advice and be reassured that arise as a consequence. I have been in the their Irish solicitors would take whatever situation where an investigator openly protective measures were deemed necessary and insistently repeated to an employee should the investigators stray into territory of my client that he would be in contact where the employee became uncomfortable subsequently to “follow up”. In practical with the questioning. terms, my client and its employees were Since the conclusion of that investigation, very constrained in what they could say in this firm has had experience of dealing response to queries that with other US regulators, including the were not in relation Securities and Exchange Commission, “At one stage, there to the client’s own on a wide variety of issues, particularly were 28 lawyers on the business, but in relation involving the Irish subsidiaries of US parent to another business companies. In some cases, the employees From dusk to Dawn ground – engaging with with which the client of Irish subsidiaries have chosen not to the regulator, advising was trading. Keeping cooperate with US regulatory investigators, on the right side of and the consequences of that have had to account. This can result the client, recording the line in terms of be borne by those employees. Suffice it to in the gardaí seeking and the investigator’s abiding by private law say that the US is not a popular holiday obtaining freezing orders activities, managing obligations enshrined destination in those circumstances. In in relation to accounts, in contract, while at the the last few years, the UN ‘Oil for Food’ sometimes locking up tens and recording the flow same time providing investigation was active in Ireland and of millions of euro that of data/documents to the cooperation demonstrated the international reach cannot then be accessed necessary to comply of investigations and regulators linking by a client. the regulator from the with its public law corruption alleged to have emanated from In particular, I recall client, and ensuring that obligations, has been Iraq with the supply of product originating spending much of the and continues to be a in Ireland. time last Easter in trying appropriate cooperation tricky balancing act for to unlock monies in was being provided” a trading company and Where are we now? frozen accounts for a its solicitor to perform. The stream of regulatory legislation shows trading company. The no sign of drying up. The Criminal Justice company found it extremely difficult to Advising corporate Ireland Act 2011 seeks to enhance the powers of persuade its bank that there was a rational Advising on regulatory/criminal law in enforcement authorities and, in particular, commercial explanation for the unusual a corporate environment is no longer an creates a new offence of ‘withholding activity that had prompted the bank to freeze unusual thing for a solicitor to have to do. Of information’, which places an obligation account activity. While the monies in the key importance is to know the law relevant on individuals to disclose information accounts were eventually unfrozen, that did to the area of regulatory activity being to the gardaí that may be of material not happen before the Easter vacation period pursued by the investigator and to marry assistance in preventing white-collar crime had disappeared in a welter of telephone that to a knowledge of the client’s business or apprehending those involved. This calls, emails and short-term financing activity and a knowledge and experience of what the legislation poses some interesting challenges required to tide the company through a very investigator needs to achieve in the course of for solicitors and was the subject of a recent difficult situation. his investigation. It is salutary to remember article in The Irish Times by my colleague This seems to be an area of increasing that the Companies Acts now contain over 300 Kenan Furlong. activity for both financial institutions and offences that are punishable by criminal law Another topical piece of legislation regulatory authorities, and it will not be sanctions and that that legislation is just part (at least in the regulatory sphere) is long before the issues arising from such of an overall legislative framework that seeks the Criminal Justice (Money Laundering investigations and freezing orders will be the to penalise transgressions by invoking criminal and Terrorist Financing) Act 2010. This subject matter of court hearing. law sanctions. legislation requires banks and financial Increasingly, the management of risk and institutions to be very vigilant in relation Relationships with regulators policies of prevention are on the agenda to money laundering and related activity. In our experience, regulators and the of companies anxious to avoid, or at least Banks and financial institutions have gardaí usually try to behave reasonably minimise, regulatory activity. Regulatory become very wary and mindful to ensure when conducting an investigation. Often investigations are very distracting and, that they fully discharge their obligations it is possible to come to an agreement with on many levels, are bad for business. The pursuant to this and other legislation, investigators that will facilitate a client longstanding advice that prevention is always requiring transaction reporting in the event conducting its business activity, while better than cure has never carried more sway of there being any unusual activity on an allowing investigators to press on with than it does today. G Law Society Gazette www.gazette.ie November 2011 transport law 33
The prospect of not having a train ticket to show to the collector when he announces ‘tickets please’ is enough to induce a cold sweat in most people. But what’s the law in such circumstances – and what are your clients’ options? Gary Fitzgerald hops on board
Gary Fitzgerald is a practising barrister and lectures at Independent College, Dublin
Fast facts
> Railway Safety Act 2005 – offences relating to fare evasion > The offence of fare evasion and the intention to evade the fare > Fixed penalty notices, ‘authorised officers’ and ‘reasonable grounds’>> for believing that an offence has been committed > Judicial review – an option for clients when the time for payment of fixed penalty notices has lapsed and a prosecution is imminent ticket to rIDe 34 transport law Law Society Gazette www.gazette.ie November 2011 n recent years, Irish Rail has been of travelling, but that person must obtain a Section 132 authorises every employee of quite proactive in tackling fare ticket or other authority from an authorised Irish Rail to ask to see a ticket – therefore, evasion on its services. In 2005, person on the train as soon as practicable after every employee of the company is probably an the Railway Safety Act updated the entering any vehicle, or from an authorised authorised officer for the purposes of issuing law in relation to fare evasion and person on arrival at the station to which such a FPN in relation to an offence under section introduced a system of fixed-penalty person is travelling by the train”. 132. Inotices (FPNs). In almost every station, Irish The SI defines an authorised person as “any The FPN must be in a prescribed form, Rail has posters saying that fare evaders will officer, employee or agent of the board acting and the most recent form is SI 576 of 2006. be prosecuted and warning passengers that in the execution of his or her duty upon or in The only relevant section of the form is the they must have a ticket when travelling from connection with the railway”. information given about the offence under stations. The company’s information leaflet There does not appear to be any section 132, which is summarised as being boldly proclaims: ‘no ticket, no travel, no contradiction between these two provisions. “avoiding payment of fare”. This would appear excuse’. Under section 132 of the 2005 act, the fare to be a very brief, but accurate, description But is this a correct statement of the law in evader must have the intention to evade the of the offence. It is not an offence to be on a the area? Are there circumstances when it is fare in order to commit the offence. Bye-law 4 train without a ticket, but it is to be on a train possible to board a train without a ticket? In give express authority to an authorised person without a ticket with the intent of avoiding a particular, can a passenger running late buy a to allow a passenger onto a fare. There is no express right ticket on the train, or are they obliged to catch train without a ticket. The to appeal the issuing of an the next train? passenger must then buy a “In order for an FPN FPN under the 2005 act, but ticket as soon as practicable. Irish Rail does allow appeals All aboard In these circumstances, the to be validly issued, in writing to the Revenue The most important statutory provision in passenger does not have an the officer must Protection Unit (RPU) in relation to fare evasion is section 132 of the intention to evade paying Dublin. Railway Safety Act 2005. This section creates a fare, and, therefore, has a reasonably believe Irish Rail’s most recent two offences. Firstly, where an employee of defence under section 132, that the passenger customer information leaflet Irish Rail asks for a ticket, and a passenger does even without the help of intended to avoid on fixed-penalty payments not have one, the passenger must do one of bye-law 4. states that, if a customer three things: the fare” boards a train without a ticket, 1) Pay the standard fare, Crazy train then they will be charged 2) Pay another fare as determined by Irish Rail, Central to the success of with a fixed-penalty payment. or Irish Rail’s fare evasion This is an incorrect statement 3) Give the employee his name and address. policy is the fixed-penalty of the law. An FPN can only system. This operates in be issued if the officer has Failure to do one of these things is an offence, a manner similar to road “reasonable grounds” for with a maximum fine of €1,000 (section traffic offences and is set out believing that an offence 132(2)). Secondly, under section 132(3), where in section 133 of the 2005 under section 132 has been a passenger attempts to travel on a train act. If an ‘authorised officer’ committed. Since the offence without paying a fare, and “with intent to has reasonable grounds for is not one of strict liability, avoid such payment”, he is guilty of an offence. believing that an offence the officer must examine the Again, the maximum fine is €1,000. under section 132 has been intention of the passenger. This second offence is the most important committed, then he may In order for an FPN to be one and goes to the core of the issue. In order serve a fixed-penalty notice validly issued, the officer must to have committed the offence, the passenger on the passenger. The reasonably believe that the The Fat Controller: look out, must be on a train without a ticket (the actus passenger has 21 days to he’s behind you passenger intended to avoid reus) and intend to avoid paying the fare (the pay the fine of €100. If the the fare. It is clear that the mens rea). The implications of this will be fine is paid, there will be no officer has a decision to make discussed below. Both of these fines are in prosecution, but if the fine is not paid, then a and can exercise a discretion in relation to the addition to the requirement to pay a standard prosecution may follow. Again, this fine is in making of this decision. fare for the journey. addition to the requirement to pay a standard That is not to say that a passenger will be These offences have to be read in fare. able to easily rely on this lack of intention as conjunction with statutory instrument 109 The term ‘authorised officer’ is not clearly a defence to a prosecution. Any passenger of 1984, enacted under section 22(4) of the defined in the act. Section 22A of the 1950 act in default will need to explain why they did Transport Act 1950. Bye-law 3 of that SI states (inserted by the 2005 act) gives the board of not buy a ticket before travel. Irish Rail RPU that no person shall travel on a train without CIE power to appoint individuals as authorised officers now receive automatic updates on a valid ticket. It is unclear what the impact of officers, and then gives these individuals whether the ticket office was open, how many this is, as it is expressly stated that bye-law 3 powers similar to the powers of arrest and vending machines were in operation, and is not an offence. Bye-law 4 states: “Where detention given to the gardaí. These powers whether those machines accepted credit cards any person is instructed by an authorised only relate to specific railway offences. But the or issued change. If a passenger jumps a barrier person to board a train at a station without phrase is used in a much wider sense in section in order to catch a train, this might be a sign of purchasing a ticket at the booking office so as 133. Section 133(5) states that authorised a lack of intention to buy a ticket. But even this not to delay the departure of the train from officers include those appointed under section might not show a lack of intention. It could the station, any person not in possession of a 22A of the 1950 act. In section 133, the phrase merely be that the passenger was running late valid ticket entitling him or her to travel may probably refers to those individuals authorised and there was a real reason why he needed to enter a vehicle at that station for the purpose under a different section to carry out an act. catch a particular train. Law Society Gazette www.gazette.ie November 2011 transport law 35
“It is not an offence to be on a train without a ticket. There may be valid company policy reasons why Irish Rail have adopted a strict approach to this issue,
I would suggest that central to this question unreasonable manner, cannot but this strict approach ticket on board. of intention are the actions of the ticketless act outside their powers, and does not reflect the In order to convince the passenger once they board the train. In order to cannot be biased in making legislative scheme in court that they did not have show that they intended to buy a ticket, there the decision. an intention to evade a fare, may be some obligation on the passenger to The second is the decision the 2005 act” the passenger would need seek out the RPU officer, explain the situation, to proceed to a prosecution a good reason for not pre- and buy a ticket. If a ticketless passenger merely once the penalty has not been paid. Again, the purchasing a ticket, and probably needs to seek waits for an RPU officer to ask for their ticket, standard grounds of judicial review are likely to out an RPU officer as soon as he has boarded then it will be much harder to prove that there be available. In particular, any appeal must be the train. was no intention to evade. fair and comply with natural and constitutional The RPU officer has to determine if the justice. passenger has an intention to evade paying a Chattanooga choo-choo fare. Even if this is the case, the RPU officer It may seem heavy-handed to discuss judicial Train running low on soul coal has discretion as to whether or not to issue review in the context of a €100 fine. In almost The best advice is to buy a ticket before travel. an FPN. The difficulty for clients fighting an every case involving judicial review as an But that does not always happen. If a passenger FPN is that the payment of €100 ends the option, clients would be happy if the outcome is on a train without a ticket and has the threat of legal proceedings, and the costs of was payment of a €100 fine. But there may be a intention of evade, then they have committed legal advice would almost certainly equal, if not client who, on a point of principle, decides not a criminal offence. The District Court trial is exceed, this amount. It is only if a passenger to pay the fine. More likely is a client seeking a standard criminal trial and Irish Rail needs has not paid the penalty, and Irish Rail are advice after the 21 days for payment of the FPN to prove both elements of the offence beyond proceeding to prosecution, that it might it have lapsed, with a prosecution imminent. a reasonable doubt. If a passenger alleges that be worth a passenger’s while paying for legal The general rule is that any decision of the decision to issue the FPN or the decision representation. G a public body exercising a discretion under to prosecute was incorrectly made, then those statute is open to judicial review. There are two decisions may be open to judicial review. It decisions that might be open to judicial review. might be better to just deal with any potential The first is the decision by the authorised issues at the District Court trial itself. Look it up officer under section 133 of the 2005 act It is not an offence to be on a train without to issue the fine. The standard grounds for a ticket. There may be valid company policy • Railway Safety Act 2005 judicial review are probably available. When reasons why Irish Rail have adopted a strict • Statutory instrument 109 of 1984 deciding to issue an FPN, the authorised approach to this issue, but this strict approach • Statutory instrument 576 of 2006 officer must have reasons for that decision and does not reflect the legislative scheme in • Transport Act 1950 must communicate those to the passenger. the 2005 act. Therefore, it is possible for a The authorised officer must not behave in an passenger to board a train and seek to buy a 36 registration of title Law Society Gazette www.gazette.ie November 2011
The Property Registration Authority’s digital mapping project has come to a successful conclusion. John Deeney, John O’Sullivan and Shay Arthur consider the system of ‘non-conclusiveness’ of boundaries that operates in Ireland
John Deeney is deputy registrar, John O’Sullivan is head of corporate affairs, and Shay Arthur is mapping advisor at the Property Registration Authority
he Land Registry map is not, except as provided by legislation, conclusive as to boundaries or extent, and a note to that effect appears on the register (section 85 of the Registration of Title Act 1964, as substituted by section 62 Tof the Registration of Deeds and Title Act 2006 and rule 9 of the Land Registration Rules 1972 refer). This has been the position since the inception of the title registration system in 1891, as provided by section 55 of the Local Registration of Title (Ireland) Act 1891. This is colloquially known as the ‘general boundaries rule’. This means that, in any case where the boundary is not stated to be conclusive or defined, evidence other than the register or registry map is admissible to determine the correct boundary and extent of the land. The rule has its origins in the commencement of the title registration system in England. The opinion of the Royal Commission, which considered the English Land Registry Act 1862, cited by McAllister (1973, p58), was that a legal requirement to have defined boundaries would have two immediate ‘mischievous’ consequences: “First, notices would need to be served on all “An exact boundary adjoining owners, occupiers, next of kin of system would appear to deceased registered owners, which may and sometimes do amount to an enormous number add little to the Irish title ... The second [mischief] is that people served registration system, and with notices immediately begin to consider whether some injury is not about to be inflicted it is difficult to see how on them. In all cases of undefined boundaries, it could be justified on they find that such is the case, and a dispute is cost grounds” system to show fixed boundaries would “interfere with thus forced upon neighbours who only desire the course of business, and cause neighbour disputes. to remain at peace.” In addition, the difficulty and expense of making exact In Ireland, a review of the failure of the Records of Title surveys would make all registration impossible” (McAllister, 1973). Act 1862, which required exact boundaries, found that Under present arrangements, whether the title to land is registered or the requirement for maps and plans in a title registration unregistered, the primary source of the boundary line between any two adjoining Law Society Gazette www.gazette.ie November 2011 registration of title 37
