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PRESIDENT’S MESSAGE

CONFRONTING THE DARK SIDE

n 19 January, all Council and normally at great personal cost and little members of the Law recognition. Society engaged in four Irish and Northern Irish history in more hours of training in modern times is a case in point, and represents unconscious bias. Staff a microcosm of certain aspects of US history, at the Society have also but with laudable positive outcomes. Our efforts availed of the training, and the programme will at peace and reconciliation in Ireland have be made available to the entire profession by our had positive influences in other conflict zones, CPDO team in due course. including South Africa, Israel and Palestine, and The issue first came to prominence in the the Basque Country. It shows the power and legal profession arising from a report issued significance of good example. by the International Bar Association, which found that sexual harassment and unconscious Shortcomings bias were widespread within the profession What can we, as solicitors, do? First, we can throughout the world (see article, p48). recognise our own shortcomings – which is Generally, we are lucky in Ireland, in that what unconscious-bias training is designed societal developments tend to lag somewhat to do. The principles of diversity, inclusion, behind the curve. If, as a country, we manage and unconscious bias are surely the same for our affairs sensibly by learning from others, we countries and humanity as they are in our offices can avoid most, if not all, of the downsides of and communities. I therefore encourage all of the challenges that face other countries.

Racial crisis In recent months, we have been witnessing THE TRAINING BEING the racial crisis in the USA brought about by attitudes within society that fail to accommodate PROVIDED BY YOUR LAW others who we perceive to be different from ourselves. While the American Civil War SOCIETY HAS ENORMOUS ended 250 years of slavery, and society moved on in many respects, in other ways it reverted POTENTIAL FOR GOOD to ‘business as usual’. Relatively little was done in terms of a substantial or sustained effort to you to embrace the training and do everything effect reconciliation between the white and you can to promote these ideas at every level – black populations, leading to an underlying both at home and abroad – in the years ahead. racism that persists to this day. Our future depends on how we treat our fellow Racism is accepting stereotypical beliefs that human beings and how we manage race relations separate people. The only way true equality and the issues of equality before the law. So you and justice will happen is if we recognise and can see that the training being provided by your resist racist tendencies – our unconscious Law Society has enormous potential for good.

biases. It requires immense courage to stand up I wish you well, personally and professionally, JAMES CAHILL, against injustice. Only a tiny minority do so, in the challenging year that lies ahead. PRESIDENT 2 CONTENTS??????? ?????? Jan/Feb 2021 Law Society Gazette gazette.ie PIC: GAZETTE STUDIO/SHUTTERSTOCK/ LAW SOCIETY GAZETTE • Vol 115 No 1 Workplace worries More than words Take a letter Volume 115, Valuable strategies for Now is the time for An open letter to the dealing with workplace mediation to come into judiciary calls for five harassment and bullying the spotlight and shine specific aspects of reform number 1

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FEATURES

24 That’s the way the cookie 40 A moment on the lips crumbles The pandemic has transformed how our courts are run. Time’s up for tracking tools – so don’t get caught with Mediation has an even more important role in this your hand in the cookie jar, warn Sean O’Donnell and new reality than it had before, says Patrick Moylan Kelly Mackey 44 Hitting a century 30 The title keeper Just over 100 years since the solicitors’ profession was first Justine Carty’s career has been driven by a strong work opened to women, the Gazette is delighted to augment ethic and love of learning. Mary Hallissey meets the previously published accounts with additional biographical property law guru and Law Society Council member details of two of these women pioneers

36 On parole 48 Make it stop A recent Supreme Court case brought focus to the Research into bullying and sexual harassment in the respective roles and functions of the Parole Board and legal profession can teach us valuable lessons about the Mental Health (Criminal Law) Review Board, write best practice for law firms. Angela Mazzone and James Shane McCarthy and Patricia Hickey O’Higgins Norman lead the way

48 60 18

REGULARS

4 The big picture 52 Analysis Standout photo of the month 52 News in depth: Ken Murphy looks back at a career spanning 26 years, and nine ministers for justice 6 People 58 News in depth: PC numbers 2020 60 Eurlegal: The European Commission proposes new 8 News rules curbing the power of digital companies 64 Briefing 13 Comment 64 Council report: 11 December 2020 13 Letters 65 Practice notes 14 Viewpoint: Access to court records and oral 66 Guidance notes arguments – an open letter 18 Viewpoint: Is civil justice review a Pandora’s Box? 22 Book reviews: Landlord and Tenant Law: The 67 Professional notices Residential Sector (2nd edition) and Charleton and McDermott’s Criminal Law and Evidence 72 Final verdict 4 IN FOCUS Jan/Feb 2021 Law Society Gazette gazette.ie

THE BIG PICTURE ?????????????????????? gazette.ie Law Society Gazette Jan/Feb 2021 IN FOCUS 5

PARTY LIKE A RUSSIAN Ice handprints made by Russian protesters during a rally on 23 January at Pushkinskaya Square, Moscow, mark PIC: DMITRY LEBEDEV/KOMMERSANT/SHUTTERSTOCK their support for the country’s opposition leader Alexei Navalny. The protests were sparked by Navalny’s arrest on 17 Janu- ary on his return from treatment abroad after a near-fatal nerve-agent attack in Russia in August 2020. Tens of thousands of people defied temperatures of -50C – and an even icier police presence – to join rallies in more than 70 cities. Riot police arrested more than 3,400 people across the country. Media reports indicate that a parole board could send Navalny to a penal colony within weeks 6 PEOPLE Jan/Feb 2021 Law Society Gazette gazette.ie SLA CHRISTMAS-JUMPER APPEAL RAISES €3.6K FOR CORK SIMON

O’Flynn Exhams LLP took part in a Christmas-jumper fundraiser in aid of the homeless charity, Cork Simon Community. Participants from firms across the city and county got involved in the event, organised by the Southern Law Association on 18 December, which raised €3,650

Virtual participants from the Finders International team JRAP O’Meara Solicitors THREE NEW PARTNERS AT ARTHUR COX

Arthur Cox has announced the appointment of three new partners at its Dublin office, in a move that brings its percentage of women partners up to 38%. They are Sarah McCague (pensions partner), Niamh McGovern (partner in infrastructure, construction and utilities practice), and Ruth Lillis (new partner in the firm’s aviation and asset finance practice). Managing partner Geoff Moore said that, while the increase in women partners at the firm was welcome, the firm was working to achieve higher targets gazette.ie Law Society Gazette Jan/Feb 2021 PEOPLE 7 SOUTHERN CAPITAL’S AGM IS A SOCIALLY DISTANCED AFFAIR

For the first time in its history, the Southern Law Association held its AGM remotely on 17 November 2020. A scaled-down, socially distanced and masked council convened at Court 1 at the courthouse on Washington Street, Cork. The meeting was presided over by Robert Baker (outgoing president) and Catherine O’Callaghan (honorary secretary). The AGM was streamed live to over 100 members, who benefited from CPD points. Juli Rea (JRAP O’Meara LLP) was elected president for 2021, while Gerard O’Flynn (Gerald A J O’Flynn & Company, Solicitors) was elected vice-president. Newly appointed Law Society President James Cahill and Ken Murphy (director general) also addressed the attendees. (From l to r): Gerald AJ O’Flynn (vice-president), Catherine O’Callaghan (secretary), Robert Baker (outgoing president), Sean Durcan (treasurer), and Juli Rea (newly elected president) A&L GOODBODY INVESTS IN THE FUTURE WITH TEN NEW PARTNERS

Brian O’Malley (restructuring Noeleen Meehan Mark Devane (financial Louise Byrne (white-collar Nicholas Cole (litigation, and insolvency, Dublin) (employment, Dublin) regulation and crime, Dublin) Dublin) investigations, Dublin)

David Fitzgerald (commercial Gregory Martin (commercial Gillian McDonald (legal Robbie O’Driscoll (finance, Christopher Jessup (finance, property, Dublin) property, Belfast) project management, Dublin) Dublin) Belfast) 8 NEWS Jan/Feb 2021 Law Society Gazette gazette.ie CYBERSECURITY – MITIGATING THE RISKS n Many media outlets have and covertly ‘continues the con- be the person who is setting up reported a substantial increase in versation’, before requesting that the electronic transfer that veri- the number of cyberattacks in the funds be sent to a fraudulent bank fies the account details). past year. Interpol has warned that account. It is important to note 7) If somebody tells you that their cybercriminals are taking advan- that these frauds are not only car- account details have changed, tage of the fear and uncertainty ried out in solicitor/client com- this is an instant red flag. You caused by the pandemic, as well munications – fraudulent activity should immediately raise a as the increased number of people has taken place in solicitor/solici- query and verify the account working from home. tor and internal solicitor/accounts details through an alternative The Interpol secretary gen- staff communications. medium, such as by phone or eral, Jürgen Stock, has said that post. In addition, let your cli- “cybercriminals are developing Bank details warning ents know that your firm does and boosting their attacks at an Any bank-account details received Interpol boss Jürgen Stock: focus has not change its bank-account shifted from individuals and small alarming pace”, noting that the in an email should be treated sus- businesses to major corporations, details (if this is the case). focus has shifted from individuals piciously and not acted upon governments and critical infrastructure Clients should be advised not to and small businesses to major cor- without further verification. It is send any money to new account porations, governments and criti- highly recommended that multi- should never be sent by email details without confirming the cal infrastructure. It is likely that factor authorisation be imple- and that, if a client receives a change by talking to someone this increased risk will continue in mented on all email accounts of request to do so, they should in the firm. the short-term and possibly longer, the practice. Also, if you are in contact their solicitor by phone. 8) Typographical errors must be as society adapts to a new way of anyway concerned, it is recom- 2) Clients should be asked for avoided. You cannot rely on working. mended that you request your IT their bank details by way of a the banks to verify the account The Regulation of Practice suppliers to run an anti-virus and copy statement at the start of a name against the account num- Committee points out that the malware scan of the system and transaction. ber. If you put in a wrong num- Law Society has continued to run a sweep of the email systems 3) If a client does not give you ber, then the money will go receive reports of successful cyber- to ensure that no rules have been copy bank documentation, then astray and may not be recover- attacks resulting in a financial added to the mailboxes. you should ask the client to able. loss to client bank accounts. The write out the IBAN and BIC in 9) Any internal mail asking you to majority of these attacks involved Top tips full for you in their own hand- request or effect the transfer of compromised email systems and Where a solicitor or client is writing, and sign it. moneys must be verified by a payment redirection frauds. required to transfer money to 4) If another solicitor is sending phone call to the sender of the bank-account details received by you their account details, then mail. Malware dangers email, it is imperative that the they should do it by post, and 10) The obligation on the client to Email systems are often compro- individual setting up the transfer you should still verify same provide accurate bank details mised by the installation of mal- verifies the details received via a with them. It is common for the and the risk of fraud should be ware as a result of clicking on a link telephone call (see point 6, below). fraud to involve only changing mentioned in the section 150 or attachment in a phishing email. It is also important that this indi- one digit or letter. letter and letter of engagement. This can provide the fraudster vidual verifies the telephone num- 5) If you have to write down 11) Also, a solicitor should consider with access to the password for the ber and does not rely on the num- bank-account details yourself including an email disclaimer account. If obtained, the fraudster ber received in the email. (for example, because you are at the foot of every email, in can set up a rule on the account, The Technology Committee getting them over the phone), bold, informing all clients that resulting in all emails received previously issued the following then you must read the details they will never provide bank- being forwarded to the fraudster’s top tips to help prevent being a back to the client for verifica- account details by way of email. email address without the owner’s victim of such an attack, which tion, and you must memo this knowledge. As a result, all infor- should be followed at all times. on your file. This is important, A solicitor should ensure that all mation received by email from a Given the current pandemic because if the other person computers in the practice (PCs, client, including personal details, and resulting restrictions, it is gives you an incorrect number file servers, and mail servers) are bank details, passports, driving accepted that there will be occa- by accident, it may cause the protected by trustworthy internet- licences, details of commercial sions where a face-to-face meet- money to go astray. security business products, and transactions, etc, will be compro- ing is not possible: 6) If you get an IBAN and BIC by are using the latest updates. Also, mised. Alternatively, unencrypted 1) Only send IBANs and BICs email, including in an attach- ensure that a firewall is turned on. emails can be intercepted during for your accounts or other ment, then you must ring the Operating systems and other soft- transmission. The fraudster then accounts by post. It may be person to verify the details, and ware should be kept up to date to creates an email address similar to worth advising all current cli- you also should memo that on ensure that there are no security both the client’s and the solicitor’s ents that bank-account details your file (note: it should always gaps. gazette.ie Law Society Gazette Jan/Feb 2021 NEWS 9

PUTTING A SPRING ASK AN EXPERT FOR IN THEIR STEP WELLBEING SUPPORT

n Following the success of the advance in order to attend. Topics online career support series, the to be covered include: Younger Members Committee • How to make partner and still will launch the Spring Series on have a life, 16 February. • ‘Squiggly’ careers and implica- Beginning with the March issue, are not on your own. The series of online informa- tions for young solicitors, the Gazette will run a monthly Our experts include psycho- tion sessions will focus on career • Getting involved in marketing column geared towards assisting therapists, executive coaches, management and associated mat- your firm, members with any interpersonal academics, psychologists, solici- ters, such as mental health and • Living and working as a lawyer or wellbeing problems they are tors, and others – depending on wellbeing. Each session is com- in other jurisdictions, facing in the workplace, writes the problems raised. plimentary and will take place • Technology advances and con- Julie Breen (Professional Wellbe- All matters will be treated on a at 7pm on Tuesday evenings. It sequences for young solicitors, ing Project coordinator). totally confidential basis, names involves a member of the com- • Career management in a time The column will be written and personal details will be ano- mittee in discussion with an of transformational change, by an expert who will respond nymised (the expert providing expert on a range of topics. The • Emerging work models and to issues or problems shared by the advice will not be provided sessions are short in duration, 20 their impact on young solici- members, focusing on offering with any personal details), and all to 25 minutes long, and aim at tors, support, acknowledgement, tips emails will be deleted once the providing summary information • Excelling at video interview- and techniques. The issues raised subject matter has been dealt on each topic covered, with sug- ing, by you may involve: with by the expert. gestions on how to follow-up and • How to get what you want, • Wellbeing or psychological The column aims to give mem- to pursue the matter further. career-wise, matters (your own, or some- bers of the legal profession the These modules will be held • How to create yourself a niche thing you’ve identified in a col- opportunity to engage with our over Zoom, and all younger solic- specialisation in law. league), experts in order to help them itors and trainees are welcome to • Relationships at work, address any themes or common participate. There is no charge, To register your interest, email • Leadership dilemmas, problems they find themselves but you will need to register in [email protected]. • People-development issues, facing on a regular basis. If we • Change-management issues, can’t find an appropriate expert • Office dynamics, and to address the issue you have COVID ACCELERATES • Coaching advice, or any other raised, we will email you to let issues you and your colleagues you know, and suggest alterna- COURTS’ TECH USE wish to seek expert advice on. tive avenues for you. n The latest issue of Courts Ser- including six new sites and three The Law Society’s Professional vice News details the rapid accel- refurbished courtrooms. The column should appeal to Wellbeing Project team looks eration in the use of technology Seven ‘pop-up’ courts were members who might not have forward to helping you unpack due to the pandemic. held at various locations in colleagues to bounce ideas some of your most common – or A total of 2,095 virtual court 2020, while additional video off or share problems with, uncommon – problems in 2021! hearings were heard between equipment was deployed to 28 or to those of you working in April and December 2020, courtrooms to facilitate social larger firms where you might To submit an issue that you’d while 10,754 video calls were distancing. Ten ‘mobile jury feel unsafe in asking questions like to see addressed in the col- held between courts and pris- empanelment solutions’ were or raising dilemmas. It can be umn, please email professional ons (March to November). Nine also built and used across nine comforting to know that you [email protected]. video-enabled courts were built, locations nationwide. 10 NEWS Jan/Feb 2021 Law Society Gazette gazette.ie

ENDANGERED LAWYERS REMOTE WORK ALEXANDER PYLCHENKO, BELARUS REFUSAL COMPO

Readers will be aware of the members engaged in beatings, political protests and turbulence and keep them under restraint in Belarus (population 9.5 mil- (pending further review of their lion) arising out of the August actions). He also stated that the 2020 presidential election. The President of the Supreme Court n The Workplace Relations remotely, and the same situation election was marred by signifi- should cancel orders that pro- Commission (WRC) has ruled pertains in a post-COVID situ- cant irregularities and was widely vided for the continued deten- on the case of an office worker ation.” condemned as being neither free tion of alleged protesters in the who had to resign during the first The employer said it had taken nor fair. The incumbent President Minsk detention centre, where lockdown when she was refused precautions, including provid- Lukashenko has been in power for there were widespread reports of permission to work remotely, ing PPE, changing the physical 26 years, since 1994. abusive treatment of detainees. writes Mary Hallissey. layout of the office, installing Alexander Pylchenko is a res- These statements would later Adjudication officer Kevin screens and warning tape, and pected lawyer of 30 years’ expe- form the basis of Mr Pylchenko’s Baneham said the worker had moving desks. rience and a former chair of the disbarment. “no real option but to resign” The MD of the facilities man- Minsk City Bar Association. His The Ministry of Justice’s Quali- after the employer failed to take agement company told the WRC clients included Victor Babariko, fication Commission declined his reasonably practicable steps to that they would not have allowed a potential presidential candidate request for representation when offset the virus risk. He ordered remote working, since the job arrested a few weeks before the it met on 15 October 2020, and that €3,712 should be paid in was essential and required an election, and Maria Kolesnikova, issued an opinion that his state- compensation for the unfair dis- on-campus presence to deal with another opposition figure. He ments were incompetent, misled missal. the students, some of whom were was disbarred in the aftermath of the public about the powers of The university-based facilities self-isolating. the protests against the August state authorities, and called for manager, who helped manage The adjudication found that election. illegal action. There was no evi- 3,200 student bedrooms, wrote the employer did not implement On 14 August, Mr Pylchenko dence cited in support of this to her employer saying that the the rota proposals made by three was interviewed by local media opinion. The following day, the refusal to allow remote working office workers that would have station TUT.BY. During the inter- Ministry of Justice disqualified “has increased the infection risk eliminated the risk of virus trans- view, he was asked what actions Alexander Pylchenko from prac- with COVID-19 for all three mission. law enforcement officials and the tising law with immediate effect. operations coordinators. In the The requirement to attend judiciary should take in response Pylchenko appealed this deci- event one of us gets sick, I will be the workplace without adequate to unjustified violence and torture sion and, on 26 November, the putting at risk my husband, who consideration of the elimination against civilians by law enforce- court ordered the Ministry of Jus- is an asthmatic patient.” of virus risk “amounts to repu- ment agencies on a mass scale. tice to submit written explana- In an email dated 17 April, diation of contract”, the adjudi- Pylchenko responded that the tions justifying its decision, with the worker told her employer cation continues. general prosecutor should initiate a further hearing scheduled for that she was not able to socially “As an infectious disease, criminal proceedings in relation to 23 December. No report as to the distance from her two workplace COVID-19 constitutes a bio- reports of torture of civilians in outcome of the hearing before colleagues. logical hazard. In this context, the Minsk detention centre, and Christmas is available as we go and at the centre of this case, are investigate reports of violations of to press. Employer response the duties of both employer and election law in the context of the In a letter on 4 May, the employer employee arising from the Safety, presidential elections. He stated Alma Clissmann is a member of the wrote: “Prior to COVID-19, Health and Welfare at Work Act that the authorities should disarm Law Society’s Human Rights Com- there was never a suggestion that and the underpinning health and and detain military units whose mittee. the roles could be performed safety principles.” gazette.ie Law Society Gazette Jan/Feb 2021 NEWS 11