pushing the boundAries
Fast facts
> The Land Registry map is not, except as provided by legislation, conclusive as to boundaries or extent > The primary source of the boundary line between any two adjoining properties is the original deed whereby>> the ownership properties is the original deed whereby the contract map, the application map, use ownership is divided. On first registration, this and occupation, other deeds, features, is divided might comprise the descriptions contained in a witnesses, inferences and presumptions can > The accuracy and amount of information deed, or a map endorsed on such deed, or a prior all be taken into account if the issue of the that can be represented on the map is deed, or both deeds and maps read together. precise position of a boundary line falls to primarily dependent on the scale of the These matters, together with possession, the be determined by the court (Woods, 2010). base map 38 registration of title Law Society Gazette www.gazette.ie November 2011 However, it is not the case that the boundary as shown on the Land Registry map is of no relevance in the case of a neighbour dispute, as in in the absence of any other evidence, it may well prove prove conclusive. An effect of the rule is that the State guarantee does not apply in the case of non-conclusive boundaries; thus, compensation is not payable for discrepancies within the acceptable margins of error (see Glover’s textbook owners. This would seem to be the optimal A Treatise on the Registration of Ownership in approach, allowing registered owners who surveying systems such as GPS, which are Ireland (1933, p25), as approved by Laffoy J in desire a higher degree of accuracy, and based on global navigation satellite systems. Boyle v Connaughton). who are prepared to meet the surveying Some commentators – for example, It is to be noted that whether or not a costs involved, to enter their boundaries as Sperling (2008), Prendergast et al (2011) discrepancy is substantial or minor in nature conclusive. In such instances, the parties and O’Brien and Prendergast (2011) – have may not necessarily depend on the extent of instruct a land surveyor to carry out a ground advocated that Ireland should move towards a the discrepancy, but might well depend on survey, prepare a precise map, and lodge it system of fixed or exact boundaries as part of the significance to the title of the portion for registration, together with the consents a move to a numerical cadastre, and this may involved. in writing of the relevant registered owners. seem attractive at first glance. The general boundary rule was reviewed The application refers to the plan, stating While the ‘general boundary’ approach by the Oireachtas in 2006. Section 85 of the the physical boundary of the property to be avoids defining boundaries precisely, it does 1964 act, substituted by section 62 of the 2006 along a specified line on the Registry map provide the registered owner with an accurate act, sets out that, except as provided by the as, for instance, that the face or centre of the plan based upon the national framework 1964 act, neither the description of land in a fence or wall, or the centre or a specified side provided by OSI maps and addresses most, register nor its identification by reference to a of a stream or drain along the line shown on if not all needs, and in particular is fit for the registry map is conclusive as to its boundaries the map is the boundary and is conclusive purpose of land registration. or extent. To copper-fasten the position, as between the adjoining owners. Such On the other hand, an exact boundary rule 9(2) of the Land Registration Rules 2009 applications are rarely made. system, as in Germany (with requires an entry to such effect to appear on “Whether or not precision less than the width the register, where applicable. Non-conclusive boundaries of a two-inch wooden fence) There has been some debate a discrepancy would require constant Entry of boundaries in recent years as to the is substantial maintenance and a new agency However, it is possible for registered owners merits of the non-conclusive of cadastral surveyors, either to have their boundaries exactly fixed if system as opposed to an exact or minor in funded by the taxpayer or by desired. Section 87 of the 1964 act provides boundary system. A main nature may not individual registered owners at the necessary flexibility, allowing boundaries driver for the debate has been a significant cost. on the Land Registry map to be defined technological progress, and necessarily depend It is to be noted that and an entry to this effect entered onto the in particular the precision on the extent of the registration of exact register with the agreement of adjacent afforded by commonly used discrepancy, but boundaries does not obviate might well depend on the significance to the title of the portion involved” Law Society Gazette www.gazette.ie November 2011 registration of title 39 the potential for boundary-related disputes. A A land register based on ‘non-conclusive’ to Powell (2011): “I would like to state dissatisfied neighbour would be still entitled boundaries is long-standing public policy my view that the precise cadastre system to seek legal redress through the courts, as at in Ireland, and changes to this would belongs back in the 20th century; the 21st present. require fundamental changes to the system century has thrown up new realities, in that It must be also remembered that there are of conveyancing and land registration that everything must be assessed not just by its many other factors that can contribute to has been in place since 1892, necessitating theoretical/technical worth but by its financial uncertainty as to where a boundary lies. A wide-ranging amendment of recently enacted implications and its benefit for society … map is only a two-dimensional model of the legislation such as the Registration of Deeds and There is the more important moral aspect real world, and the accuracy and amount of Title Act 2006 and Land Registration Rules. of spending trillions of pounds/euros/dollars information that can be represented on the Finally, as regards the debate in relation that could be better spent elsewhere or not map is primarily dependent on the scale of the to boundary systems, we leave the last word even spent at all.” G base map. Other relevant factors include the map scale, the accuracy of the original survey, and the variable quality of the maps presented for registration since the establishment of the Look it up Land Registry in 1892. Furthermore, the cost of surveying, Cases: thank you!”, paper delivered at ‘The determining, monumenting and re-registering • Boyle v Connaughton [2000] IEHC 28 (21 Boundary’ conference in Bergen, the boundaries of some 2.8 million land March, 2000) Norway, April 2009. (available parcels would be very significant and unlikely at www.theboundary.no/ep_tmp/ to be welcomed in the current fiscal climate. Legislation: files/130566233449a6449170fc0.pdf) It has been estimated that the legal, surveying • Land Registration Rules • Powell, DJ (2011), “General boundaries and registration costs of introducing and • Local Registration of Title (Ireland) Act v precise cadastre: recording (private maintaining a cadastral system in England 1891 property) boundaries in England and and Wales would be in the region of £1,000 • Registration of Title Act 1964 Wales” (available at www.maney.co.uk/ per property (Powell, 2009, 2011) and, • Registration of Deeds and Title Act 2006 index.php/david_powell) based on the experience of jurisdictions that • Prendergast, WP, G Brennan and C Horgan maintain such a system, subsequent ongoing Literature: (2011), “Issues related to boundary maintenance costs would also be significant. • Glover (1933), A Treatise on the mapping in Ireland”, paper presented at Powell (2009) also addresses the argument Registration of Ownership in Ireland (John FIG Working Week 2011, Marrakech, 18- that defined boundaries would assist more Falconer, 2 Crow Street, Dublin) 22 May 2011 (available at www.fig.net/ accurate valuation: “Then there is the notion • McAllister, DL (1973), Registration of Title fig2011) that it would be better for land valuation and in Ireland (Incorporated Council of Law • Sperling, D (2008), Property Registration land-use assessment for a cadastre to exist. Reporting in Ireland, Four Courts, Dublin) in Ireland: The Role of the State Guarantee This, again, is incorrect, because the current • O’Brien, D and P Prendergast (2011), “To (Dublin: Dublin Institute of Technology) general boundaries system enables land gauge an understanding of how boundaries • Woods, U (2010), “Adverse possession areas to be calculated to within OS accuracy are perceived in Ireland by landowners”, of boundary land – lessons from abroad”, limitations, which are constantly improving.” paper presented at FIG Working Week paper presented at COBRA 2010 Legal Accordingly, on the face of it, an exact 2011, Marrakech, 18-22 May 2011 Research Symposium, Paris, September boundary system would appear to add little (available at www.fig.net/fig2011) 2010 (available at www.rics.org/site/ to the Irish title registration system, and it • Powell, DJ (2009), “Property boundaries download_feed.aspx?fileID=8055&fileExte is difficult to see how it could be justified on in England and Wales: Cadastre? – no nsion=PDF) cost grounds.
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40 company law Law Society Gazette www.gazette.ie November 2011 exm a paps er As examinership law moves from a position of obscurity to front-page news, Sinead Morgan highlights the law as it currently stands, recent decisions made by the courts, and the Sinead Morgan is an experienced focus of those cases solicitor who has specialised in commercial ne effect of the litigation and recession is employment law the changing focus towards different areas of law. In particular, examinershipO law has moved from a position of obscurity to front-page news, with an increasing number of individuals and companies making applications to the courts to buy time to put their businesses on a stable financial footing. Years ago, these applications were granted relatively perfunctorily, but changes to examinership legislation via the Companies (Amendment) (No 2) Act 1999 raised the bar for an application to be granted. However, the biggest move we have seen in this area of late is the changing attitude of the courts in the application of those new legislative rules, with judges taking it upon themselves not only to refuse applications, but to specifically comment on the behaviour of company directors – as seen in the 2010 Residence case. Law Society Gazette www.gazette.ie November 2011 company law 41 exam
The process of examinership was established by the Companies (Amendment) Act 1990. The legislation set out the conditions under which an insolvent company would be given the protection of the court for a specific period of time. Court protection meant that no proceedings could be commenced on winding up the company, and no receiver could be appointed during that time. In addition, no steps could be taken to enforce charges against the company.
Chance of survival Initially, the legislation (as interpreted by case law) required the applicant to prove that there was “some chance of survival” for the company (see section 2(2) of the Companies Fast facts Amendment Act 1990; Re Atlantic Magnetics). That act was amended by the 1999 act, which changed the test to “a > The attitude of the courts to applications reasonable prospect of survival” (see section 5, Companies for examinership is changing Amendment (No 2) Act 1999). Even if the test was met, the > Recent cases prove that being granted court had discretion to refuse an application if it felt it was an examinership application is now far not in the best interests of the company and its creditors from a ‘sure thing’ (see section 24 of the act). The 1999 act also established > Judges have also become>> vocal in an obligation to furnish an independent accountant’s their views on the companies seeking report confirming that there was a reasonable prospect of protection the survival of the company and the whole or part of its > Judges will seek to balance the interests undertakings (see section 7). of the creditors and shareholders of the The independent accountant’s report should identify company 42 company law Law Society Gazette www.gazette.ie November 2011 investment that can be secured or a scheme arrangement. That application was refused, that can be put in place that will be more and a number of criticisms were levelled advantageous to both the creditors and at the company. It transpired that Laragan shareholders than winding up the company. It Developments Limited was a wholly owned should establish that there is no deficiency in subsidiary of Laragan (Holdings) Limited, the company’s finances and that the company the majority shareholding of which was has money to trade during the protection owned by Mr Alan Hanly and the balance period. It should also contain projections for by a Mr Joseph Hanly. Alan Hanly also future business, to prove the business is viable. owned a range of other related companies, The first written judgment after the 1999 which were involved in similar ventures. An act was Re Tuskar Resources (a company examination of the relationship showed that that was involved in mining operations in Laragan Developments Limited was merely a Nigeria). An interim examinership order “vehicle of convenience” rather than an arms- had been made, relying on the independent length relationship. Questions were raised as accountant’s report. Later, the application to whether the application should have also for examinership was refused because the related to other companies within the group. judge deemed the report “overly optimistic”. Ultimately, the application was refused. Circumstances had changed since the interim application was made, and it became clear Far from a ‘sure thing’ that the company was in a dispute with a third “It has become These cases proved beyond any party to obtain a licence and would be unable clear that directors doubt that being granted an to operate without that licence. The court can no longer use examinership application is now was furnished with no information regarding far from a ‘sure thing’. Judges the Nigerian subsidiary company nor the the independent have also become vocal in their liabilities of the company in Nigeria. accountant’s views on the companies seeking The Fergus Haynes petition involved a protection. Kelly J put it on the construction company that was in the process report as a shield record in the National Crafts of completing two developments. Works had The application failed. It was to protect them in Limited/Penn Castle Limited halted due to lack of funds. The independent appealed to the Supreme Court, cases that he was growing accountant’s report confirmed there was where Murray CJ reaffirmed relation to their increasingly reluctant to grant a reasonable prospect of survival. Laffoy J this decision. behaviour pre- protection to companies, as did not agree with the assumptions upon investment was becoming as which the report was based. She determined Abuse of process insolvency” scarce as “hens’ teeth”. He also that there was no evidence to support A further examinership indicated that the Commercial the contention that investment would be application was allowed by Cooke J. The basis Court was being confronted on an almost forthcoming, especially in light of the current of the appeal was that, in making its decision, daily basis with applications for examinerships attitudes of the creditors. She also felt it was the Supreme Court had determined that based on “almost formulaic” reports from unlikely that the suppliers would continue to there was no evidence of future financing of a independent accountants. He highlighted the support the company. Finally, business plan. It was submitted fact that examinerships should not be entered she criticised the estimates “It should be that this evidence was now into lightly, as they were expensive processes used, which were furnished by available. This final application carried out at the expense of the creditors of the director rather than by an noted that, once a came before Clarke J, which the company in question. independent professional, for company becomes also failed. In making his The judiciary has gone even further by example, an accountant. decision, the judge looked at commenting on the intent of underlying The infamous Zoe insolvent, its the timescale within which the applications. In the Residence case, Kelly J Developments cases then directors’ duties group might have a reasonable openly criticised the behaviour of the directors came before the courts. In the prospect of survival. He found in the manner in which they managed the first case, Re Vantive Holdings, change. Rather that the company, in their company in advance of the examinership Justice Kelly reconfirmed than having an business plan up to 2011, had application, and refused to extend protection. the discretionary nature of assumed interest rates would As the company had failed to comply with the power to appoint an obligation to not rise from 2009 rates (in its company and Revenue obligations, he examiner. He then looked protect their light of the extremely unusual would not allow them to rely on the self-same behind the assumptions in market conditions in 2009). legislation to protect their interests. He was the independent accountant’s shareholders, they This was a fatal flaw. This particularly critical of the company’s decision report and found them to be become obliged decision was appealed to the to retain employees’ PAYE payments to fund lacking. He observed that the to protect their High Court, and again rejected the company’s ongoing operations, which he purpose of this application on 6 October 2009, when it was described as a “form of thieving”. He made it appeared to be to protect the creditors” decided that the appeal was an clear that, in light of the company’s behaviour, shareholders, which was not abuse of court process. one must view the independent accountant’s the purpose of the act. Secondly, the creditors The Laragan examinership application report with a degree of scepticism. It should were banks and had other ways to proceed involved a petition by another construction be noted that, in the independent accountant’s against the company. Finally, he felt that, on company to the courts. An interim examiner report, the retained PAYE monies were examination, the actual perceived threat to had been appointed when the case came described rather inaccurately as “working jobs was significantly less than that presented. before Clarke J to approve the scheme of capital”. Law Society Gazette www.gazette.ie November 2011 company law 43
Since then, an application has been underlying application has been viewed with Director of Corporate Enforcement, this brought to the High Court by the liquidator suspicion by the courts. has become a very real risk for directors who of Auldcairn Limited (one of the directors’ It should be noted that, once a company could be disqualified or restricted as result. companies), who determined after becomes insolvent, its directors’ duties Liquidators of insolvent companies also investigation that the directors had not acted change. Rather than having an obligation have a statutory duty to take restriction “honestly and responsibly” and had traded to protect their shareholders, they become proceedings against directors if they have for a number of years while insolvent. On 8 obliged to protect their creditors. Directors acted recklessly. It has become clear that March last, the two directors consented to must be cogniscent of these duties if a directors can no longer use the independent section 150 restrictions orders being made company is on the cusp of insolvency. Given accountant’s report as a shield to protect against them in the High Court. Another set that judges have shown a willingness to refer them in relation to their behaviour pre- of restriction proceedings are also pending applications directly to the Office of the insolvency. G against the brothers in respect of a related company.
Reviewing assumptions Look it up An analysis of case law makes it clear that the court will not only look to the test of a Cases: Holdings Limited (2009) IESC 68 and “reasonable prospect of survival” as supported • Fergus Haynes (Developments) Limited v 69; and Vantive Holdings & Ors v the by the independent accountant’s report, but the Companies Act IEHC 327 (2008) Companies Acts (2009) IEHC 409 will also look behind that report, reviewing • Missford Limited t/a The Residence v its underlying assumptions – and, if those Companies Act 1990 (2010, 2 COS), High Legislation: assumptions are unrealistic, they will apply Court, 5 January 2010 • Companies Amendment Act 1990 their discretion to refuse an application. • Re Atlantic Magnetics (Supreme Court, • Companies Amendment (No 2) Act 1999 It has also become apparent that judges will unreported, 5 December (1991, 1993 2IR seek to balance the interests of the creditors pp572-573) Literature: and shareholders of the company. It should be • Re Tuskar Resources (2001) [IEHC 27], • Irish Independent, 19 February, 2009, noted that many of the cases that have come High Court, unreported, 26 February 2001 “Judge reluctant to prop up struggling firms before the courts have, in fact, been supported • Re Laragan Developments Limited (2009) as buyers now ‘scarce as hen’s teeth’” by major creditors of the insolvent company. IEHC 390 • The Irish Times, 8 March 2010, “Cafe Historically, close links can often be found • Vantive Holdings Limited v the Companies brothers’ €146,000 spending revealed in between major creditors and shareholders of Acts (2009) IEHC 384; Re Vantive court” companies and, therefore, the intent of the
Christmas Cards In aId of the SolIcItorS’ Benevolent aSSocIatIon
This is an opportunity to support the work of the Solicitors’ Benevolent Association, whose needs are particularly acute at Christmas time
GreetInG prInted InSIde each card: With Best Wishes
Card A for Christmas and madonna and child Card B antonio correggio the New Year the chriStmaS eve ball
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firm: contact: address: dX: tel: fax:
each card sold in packets of 50 costing €125 (including overprinting of your firm’s name). minimum order 50 cards. add €7.00 for postage and packaging for each packet of 50 cards. i wish to order pack(s) of card a @ €125, pack(s) of card b @ €125. text to be overprinted: Sample of overprinted teXt will be faXed for confirmation before printing. i enclose cheque for € payable to Santry printing ltd (€132 per pack). Send order form and cheque to: SBA Christmas Cards, Santry Printing Ltd, Unit 5, Lilmar Industrial Estate, Coolock Lane, Dublin 9. tel: 842 6444. contact: amanda 44 people and places Law Society Gazette www.gazette.ie November 2011 Monaghan Solicitors’ Bar Association CPD event
At the Monaghan Solicitors’ Bar Association CPD event on 14 October were Dermot Monahan (Monaghan & Co Drogheda), Michael Staines (Dublin) and (from l to r): Justine Carty (Barry Healy & Co), Doc Lavery (Lavery & Co) and Justine Carty (Barry Healy & Co, Monaghan) were at the Glencarn Hotel, Judge John O’Hagan Castleblayney, for the CPD event
At the not-for-profit seminar were Elizabeth Gormley BL and Daniel Gormley
Organisers of the CPD event in Castleblayney were Justine Carty (Barry Healy & Co) and Lynda Smyth (Coyle Kennedy MacCormack) Justine Carty, Brendan McDonald (Coughlan White & Partners), Ross McPhillips (HG Donnelly & Son) and Maeve O’Connor (Harry McCullagh & Co) were among the 200-strong turnout for Monaghan’s CPD day
Meeting up at the highly successful Castleblayney event were (l to r): Judge O’Hagan, Justine Carty and Stuart Gilhooly Law Society Gazette www.gazette.ie November 2011 people and places 45 Young solicitors slip between the covers at House of Lords The Society of Young Solicitors Ireland (SYS) welcomed past chairpersons, members and friends to the former House of Lords on College Green on 7 October 2011 to celebrate the publication of The Society of Young Solicitors Ireland – Scholars, Youth and Success since 1965. The book, which was over a year in the making, is sponsored by Bank of Ireland and provides a light-hearted and informal account of the history of the society. The SYS was established in (Front, l to r): Joanne Joyce (secretary of the SYS), Jane McCluskey (chairperson of the SYS) and Bruce St John Blake 1965 by a number of young (first chairperson of the SYS in 1965). (Middle, l to r): Stephen Fuller, Ms Justice Mary Finlay Geoghegan and Niamh solicitors, including Bruce St Moore. (Back, l to r): Paul Kennedy, Andrea Flynn, Claire McLoughlin (vice-chairperson of the SYS), Aidan Gleeson, John Blake, John Buckley and Micheál Grace, Lisa Joyce, Michael Keaveney (treasurer of the SYS) and Alina Prendergast Richard Neville, and had the principal aim of improving the standard of education of young social network for younger written the foreword to the The committee would like to solicitors at that time. Since members of the profession. book and was a guest speaker at thank Bank of Ireland, the guest then, the society has continued Ms Justice Mary Finlay the launch, along with the first speakers, and everyone who to provide education on legal Geoghegan, who was chairperson chairperson of the society, Bruce attended for making the morning developments and an invaluable of the SYS in 1978/79, has St John Blake. such a success.
(From l to r): William Aylmer, Stuart Gilhooly (president of the DSBA) and Ken Murphy (director general of the Law Society of Ireland) (From l to r): Kieran Cowhey and Michael Carrigan
(From l to r): Professor John Wylie, John Buckley and Derek Greenlee (From l to r): Stuart Gilhooly (president of the DSBA) and Paul Marren 46 people and places Law Society Gazette www.gazette.ie November 2011 Moot court reception A special reception was held at second team of Sarelle Buckley, Visit of the President of Blackhall Place on 21 September Aileen Gittens and Conall to mark the achievements of three Geraghty won through the the Constitutional Court teams of Irish trainee solicitors preliminary rounds to make it of Kosovo who achieved various degrees of to the quarter finals in the same P success in two international moot competition. ic : LENSMEN court competitions. The reception also marked One team comprised Denise the achievement of Maedbh Daly, Maeve Larkin and Clare Gogarty, Orlaith Sheehy, Stephen McQuillan, who returned from Gardiner and Daniel Kelly, who Baltimore, USA, as winners of qualified for the regional final the International Environmental of the European Moot Court Moot Court Competition. A Competition in Heidelberg. P ic : J ason C larke P hotography
The President of the Constitutional Court of Kosovo, Dr Enver Hasani, visited Ireland recently. He was accompanied by Irish lawyer and chief legal advisor to the Constitutional Court, Michael Bourke. The president joined a panel discussion on human rights violations and state succession at the American Bar Association conference in Dublin. He also met with Law Society President John Costello The winners of the International Environmental Moot Court Competition – to discuss ongoing work by Irish Rule of Law International, which Denise Daly, Clare McQuillan and Maeve Larkin – pictured with Law Society recently ran a training course for lawyers in Kosovo in partnership President John Costello with Kosovo Chamber of Advocates. (See www.irishruleoflaw.ie.)
Attorney General launches Disability Legal Information Clinic Attorney General Máire Whelan recently launched the Disability Legal Information Clinic at NUI Galway. At the launch, the AG spoke about the importance of student engagement and community involvement in clinical legal education. The clinic is a free, confid- ential, drop-in legal information service on issues related to disability. It is staffed by trained student volunteers who will be supervised by a legal practitioner and a staff member of the university’s Centre for Disability Law and Policy. The clinic is a partnership between the university’s student-run Free Legal Advice Centre and the Centre for Disability Law and At the launch of the clinic was Attorney General Máire Whelan, with some of the volunteers who will staff the facility Policy. Law Society Gazette www.gazette.ie November 2011 obituary 47
padraic gearty 1934 – 2011 An appreciation P ic
On 5 October last, Padraic : W him – he was going to have to
Gearty passed away, eventually illiam catch him” – such was the speed succumbing to an illness that he at which Padraic lived life. F had both ignored and fought, but arrell His was an inquisitive and never gave in to, for many years. questioning mind, which he used P
First and foremost, Padraic was hotograph to benefit the lives of so many a wonderful family man. Married in Co Longford. But, most of to Brenda for over 50 years, they all, he had an enormous heart.
had a wonderful life together. Y He was actively involved in Brenda was both his soul mate every community endeavour. He and his rock. He took enormous was a founding member of Co pleasure in her achievements, Longford Social Services and and he was so proud of his served as chairperson for over three daughters and his nine 30 years. He was legal adviser to grandchildren. St Christopher’s Services from Padraic, the third son of Frank its foundation. He was also a and Rose Gearty, was born in founding member of Longford 1934. He attended St Mel’s Citizen’s Information Service. College in Longford from 1947 gain. While always a formidable the abolition of Rule 27, which Each of those organisations until 1952. He then studied opponent, he was unfailingly prevented members of the GAA benefitted enormously from his law in UCD, graduating with fair, his word was his bond, and from playing so called ‘foreign’ vision, commitment and energy. BA and LLB degrees before he would never take a colleague games. He was a kind and generous qualifying as a solicitor in 1957. short. He was always available to But that was the essence of man whose many acts of charity Upon qualifying, he returned to give sound advice to colleagues as Padraic – identify what cannot be were never public. He never Longford to commence practice, well as to clients. justified and then fearlessly work counted the cost to himself, with his late brother Enda, While he excelled as a solicitor, to change it. His love for, and nor did he seek compliments or in his father’s firm in Church that was far from his only area of commitment to, the GAA was thanks. His lifelong purpose and Street. Such was his capacity excellence. He was a sportsman, recognised when he was presented ambition was to improve the lives for hard work, long hours and who both played many sports to with the Longford GAA ‘Hall of of others. It is a tribute to his his tireless tenacity on behalf a very high standard and who had Fame’ award in 2008. Moreover, selfless dedication and tenacity to of his clients that they quickly a lifelong interest in and support at the time of his death, he the many causes he espoused that built the practice of FJ Gearty for all sports. His first love was was honorary vice-president of he realised that ambition. What a & Co into one of the largest the GAA and his career started Longford GAA. wonderful epitaph. in the Midlands. He loved the in St Mel’s College, Longford, While Padraic was a Longford Brenda, Deirdre, Naoimh practice of law, not least because winning a Leinster Senior medal man, born and bred, he was and Liadhan, together with it brought him into daily contact in 1951. He then played Sigerson much more than that. His the extended family, have lost with people. He was a people Cup football for UCD for four vision and imagination were such a central figure in their person – always engaging years and was chosen to play on not limited in any way. He lives. They will find comfort by with others and enjoying their the combined universities team was a man with an enormous remembering the many features company. against Ireland. He played on enthusiasm for life. He had the of Padraic’s full life together A wonderful colleague, Padraic the Leinster team in 1962 and mindset and the energy to make with his long list of achievements was an outstanding solicitor of had the honour of scoring the things happen. Even in later (which, of course, he never saw the old school. He was a man of first ever televised point on live years, he never let his illness as such) and, above all else, the honour who was always proud television when Telefís Éireann get the better of him. He never unique and permanent legacy of his calling. He had a clear covered the Railway Cup final gave in. Indeed, he even went that he has left to the people of incisive mind, which he brought between Leinster and Munster to the All Ireland football final Longford. As solicitors, we have to bear with great success on the in that year. He had a legendary in Croke Park last September. all lost a wonderful and loyal many legal issues presented to love of the GAA, but that did not As Monsignor Tim Hannigan colleague and friend. him over his long career. He had prevent him from being one of said as he officiated at Padraic’s Ar dheis Dé go raibh a anam dílis. no interest in personal financial the first people to formally seek funeral Mass – “If God wanted PG 48 book reviews Law Society Gazette www.gazette.ie November 2011 Administrative Law in Ireland Corporate Fraud Gerard Hogan and David Gwynn Morgan. Thomson Reuters/Round Hall (4th ed, Andrew Brown. Chartered Accountants Ireland (2010), www.gillmacmillan.ie. 2010), www.roundhall.ie. ISBN: 978-1-8580-057-20. Price: €425 (incl VAT). ISBN: 978-1-9072-142-26. Price: €40 (incl VAT). It is the very extent of the reach place any particular emphasis on corporate fraud in an engaging of public and administrative law, materials by virtue of mentioning and concise manner, with helpful and the number of public bodies to them to the apparent exclusion of examples from past occurrences. which its principles apply, coupled others, one might note that the Preventing corporate fraud with the uniquely authoritative, fourth edition deals with important is the theme of the second part, clear and comprehensive nature of recent legislation in relation to illustrating various means by this work, that caused this fourth local government, valuation, which an organisation can take edition to be so eagerly awaited. planning and development, health, proactive steps through the use of While there have been some social welfare and human rights. data analysis, accounting controls changes to the contents and It is as hard to imagine a topic and ethics policies to minimise their location within the book, that does not receive at least or eliminate the possibility of much will be familiar to readers some consideration in the book corporate fraud arising within their of the third edition in terms of as it is to imagine a core set of law organisation. navigation of the work. What will books in an Irish law or public Finally, the author provides not be familiar, of course, is what administration library without insight into the investigation of the authors have now woven in Administrative Law in Ireland as a The topic of corporate fraud has corporate fraud, and it is perhaps by way of updated citations of necessary shelf-companion. been an undercurrent in the nation- this section that the legal reader case law and references to new al psyche for the past number of will find most interesting. legislative materials, together Niall Michel is a public law years. In this book, the author help- It is most likely that this is not with commentaries on trends partner in Mason Hayes & fully reminds the reader that corpo- a book that a solicitor will ever and possible future developments Curran. rate fraud can be a difficulty, from need to open before a High Court in – and influences on – Irish the smallest community organisa- judge. Nonetheless, it would be administrative law. tion to the largest multinational a very useful book on the shelf This infusion of material corporation. Any misconception of any solicitor who regularly from 1998 onwards represents that corporate fraud is the concern advises companies or voluntary a considerable amount of work solely of large organisations is organisations of any size. When on the parts of the authors. To dispelled and, in making the book such a client calls to the office with appreciate this, one need only relate to organisations of all sizes, a suspicion that corporate fraud has consider the number of legislative the author makes the book relevant occurred and asks “what now?”, the instruments of relevance that have to legal advisors from solicitors’ reader will have the answer. been enacted between 1998 and firms of all hues. 2010, as well as the number of In the first part, the author Richard Hammond is a partner at important authorities that have guides the reader to develop an Hammond Good Solicitors, HG Legal been handed down by the courts understanding of the nature, Chambers, Main Street, Mallow, Co in that period. Without wishing to volume, causes and impact of Cork.