IWLA HONOURS IRLI IN MALAWI WOMEN LEADERS JUDICIAL REVIEWS IN MALAWI

Clerical officer Mrs Katutu (Ntcheu Magistrate Court) and Alex Mwandira (PASI paralegal) processing orders of release with prison officers

n The Society has offered its the most extraordinary years that Malawi’s prisons currently oper- egories of prisoners identified by warm congratulations to imme- Ireland and Irish solicitors have ate at about 209% capacity. Pris- the World Health Organisation – diate past-president Michele ever faced. oners sleep side by side, have the elderly, the sick, and women O’Boyle on receiving the “Her appointment coincided very limited access to health with children. We also screened ‘Woman Lawyer of the Year with the centenary of women and hygiene services, and ven- for those serving sentences for Award 2020’ from the Irish being permitted to enter the tilation is poor. This means that minor crimes and those with Women Lawyers’ Association. profession, but her outstanding diseases like malaria, TB, and little time left to serve on their O’Boyle received the award contribution to, and impact on, HIV are rampant. Upon the out- sentences. Once the files were jointly with the chair of the Bar the Law Society began many break of COVID-19, the situation presented to the judges, they of Ireland, Maura McNally SC, years ago. Having been elected for people incarcerated in the reviewed the mitigating and at a formal online presentation to Council in 2003, and hav- world’s prisons, including Mala- aggravating factors of each case ceremony on 16 December. ing served on all of the Society’s wi’s, became dire. In response, to decide whether someone was Congratulating Ms O’Boyle, most senior committees, Michele IRLI temporarily refocused deserving of release. Law Society President James O’Boyle is truly a leader among most of its efforts towards the Before any prisoners were th Cahill said: “As the 149 Presi- her colleagues. urgent decongestion of Malawi’s released, IRLI worked with PASI dent of the Law Society, and the “On behalf of the Law Society, prisons. to develop and implement a post- fourth female president, Michele I warmly congratulate Michele One initiative undertaken and release procedure. Due to a lack O’Boyle skilfully led the solici- and Maura on this wonderful supported by IRLI was the use of of resources, there is little sup- tors’ profession through one of achievement.” judicial reviews. This mechanism port offered to those released is different from the civil action from prison, nor is there a sys- (which also exists in Malawi, as tem of monitoring those granted DAY OF ENDANGERED a common law jurisdiction). It early release. IRLI and PASI involves judges using their pow- engaged with local chiefs and vil- LAWYER MARKED ers under the Malawian Criminal lage social structures to discuss th n The 11 ‘Day of the Endan- Philippines, Spain/Basque Coun- Procedure and Evidence Code their concerns with regards to gered Lawyer’ was marked on try, Turkey, and Pakistan. to review decisions or sentences the return of former detainees 24 January. This year, protests International law organisa- handed down by magistrates in and to ensure that they would be and seminars were organised tions were asked to raise aware- the lower courts. provided with support. in solidarity with human-rights ness among the public about the IRLI coordinated with their The files of about 250 people lawyers in Azerbaijan. A petition number of lawyers who are being Malawian partner organisation, in the Eastern Region were pre- supported by international and harassed, silenced, pressured, the Paralegal Advisory Service sented to the judges for review. national lawyers’ organisations threatened, persecuted, and in Institute (PASI), to screen for vul- By 22 December 2020, a total of around the world was presented some countries tortured and mur- nerable persons who should have 114 people had been released to Azerbaijani embassies and sent dered for their work as lawyers. their sentences remitted (and back into their communities. to that country’s government. The goal is to initiate or fur- thus be immediately released In the past, the Day of the ther develop a national discussion from prison). The categories of Susie Kiely is judiciary programme Endangered Lawyer has focused about ways to protect lawyers. persons screened correlated lawyer with Irish Rule of Law Inter- on China, Colombia, Egypt, For more information, visit www. mostly with those vulnerable cat- national. Honduras, Iran, Pakistan, the dayoftheendangeredlawyer.eu. w

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www.crisiscover.ie [email protected] HELP KEEP VITAL SERVICES OPEN gazette.ie Law Society Gazette Jan/Feb 2021 Letters COMMENT 13 I HEAR YOU CALLING ME From: Marcin Szulc, Rostra Solicitors, 78 Benburb Street, Smithfield, Dublin 7 Chara, I read with interest the opinion of Ronan O’Brien of TP Robinson Aregarding the discontinuation of ‘Dear Sirs’ (Gazette, November 2020, p17). Some people take lack of sensi- tivity for freedom of speech. Perhaps one might want to consider how not to offend somebody, instead of “negotiating ... a form of address” after “upset- ting” them. You tread on the side of caution and politeness. There is no room for negotiation here. You call people what they want to be called, or you are called names you would rather not be called. Z wyrazami szacunku (yours faithfully).

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Library ad Gazette Dec 2015.indd 1 24/11/2015 10:46 14 COMMENT Viewpoint Jan/Feb 2021 Law Society Gazette gazette.ie

ACCESS TO COURT RECORDS AND ORAL ARGUMENTS In an open letter to the Chief Justice and the presidents of the courts of record, Seth Barrett Tillman asks them to consider five aspects of potential reform

SETH BARRETT TILLMAN IS A LECTURER AT MAYNOOTH UNIVERSITY DEPARTMENT OF LAW

Dear Chief Justice and Presidents of I would like to further suggest the courts.ie website. (The High the Courts of Record that the courts move towards Court of Australia and Supreme would ask you to consider automatically making parties’ Court of the United States post the following issues relating briefs (as well as other filings, for all submissions the day they are to potential reform of the example, pleadings) available, as filed, as searchable PDFs, online courtsI system in the interests of soon as they are filed, to the pub- on their own websites.) Access transparency and access to jus- lic and to the primary electronic to legal submissions – providing tice: (1) providing open access legal platforms, for example, practitioners, educators (includ- to parties’ briefs, pleadings, and Westlaw and LexisNexis – this ing those at the King’s Inns and other filings; (2) improving par- is standard practice in United the Law Society), and students ties’ briefs, pleadings, and other States’ federal and state courts. with a searchable bank of models filings; (3) terminating the prac- By contrast, policies that permit – will raise the quality of briefing,

tice of unpublished final orders access to parties’ briefs only af- thereby facilitating the courts’ PIC: SHUTTERSTOCK and judgments; (4) providing ter the filing is opened in court reaching timely decisions, as well THERE ARE MANY a searchable bank of notices make it all but impossible for the as improving educators’ teaching of appeal; and (5) limiting oral public and media to understand best practices. Such a policy is an GOOD REASONS argument on appeal. those proceedings while they investment in Ireland’s litigation FOR THE COURTS are ongoing. Such policies, post- future. Access to briefs, pleadings, COVID-19, where the public TO PUBLISH and filings and media cannot access live Improving briefs, pleadings, At this juncture, the Supreme courtroom proceedings, would and filings JUDICIAL ORDERS, Court and High Court now have seem to be even less defensible The courts’ shift to neutral cita- practice directions making parties’ going forward. tions and other standard citation ESPECIALLY briefs available to third parties Such a policy will have a practices in their judgments has upon request (see Supreme Court strong tendency to disseminate been a notable (even if unno- FINAL ORDERS Practice Direction SC 15 and and facilitate best practices in ticed) success. This practice al- DISPOSING OF High Court Practice Direction the legal profession – promising lows judgments to hyperlink to HC 101). May I suggest that the more transparency and greater prior judgments and scholarly CASES remaining three courts consider competition for legal services. authority. adopting parallel practice direc- The Supreme Court’s list and May I suggest that you build tions – subject to well-established Court of Appeal’s list are small on that success by rapidly mov- This article reflects the personal views of the author. Academic affiliation is for limitations involving national- enough that briefs and other filing forward with a programme identification purposes only security cases, minors, etc? ings could be made available on in which parties’ briefs fol- gazette.ie Law Society Gazette Jan/Feb 2021 Viewpoint COMMENT 15 PIC: SHUTTERSTOCK

low similar citation practices – Unpublished final orders and the courts – where many cases allowing for briefs to hyper- judgments are disposed of by a final order link to judgments and scholarly Courts.ie lists the disposition of (absent a published judgment) or authority in just same fashion? cases, ending with a published where the case is struck out by (United States federal practice judgment. But only the judg- consent of the parties. generally requires briefs to do ment is published, not the final Whether or not a case is re- that, and the best practice is order. Furthermore, any number solved with a published judg- PERHAPS IT IS that briefs also hyperlink to the of cases have no published judgment, there are many good rea- record, including transcripts, af- ment at all, and so the public has sons for the courts to publish TIME TO GRASP fidavits, declarations, etc, and to no information how the courts judicial orders, especially final THE ORAL- other parties’ briefs.) Again, bet- disposed of specific cases. orders disposing of cases. One ter (post-COVID-19 electronic) As a result, the public and important reason is to teach the ARGUMENT briefs will facilitate the courts’ Minister for Justice see only a legal profession how to draft reaching timely decisions. fraction of the work done by model orders for the courts and NETTLE? FLAC Advert Aug 18.qxp_Layout 1 30/08/2018 11:19 Page 1