Quick Win Media Law Ireland Andrea Martin. Oak Tree Press (2011), www.oaktreepress.eu. ISBN: 978-1-9048-874-61. Price: €14.95 (paperback, incl VAT. Also available as an e-book, for Kindle, and as an iPhone app). Quick Win Media Law Ireland is and on procedural points such as deals with journalists daily, I was “aimed at those who work in the information for juries on damages, both amused and impressed by the media industry seeking quick lodgements and verifying affidavits. author’s debunking of the myth that and practical answers to legal The regulation of broadcasters and using the word ‘alleged’ can avoid questions they encounter day- of the press is set out in impressive legal liability. to-day”. Priced at €14.95 (less detail. As many defamation cases are than a tenth of the cost of many Some of the areas covered are decided by juries and are, thus, legal textbooks), it would also be less obvious and are all the more unreported, the inclusion of the a useful addition to the library of welcome for that. Thus, the book details of several unreported cases non-specialist lawyers. touches upon vicarious liability alone makes the modest outlay on Unsurprisingly, the Defamation for an employee’s defamatory this book well worthwhile. I would Act 2009 (in force since 1 January statements and gives helpful advice recommend it for lawyers and non- 2010) features heavily. There are on the question of what a business lawyers alike. G concise sections on, among other can do to protect its website things, limitation periods and and social networking site from Michael Kealey is chairman of the correction and declaratory orders defamation claims. As someone who Gazette Editorial Board. Law Society Gazette www.gazette.ie November 2011 reading room 49 Tracing solicitor ancestors Queries for information on genealogical history are a welcome diversion from everyday legal requests, writes Mary Gaynor
Mary Gaynor covering various years between by the individual is head of 1773 and 1817. From 1751 on, attorney signing, some of library and the Almanack also contained them are quite difficult to information Peter Wilson’s trade directory, decipher. There is no further services at the which contained lists of merchants biographical information Law Society of and traders, judges, barristers available in this source. A full list Ireland and attorneys for Dublin City. of solicitors on the roll from 1952 The 1791 Almanack contains a to 2001 is included in appendix 12-page list of attorneys, with 4 of The Law Society of Ireland, he library occasionally details of name, address in Dublin, 1852-2002: Portrait of a Profession, College Dublin or a member receives requests for and an indicator of the court in published by the Law Society in of the Society of Attorneys and Tgenealogical information which the attorney practised. An 2002 to mark the 150th anniversary Solicitors. They also list local about solicitor ancestors, example with some local flavour, of the charter. This book also crown solicitors. In 1886, the often by way of an email from in the context of the current gives a comprehensive account of first Law Society Directory was abroad that takes the form of an location of the Law Society’s the history of the profession from published, containing the register introductory potted history of premises, is the entry in the 1795 before the 1852 charter to the of solicitors, including names, what is known about the family Almanack for “Breton (George) 1960s in the first three chapters, by addresses, academic degrees, member, along with a request K (King’s Bench), E (Exchequer), Daire Hogan. term and year of qualification, for further information about Blackall St”. and indicators as to membership when the solicitor might have In cases where the attorney held Law Directories of the Law Club of Ireland, the qualified, where he worked, and a state office, further information The (then) Incorporated Law Incorporated Law Society, the any other biographical details is also given, so, in 1791, there Society of Ireland started Solicitors’ Benevolent Association. that might be gleaned from the can be found an entry for publishing an annual Law Directory It also indicated which solicitors Law Society’s archival resources. “Pollock (John), KCE, Solicitor in 1886. There were two earlier were not practising in Dublin. As The summer months also bring to the Trustees of the Linen volumes of The Law Directory well as the alphabetical sequence, occasional visitors wishing to Manufacture, Clerk of the Report for Ireland and Law and Equity there was a list of local solicitors trace their Irish roots. Sadly, due Office of the Court of Chancery, Court Guide, edited by Alexander arranged by town. This format to the Four Courts fire in 1922, Transcriptor and Foreign Appot Edward McClintock and Cheyne was more or less continued on the Society’s archives for the 19th of the Court of Chancery, Jervis Brady and printed in Dublin in through the years to the present and early 20th centuries are sparse, St.” A more comprehensive 1846 and 1847. These earlier time. consisting mainly of a collection collection of these almanacs is volumes contain lists of solicitors of Law Directories, roll books and held by the National Library of who had taken out licenses for The King’s Inns published material in the Gazette Ireland. the year prior to the year of In the years prior to 1866, the and other sources. The Society’s roll books publication. The lists give very education of solicitors was Knowledgeable genealogical date back to 1840 and contain little biographical information and regulated by the King’s Inns, so researchers would, of course, also signatures of individuals, the merely list names and addresses, if the subject of the genealogical use other sources, such as church date of signature, and the year with indicators as to whether the query started their legal education records, registers of births, deaths of academic qualification. As the solicitor was a member of the before this date, the library and marriages, street directories, entries up to 1898 are handwritten Law Club, an elector of Trinity staff can consult the King’s Inns and so on. Legal history textbooks Admission Papers 1607-1867, (see panel) describe how solicitors goldilocks and the forebears which is a very useful index, giving were educated, and this is helpful details of lineage, location and when trying to find appropriate • E Hall, amonn G and Daire Ireland 1607-1921 (Dublin: year of entry. Copies of the actual archival sources. Hogan (eds), The Law Society of Maunsel and Roberts, 1921), admission papers listed in the Ireland, 1852-2002: Portrait of a • For the historical distinction index contain further biographical Dublin almanacs Profession (Dublin: Law Society between the term ‘attorney’ information, and these are The Gentleman’s and Citizen’s of Ireland, 2002), and ‘solicitor’, see Daire available from the King’s Inns Almanack was published in • Plunkett, Eric A, “Attorneys and Hogan, The Legal Profession Library. Dublin from 1729 until 1837, solicitors in Ireland”, Record of in Ireland 1789-1922 (Dublin: with some breaks in between. the Centenary of the Charter of Incorporated Law Society of Gazette It was compiled and published the Incorporated Law Society Ireland, 1986) p6, Biographical information relating successively by John Watson, of Ireland, 1852-1952 (Dublin: • Keane, Edward, P Beryl Phair and to exam results, medal winners Samuel Watson and, from 1800, Incorporated Law Society of Thomas U Sadleir, King’s Inns and obituaries can be found in the by John Watson Stewart. The Ireland, 1953) pp38-74, Admission Papers 1607-1867 early issues of the Gazette and also Law Society Library has an • Gamble, Charles, Solicitors in (Dublin: Stationery Office, 1982) in the Irish Law Times and Solicitors incomplete set of these almanacs Journal. G 50 council reports Law Society Gazette www.gazette.ie November 2011 briefing Law Society Council meetings 23 September and 14 October 2011
Appointments to other bodies be promoted to the profession particular, the manner in which agreed that all practitioners should The Council approved the ap- as a service to members. In addi- the new regulatory authority was be invited to submit their sugges- pointment of Fiona Duffy as the tion, the indications were that the answerable in so many respects tions by email for consideration by Society’s nominee to the Circuit market conditions for PII for the to the Minister for Justice. The the task force. Court Rules Committee, the ap- forthcoming renewal period were Council noted that the regulatory The Council noted that the pointment of Joan O’Mahony good, with JLT filling the gap model for the legal profession pro- Society had been invited to meet as the Society’s nominee to the created by the departure of the posed in the bill was unknown in with the minister in the coming National Steering Committee on SMDF, together with a number any democracy and threatened the weeks to discuss the Legal Services Violence against Women and the of other insurers expressing an independence of the legal profes- Regulation Bill and related matters. appointment of Gerard Doherty interest in writing business. It ap- sion, which is a hallmark of any The Council agreed to engage as the Society’s representative on peared that no existing provider free society. constructively with the minister the Courts Service Board. The was intent on withdrawing from The Council also expressed and his officials in all stages of the Council noted that the minister the market. concerns in relation to the costs legislative process. had appointed Deirdre Fox to the that would be associated with the Property Registration Authority, Legal Services Regulation Bill establishment of the proposed new Proposed constitutional having sought a recommendation At a special meeting of the Council regulatory authority – costs that amendments from the Society. on 14 October, the Council con- would be borne by the profession The Council considered the two sidered the contents of the Legal and which, under the model of forthcoming constitutional ref- Professional indemnity Services Regulation Bill, which had regulation chosen by the minister, erenda and expressed concerns insurance been published on 12 October. would be significantly increased regarding the extent to which The Council noted, with ap- The Council approved a summary and disproportionate to the per- powers were being transferred proval, two e-bulletins and a of the bill for circulation to the ceived benefits of the new system. from the judicial system to the guide to the profession in relation profession and agreed that the di- It was agreed that a special task executive, and the resulting imbal- to a series of issues pertaining to rector general should participate in force should be established by the ance that was being created in the professional indemnity insurance the RTÉ1 television programme Council to consider the provisions carefully balanced separation-of- (PII), including a common pro- The Frontline, to be broadcast on of the bill in detail, to identify ad- powers system that applied in any posal form. Eamon Harrington the following Monday. ditions or amendments, and to true democracy. It was agreed that reported that the PII Helpline The Council expressed deep make recommendations to the a press release should be issued on had re-commenced and would reservations about the bill and, in Council in relation to same. It was the matter. G
Law Society Gazette www.gazette.ie November 2011 practice notes 51 briefing Practice notes Effect of the Multi-Unit Developments Act 2011 on existing developments conveyancing COMMITTEE
The committee has received a Under section 24 of the act, an section 26 of the Trustee Act 1893 regarded as good and marketable, number of queries as to the effect OMC may apply to the Circuit to have the common areas vested on the basis that there was an of the act on sales of existing Court for an order to enforce the in the new OMC. This procedure enforceable contract to transfer apartments and houses that are obligation on the developer to was approved by the High Court the common areas to the OMC covered by the act (‘units’) and is transfer the common areas to it. (Laffoy J) in the case of In the at the appropriate stage of the satisfied that the position of the Unfortunately, it is possible that Matter of Heidelstone Company Ltd development, and many thousands owners has been strengthened by the OMC may still be under the ([2006] IEHC 408), in which it was of such sales were completed. the new legislation. control of the developer, either decided that, where all the units The 2011 act does nothing Sections 4 and 5 of the act because it holds a majority of the had been sold, the developer held to detract from or weaken the require the developer to transfer membership or it controls the the common areas in trust for the position of a unit owner in a the ownership of relevant parts board of directors. In residential- owners of the apartments and the development governed by sections of the common areas in a multi- only developments, section 15 of townhouses in the development. 4 and 5. Indeed, as mentioned unit development to the owners’ the act, which imposes a ‘one unit, There may well be a case for above, the sections provide the management company (OMC), one vote’ rule for OMCs, empowers coupling, with the application for OMC and individual unit owners within six months of 1 April 2011, members of OMCs to take voting the transfer of the common areas, a with additional statutory rights to save where the common areas have control of developments where claim for damages for breach of the ensure that the common areas are already been transferred. more than 50% of the units have statutory duty imposed by section transferred to OMCs and, indeed, Neither of these sections nor any been sold. Where the unit owners 4 and 5, which may have the effect that the transfers should be effected other section of the act provides for do not have control of the OMC, of persuading the developer to earlier than would have been the any sanction for non-compliance an individual unit owner can, as devote attention to the underlying position under the contracts to with these sections. The fact that a member of the OMC, make need to effect the transfer. transfer the common areas. There the deadline of 30 September the necessary application. Even if It is being suggested that the is no suggestion that transfer of 2011 may have passed without such a unit owner has never been effect of the legislation is to common areas should be delayed the transfers having taken place given membership of the OMC, render residential units in multi- just because the position of unit does not remove the obligation the court may, under section unit development unsaleable owners will not be weakened by to transfer, which must remain a 25(1)(f), permit them to bring the where the common areas have failure to do so. There remains a continuing obligation. application. Such proceedings are not been transferred. The basis statutory obligation to transfer the The benefit of the obligations likely to be expensive and represent for this view is not obvious. This common areas, and the transfer rests with the OMC. An OMC a heavy burden on the unit owner would be true in the case of units should be implemented as soon as would appear to have two means if they have to be brought by an coming within section 3 – that is, practicable. of ensuring the transfer of the individual. In an ideal world, other those where no residential units The committee has also been common areas: (1) by seeking an unit owners might be expected were sold prior to 1 April 2011 asked whether it is necessary to order for the performance of the to join in such applications, but and where there is a statutory establish a new OMC for existing provisions in the contract that experience suggests that this is not restriction on selling such units developments. It appears clear that would normally have been entered always achievable. The court has, before the transfer of the common sections 15 and 16 apply to existing into between the developer and of course, power to award costs areas to the OMC has taken place. OMCs, so there would not appear the OMC at an early stage in against the developer, but the unit Prior to the introduction of the to be any need to set up a new the development, whereby the owner may well be asked to provide act, the titles to both new and OMC. The relevant provisions of developer would have contracted initial funding for the action. second-hand residential units in the act will apply automatically to to transfer the common areas to If, as is commonly the case, multi-unit developments were such existing OMCs. the OMC on completion of the the OMC has been struck off the development or when all the units Register of Companies, usually for had been sold; and (2) by invoking failing to make returns, section 30 Solicitors’ invoices and VAT the provisions of the act. of the act makes special provision The first of these courses will not for applications to the Registrar taxation COMMITTEE be available where the development of Companies for restoration of Practitioners should note that a if his costs are being paid by that has not been completed or where such companies to the register. solicitor should furnish invoices person – for example, a plaintiff’s some of the units remain unsold An alternative, which also covers or bills for services and VAT only solicitor should not make out and, in the current financial the position where the developer to his own client or in the name of an invoice in the name of the climate, there must be many has also been struck off, is for the his own client. A solicitor should defendant, and a lender’s solicitor developments where some of the unit owners to form a new OMC not make out an invoice to a should not make out an invoice in units have not been sold. and apply to the High Court under person who is not his client, even the name of the borrower. 