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Contact Kuda at [email protected] or call us at 01 8873600. Also read more at www.flac.ie/getinvolved gazette.ie Law Society Gazette Jan/Feb 2021 Viewpoint COMMENT 17 registrar to adopt. But there tages over new practitioners (and could make their entire argu- are many other good reasons to their clients), thereby defeating ment in written form – without move forward with such a policy. competition for legal services, recourse to oral arguments. Oral Another important reason is to and allowing unfair advantage to arguments are time-consuming see to it that justice is “admin- be gained in ordinary litigation for the courts, and they are ex- istered in public” (Irish Constitu- through surprise. pensive for the parties. And, of tion, article 34.1). The standard treatises on sev- course, by being a bottleneck on Unpublished judicial orders, eral areas of Irish law are chock- judicial decision-making, oral along with unpublished judg- full of citations to unreported arguments cause delay. Such a ments, are a direct and continu- cases. The fact that some such streamlined system would save ing threat to the institutional cases are cited in parties’ briefs the judiciary countless hours – integrity of the courts. United defeats the goal of transparency where, currently, oral argument States’ federal courts once faced in the courts, and the fact that time on appeal is freely granted, similar problems, which were there are many such Irish cases if not as a matter of right, then as solved when the senior judiciary is a gravely serious institutional a matter of course. Such a system, POLICIES THAT identified the problem, published problem. where in many cases a party’s PERMIT ACCESS on the issue, and put forward hearing would be a ‘papers-only’ timely, practical solutions – all of No searchable bank of notices hearing, would systematically TO PARTIES’ which were well received by the of appeal speed judicial decision-making. judiciary’s stakeholders. (For ex- As I understand it, there is no By contrast, in the current sys- BRIEFS ONLY ample, Anastasoff v United States facility on courts.ie or elsewhere tem, parties have every incentive AFTER THE FILING [223 F 3d 898 (United States providing information whether not to flesh out their arguments Court of Appeals for the Eighth decisions of the High Court and in their written filings; instead, IS OPENED IN Circuit 2000), Arnold J], find- Court of Appeal (including writ- the incentives are to delay making unconstitutional an appel- ten judgments) are under appeal ing fully developed arguments COURT MAKE late rule distinguishing so-called to a higher court. until their in-person hearing IT ALL BUT ‘unpublished’ judgments from This disadvantages practitio- – if only in the hope of scoring published judgments.) Timely, ners’ preparing advice for clients tactical victories by surprising IMPOSSIBLE responsible action by the judi- and drafting briefs and other their opponents. Surprise and ciary made intervention by the filings for the courts, because justice are rarely coextensive. FOR THE PUBLIC political authorities unnecessary. practitioners lack current infor- Moreover, to the extent that bar- AND MEDIA TO The historical justification for mation regarding the likelihood risters continue to be paid, in not publishing final orders and of a judgment’s being reversed on significant part, based on face- UNDERSTAND short non-precedential judg- appeal. Providing such a facility time before a judge or panel, ments (that is, judgments in- on courts.ie seems within reach. then they have every incentive to THOSE tended only to apply settled law) In our COVID-19 world – discount settlement as an option, PROCEEDINGS was the concrete costs associated where the Four Courts and the to defer settlement, and to seek with lengthy physical reports – other courthouses around the and extend oral argument time. WHILE THEY ARE for example, the Irish Reports – in country are effectively closed to These litigation-related incen- a pre-digital age. the public, where the public can- tives are truly perverse. Perhaps it ONGOING. SUCH That historical rationale no not walk into their courtrooms is time to grasp the oral-argument POLICIES, POST- longer exists: the official ‘re- and personally attend live ju- nettle? porter’ for the courts is an elec- dicial proceedings – your deci- At some point in the not-too- COVID-19, WHERE tronic reporter on a website sion to make legal submissions, distant future, the Chief Justice, controlled by the Courts Service. final (and other) judicial orders, along with other senior members THE PUBLIC AND The courts’ neutral citation re- notices of appeal, etc, easily ac- of the judiciary, will approach MEDIA CANNOT porter has, in effect, unlimited cessible to all (and not just to the Minister for Justice for an bandwidth capability. Today, all bona fide members of the press increase in funding for the ju- ACCESS LIVE final dispositions (including both and members of the legal profes- diciary and the Courts Service. orders and judgments) could sion) is one good way to preserve Would it not be helpful in ‘mak- COURTROOM and should be reported online. the constitutional value of ad- ing the case’ for additional fund- PROCEEDINGS, Moreover, when a significant ministering justice in public. ing to have at your fingertips number of unpublished orders all the good work of the courts WOULD SEEM and judgments circulate among Limiting oral argument on – and a host of non-political, TO BE EVEN LESS the legal profession, it amounts appeal good-governance-type institu- to a secret alternative justice sys- In regard to appellate civil cases, tional reforms – all of which are DEFENSIBLE tem – where insiders and repeat in a more streamlined system low-hanging fruit within your players have institutional advan- with improved briefing, parties easy reach? GOING FORWARD 18 COMMENT Viewpoint Jan/Feb 2021 Law Society Gazette gazette.ie

IS CIVIL JUSTICE REVIEW A PANDORA’S BOX? The Review of the Administration of Civil Justice Report has almost 500 pages and 95 recommendations. Review group member Stuart Gilhooly focuses on the major issues

STUART GILHOOLY IS A PARTNER AT HJ WARD & CO, SOLICITORS, AND A PAST-PRESIDENT OF THE LAW SOCIETY

hen the Review of this system, which is necessary

the Administration REVIEW OF THE due to the complete absence of of Civil Justice com- ADMINISTRATION OF a functioning civil legal-aid sys- CIVIL JUSTICE Wmenced in September 2017, the REPORT tem, is often used as a stick to membership could have been beat us with, leaving the inevita- forgiven for thinking that, like ble conclusion that we will never the Great War, it would be over convince the naysayers – and by Christmas. And, indeed, it there is little point in trying. was concluded by December – Nonetheless, among the spe- we just didn’t know it would be cific terms of reference was to the most recent one. In hind- find ways to reduce the cost of sight, it shouldn’t have come litigation. While many of the 95 as a surprise. When you open a recommendations did precisely AN UNWIELDY Pandora’s Box of such depth and October 2020 that, either directly or indirectly, TWO-STEP complexity, it was always going it was felt that a specific review to take time and compromise enced hand of then (and now of how costs were calculated was PROCESS THAT to reach agreement. A lengthy former) President of the High necessary. report was finally produced in Court, Peter Kelly. Although the effects of the HAS WEEDED December 2020, after three years provisions of the Legal Services of meeting after meeting of the Major issues Regulation Act 2015 have still to OUT ONLY THE main committee and various sub- Nearly 500 pages of carefully be properly evaluated, given the groups. crafted prose, replete with 95 dearth of available data over such BLATANTLY The result is the most com- specific recommendations, can- a short time period, the group UNMERITORIOUS prehensive review of the civil not be neatly condensed, so I will felt that further transparency justice system in living memory, concentrate on the major issues was required for the consumer CASES HAS with sensible and (in some cases) as they affect practitioners. in terms of what costs might be radical recommendations for As with all matters involving payable, in the event that the MEANT DELAYS reform. It was a group whose the courts system, the issue of client is ultimately required to membership was necessarily costs is never far from the dis- pay such costs. IN HEARING THE diverse, including myself as Law cussion. A lot of assumptions Society nominee. In addition are made about the accessibility Two methods MANY ENTIRELY to the Bar and a judge of each of justice in the current regime, A debate ensued as to which of REASONABLE of the courts, representatives which rarely take into account two methods would be fairer. of the Courts Service and vari- the willingness of lawyers to take The minority, consisting of MATTERS BEFORE ous Government departments on cases pro bono or on the basis representatives of Government were herded like a well-behaved that no charge will accrue unless departments, maintained that a THE COURTS clowder of cats by the experi- the matter is successful. Indeed, rigid scale system (allowing for gazette.ie Law Society Gazette Jan/Feb 2021 Viewpoint COMMENT 19 PIC: ALAMY SPRING 2021 APPLICATIONS DIPLOMA CENTRE OPEN

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CONTACT DETAILS e: [email protected] t: 01 672 4802 w: www.lawsociety.ie/diplomacentre All lectures are webcast and available to view on playback, allowing participants to catch up on coursework at a time suitable to their own needs. Diploma Centre reserves the right to change the courses that may be offered and course prices may be subject to change. 01_21 gazette.ie Law Society Gazette Jan/Feb 2021 Viewpoint COMMENT 21

derogation only in exceptional, Of course, the issue of costs was has been sought from the origi- court-ordered circumstances) not the only one the group consid- nal decision-maker and wrongly represented the best method of ered, and other matters (including refused. Both of these significant reducing costs. discovery, judicial review and court changes will also require primary The majority, consisting of all reforms) were among the high- legislation, and the current rules other members (excepting the lights of the report from the point will remain in place in the mean- Office of the Attorney General, of view of the practitioner. time. which abstained, and the chair- The review group also sug- man, who did not express a view Discovery gested a myriad of court reforms: at that time), favoured a more Discovery has been the bane of that deputy masters should be able flexible approach of non-binding most litigators’ lives for as long as to preside over case-management guidelines. we can remember. It is a complex conferences; that a single claim The rationale behind the view and onerous aspect of the litigation form should replace all the vari- THE GROUP HAS of the majority was that rigid process, which has been further ous types of originated documents scales would ultimately be an anti- complicated by digital communi- in the court; and that a specialist RECOMMENDED consumer measure, which would cation. list for medical negligence cases favour institutional litigants such The group has, therefore, rec- are among the most significant. THAT THE as the State or insurance com- ommended that the current regime CURRENT panies. They would continue to be abolished and replaced by a new Case inaction pay such costs as they saw fit to procedure, which will have to be However, of most import is the DISCOVERY the lawyers of their choice, given provided by primary legislation. It proposed introduction of the the relative size of their pockets. will require production of certain automatic discontinuance of cases REGIME BE The average consumer, however, documents in every matter, which where no action has been taken. would find themselves either is designed to obviate the need for This measure is required to satisfy ABOLISHED AND unable to obtain access to justice, discovery above and beyond these European requirements that pro- SPRING since the costs payable – even in documents. It remains to be seen ceedings are being concluded in REPLACED BY A 2021 no-win, no-fee cases – would be what the exact nature of this new a reasonable time frame. Now, if APPLICATIONS uneconomic, or they would have system will look like, and it could no action (either by way of setting NEW PROCEDURE, DIPLOMA CENTRE OPEN to be responsible for any bal- be some time before complex pri- down or other proceedings on the WHICH WILL HAVE ance of costs, either at the outset mary legislation is drafted. In the court record, such as motions) has Leaders in legal education with professional focus and practical insight or upon successful conclusion, meantime, the current discovery been taken within 30 months, a TO BE PROVIDED thus driving a stake through the process will remain in place. case will be automatically discon- Flexible CPD recognised courses to suit a busy schedule concept of full compensation for tinued. Application to reinstate, BY PRIMARY the commission of wrongdoing – Judicial review pressure however, will be a remedy avail- which would only benefit the los- The system of judicial review has able. As this reform can be made LEGISLATION. IT COURSE NAME START DATE PRICE ing party. been under pressure for some by way of court rules, it is likely WILL REQUIRE Diploma in Commercial Litigation 20 January 2021 €2,600 time. An unwieldy two-step pro- to come into being sooner rather Non-binding guidelines cess that has weeded out only the than later. PRODUCTION Diploma in Aviation Leasing and Finance 28 January 2021 €3,000 By providing guidelines of a blatantly unmeritorious cases has And that is a whistle-stop tour non-binding nature, the prin- meant delays in hearing the many through a very hefty tome. Please OF CERTAIN Certificate in Strategic Leadership for the In-House Lawyer 29 January 2021 €1,650 ciple of increased transparency is entirely reasonable matters before do not treat this as the definitive maintained. Costs would be fair the courts. summary. It is far from it. The DOCUMENTS Certificate in Company Secretarial Law & Practice 2 February 2021 €1,650 in every instance, and routine It can be difficult to please all document is available on the web- cases that would be very much litigants in situations like this and, sites of the Review of the Admin- IN EVERY Diploma in Employment Law 12 February 2021 €2,600 the norm would fall squarely no doubt, some will be unhappy istration of Civil Justice and the MATTER, WHICH Certificate in Data Protection Practice 17 February 2021 €1,650 within the guidelines. However, with the recommendation that Department of Justice and, if you the minority of complex matters leave will only be granted where are a litigator, at least familiarise IS DESIGNED Diploma in Healthcare Law 25 February 2021 €2,600 would receive fair costs, and the there are substantial grounds and yourself with the full list of rec- overriding requirement for equal- a reasonable prospect of success ommendations in Chapter 12. TO OBVIATE Certificate in Charity Law & Trusteeship 26 February 2021 €1,650 ity of arms would remain in place. at trial. It is, however, difficult to It remains to be seen how It is to be expected that Gov- objectively argue with these crite- quickly Government will act on THE NEED FOR Certificate in Commercial Contracts 6 March 2021 €1,650 ernment, which is committed to ria, which, presumably, are similar these recommendations, but see- DISCOVERY Certificate in Enforcement for Public Bodies (NEW) 6 April 2021 €1,650 implementing the recommenda- to those adopted by most solici- ing as they form part of the Pro- tions of the review, does so by tors before taking on such cases. gramme for Government, they ABOVE AND following the specific view of the In addition, entitlement to judi- are likely, at least in some part, CONTACT DETAILS majority, and that it will not fol- cial review for clerical deficien- to see the light of day over the BEYOND THESE e: [email protected] t: 01 672 4802 w: www.lawsociety.ie/diplomacentre low the anti-consumer, pro-insti- cies and unintentional slips will be course of the current administra- All lectures are webcast and available to view on playback, allowing participants to catch up on coursework at a time suitable to their own needs. tutional opinion of the minority. only allowed where rectification tion. Never a dull moment. DOCUMENTS Diploma Centre reserves the right to change the courses that may be offered and course prices may be subject to change. 01_21 22 COMMENT Books Jan/Feb 2021 Law Society Gazette gazette.ie LANDLORD AND TENANT LAW: THE RESIDENTIAL SECTOR (2ND EDITION)

Úna Cassidy and Jennifer Ring. Roundhall (2020), www.roundhall.ie. Price: €195 (incl VAT). Just recently released, Landlord and Tenant It includes a significant chapter on dispute Law: The Residential Sector looks at the Resi- resolution. It details the practical steps of dential Tenancies Act 2004, as amended, which making an application to the tenancies tri- is the primary legislation governing residen- bunal, before dealing with the most common tial tenancies. disputes, parties who have a right to refer a The book deals with the Residential Ten- dispute, time limits, the dispute-resolution ancies Tribunal under part 6 of the 2004 act process, mediation and adjudication, redress, on dispute resolution. It reviews decisions of the determination order, and enforcement. the High Court on appeal on a point of law This chapter alone would be of great assis- from the tribunal, which practitioners will tance to any practitioner dealing with a land- find invaluable. lord-and-tenant dispute. As housing continues to be a prominent Another chapter is devoted to the Residen- societal and political issue, the legislature tial Tenancies Board, setting out their func- responded to the housing crisis with the Resi- tions, composition, appointment of media- dential Tenancies (Amendment) Act 2015, the tions and adjudicators, and the appointment Planning and Development (Housing) and Resi- of authorised officers and decision-makers. dential Tenancies Act 2016, and the Residential It concludes with an appendix of precedents Tenancies (Amendment) Act 2019. This has and, throughout, reference is made to case resulted in a significant amount of additional law, legislation and decisions. legislation that needs to be considered. The The clear and concise manner in which it book looks at the various aspects of the legis- is written makes the book an excellent refer- lation and consolidates it, summarises it, and ence tool for practitioners. It is an invaluable simplifies it in dealing with various residential and necessary guide, and great praise is due tenancies matters. It also deals with the new ers the cases of licensees under the act and, to the authors for producing such a practical sanction regime, which was introduced in the in particular, the position of those in student publication. 2019 act. accommodation. It sets out tenants’ obliga- It reviews landlord-and-tenant relation- tions, landlords’ obligations, details about Joyce A Good Hammond is a partner at Ham- ships, the elements of same, and various rent reviews, and termination of tenancies, mond Good in Mallow, Co Cork, and is a member Residential Tenancies Board cases. It consid- among other matters. of the Law Society’s Conveyancing Committee.

LAW SOCIETY LIBRARY AND INFORMATION SERVICES – WE DELIVER!

During the current public health crisis, the library is closed to visitors. The library team is working from home. We continue to respond to your legal research enquiries and document-delivery requests.

Unfortunately, it is not possible to lend books during this period. We have access to a large range of databases to answer your enquiries. Self-service access to the entire Irish judgments’ collection is available via the online catalogue. LawWatch will be published weekly as usual. gazette.ie Law Society Gazette Jan/Feb 2021 Books COMMENT 23 CHARLETON AND McDERMOTT’S CRIMINAL LAW AND EVIDENCE Peter Charleton, Paul A McDermott, Ciara Herlihy, Stephen Byrne. Bloomsbury Professional (2020), www.bloomsburyprofessional.com/ie. Price: €275 (incl VAT). The title of this book refers to it being a sec- either purpose. This, however, is not to imply ond edition but, as the preface notes, it would that this book is merely a dry codification of be more accurately described as a completely the law in the field. It is far from that, and new book, considering the wide-scale devel- is indeed a highly readable and interesting opments in this area of law since the original book, which makes the law in various areas edition was published 20 years ago. A cursory easily accessible and understandable. glance at the table of legislation examined It would be impossible to review this book clearly shows the extent of legislative change without mentioning that one of its authors, in the area, and underlines the importance of Paul Anthony McDermott, passed away this edition. during the course of producing it, and the While much of the legislation has been sense of loss felt by Paul’s family and friends updated, the approach to the law in this book is clearly evident. This book serves as yet remains the same, and it is designed to be another monument on the legal landscape, of practical assistance to practitioners. The again marking another of Paul’s magnificent authors acknowledge that this is a book that contributions to legal knowledge over the few will read from cover to cover. It will, course of his career. however, be invaluable to practitioners who are seeking either a quick update or in-depth Dr Shane McCarthy is a consultant solicitor at analysis of the criminal law in a particular FitzGerald Legal & Advisory LLP in Cork, and area. The comprehensive and hugely prac- is a member of the Law Society’s Criminal Law tical indexing of this book assists greatly in Committee.

Wills - Irish Commercial Precedents and Law Drafting By Michael Forde By Brian Spierin 4TH EDITION 3RD EDITION 9781780436906 Nov 2020 9781526512239 Dec 2020 €195 €235.12

Drug Offences in Medical Negligence Ireland and Childbirth By Garnet Orange By Doireann O’Mahony 2ND EDITION 2ND EDITION 9781526518392 9781526515995 Jan 2021 Jan 2021 €155 €225

TO ORDER THESE NEW TITLES Visit: bloomsburyprofessional.com Email: [email protected] 24 COVER STORY Jan/Feb 2021 Law Society Gazette gazette.ie PIC: GAZETTE STUDIO/SHUTTERSTOCK/

Time’s up for tracking tools – so don’t get caught with your hand in the cookie jar, warn Sean O’Donnell and Kelly Mackey

SEAN O’DONNELL IS A PARTNER IN BYRNEWALLACE, AND KELLY MACKEY IS A SOLICITOR ON THE FIRM’S CROSS-DEPARTMENTAL DATA-PROTECTION TEAM gazette.ie Law Society Gazette Jan/Feb 2021 COVER STORY 25 26 COVER STORY Jan/Feb 2021 Law Society Gazette gazette.ie

AT A GLANCE n Cookies can identify and track users as they browse the net n The grace period for websites and apps to comply with the law governing the use of cookies and similar tracking technologies expired in October 2020 n The DPC has renewed its focus on cookies compliance n So what do practitioners and clients need to do to ensure compliance, and what enforcement measures can be expected?

he Data Protection Commission’s (DPC) six-month grace period for websites and apps to comply with the law governing the use of cookies and similar tracking technologies expired on 6 October 2020. The deadline was announced in the DPC’s guidance note Cookies and Other Tracking Technologies, published on 6 April 2020. The guidance sets out measures that data controllers can take to comply with their consent and transparency obligations, and was produced following a ‘cookie sweep’ in autumn 2019. A sample of 38 websites were surveyed in the sweep, representing a range of organisational size and sectors. This included media and publishing, retail, restaurants and food-ordering services, insurance, sport and leisure, and the public sector. Of the 38 organisations surveyed, only two were found to be in substantial compliance. One-quarter of the websites used pre-ticked boxes for consent to cookies, a practice expressly disavowed by the Court of Justice of the European Union (CJEU) in Planet49 (C-673/17) in October 2019. Overall, the DPC identified compliance issues in the majority of those examined, due to cookies being deployed without any engagement with the user, classifying cookies as being exempt from consent requirements where this was not the case, and reliance on implied consent. In March 2020, the DPC stated in its annual report that its renewed focus on compliance in this area emanates from “the pervasive nature and scope of online tracking, and the inextricable links between such cookies and tracking technologies and adtech” (p50).