52 practice notes Law Society Gazette www.gazette.ie November 2011 briefing Applications under section 106 DMD District Court sittings of the Companies Act 1963 criminal law COMMITTEE litigation COMMITTEE Te h President of the District Court To enable judges of the District Practitioners may wish to note court will require reference to has issued the schedule of District Court to attend church service on that Ms Justice M Laffoy has the specific mortgage deed by Court sittings for the Dublin Metro- Monday 1 October 2012, no cases recently directed that (as from way of date and parties, among politan District (DMD) for 2012, as will be scheduled until 2pm in any 10 October 2011), in every other things. Also, a full certified set out below. of the remaining Dublin Metropoli- application under section 106 of copy of all pages of the relevant Not all dates are currently avail- tan Courts, and this includes all out- the Companies Act 1963 (to extend mortgage deed will be required able, and determination orders will lying Dublin Courts. time to register a charge), the to be produced with the papers. be issued in due course in relation From Wednesday 19 December to the courts that will sit for urgent 2012 to Friday 21 December 2012: business during the Easter vacation no cases to be listed for the DMD, 2012, the month of August 2012 with the exception of the following Tax clearance certificates and the Christmas vacation 2012. courts sitting for urgent business: Wednesday 19 December 2012: – Criminal Legal Aid panel Scheduling of District Courts • Court no 2, CCJ, in the DMD for 2012 • Court no 3, CCJ, 2011-2012 Tuesday 3 January 2012: • Court no 41, Dolphin House, Still celebrating?• Court no 2, Criminal Courts of • Court no 55, Smithfield, criminal law COMMITTEE Justice (CCJ), • Cloverhill, Members who wish to retain registration If you numberare concerned or, in the case about• Court howno 3, CC muchJ, you are• Blanchardstown, drinking, their name on the Criminal Legal of a PAYE taxpayer, his/her PPS • Court no 41, Dolphin House, • Dun Laoghaire. Aid panel for the legal aid year 1 number,call toLawCare the third party. for This free and• Court confidential no 55, Smithfield, advice. December 2011 to 30 November obviates the necessity for solicitors • Cloverhill, Thursday 20 December 2012: 2012 are required to hold a tax to send the original of their tax • Blanchardstown, • C o, ourt n 2 ccJ, clearance certificate with an expiryFreephone clearance certificate 1800 to the county 991801 • Dun La oghaire.• www.lawcare.ie• C o, ourt n 3 ccJ , date later than 30 November registrar for each of the counties • C oourt n 41, Dolphin House, 2011. Stillin which the celebrating? solicitor wishes to be Easter vacation (Thursday 5 April to • C oourt n 55, Smithfield, Applications for tax clearance eligible for legal aid assignments, Tuesday 10 April 2012 – six con- • C loverhill, certificates can be made in as If the you registrar are concerned will be able about to view how muchsecutive you days, are commencing drinking, on Holy • Blanchardstown, writing (Form TC1) to local thecall certificate LawCare online for freeand printand confidentialit Thursday): advice. nearer t he t ime, a d eter- • DunL aoghaire. district offices of Revenue or via down for his/her file if necessary. mination order will issue regarding Revenue’s online tax clearanceFreephone Where a 1800 solicitor 991801 does not • www.lawcare.iew86%hat c ourtsof lawyers will sit for say urgent long busi- hoursFriday are 2 1damaging December 2 012: ness for the above period. • C o, ourt n 2 ccJ, application facility (www.revenue. wish to avail of the electronic their relationship with their children. ie). Please note that solicitors who verification system, he/she must From Wednesday 11 April to Fri- • C o, ourt n 3 ccJ, Wilarel iny o the u PAY bE systeme cannot submit the original tax clearance day 13 April 2012: no cases toAre be you• C o ooneurt n of 4 1,them? Dolphin House, listed for the DMD and all outlying C loverhill. apply online for tax clearance. certificate to the county registrar Free and Confidential Health• Support Whether the application has for each of the counties in which Dublin courts, with the exception of home to tuck 86% of lawyers say long hours andare damaging Advice for Lawyers been made in writing (Form TC1) the solicitor wishes to be eligible the following, w hich will sit for ur- Christmas vacation (Sunday 23 De- their relationship with their children. or online, the taxpayer can avail of for legal aid assignments. Copy gent business: cember 2012 to Monday 31 Decem- Will you be Are you one of them? us inRevenue’s to n electronicigh t verification? certificates are not acceptable. • Court Freephone no 2, Criminal Co urts1800 of ber991801 2012 – nine consecutive days Free andJustice, Confidential Health Support commencing 23 December 2012): system,ho m wherebye to thetu c taxpayerk Members should note that no and Advice for Lawyers www.lawcare.ie may permit a third party to fees will be paid to a solicitor who • Court no 3, Criminal Courts of nearer the time, a determination or- electronicallyus in tverifyon ithegh taxpayer’st? accepts an assignment to a case Freephoneif Justice, 1800 991801 der will be made stating what courts tax clearance status by providing his/her name is not, at the time www.lawcare.ie• Court no 41, Dolphin House, will sit for urgent business for the his/her tax clearance certificate of assignment, on the relevant • Court no 55, Smithfield, above period. number and either his/her tax solicitors’ panel. • Cloverhill, On the following Bank Holidays, • Blanchardstown, Court no 44, Chancery St, shall sit: • Dun Laoghaire. • Monday 19 March 2012, • Monday 7 May 2012, August 2012: nearer the time, a • Monday 4 June 2012, Could You Help? determination order will be made • Monday 29 October 2012. Could You Help? regarding what courts will sit for ur- LawCare LnaweCeadres nmeedos rmeo vreo vloulunntteeersr.s P. ePopeleo wphleo cwouhldo c acroe uld cagentre b usiness for this month. Note – Bank Holidays: see also for a lawyer in need based on their own experience. Monday 1 October 2012: Court paragraphs 2, 4 and 7 re: court for a lawyeIrf tihnis nis eyeoud pbleaasee cdal lo 0n0 4th4 e12i6r8 o 7w713n3 3e xperiencen.o 2, Criminal Courts of Justice, will sittings at Easter, in August, and in commence at 10.30am. December 2012. G If this is youw pwlwe.laaswec acrea.ilel/ v0o0lun 4te4er s1 268 771333 www.lawcare.ie/volunteers
Health Support LAWYERS HELPING LAWYERS
and Advice for Free confidential help and support seven days a week. HealthLawyers Keep our number handy. You never know when you’ll need us. Stress •Support Depression LAWYERS HELPING LAWYERS Alcoholand Advice• Drugs Freephone 1800 991801 • www .lawcare.ie for Free confidential help and support seven days a week. Lawyers Keep our number handy. You never know when you’ll need us. Stress • Depression Alcohol • Drugs Freephone 1800 991801 • www.lawcare.ie Law Society Gazette www.gazette.ie November 2011 legislation update 53 briefing Legislation update 10 September – 10 October 2011
Details of all bills, acts and statutory instruments since 1997 Number: SI 491/2011 the act, which provides for amend- are on the library catalogue – www.lawsociety.ie (members’ and Content: Appoints 3/10/2011 as the ments to the Supplementary Wel- students’ area) – with updated information on the current stage a commencement date for s10 of the fare Allowance Scheme in order to bill has reached and the commencement date(s) of each act. All act, under which a trial judge may facilitate the transfer of responsi- recent bills and acts (full text in pdf) are on www.oireachtas.ie order that copies of certain eviden- bility for the administration of that tiary documents and information be scheme from the Health Service and recent statutory instruments are on a link to electronic given to a jury. Executive to the Department of statutory instruments from www.irishstatutebook.ie Commencement: 3/10/2011 Social Protection. Commencement: 1/10/2011 acts pASSED clude health insurance and life in- Protection of Employees European Financial Stability surance. Except for these specified (Employers’ Insolvency) Social Welfare and Pensions Facility and Euro Area Loan excluded risks, all insurance poli- Procedures Regulations 2011 Act 2010 (Sections 18(2), 18(3) Facility (Amendment) Act 2011 cies taken out in relation to risks in Number: SI 504/2011 and 18(4)) (Commencement) Number: 25/2011 the State come within the remit of Content: Prescribes the procedures Order 2011 Content: To further facilitate, in the scheme. Insured risks outside for making claims under ss6 and 7 of Number: SI 495/2011 the public interest, the financial the State are no longer covered by the Protection of Employees (Employers’ Content: Appoints 1/10/2011 as stability of the European Union the scheme, where an insurance Insolvency) Act 1984. the commencement date for ss18 and the safeguarding of the finan- company is being liquidated. The Commencement: 30/9/2011 (2), (3) and (4) of the act, which cial stability of the euro area as a moneys will be recouped by a 2% provides for amendments to the whole and for those purposes: (a) levy on the insurance industry, and Road Traffic (Licensing of Supplementary Welfare Allow- to enable effect to be given to the provides for related matters. Drivers) (Amendment) (No 2) ance Scheme in order to facilitate amendment to the European Fi- Enacted: 30/9/2011 Regulations 2011 the transfer of responsibility for nancial Stability Fund Framework Commencement: 30/9/2011 Number: SI 483/2011 the administration of that scheme Agreement; (b) to enable effect to Content: Amends the driver licens- from the Health Service Executive be given, insofar as it relates to the selected statutory ing regulations to comply with the to the Department of Social Pro- State, to the amendment to the instruments requirements of Directive 2006/126. tection. €80 billion loan facility agreement Child Care (Amendment) Act Commencement: 19/1/2013 Commencement: 1/10/2011 done in Brussels on 14/6/2011 2011 (Commencement) Order and in Athens on 10/6/2011; (c) to 2011 Social Welfare and Pensions Act Social Welfare and Pensions amend the Euro Area Loan Facility Number: SI 453/2011 2010 (Part 4) (Commencement) Act 2008 (Sections 18(2), 18(3) Act 2010 and the European Finan- Content: Appoints 8/9/2011 as Order 2011 and 18(4)) (Commencement) cial Stability Act 2010; and (d) to the commencement date for parts Number: SI 471/2011 Order 2011 provide for related matters. 1, 4 and 6 of the act. Content: Appoints 22/9/2011 as Number: SI 496/2011 Enacted: 23/9/2011 Commencement: 8/9/2011 the commencement date for part 4 Content: Appoints 1/10/2011 Commencement: 23/9/2011 of the act. Part 4 enables the trans- as the commencement date for Child Care (Amendment) Act fer of the Community Welfare Ser- ss18(2), (3) and (4) of the act, Insurance (Amendment) Act 2011 (Commencement) (No 2) vice of the Health Service Executive which provides for amendments to 2011 Order 2011 to the Department of Social Protec- the Supplementary Welfare Allow- Number: 26/2011 Number: SI 497/2011 tion. ance Scheme in order to facilitate Content: Amends the Insurance Content: Appoints 30/9/2011 as Commencement: 22/9/2011 the transfer of responsibility for Act 1964 to change the scope of the commencement date for ss4 the administration of that scheme the Insurance Compensation Fund and 26 of the act. Social Welfare and Pensions from the Health Service Executive from one which covers the risks of Commencement: 30/9/2011 Act 2010 (Section 10) to the Department of Social Pro- policyholders of Irish authorised (Commencement) Order 2011 tection. companies to one that covers all in- Competition Act 2002 (Section Number: SI 494/2011 Commencement: 1/10/2011 G sured risks in the State, except for 10) (Commencement) Order Content: Appoints 1/10/2011 as specific excluded risks, which in- 2011 the commencement date for s10 of Prepared by the Law Society Library
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The Law Society’s e-zine is the legal newsletter of the on the Law Society’s website at www.lawsociety. solicitors’ profession. The e-zine issues once every ie. Click on the ‘e-zine and e-bulletins’ section in the two months and brings news and information directly left-hand menu bar and follow the instructions. You will to your computer screen in a brief and easily-digestible need your solicitor’s number, which is on your 2010 manner. If you’re not receiving the e-zine, or have practising certificate and can also be obtained opted out previously and would like to start receiving it by emailing the records department at: again, you can sign up by visiting the members’ section [email protected]. 54 justis update Law Society Gazette www.gazette.ie November 2011 briefing Justis update News of Irish case law information and legislation is available from FirstLaw’s current awareness service on www.justis.com Compiled by Bart Daly
administrative Judicial review stated period, and it recommended sponse to the complaints. The ap- Constitutional law Fair procedures – constitutional rights that the respondent formally notify plicant was not afforded fair proce- Citizenship – fair procedures – dis- – reputation – Child Care Act 1991 the gardaí of the complaint. By let- dures. She was also entitled to have closure – discretion – good character – whether the respondent breached fair ter dated 16 October 2009, the ap- her right to her good name and – meaning – statutory interpretation procedures in the manner in which plicant’s solicitors again requested right to earn a livelihood protect- – certification – ability to respond – it investigated an allegation of abuse that the applicant be permitted to ed. The court was not prepared to Irish Nationality and Citizenship against the applicant. exercise her right to be heard, and make an order of certiorari quash- Act 1956, as amended. The applicant sought, among other judicial review proceedings were ing the respondent’s decision to The applicant applied for a certifi- reliefs, an order of certiorari, by way threatened. The application for notify the gardaí of the complaint cation of naturalisation to acquire of judicial review, quashing the judicial review was dated 3 March against the applicant. Irish citizenship but was refused respondent’s undated final report, 2010. It was submitted on behalf Phil Cooke (applicant) v HSE on good character grounds. The which was forwarded to the appli- of the applicant that fair proce- (respondent), High Court, applicant was originally from cant by letter dated 2 October 2009. dures had not been followed, and 18/11/2010 Pakistan and had lived in Ireland The applicant also sought an order the applicant’s constitutional right since 2000. Section 15 of the quashing the respondent’s decision to reputation and good name was JUDICIAL REVIEW Irish Nationality and Citizenship to notify the gardaí of a complaint invoked. The applicant also relied Road traffic offences Act 1956, as amended, accorded against her without first properly on the decision of Barr J in MQ v Practice and procedure – tendering of to the minister powers to grant a or adequately assessing or investi- Robert Gleeson & Ors ([1998] 4 IR evidence – garda evidence – whether certificate of naturalisation in his gating the reliability of the com- 85). The respondent submitted garda obliged to memorise precise absolute discretion if he was satis- plaint. The applicant was an audi- that the applicant was guilty of un- words of section – whether prosecution fied, among other things, as to the ologist and, at the time of applying reasonable delay in not making the flawed – Road Traffic Acts 1961- good character of the applicant. for leave to bring this application, application promptly or within the 2006. The applicant was refused on the asserted she was an employee of timeframe of the Rules of the Supe- The applicant had been observed basis that he had come to adverse the respondent. The respondent rior Courts. by An Garda Síochána driving his garda attention. There was alleged denied that she was an employee. O’Keeffe granted certiorari, vehicle in an erratic manner on a to be a failure of the applicant to In October 2008, the applicant, holding that it was clear that there public road. The applicant was ar- make disclosures about a search having finished working for the was continuing correspondence rested and cautioned and charged warrant issued against him that respondent, submitted a proposed between the parties, with the appli- with having committed an offence had not resulted in any charges. work schedule for a new post. The cant anxious to resolve the matter contrary to section 49(1), (2), The issue arose as to whether the applicant was in receipt of training by agreement. In all the circum- (3) or (4) of the Road Traffic Acts minister had violated the constitu- to use new equipment but, in De- stances, the applicant did not fail to 1961-2006. The applicant gave a tional right of the applicant to fair cember 2008, senior management bring the application promptly. It breath sample at a garda station procedures by relying on material informed her that her training was was not possible from the affidavits and was given a warning under not previously disclosed to the ap- being stopped, as the respondent to resolve the issue as to whether section 13(1)(a) of the Road Traffic plicant, which he had no opportu- was required to obtain garda clear- the applicant was at the time of Act 1994. When the case came on nity of dealing with. ance for staff. The applicant was the investigation an employee of for trial, the solicitor for the appli- Hogan J held that the applicant subsequently informed that an al- the respondent. The initial report cant took objection to the manner could not be disqualified for sec- legation of abuse had been made was a one-sided presentation of the in which one of the gardaí gave tion 15 purposes merely because against her in a particular region. facts. For the purposes of prepar- his evidence. It was contended he had come to adverse garda at- The applicant was later informed ing the final report, the respon- that the garda was reading from a tention. The minister’s decision that the complaint was one of in- dent ought to have engaged fully document other than his notebook would be quashed on two separate appropriate contact and was being with the applicant, as she had re- when recalling the evidence in re- grounds. First, there was no basis investigated. She was not informed quested, to protect her good name lation to the warning given under for the suggestion that the appli- of the identity of the complainant and as part of the investigation section 13(1)(a). The applicant’s cant had failed to make appropriate until she attended a meeting in process. Having regard to the fact solicitor withdrew, the case con- discourse in the manner required February 2009. Correspondence the applicant was the subject of a tinued and the applicant was con- by the actual language of the form. was ongoing between the appli- pre-screening process prior to em- victed. Judicial review proceedings Secondly, the minister inadver- cant’s solicitors and the respondent ployment, the principles set out by were initiated seeking to quash the tently breached fair procedures, in during the course of the investiga- Barr J in the MQ case were appli- conviction on the basis that the that, in the special circumstances tion, and concern was expressed cable. The respondent had a duty evidence given by the prosecution of the case, he was obliged to bring at the failure of the respondent to before the interview to furnish the did not comply with the statutory the content of the garda report to allow the applicant any input into applicant with notice of the allega- requirements and that the appli- the applicant’s attention. the investigation. The final report tions and to give her a reasonable cant was denied fair procedures. It Hussain (applicant) v Minister concluded that the complainant opportunity to carry out such fur- was contended that, since evidence for Justice, Equality & Law Re- gave a credible account of inap- ther investigations as might appear was given by the garda by reading a form (respondent), High Court, propriate contact by the applicant appropriate in light of information text of the statutory warning from 13/4/2011 on a number of occasions during a furnished by the applicant in re- a typed precedent, it could not be Law Society Gazette www.gazette.ie November 2011 justis update 55 briefing
concluded that the garda was cer- would, of its own motion, simply EBS payment to be delayed, on the The issues were ultimately settled tain as to the precise words that he declare that the respondents and understanding that some attempt between the parties on 7 July 2008. had used. each of them had engaged in unau- would be made to pay it when The plaintiffs submitted herein Peart J refused the relief sought. thorised and non-exempt develop- pressure came from BCM Hanby that they were entitled to the costs The applicant had not sworn any ment. The court was not disposed Wallace, the modus operandi prac- of all three sets of proceedings. affidavit in support of the applica- to make any orders pursuant to ticed by the parties. Mr Kelly was The defendant submitted that only tion in which he might have denied section 160. There was no delib- entitled to the declaration sought one order for costs should be made that any proper warning was given erate attempt to flout the law, and as to the ownership of Oilgate. Mr in one of the sets of proceedings to him by the relevant garda at the the consequences of demolition Kelly directed Mr Byrne to breach and that, as regards the other two garda station prior to his provid- would be disproportionate for the his undertaking to BCM Hanby sets of proceedings, only the costs ing a sample of his breath. Neither respondents. The costs of the pro- Wallace in respect of the repay- of pleadings and outlay should be did he give that or any other evi- ceedings would be awarded against ment of the EBS mortgage loan, awarded, because there was only dence in the District Court. There the respondents. and so entitled Mr Byrne to resist one issue arising from the same set was no denial that this warning Wicklow County Council (appli- an order that he compensate Mr of facts. Essentially, the defendant was given. There was no reason cant) v Jessup & Smith (respon- Kelly for the monies in question. disputed the plaintiffs’ solicitors’ why the garda witness should be dents), High Court, 8/3/2011 Kelly (plaintiff) v Byrne, trading and counsels’ entitlement respec- required to memorise the precise under the style and title of Byrne tively to three instruction fees and words of the section and recite that PROPERTY & Company, Solicitors (defen- three brief fees. by heart when giving evidence. Solicitors’ law dant), High Court, 13/4/2011 Laffoy J awarded costs against Once a garda had stated that at the Contract law – partnership – repay- the defendant, holding that the station he gave the warning pre- ment of loans – financing arrange- PRACTICE AND PROCEDURE stance adopted by the defendant scribed in the section, it seemed ments – authorisation not to pay – Costs after the making of the order of perfectly reasonable that he should undertaking breached – wrongdoing Settlement agreement – whether the the Supreme Court necessitated then be allowed to read it from the – pressure from law firm – damages plaintiffs were entitled to their costs. the bringing of the third set of text of the act. – whether was partnership between This judgment concerned a settle- proceedings in order to protect Aidan Bailey (applicant) v Judge parties – whether was direction not to ment agreement dated 7 July 2008 the plaintiffs. Those proceedings Geoffrey Browne (respondent) and repay loan – whether was wrongdoing made between the parties in three concerned the plaintiffs’ current the Director of Public Prosecu- entitled party to resist order. sets of proceedings and, in particu- and future entitlements to re- tions (notice party), High Court, The Law Society had closed the lar, the costs of those proceedings. muneration, which it was appro- 14/3/2011 practice of the defendant solicitor, The proceedings concerned em- priate to pursue by way of fresh Mr Byrne, in 2007. The proceed- ployees of the defendant who had proceedings. Consequently, the PLANNING AND DEVELOPMENT ings related to two large property been seconded and, in particular, plaintiffs were entitled to the costs Unauthorised works transactions handled by Mr Byrne concerned issues regarding their of those proceedings. In addition, Section 160 remedy – unauthorised for Mr Kelly. Mr Byrne, the defen- level of remuneration. The plain- the plaintiffs were entitled to the development – proportionality – onus dant, asserted that Mr Kelly was tiffs were successful in the High costs of the determination of the of proof – discretionary relief – Plan- as much a part of the wrongdoing Court on all but one issue, which assessment of the monies owing ning and Development Act 2000. as himself. A refinancing arrange- they successfully appealed to the by the defendant to the plaintiffs The applicants sought to appeal ment entered into for a significant Supreme Court. The Supreme in the first set of proceedings, the judgment of the Circuit Court, property in James Street, Dub- Court ordered that the matter be pursuant to the order of the Su- where the court had refused an or- lin, was at issue. Mr Kelly sought remitted to the High Court for the preme Court. The costs of those der pursuant to section 160 of the declaratory relief concerning his assessment of the monies owing proceedings would also provide Planning and Development Act 2000 ownership of Oilgate and damages to the plaintiffs. The second set for the costs of the determination to restrain the respondents from in the sum of €6,118,690, being of proceedings had travelled with of the assessment of monies ow- carrying or continuing the devel- the amount Mr Kelly said Mr By- the first set of proceedings, and ing to the plaintiffs in the second opment of lands, in particular sub- rne should have repaid to EBS but the third set of proceedings con- set of proceedings on the same ba- stantial structural works on a for- did not. The proceedings related cerned events that transpired be- sis, together with the costs of the mer ruin. The question arose as to then to the use of monies to dis- tween the delivery of the Supreme prosecution of those proceedings the onus of proof, the alleged un- charge an existing loan, whether Court judgment and the making of until they were stalled. There was authorised use, the alleged unau- there was a partnership between the perfection of the order of that no basis for awarding costs of the thorised works, the discretionary the parties, and whether the defen- court in the first-mentioned pro- second set of proceedings as if they nature of the section 160 remedy, dant was authorised not to repay ceedings. Essentially, it was alleged had been separately set down for, and the question of abandonment. the EBS loan that the defendant failed to hon- and gone to, trial to the plaintiffs The respondents submitted that Clarke J held that the court was our the contractual entitlements in those proceedings. In respect of the reliefs sought would be unduly satisfied that there was no partner- of any of the plaintiffs as regards the third set of proceedings, the harsh in all the circumstances and ship involving Mr Kelly and Mr their then current remuneration. plaintiffs were also entitled to the that it would put disproportionate Byrne. On the balance of prob- The defendant’s position was that costs of two motions. hardship upon them for works in- abilities, Mr Kelly did direct Mr they understood the Supreme King and Others (Plaintiffs) v Aer nocently carried out. Byrne not to repay the EBS loan. Court order remitted this issue to Lingus Plc (Defendant), High Edwards J held that the court Mr Kelly was prepared to allow the the High Court for determination. Court, 14/2/2011 G 56 eurlegal Law Society Gazette www.gazette.ie November 2011 briefing Eurlegal Edited by TP Kennedy, Director of Education Recent developments in e-commerce law This article examines the effect ment on 23 March 2010 (AdWords). the court had to consider the appli- free of charge, it was provided in of recent case law of the Court of The advocate general delivered his cability of the hosting exemption the expectation of remuneration Justice on the interpretation of the opinion in case C-324/99, L’Oréal under article 14 to Google in the under Google’s AdWords service, exemptions from liability set out in SA, Lancôme Parfums et beauté & provision of its search engine and a service that was provided for re- the EU’s E-Commerce Directive. Cie SNC, Laboratoire Garnier & AdWords services. muneration as part of the search The E-Commerce Directive (Di- Cie, L’Oréal (UK) Ltd v eBay In- eBay concerned claims by per- engine service. Therefore, he took rective 2000/31/EC of 8 June 2000 ternational AG, eBay Europe SARL, fume manufacturer L’Oréal against a wide interpretation of the mean- on certain legal aspects of informa- eBay (UK) Limited on 9 December online auction site operator eBay. ing of information society service tion society services, in particular 2010, and the court delivered judg- L’Oréal claimed that eBay was to hold that both Google’s search electronic commerce, in the in- ment on 12 July 2011 (eBay). In jointly liable for infringements of engine service and its AdWords ternal market) was implemented this article, I will try to explain the its trademarks by users of eBay il- service should be considered as in Ireland by the European Com- effect of these recent cases on the legally selling L’Oréal products or coming within the meaning of that munities Regulations 2003 (SI 68 of interpretation of the exemptions. imitations, and that eBay was pri- term. 2003). marily liable for the use by eBay us- Section 4 of the directive pro- Factual backgrounds ers of L’Oreal trademarks on eBay’s The neutrality requirement vides for certain exemptions from AdWords concerned Google’s website. L’Oreal’s other claims Article 14 of the directive sets out liability for providers of services search engine and AdWords ser- against eBay did not relate to eBay the hosting exemption and is im- on the internet, referred to in the vices. Google’s standard search en- as an intermediary and so are not plemented in Ireland by regulation directive as information society gine services are familiar to all us- relevant to this topic. 