Chocolate chips Cookies are small data files stored on the user’s device that can identify and track users as they browse the web. They are typically classified according to their purpose (for example, functionality, performance, analytics, social media, etc), duration (for example, expiry at the end of the browsing session, after three months, etc), and origin (that is, first party or third party). gazette.ie Law Society Gazette Jan/Feb 2021 COVER STORY 27 PIC: GAZETTE STUDIO/SHUTTERSTOCK/

THE DURATION OF ANY COOKIE MUST ALWAYS BE PROPORTIONATE TO ITS PURPOSE. A COOKIE REQUIRED FOR REMEMBERING INFORMATION IN A USER’S ONLINE SHOPPING CART SHOULD NOT HAVE AN INDEFINITE EXPIRY DATE

Cookies are one of a number of device- • The ePrivacy Regulations 2011 (SI 336 of The GDPR and Data Protection Act also based tracking technologies. Other examples 2011), which transpose the ePrivacy Directive apply where cookies contain identifiers include local storage objects (LSOs), (2002/58/EC) (as amended), and that may be used to target a specific software development kits (SDKs), pixel • The General Data Protection Regulation 2016/ individual, or where information is trackers or pixel gifs, ‘like’ and social- 679 (GDPR) and Data Protection Act 2018. derived from tracking technologies sharing buttons, and device fingerprinting that may be used to target or profile technologies. egulation 5(3) of the ePrivacy individuals (recital 30 and article 4(1) of These tools can serve as short-term Regulations specifies that tracking the GDPR). memory aids between pages or visits to technologies can only be used where On the interplay between the ePrivacy enhance the user’s online experience but, theR subscriber or user has: Directive and the GDPR, the European left unchecked, can also be used to build • Given his or her consent to that use, and Data Protection Board (EDPB) has behavioural profiles on users. Many EU • Has been provided with clear and opined they are intended to coexist and supervisory authorities recently scrutinised comprehensive information that are governed by the principle of lex their use in COVID-19 contact tracing apps. a) Is both prominently displayed and easily specialis derogate legi generali – special accessible, and provisions prevail over general rules. In Ginger nuts b) Includes, without limitation, the practice, this means that the directive Two pieces of legislation apply to cookies purposes of the processing of the and, by extension, the regulations, serve and similar tracking technologies: information. to particularise and to complement the 28 COVER STORY Jan/Feb 2021 Law Society Gazette gazette.ie

provisions of the GDPR in circumstances through a website, a view which is also the regulation 5(5) of the ePrivacy Regulations. where both apply (Opinion 5/2019, pp 13- opinion of the EDPB but differs among These are known as the ‘communications’ 14.) supervisory authorities across the EU. exemption and the ‘strictly necessary’ • Informed – users must be provided with exemption. Hob nobs “clear and comprehensive information”, The CJEU clarified in Planet49 that the which (in Planet49) the court held included he communications exemption standard for consent under the ePrivacy information on the lifespan of the cookies applies to cookies whose sole Directive is that found in the GDPR – that used and any third parties that can access purpose is for carrying out the is, website operators wishing to store cookies the user information gleaned by the cookies. Ttransmission of a communication over a on a user’s device must obtain active, freely If processing involves personal data, then network. The ‘strictly necessary’ exemption given, specific, informed and unambiguous transparency requirements under articles applies to an online service that has been consent, indicated by a statement or clear 12-14 of the GDPR apply. The interface explicitly requested by the user, and the use affirmative action, and such consent must be used must not ‘nudge’ the user to accept of the cookie must be restricted to what is as easy to withdraw as it was to give (article cookies by giving unequal prominence to strictly necessary to provide that service. 4(11) and 7 of the GDPR). the options to ‘accept’ or ‘reject’. These exemptions are narrowly defined • Freely given – use of the website or app and do not avail many categories of he court further noted that the cannot be conditional upon the user cookies. In its guidance, the DPC clarified directive does not distinguish between accepting cookies. This practice is known as that analytics cookies always require personal and non-personal data where a ‘cookie wall’. Some supervisory authorities consent – a position that differs from that Tconsent is required and noted its purpose have identified situations where cookie taken by supervisory authorities in France is “to protect the user from interference walls may be permissible. While the DPC and Germany. An example of strictly with his or her private sphere, regardless of did not expressly condemn cookie walls necessary cookies could include those whether or not that interference involves in the guidance, the EDPB is opposed that record a user’s country or language personal data”. As such, the act of storing to the practice, as it does not present a preference. or gaining access to information on a user’s genuine choice to users (Guidelines 05/2020 device by a tracking tool requires GDPR- on Consent Under Regulation 2016/679, Kimberley standard consent, regardless of whether the paragraph 39.) In its guidance, the DPC stressed that the information involved is personal data. • Granular – consent must be sought for each duration of any cookie must always be purpose (not each cookie) for which cookies proportionate to its purpose. For instance, Chocolate fingers are used. a cookie required for remembering The guidance reinforces the requirement for • Unbundled – consent cannot be bundled information in a user’s online shopping the GDPR standard of consent and provides with other items, such as terms and cart should not have an indefinite expiry practical direction on how to achieve it when conditions or privacy notices. date and should be set to expire once it has implementing cookie banners or consent • Refreshed – consent must be reaffirmed at served its function or shortly afterwards. management platforms. least once every six months. Consent must be: Mikado • Active – all tick-boxes should be unchecked Jammy dodgers In its July 2019 judgment in FashionID and all ‘radio buttons’ and sliders should There are two exemptions from the (C-210/16), the CJEU held that web be set to ‘off’ by default. Similarly, consent requirement to obtain consent and provide operators could be joint controllers of any cannot be implied by continuing to scroll clear and comprehensive information under data, such as IP and browser-related data,

AS COSTLY TO ANY WEBSITE CONTROLLER IS THE RISK OF REPUTATIONAL DAMAGE AND NEGATIVE PUBLICITY. CONTROLLERS THAT DO NOT COMPLY WITH ENFORCEMENT NOTICES FROM THE DPC ARE LIKELY TO FIND IDENTIFYING DETAILS OF THEIR NON- COMPLIANCE PUBLISHED gazette.ie Law Society Gazette Jan/Feb 2021 COVER STORY 29

THE ACT OF STORING OR GAINING ACCESS TO INFORMATION ON A USER’S DEVICE BY A TRACKING TOOL REQUIRES GDPR-STANDARD CONSENT, REGARDLESS OF WHETHER THE INFORMATION INVOLVED IS PERSONAL DATA that constitutes personal data gathered to accept, reject or withdraw consent to the consent ground. In its guidance, the on a website and disclosed to third parties cookies in a granular way. Similarly, the DPC warns operators from taking guidance whose plugins, buttons, or trackers are Belgian supervisory authority fined a legal from laws not yet agreed or enacted and hosted on the website. Operators are news website €15,000 in December 2019 underscores that, for now, the ePrivacy advised to assess their relationship with all for insufficient provision of information Regulations remain the touchstone for third parties whose assets are used on their about cookies and failure to obtain consent tracking technologies and cookie compliance website or app. for certain non-essential cookies. in Ireland.

Coconut cream Rich tea Regulation 17(4) of the ePrivacy If an operator uses any cookies that access LOOK IT UP Regulations provides the DPC with the users’ personal data, the DPC also has CASES: power to issue enforcement notices. The recourse to its extensive powers under the n FashionID (C-210/16) DPC is empowered to pursue summary Data Protection Act 2018 and the GDPR n Planet49 (C-673/17) prosecution of web operators that fail in order to enforce compliance. These to comply with an enforcement notice, include inspections, audits, investigations, LEGISLATION: and a successful prosecution can result and requiring the suspension of personal n Data Protection Act 2018 in a Class A fine (up to €5,000). Where data processing under the act, while non- n ePrivacy Directive (2002/58/EC) compliance with the regulations is the cooperation with the DPC can be met n European Communities (Electronic responsibility of a body corporate then, with a fine of up to 2% of global turnover Communications Networks and pursuant to regulation 25, an officer of the or €10 million under article 31 of the Services) (Privacy and Electronic organisation may also be prosecuted where GDPR. Communications) Regulations 2011 (SI an offence has been committed with that As costly to any website controller is the 336 of 2011) officer’s consent or connivance or due to risk of reputational damage and negative n General Data Protection Regulation neglect on their part. ‘Officer’ includes publicity. Controllers that do not comply 2016/679 a director, secretary, manager or anyone with enforcement notices from the DPC purporting to act in such capacity, and are likely to find identifying details of their LITERATURE: members where they manage the affairs of non-compliance published in the DPC’s n Data Protection Commission (2020), the corporate entity. annual report. Annual Report (1 January to 31 These powers have not been invoked December 2019) previously in relation to cookies, but he law concerning cookies and n Data Protection Commission the DPC has used this same power other tracking technologies is not (2020), Cookies and Other Tracking to prosecute offences of unsolicited harmonised across the EU, and Technologies marketing on ten occasions in 2018 and Treform in that regard has been rumbling n European Data Protection Board,

2019. along for some years. The much- Guidelines 05/2020 on Consent Under Elsewhere in Europe, there are anticipated EU ePrivacy Regulation has been Regulation 2016/679 examples of significant fines being issued the subject of intense lobbying, and it is n European Data Protection Board, for cookie infractions. For example, the not yet clear when it will be introduced or Opinion 5/2019 on the Interplay Spanish supervisory authority fined the what its final text will say – the most recent between the ePrivacy Directive and the airline Vueling €30,000 in October 2019 draft would introduce a ‘legitimate interest’ GDPR for failing to provide users with options ground for using cookies in addition to 30 PROFILE Jan/Feb 2021 Law Society Gazette gazette.ie

THE TITLE KEEPER Justine Carty’s career has been driven by a strong work ethic and love of learning. Mary Hallissey meets the property law guru and Law Society Council member

MARY HALLISSEY IS A JOURNALIST AT THE LAW SOCIETY GAZEETE ALL PICS: CIAN REDMOND gazette.ie Law Society Gazette Jan/Feb 2021 PROFILE 31

THE TITLE KEEPER Justine Carty’s career has been driven by a strong work ethic and love of learning. Mary Hallissey meets the property law guru and Law Society Council member

MARY HALLISSEY IS A JOURNALIST AT THE LAW SOCIETY GAZEETE

I love a good title,” laughs Justine Carty. “I really like a complex conveyance!” When she reflects on her career, the Offaly-born Council member notes that her love of learning, teaching, and sharing knowledge has been a continuing theme. As a property specialist solicitor at the Property Registration Authority, Justine works on title investigations. What is more remarkable, however, is how diverse her overall work life has been, ranging from small country practices to a top-ten firm, and now the public sector. “I have had a diverse career so far,” she agrees. As a gay woman, Justine says she doesn’t have a dramatic or exciting ‘coming-out story’ or, indeed, any bad experiences to share. She firmly believes that diversity should not be a tokenistic box- ticking exercise, but a kaleidoscope through which to show the huge and wonderful variety of career and personality types that the legal ‘‘profession supports. “We are all different,” she says. “We can show the 32 PROFILE Jan/Feb 2021 Law Society Gazette gazette.ie

I DO BELIEVE THAT IF WORK ENVIRONMENTS ARE OPEN AND INCLUSIVE, PEOPLE WILL KNOW THEMSELVES THAT IT’S NOT AN ISSUE IF THEY CHOOSE TO COME OUT AND SHARE THEIR PERSONAL LIFE AT WORK

breadth of opportunity and the diversity of at being kept on after her traineeship, as restaurants, good pubs, gyms, a cinema. the profession without ticking boxes. she watched colleagues and friends losing Everyone was just so friendly and very “I’ve never thought of myself as any their jobs and emigrating. welcoming.” different from anybody else. I only expected to be judged on my own personality, how I Attention to detail Change of heart get on with my colleagues, my work ethic, She loved her time in Monaghan and “Hand on heart, I’ve never received any and the quality of my work. credits her training solicitor, Seamus different treatment. It never was an issue. “[Being gay] wasn’t something I hid, as I Mallon, with giving her advice and We are lucky that Irish society, in general, am comfortable in myself and in who I am, guidance throughout her traineeship and has progressed so much in the last number of and I let people take me as they find me.” career. years, and that many firms and organisation “Seamus acted as a mentor to me, even have embraced the idea of diversity and Town and country though it wasn’t a formal mentoring inclusion.” A convent-educated native of relationship. I don’t think he was aware that Shannonbridge, Co Offaly, Justine has he was a mentor to me! he says that she did initially avoid a very typical and relatable rural Irish “Solicitor Sinead O’Brien in the practice questions about her personal life. A background – her late father was a farmer, put a great emphasis on the technical chance meeting with her boss one while her mother ran a guesthouse. side of the law and attention to detail. I Sweekend, while with her then girlfriend, remember her always spending the time to prompted a change of heart. he youngest of five, she credits her teach and explain. Only when I matured “On the Monday morning, I went straight parents for instilling a great love of myself, I thought wasn’t she great to take into Seamus and said that I had something to education and for always providing the time out of her day to make sure that tell him – that the girl he saw me with at the Ther with opportunities to learn and I received a thorough training. I was very weekend was actually my girlfriend. Seamus improve herself through extra-curricular fortunate to get a very practical hands-on just smiled at me, and said that he’d figured activities, whether playing the piano or training,” she recalls. that one out for himself, asked me all about horse-riding. “I have a great work ethic, She spent ten years in Monaghan, her, said very good, then moved on to ask and I definitely would attribute that to my eventually moving to work at the Office about the files for court. parents, watching them juggle the farm, of the State Solicitor, Barry Healy, as her “That was literally the end of it. It was a B&B, and five children.” reputation for hard work grew. relief to me because it was out there. A big Justine studied law at the University It was during this time that she met her effort was made to always invite me and my of Limerick but believes that her love of partner of ten years. They registered their girlfriend to all social events. Looking back, law really ignited when she began her civil partnership in June 2012, with both of it was an inclusive workplace and community training contract in Castleblayney, Co their families present to enjoy the day. without having any formal policies in place.” Monaghan, in Mallon’s Solicitors, a small A move to Dublin in 2015 made practical general practice. “Once I started working, sense, given that Justine’s partner was Mover and shaker everything just clicked, between the working in Dublin. “Had I not met my Good time-management really stood to theoretical side of law and the practical partner Davina, I probably would have her for her next move – to corporate firms side. That’s when I really started to love gone on to open my own practice in in Dublin – first Gartlan Furey and then the law, and my job,” says Justine. Monaghan. I’d been ten years there, and I ByrneWallace. She qualified during the 2008 recession, had a reputation built up. Monaghan has “At ByrneWallace, the property which crystallised her sense of privilege everything you’d need from a town – good department was led by a strong leadership gazette.ie Law Society Gazette Jan/Feb 2021 PROFILE 33

team in the form of Michael Walsh and a local bar association. “I probably prefer structures that exist within it,” says Justine. Alison O’Sullivan. I enjoyed the challenge of the work on committees, which are more “It’s great to see that it has embraced the being a transaction property lawyer. practical and hands on,” she says. “I enjoy a concept of diversity – diversity of opinion is “The firm has an inclusive culture where good project.” critical for success. I don’t think any captain diversity, as well as integrity and excellence, would field a team where everyone had just are embraced. I think that was one of the his year, Justine is chair of the one skill or strength. It’s the same for the reasons why I loved working there.” Guidance and Ethics Committee, Law Society, so I encourage those from a She believes that coming from a country which has been tasked with updating country practice to get involved.” practice to Dublin gave her a more well- Tthe guide to good professional conduct (last She also encourages all firms to sign rounded legal experience. updated in 2013), which is a fundamental part the Law Society’s diversity and inclusion The principles of conveyancing are the of solicitor education and practice. charter, to show their commitment to same, no matter where you are, she notes. She urges solicitors of all backgrounds to supporting those qualities in their firm. “In the country, it’s called a list of closing get involved in the profession’s leadership, The time commitment is real, however, documents; in Dublin, it’s ‘completion with their local bar association as an obvious for either Council or committee work. deliverables’!” she laughs. starting point. She is also anxious to dispel “We do need to make it easier for any perception that the Council is male- people to get involved in leadership roles Council calls dominated or in any way non-inclusive: in the Law Society, as we are all time poor. In 2013, she got a call from Law Society “Everybody’s opinion is valued, is heard, and The use of technology can enable a more Council member James MacGuill, who asked is listened to on Council, and people from efficient way of working and attending her whether she would consider standing diverse backgrounds are genuinely welcome meetings, which would allow for a more for election. “I didn’t see it as seeking out a in the decision-making space. Everyone geographically diverse Council and leadership role in the Law Society – it just contributes in their own way and each committees.” happened naturally, as I had been so active in contribution is valued. You don’t have to bark the Monaghan Bar Association.” the loudest to make a valued contribution to Confidence builder Justine was duly elected, though admits the Law Society,” she notes. Several years on, Justine reflects that being now that she was naïve as to the procedural “The Law Society is fortunate to have ‘out’ at work meant, for her, getting on formalities involved compared with running a macro view of the profession and the with things with confidence. “You can LAW SOCIETY PROFESSIONAL TRAINING

Centre of Excellence for Professional Education and Lifelong Learning

BrexEd Talks Law Society Finuas Skillnet in partnership with Law Society Committees and Skillnet Ireland has designed a suite of online lectures and resources to prepare solicitors for the post Brexit landscape. These invaluable knowledge resources will be hosted on a new learning management hub called BrexED Talks.

The primary objective of BrexED Talks is to equip solicitors with the knowledge and skills to navigate the post Brexit landscape.

Sessions Include: • Criminal Law – A Panel Discussion on the Impact of Brexit • Preparing for Brexit – an In-House Legal Perspective • EU Committee – What the UK’s Withdrawal from the EU Might Mean for Irish Practitioners • Family and Child Law – The Brexit Divorce and its Impact for Family and Child Law Cases • Enforcement of Judgments, Enforcement of Contracts & Civil Litigation Jurisdictional issues • Commercial Law Post Brexit • Taxes post Brexit – Calculating the Fallout • Data Protection – The new rules, impact and consequences for solicitors and clients

To register please visit www.lawsociety.ie/brexedtalks

DATE EVENT CPD HOURS DISCOUNTED FULL FEE FEE*

ONLINE COURSES

9 & 10 Leading Remote Working Teams 3 Management & Professional Feb Online Development Skills €135 €160 2021 Choose one date to attend course (by eLearning)

Irish Sign Language (ISL) in the Legal Setting 6 Management & Professional 10 Feb Online Development Skills (by €270 €270 2021 1 hour sessions eLearning) 10 & 24 Feb and 3, 10, 24, 31 Mar

IMRO and Law Society Annual Copyright Lecture 16 Feb 2021 2 General (by eLearning) Complimentary 2021 Online

Personal Effectiveness Workshop 23 & 24 6 Management & Professional (Organisation Skills) Feb Development Skills (by €160 €186 Online 2021 eLearning) Choose one date to attend course

4 Mar Criminal Law Update 2021 3 General (by eLearning) €160 €186 2021 Online

Unconscious Bias Awareness Training 3 Management & Professional 23 & 24 Development Skills (by €135 €160 Mar 2021 Online Choose one date to attend course eLearning)