18 of SI 68 of 2003. It provides service providers (ISPs). Articles ers of the internet and involve us- that an ISP that hosts information 12 to 15 provide exemptions from ers entering a word or phrase into Scope of the definition of ISP on behalf of a third party will not liability for ISPs where they are Google’s search engine and asking In AdWords, Advocate General be liable for that information, pro- acting as mere conduits of infor- Google to search its record of the Maduro considered, first, whether vided that the ISP does not have mation (article 12); or where they internet for the word or phrase Google’s search engine and Ad- actual knowledge of illegal activ- are engaging in the automatic, in- and return the search results to the Words services came within the ity or information and, as regards termediate and temporary storage user. The AdWords service allows term ‘information society services’ claims for damages, that the ISP of information to facilitate onward advertisers purchase certain words to which the directive relates. “is not aware of facts or circum- transmission (caching, article 13); – called keywords – from Google, Article 2 of the directive provides stances from which the illegal ac- or where they are storing informa- in return for which advertisements that the term ‘service provider’ tivity or information is apparent” tion for the recipient of a service linked to the advertiser’s website means any natural or legal person (constructive knowledge). The (hosting, article 14). Article 15 will appear as sponsored links providing an information society exemption is conditional on the prevents member states imposing when the purchased keyword is service and provides that ‘informa- ISP, on obtaining such knowledge, a general obligation to monitor entered on Google’s search engine. tion society services’ are services acting expeditiously to remove or information that they transmit or The keywords are chosen by the within the meaning of article 1(2) disable access to the information. store on ISPs. advertiser and accepted and stored of Directive 98/34, as amended by The exemptions rarely came by Google. the Directive 98/48 (Transparency AdWords before the court for interpretation Google offered advertisers using Directive). The meaning of services Citing recital 46 to the directive, for ten years after the directive was AdWords the chance to select key- within that directive, as amended, Advocate General Maduro set passed, but it is a sign of the growth words corresponding to the plain- is any service normally provided out his belief that the directive’s of e-commerce that the court has tiff’s trademarks and, in the case for remuneration, at a distance, by aim is to create a free and open recently issued its second substan- of Louis Vuitton, such keywords electronic means and at the indi- public domain on the internet by tial judgment on their interpreta- in combination with expressions vidual request of a recipient of ser- limiting the liability of ISPs who tion, and these judgments and as- denoting counterfeits. If a user vices. The Irish implementing leg- transmit or store information to sociated advocate generals’ opin- of Google then searched for such islation makes identical provisions. instances where they were aware ions clarify a number of aspects of a keyword/trademark, Google’s The obvious difficulty is that, of an illegality. He viewed article the exemptions. Advocate General search engine triggered the display while the definition requires the 15, which prohibits the imposition Maduro delivered his opinion in of advertisements for sites offering, service to be normally provided on ISPs of general obligations to joined cases C-236/08, C-237/08 in the case of Louis Vuitton, coun- for remuneration, Google’s search monitor information, as key to and C-238/08, Google France, terfeit versions of Louis Vuitton engine is provided free of charge. this aim and as the very expression Google Inc v Louis Vuitton Malletier, products and, in the other cases, However, Advocate General Mad- of an underlying principle – ISPs Google France v Viaticum Luteciel, products identical or similar to the uro noted that Google supported who seek to benefit from the ex- Google France v CNRRH Pierre- other plaintiffs’ products. its search engine with income emption should remain neutral Alexis Thonet Bruno Raboin Tiger, a In addition to considering from AdWords and on that basis as regards the information they franchisee of Unicis on 22 September whether such use constituted ille- concluded that, even though the carry or host. He said that, while 2009, and the court delivered judg- gal use of the plaintiffs’ trademarks, search engine service was provided Google’s search engine retains this Law Society Gazette www.gazette.ie November 2011 eurlegal 57 briefing
neutrality, as although it has an mark or a different user infringing interest in showing the most rel- the same trademark. evant sites in response to a query, The court held that, since the it has no interest in bringing any sanction in the main proceedings particular site to a user’s attention, was for damages, the question was Google’s AdWords is not neutral, whether eBay had constructive as Google has a direct interest in knowledge. It held that, if an ISP internet users clicking on the ad’s was acting neutrally and therefore links. On this basis, he concluded could avail of the exemption in that Google’s AdWords service principle, the ISP could nonethe- What happens if you google Google? should not benefit from the host- less lose the benefit of the hosting ing exemption from liability in the exemption if it was aware of “facts directive. or circumstances on the basis of In its judgment, the court noted which a diligent economic opera- that recital 42 required that the tor should have realised that the activity of the ISP be of “a mere offers for sale in question were technical, automatic and passive unlawful”. The court thus set the nature”, implying the ISP “has He also argued against a require- 46 and article 15. The court, on standard against which an ISP neither knowledge of nor control ment of neutrality, noting that it the other hand, both agrees with will be measured in determining over the information which is would deprive operators such as Advocate General Maduro that a if it has constructive knowledge as transmitted or stored”. The CJ in- eBay of the exemption if they in- neutrality test is required and dif- that of a diligent economic opera- terpreted this as meaning that the tervene and guide the contents of fers from both advocates general tor. ISP’s role must be neutral. listings on their website by techni- in basing that test on recital 42. In determining neutrality, the cal means. Scope of injunctions available court held that the fact that the Notwithstanding the challenge Actual and constructive In eBay, the question also arose referencing service is subject to of the advocate general, the CJ in knowledge of whether L’Oréal, having estab- payment, that the ISP sets the its judgment maintained its posi- Article 14 distinguishes between lished trademark infringements payment terms, or that the ISP tion that a service provider will actual knowledge and constructive by users of eBay, is entitled to an supplies general information to its lose the benefit of the exemptions knowledge. An ISP can lose the injunction under article 11 of Di- clients cannot deprive Google of if it does not provide the “service benefit of the exemption where it rective 2004/48 (Enforcement Di- the exemptions. The CJ held that neutrally by a merely technical has actual knowledge and, as re- rective) against eBay to prevent the concordance between the search and automatic processing of the gards claims for damages, where same or similar infringements in term and the keyword does not data provided by its customers but it has constructive knowledge of the future. mean the ISP has knowledge or plays an active role of such a kind illegal activity or information. eBay accepted that article 11 re- control of data stored. However, as to give it knowledge of, or con- Advocate General Jääskinen quired that an injunction be avail- the court held that Google’s role trol over, those data”. The court concentrated on the question of able against an ISP whose services in drafting the commercial mes- then gave a practical example of actual knowledge and stated, in have been used to commit a spe- sage was relevant, but left it up where an ISP should no longer regard to the question of when cific infringement of a trademark, to the national court to decide be considered as acting neutrally: the ISP has actual knowledge of but submitted that the imposition whether that role is neutral or ac- when it optimises the presentation an infringement for the purpose of a more general requirement to tive. of offers for sale. However, the of article 14 and is thus unable to prevent illegal acts would amount court acknowledged that an ISP avail of the hosting exemption, to imposing a general obligation eBay that stores offers for sale on its that such knowledge can only be to monitor, contrary to article 15 Advocate General Jääskinen in his server, sets the terms of its service, gained from past or present in- of the E-Commerce Directive. opinion challenged the reason- is remunerated for that service, fringements and not from future The advocate general opined ing of the CJ in AdWords. He ar- and provides general information infringements. However, the ad- that the requirement of propor- gued that the hosting exemption to its customers cannot thereby vocate general went on to sug- tionality under EU law would ex- should not be conditional and lose its neutrality. gest that an ISP would have actual clude an injunction against an ISP limited by reference to recital 42. Thus, both advocates general knowledge of an infringement by to prevent any further infringe- He argued that recital 42 is not seem to be of the view that recital a user if the ISP knew that the user ments (author’s emphasis), but relevant to hosting and referred, 42 is irrelevant to hosting and that had previously infringed the same would not prevent an injunction instead, to recital 46, which sug- the article should be interpreted in trademark, and characterised such to prevent the continuation of a gests that the exemption should the light of recital 46 and not recit- circumstances as a continuing in- specific act of infringement, nor only be lost if an ISP acquires al 42. Advocate General Jääskinen fringement rather than two sepa- the prevention of repetition of the actual knowledge or awareness rejects the need for a neutrality rate infringements. The advocate same or a similar infringement in of illegal activities and fails to act test regarding article 14, whereas general expressly excluded actual the future, provided that it “does expeditiously to remove the in- Advocate General Maduro argues knowledge arising from the same not impose impossible, dispro- formation or disable access to it. for such a test derived from recital user infringing a different trade- portionate or illegal duties like a 58 Eurlegal Law Society Gazette www.gazette.ie November 2011 briefing
general obligation to monitor”. fied the kind of injunction that is Conclusion in commercial clients operating The advocate general explained available against ISPs to prevent The European Commission re- online. These judgments clarify that by ‘same or similar infringe- further infringements. The judg- mains unsatisfied with the extent the nature and scope of the exemp- ment’, he meant the same kind ment leaves scope for injunctions of cross-border online trade within tions provided by the E-Commerce of infringement of which an ISP to prevent other, further infringe- the EU and has launched a public Directive and will assist in advising could have actual knowledge – ments, so long as those injunc- consultation on the E-Commerce clients operating as ISPs in Ireland that is, infringement of a certain tions do not breach requirements Directive to analyse why this is so. and throughout the EU trademark by a certain user. The such as proportionality and don’t Presuming the commission’s efforts court endorsed this view. amount to a general obligation to to increase such trade succeed, so- Brian McMahon is a solicitor based in Thus, the judgment has clari- monitor. licitors can expect to see an increase San Jose, Silicon Valley, California.
Recent developments in European law
environmental Civil Aviation Organisation. It and would constitute therefore, the Czech authority infringed Case C-120/10, European requires careful assessment of all an ‘operating restriction’. It is for the prohibition against punishing Air Transport SA v Collège different options to mitigate noise, the Belgian court to determine the same offence twice. Advocate d’environment de la Région de including reduction of aeroplane whether the measures adopted by General Kokott noted that this Bruxelles-Capitale and Région de noise at source, land-use planning the Brussels capital region have principle is recognised at EU Bruxelles-Capitale, 8 September and management measures, noise- such effects. level as a general principle of 2011 abatement operational procedures law and now enjoys the status of Directive 2002/30 permits mem- and operating restrictions. The human rights a fundamental right of the EU ber states to adopt restrictive balanced approach presupposes Opinion of Advocate General under article 50 of the Charter of measures known as ‘operating that operating restrictions are Juliane Kokott, case C-17/10, Fundamental Rights. In accordance restrictions’ in order to reduce applicable only when any other Toshiba Corporation and Others, with that principle, no one may be noise pollution generated by noise-management measures have 8 September 2011 tried or punished again in criminal aircraft using EU airports. failed to achieve the objectives of A cartel composed of European proceedings for an offence for Operating restrictions can be Directive 2002/30. An ‘operating and Japanese companies had which he has already been finally adopted only where noise levels restriction’ within the meaning divided the worldwide gas acquitted or convicted within measured at the aircraft are of the directive is a prohibition, insulated switchgear markets the EU in accordance with the exceeded. Brussels-National Air- absolute or temporary, that among themselves from 1988 law. The issue in this case is the port is located in the Flanders prevents the access of an aeroplane until 2004. In 2007, the European question of the criteria to be region, although the flights to an EU airport. Environmental Commission and the Czech used in determining whether the operating from it also overfly the legislation imposing limits competition authority imposed undertakings concerned were Brussels capital region. On 19 on maximum noise levels, as fines of many million Euros on prosecuted or punished again October 2007, an administrative measured on the ground, to the cartel members. The Czech for the same anti-competitive penalty of €56,113 was imposed be complied with by aircraft authority initiated proceedings conduct for which the Czech on the airline European Air overflying areas located near the after the commission and also competition authority imposed Transport (EAT) for exceeding, airport, does not itself constitute adopted its decision after the a fine on them. Due account during the night, the limit values an operating restriction as long as commission’s. In its decision, the must be taken of the case law of laid down in the rules of the it does not prohibit access to the Czech authority penalised the the European Court of Human Brussels capital region. The airport in question. Measuring on effects of the cartel in the Czech Rights. It is solely the identical Belgian Conseil d’État referred a the ground the noise produced by Republic prior to 1 May 2004, the nature of the facts that is relevant number of questions to the CJ. It an aircraft in flight may constitute date on which it acceded to the EU. and not the identical nature of asked the court to clarify whether an element of a balanced approach. It also applied solely its national the protected legal interest. It the rules of the Brussels region that However, it cannot be ruled out competition law on cartels. depends on the identical nature sanction noise pollution caused that environmental legislation, Toshiba and other members of of the material acts, understood as by air traffic may be regarded as such as that at issue in this case, can the cartel brought proceedings the existence of a set of concrete an ‘operating restriction’ subject in view of the relevant economic, in the Czech courts against the circumstances that are inextricably to the requirements of Directive technical and legal contexts, have Czech competition authority’s linked together. She considered 2002/30 and, in particular, to the same effect as prohibitions on decision. They argued that the whether, in the present case, the the policy of measuring noise access to an airport. Where limits anti-competitive consequences of commission decision and that of pollution at source. The CJ imposed by national legislation the cartel in the Czech Republic the competition authority relate observed that, in addressing are as restrictive as very clearly to before its accession to the EU to the same material acts. She aeroplane noise, the EU adopts force aircraft operators to forgo had already been penalised by concluded that, although both a balanced approach. This has business, such legislation would the commission’s earlier decision. decisions have as their subject been defined by the International amount to a prohibition of access The separate fine imposed by matter infringements by the same Law Society Gazette www.gazette.ie November 2011 eurlegal 59 briefing
international cartel, they are member states at the time. Article the member state of origin of national interprofessionnel du otherwise based on different facts. 81 (now article 101) of the treaty, the drink. The application is Cognac contested the legality of In cartel offences, the material acts the legal basis for its decision, was accompanied by a technical file that registration before the Finnish necessarily always include the time not applicable on the territory of listing the specifications that courts. The Finnish Supreme period and the territory in which the Czech Republic before 1 May the drink must meet if it is to Administrative Court asked the the cartel agreement had anti- 2004. be able to be designated by the CJ whether it is permissible under competitive effects or could have protected geographical indication. the regulation to register national had those effects. More than one intellectual property The regulation prohibits the trademarks containing the term competition authority or court Joined cases C-4/10 and registration of trademarks that ‘cognac’ for products that do not cannot impose penalties for the C-27/10, Bureau national may adversely affect a protected meet the requirements set for the anti-competitive consequences interprofessionnel du Cognac v geographical indication. Where use of the geographical indication. of the same cartel within the EU Gust Ranin Oy, 14 July 2011 such a mark has already been The CJ held that the Finnish in relation to the same territory Regulation 110/2008 protects registered, it must be invalidated. authorities must invalidate the Recent developments in European law and time period. In this case, geographic indications for spirit ‘Cognac’ has been registered registration of the contested the decision of the commission drinks. It allows for the registration as a geographical indication marks. It found that the use of a and the Czech authority did not as a geographical indication of identifying wine spirits originating mark containing the term ‘cognac’ relate to the same territories. the name of a country, region from France. Gust Ranin Oy is a for products not covered by that The commission did not penalise or locality from which a spirit Finnish company. It applied in indication is a direct commercial any infringements of competition drink originates, where a quality, Finland to register two figurative use of the protected indication. in the Czech Republic before reputation or other characteristic marks bearing description of the The regulation prohibits this use its accession to the EU. The of that drink is essentially spirit drinks containing the term insofar as concerns comparable commission referred specifically attributable to its geographical ‘cognac’ and its Finnish translation. products. Spirit drinks are to the effects of the cartel within origin. The registration is The Finnish authorities accepted comparable products and run the the EU and referred to the made upon application by the application, but the Bureau risk of consumer confusion. G
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wills Rates Broe (otherwise Browe), Brian (known as Brendan), 14 Church View, Sixmilebridge, Co Clare. Would Professional notice rates any person having knowledge of the whereabouts of any will made by the rates in the Professional notices section are as follows: above-named deceased, who died on 5 January 1989, please contact Bowen • Wills – €144 (incl VAT at 21%) & Co, Solicitors, Pound Street, Six- • Title deeds – €288 per deed (incl VAT at 21%) milebridge, Co Clare; tel: 061 713 767, fax: 061 713 642, email gwen@ • Employment/miscellaneous – €144 (incl VAT at 21%) legalsupportservices.ie Highlight your notice by putting a box around it – €33 extra Cole, Michael F (deceased), late of 55 Trimbleston Gardens, Booterstown, Co Al l nOTICES must be paid for prior to publication. Cheques should be made Dublin, and formerly of 4 Glenart Ave- nue, Blackrock, Co Dublin, who died on payable to Law Society of Ireland. Deadline for December Gazette: 16 November 2011. 9 April 2005. Would any solicitor hold- For further information, contact the Gazette office on tel: 01 672 4828 (fax: 01 672 4877) ing or having knowledge of the where- abouts of an original will, executed on 3 February 1949 by the deceased, please Would any person having knowledge Glenageary, Co Dublin, and former- Mount Merrion, Co Dublin; tel: 01 contact Mark O’Kelly, solicitor, LKG of the whereabouts of any will made by ly of 8 Gilford Park, Sandymount, 288 2772, fax: 01 288 8204, email: Solicitors, The Forum, 29-31 Glasthule the above-named deceased, who died Dublin 4. Would any person having [email protected] Road, Glasthule, Co Dublin; tel: 01 231 on 6 June 2011, please contact Nathan- knowledge of the whereabouts of any 1430, fax: 01 231 1417, email: mark@ iel Lacy & Partners, Solicitors, Kenlis will made by the above-named de- Gaffney, Professor Ethna (deceased), lkgsolicitors.ie Place, Kells, Co Meath ceased, who died on 28 August 2011, late of 2 Castle Court, Booterstown, please contact James D Aitken & Co, Co Dublin, and formerly of Stillorgan Dolan, James Anthony (deceased), Doody, Michael (deceased), late of Solicitors, 107 Trees Road Upper, Road, Donnybrook and Belmont Gar- late of Tullyattin, Mullagh, Kells, Co 91 St Mary’s Lane, Ballsbridge, Dublin Meath, and also of 15 William Street, 4. Would any solicitor holding or hav- Holyhead, Gwynedd LL6 51 RN. ing knowledge of any will made by the above-named deceased, who died on ATTENTION: SOLE PRACTITIONER 3 July 2011, please contact Gallagher AND SOLE PRINCIPAL SOLICITOR Shatter Solicitors, 4 Upper Ely Place, WPG DocStore’s professional FIRMS SEEKING PROFESSIONAL Dublin 2, tel: 01 661 0317, fax: 01 661 e-discovery support service 1685, email: [email protected] INDEMNITY INSURANCE FOR 2011 from €500 per GB. ISO 27001 certified; McGivern Flynn & Co. Ltd. of 36 Lad Lane, Dublin 2, a Drury, Mary Salome (deceased), leading Corporate Broker committed to providing clients tel: (01) 2454800, late of Glengara Park Nursing Home, email: [email protected] with the highest standards of professional service since or website: 1982 has partnered with: www.wpg.ie/docstore.htm AXIS Specialty London, a specialist Professional SPECIALIST Indemnity Insurer in the UK and throughout the world with solid claims paying ability (Financial “A+” (Strong) LAND REGISTRY Rating) to offer: MAPPING SERVICE EXCLUSIVE competitive rates and market leading cover for Sole Practitioner and Sole Principal Firms. €149 + VAT for If you are a Sole Practitioner or a Sole Principal Firm and standard semi-D in you wish to avail of a quotation from AXIS Specialty London you must submit the common proposal form to South Dublin. McGivern Flynn & Co. Ltd. as you will not be able to Other locations and access a quotation through any other channel. A Caring Legacy: properties quoted on McGivern Flynn & Co. Ltd. Professional Indemnity Team: bequests to The Carers Eimear Lane [email protected] 01 6321314 request. Mark Duggan [email protected] 01 6321319 Association (CHY10962) help Declan Andrews [email protected] 01 6321312 to support home-based family Contact: Switch Number 01 6321321 care in Ireland. mattbarnes.land.reg For information: @gmail.com Emma at 057 9370210. Mobile: 087 2544443 [email protected] Web: www.mbarch.ie 36 Lad Lane, Dublin 2, Ireland. or www.carersireland.com. McGivern Flynn & Co. Ltd. is regulated by the Central Bank of Ireland. Law Society Gazette www.gazette.ie November 2011 Professional notices 61 notices
dens, Donnybrook, Dublin 4. Would the above-named deceased, who died contact Sean Wallace, ByrneWallace, Dublin 7; tel: 01 830 5321, email: any person who has any knowledge of on 11 November 2009, please contact Solicitors, 2 Grand Canal Square, Dub- [email protected] any will executed by the above-named Miriam Tighe & Co, Solicitors, 3 The lin 2; tel: 086 823 7344, email: swallace@ deceased, who died at St Vincent’s Pri- Village Centre, Lucan, Co Dublin; tel: byrnewallace.com Wynne, William (deceased), late vate Hospital, Elm Park, Dublin 4 on 29 01 628 1755, fax: 01 628 0997 of Carlow Gate, Castledermot, Co September 2011, please contact Manus McDonald, Francis (o/w Frank) Kildare, who died on 21 June 2011. Sweeney & Co, Solicitors, Suite 226, Harden, Joseph Lloyd (other- (deceased), late of 82 Huband Road, Would any person having knowledge of Capel Building, Mary’s Abbey, Dublin 7; wise Paddy) (deceased), late of 3 Bluebell, Dublin 12, who died on 3 Oc- the whereabouts of a will made by the tel: 01 874 6984, fax: 01 878 3565, email: Oak Lawn West, Leixlip, Co Kildare tober 2011. Would any person having above-named deceased, please contact [email protected] (formerly of Cahir, Co Tipperary). knowledge of any will executed by the PJ Byrne & Company, Solicitors, Athy Would any person having knowledge above-named deceased please contact Road, Carlow; DX 18009 Carlow; tel: Gambo, Bola (deceased), late of 58 of any will executed by the above- Marion Sweeney, Giles J Kennedy & 059 914 0888, fax: 059 913 2391, email: The Paddocks Grove, Lucan, Co Dub- named deceased please contact Messrs Company, Solicitors, 81 Eccles Street, [email protected] lin. Would any solicitor holding or hav- Malone & Potter, Solicitors, 7 Cope ing knowledge of a will being made by Street, Dublin 2; tel: 01 671 2644, fax: 01 671 2735, email: office@ recruitment maloneandpotter.ie
Landy, Margaret (deceased), late of 36 Sarto Road, Naas, in the county NOTICEO T THOSE PLACING Is your client interested of Kildare. Would any person having RECRUITMENT ADVERTISEMENTS IN in selling or buying a knowledge of a will executed by the THE LAW SOCIETY GAZETTE above-named deceased, who died on 3 7-day liquor licence? May 2006, please contact Niamh Mo- Please note that, as and from the August/September 2006 issue riarty & Co, Solicitors, Parnell Road, of the Law Society Gazette, NO recruitment advertisements If so, contact Liquor Enniscorthy, Co Wexford; tel: 053 923 7666, fax: 053 923 7643 will be published that include references to years of post- Licence Transfers qualification experience P( QE). Manton (née O’Reilly), Amanda (de- Contact ceased), late of 4 Minnowbrook, Teren- The Gazette Editorial Board has taken this decision based on ure Road West, Terenure, Dublin 6W, legal advice, which indicates that such references may be in 0404 42832 who died on 28 March 2011. Would any breach of the Employment Equality Acts 1998 and 2004. person having knowledge of a will made by the above-named deceased please
job-seekers’ legal register vacancies F or Law Society members seeking For Law Society members to advertise a solicitor position, full-time, part-time for all their legal staff requirements, or as a locum not just qualified solicitors
Log in to the members’ register of the Law Society Visit the employment section on the Law Society website, www.lawsociety.ie, to upload your website, www.lawsociety.ie, to place an ad or CV to the self-maintained job seekers contact employer support by email on register within the employment [email protected] section or contact career or tel: 01 672 4891. You support by email on can also log in to the members’ [email protected] or area to view the job seekers tel: 01 881 5772. register. LEGALCOUNSEL
Alere Inc., listed on the New York Working both as a member of the local management team and the international legal function, you will report to the President of Stock Exchange, is a global leader International Business Operations and the head of the international in medical diagnostics and legal function. You will spearhead the review and drafting of commercial contracts (sales, supply chain and distribution contracts, healthcare, employing more than SLAs, NDAs, 3P contracts) across international territories and play a 11,000 people, in 25 countries. vital role in the negotiation of new commercial agreement s. You will also manage corporate governance and ensure rigorous compliance Having announced its decision to with the FCPA (Foreign Corrupt Practices Act) and ethical business establish its international business policies across all territories. hub in Galway, the organisation Operating at executive management level, you will have a high now seeks to appoint a Legal degree of competence in the drafting of international commercial agreements. Commercially astute and pragmatic, you will be a Counsel to play a key role in proactive business influencer with the ability to work collaboratively. delivering the commercial and legal You are an effective decision m aker, capable of working with a high degree of autonomy. Interested candidates will have a minimum of 8 strategic objectives for the years commercially oriented experience, ideally gained in a international business. multinational business environment.
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THE SR GROUP . BREWER MORRIS . CARTER MURRAY . FRAZER JONES . PARKER WELLS . SR SEARCH . TAYLOR ROOT LONDON . DUBAI . HONG KONG . SINGAPORE . SYDNEY . MELBOURNE 64 captain’s blawg Law Society Gazette www.gazette.ie November 2011
wiw ld, eiRD and wacky stories from legal ‘blawgs’ and media around the world Cyberloafing helps work Workers who do a little internet surfing during a work break are more productive on the job, a new study has found. According to The Wall Street Journal, researchers at the National University of Singapore found that workers allowed to visit internet sites during a break were more productive than workers who responded to personal email, and those who worked straight through. The study ‘Impact of cyberloafing on psychological engagement’ was presented at the annual meeting of the Academy of Management.
Bum steer? The law’s an ass The rule of ‘Oleron law’? A Manhattan judge is so fed up with “It’s about respect,” he said. Captain’s Blawg has recently defence of our freedoms and liber- saggy pants in his courtroom that Padro offered a verbal admonition become aware of a video of the ties as provided for under section he has taped a reminder on the to a 16-year-old boy recently. “I have attempted arrest of an English 61 of Magna Carta”. defence table. The sign reads, no interest in seeing your behind,” judge by followers of the so-called The intro to the video is notable ‘Pull Up Pants’, the New York Post the judge told the youth. According ‘Freemen on the Land’ movement. for its, er, idiosyncratic legal con- reports. Judge Eduardo Padro to the Post, the boy’s jeans “perched BBC News reported the incident cepts: “Watch as sovereign beings explained in an interview with the at such a distance from his waist that in March (we’re nothing if not of the Divine with blood that flows newspaper that he offers teens a it would have been noticeable even quick off the mark!) as follows: and flesh that lives take control chance to avoid jail, but he expects if his briefs had not been a bracing “Intruders have tried to arrest of an unlawful Maritime Admi- them to act and dress appropriately. shade of chartreuse”. a judge after storming into a ralty Court and arrest an unlawful courtroom on Merseyside. The judge. Both the Court and the activists went into the room at Judge are working under Oleron Boston lawyer’s donor shock Birkenhead County Court, while Law, which is controlled by the about 300 protesters gathered Rule and Code of The Crown Boston lawyer Ben Seisler used outside the building.” Templar, commanded at the very to pick up extra money while A leaflet handed out by the top by the Knights of Malta since attending law school at George demonstrators said they were the destruction of the Templars in Mason University – by donating trying to seize the building “in the 14th Century.” Indeed. to a Virginia sperm bank. The Boston Globe reports that Seisler earned US$150 per donation. In 2005, he used his donor number to register with an online Lady Gaga goes ‘Goo Goo’ tracking site called the Donor ‘Deo D D Do, De Da Da Da’ went the it created a character called ‘Lady Sibling Registry. Seisler learned old Police tune … one we couldn’t Goo Goo’ in an online game called he has at least 75 children. The help but hum when we came across Moshi Monsters. In the game, Lady 33-year-old lawyer expects the this story, reported in The Lawyer, Goo Goo performed a song called number to grow from between consequences that would come out of pop superstar Lady Gaga’s ‘Peppy-razzi’, which Mind Candy 120 to 140 children. Apparently, of this?” success in obtaining an injunction released in videos on YouTube and he uses an Excel spreadsheet to George Washington University preventing a computer game planned to sell on iTunes. Lady keep track of them all. law professor Naomi Cahn is company from releasing a single by Gaga claimed that Mind Candy had Understandably, his wife is a calling for more regulation. a cartoon character. Lady Gaga’s infringed her trademark, and that tad miffed. “What if they all come Experts fear the explosion in half rights-holding vehicle, Ate My there was a real risk of confusion knocking?” she asks angrily, in a siblings could result in accidental Heart, sought the injunction against between herself and Lady Goo Goo, TV documentary that chronicles incest or spread genes for rare gaming company Mind Candy after particularly by children. G the issues. “Did you think of the diseases.
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