For a complete listing of upcoming courses including online GDPR, Fintech, Regulatory Matters, visit www.lawsociety.ie/cpdcourses or contact a member of the Law Society Professional Training team on: P: 01 881 5727 | E: [email protected] | F: 01 672 4890 *Applicable to Law Society Finuas Skillnet members 01_21 gazette.ie Law Society Gazette Jan/Feb 2021 PROFILE 35

of your life from your family or friends. “The third part is professional SLICE OF LIFE acceptance, but not everyone chooses to come out at work or chooses to share n Main influence? 15-minute interval during the film, and then my personal information about their home life, I have been hugely influenced by Ailbhe Dad fell asleep and let out a loud snore as the regardless of whether they are gay or not, Smyth’s work on both the marriage equality ship went down! or from a minority group or not. You have and repeal campaigns, and her long-term to respect those people as well, who choose commitment to issues such as women’s n Earworm? not to share their personal life for whatever education. Casefile – it’s a true crime podcast. I’m also reason. listening to the IFI Podcast series from the Irish “However, I do believe that if work n Current read? Film Institute. It has really interesting guests and environments are open and inclusive, people Dr Marie Cassidy’s Beyond the Tape: The Life great film recommendations. will know themselves that it’s not an issue and Many Deaths of a State Pathologist. n Currently streaming? if they choose to come out and share their I just watched The Trial of the Chicago 7. It’s a personal life at work.” n Favourite story? brilliant take on a regular courtroom drama. So far, it’s Michelle Obama’s autobiography. I Holding the course was impressed by her honesty and frankness, n Cats or dogs? Lockdown prompted Justine to begin a which is not something you always get from a I love cats but don’t have any, as I couldn’t live master’s in education and training in DCU. ‘celebrity’ autobiography. It’s a very inspiring with the cat hair in the house and I wouldn’t have “It’s one side of my job that I really enjoy, read. the heart to let a cat sleep outside. giving Law Society tutorials and teaching and training. So I thought this year was n Silver-screen favourite? n Secret addiction? perfect timing to undertake a course.” Gravity for the film – while it was a simple I have a secret fondness for 1990s boybands – story, it was edge-of-the seat the whole time, NSYNC, Backstreet Boys and Westlife. he reflects that, in her college and it was great to see a female astronaut as I think it’s the smooth key changes and cool experience, case law didn’t seem very the central character. Titanic for the memories. manoeuvres that do it for me! Then again, relevant – but good teaching in the I remember going to see it with my late Dad it could have been the ridiculous music Spractical, technical side of the law made all in the cinema in Tullamore. There was a videos and hair. the difference. “I’ve never left a Law Society Council or committee meeting without learning build better relationships because you are no coming out. The first is personal acceptance, something, be it positive or negative. That’s longer concentrating on watching where a that you are happy with who you are. For one of the things I really like about it,” conversation is going. me, that was in college in Limerick, in she reflects. “I love the collegiality, on the “Coming out can be exhausting for some my early 20s, but there was no dramatic Guidance and Ethics, and on the In-House people, particularly at work, because you announcement. and Public Sector Committees. might not want to share your personal life “After that, there is social acceptance, that “It’s a great way of meeting new in your work environment,” Justine reflects. you are actually happy being who you are colleagues – and if you ever need to pick up “I think that there are several stages of socially, and that you’re not hiding that part the phone to somebody, you have a network of people to call on. I like that colleagues know that I sit on committees and the Council, and that they can reach out for guidance or a steer in the right direction if SHE ENCOURAGES ALL needed.” Justine recognises that it can be hard to FIRMS TO SIGN THE LAW be a trailblazer for diversity – for example, as the first woman on a board or the only SOCIETY’S DIVERSITY AND gay person in a group. “What we learn can make the path easier for the next person. INCLUSION CHARTER, TO This is why I felt it was important for me to do this interview, even though I have no SHOW THEIR COMMITMENT dramatic stories to tell. “I think I have a personal responsibility, TO SUPPORTING DIVERSITY that if there is somebody coming up the ranks, who might like to get involved, to AND INCLUSION IN reassure people that everybody’s voice and contribution is valued in the Law Society, THEIR FIRM be it on Council or on the committees.” 36 MENTAL HEALTH LAW Jan/Feb 2021 Law Society Gazette gazette.ie

AT A GLANCE n Solicitors advising clients on issues relating to parole and the detention of people with mental-health issues are working within an expanding arena n To advise clients appropriately, they will need to take account of the provisions of the Parole Act 2019 (when commenced), the Criminal Law (Insanity) Act 2006 and the Mental Health Act 2001, as well as the various provisions of the wards of court system

A recent Supreme Court case brought focus to the respective roles and functions of the Parole Board and the Mental Health (Criminal Law) Review Board, write Shane McCarthy and Patricia Hickey

SHANE MCCARTHY AND PATRICIA HICKEY ARE MEMBERS OF THE LAW SOCIETY’S MENTAL HEALTH LAW AND CAPACITY TASK FORCE

he Parole Board in Ireland currently operates on an advisory, non-statutory basis. This is a situation that will change on the commencement of the Parole Act 2019. Currently, the Minister for Justice is empowered by section 2 of the Criminal Justice Act 1960 (as amended) to make rules allowing for the temporary release of prisoners. The minister has very wide discretion in this regard, and the courts have stated that the exercise of such executive powers can only be criticised by the courts if they are carried out in “a manner which is in breach of the constitutional obligation of the executive not to exercise them in a capricious, arbitrary or unjust way” (as stated by Finlay CJ in Murray v Ireland (1991) and cited with approval by Hardiman J in ON PAROLE gazette.ie Law Society Gazette Jan/Feb 2021 MENTAL HEALTH LAW 37 PIC: ALAMY

SOLICITORS ADVISING CLIENTS WILL NEED TO BE AWARE OF THE PROVISIONS OF THE PAROLE ACT 2019 UPON COMMENCEMENT 38 MENTAL HEALTH LAW Jan/Feb 2021 Law Society Gazette gazette.ie

2001 in Kinahan v Minister for Justice). return to prison would arise in one of the In exercising the discretion to grant review board’s regular reviews. It was the temporary release to prisoners serving long view that, once a person was well enough sentences, the minister is frequently advised not to require in-patient treatment in the by the Parole Board. The board currently CMH, then they should be transferred back only considers the cases of prisoners serving to prison. Subsequent review and progress life sentences or determinate sentences of towards release should take place pursuant to eight years or longer. In relation to prisoners the Parole Board process. serving shorter sentences, the minister frequently grants temporary release without Discretion any reference to the board. In considering the issue of parole, the This position will change when the Parole Supreme Court reaffirmed that the early Act 2019 is commenced. That act establishes release of prisoners was an exercise in a statutory Parole Board that will decide clemency, which was to be seen as a privilege on parole applications, rather than making rather than a right. This approach affords recommendations, and the eligibility criteria The Central Mental Hospital the minister a very wide discretion. The will be quite different to that currently courts had next to determine whether the pertaining. Minister for Justice and Equality considered minister had a discretion to consider the the issue of whether a person detained in applicant for parole, with the argument Criminal Law Review Board the CMH, while serving a sentence, could having been made that even if the minister Section 3 of the Criminal Justice Act 1960 compel the Parole Board to consider their had a very wide discretion in the decision allows for temporary release from the application for temporary release or parole he could make, he would be acting in an Central Mental Hospital (CMH) of ‘criminal in the same manner as a prisoner detained ultra vires fashion if he failed to consider lunatics’ held there. ‘Criminal lunatics’ are in prison. Various arguments were made, the application, as he obviously would defined as those detained in the hospital including one based on equality, and that a not have acted within his discretion. The “by warrant, order or direction of the prisoner detained in the CMH should be Supreme Court determined that section 2 of Government” and, if he or she is serving a treated in the same manner as a prisoner the Criminal Justice Act 1960 (as amended) sentence of imprisonment, whose sentence detained in a prison. Further equality was never intended to apply to prisoners has not expired. arguments were advanced, setting out that transferred to the CMH and, accordingly, On occasion, prisoners who have been the minister and the Parole Board would the minister did not have a discretion to deemed fit to stand trial and been convicted consider the case of a prisoner receiving consider the applicant for parole. of an offence have subsequently been medical treatment in a hospital, and it was This will be an evolving area, and there transferred from prison to the CMH. These inequitable that they would then refuse to are additional factors to consider when the transfers are made pursuant to medical consider the application of a prisoner in the patient transferred to the CMH is a prisoner certification that the prisoner is suffering CMH for parole. serving a determinate sentence. Matters from a mental disorder for which they likely to create further analysis include cannot be afforded appropriate care or he manner in which a prisoner is the interaction with the Mental Health treatment within the prison. detained in the CMH is an issue that Act 2001, where, on the completion of a Once transferred to the CMH, the also received much scrutiny before sentence, a prisoner might be detained in an prisoner is entitled to have their case Tthe Supreme Court. It was argued that the approved centre/psychiatric facility under reviewed every six months by the review clinical director of the CMH has a discretion the provisions of that act. Another recent board, leading to an order directing that the to grant a programme of leave to a ‘patient’ case (AM v HSE) illustrated the growing prisoner be transferred back to prison or in his care, but not to a ‘prisoner’, whose importance of this field of law. In that that the prisoner continue to be detained only recourse was to the review board 2019 case, a prisoner serving a determinate in the hospital. process. The Supreme Court, however, held sentence was transferred to the CMH upon on this point that there was no distinction diagnosis of a mental illness. Shortly before Overlap between other patients in the CMH and he was due for release on the expiry of his The Parole Board does not review the cases ‘transferred prisoners’. It was held that the sentence, he was made a ward of court for of prisoners detained in the CMH. Prisoners clinical director of the CMH might consider the sole purpose of seeking an order for his who are engaged in the parole process and temporary release to be as appropriate for continued detention in the CMH because, who are subsequently transferred to the a transferred prisoner as for a patient, and among other things, there was no other CMH have their Parole Board review(s) these were matters best left to the judgment psychiatric treatment facility available that suspended while they are detained in the of the clinical director, subject to the consent could provide a sufficient level of scrutiny. CMH. The Parole Act 2019 retains this of the minister. position. It was accepted, however, that the powers Wards of court This situation gives rise to a number of to grant temporary release to a transferred With increasing frequency, wardship cases practical considerations. The 2020 Supreme prisoner could not go beyond limited bring to light cases where a vulnerable Court case of M v Parole Board and the periods of release before the question of a person is being detained in prison on gazette.ie Law Society Gazette Jan/Feb 2021 MENTAL HEALTH LAW 39

WITH INCREASING FREQUENCY, WARDSHIP CASES BRING TO LIGHT CASES WHERE A VULNERABLE PERSON IS BEING DETAINED IN PRISON ON REMAND DUE TO A LACK OF APPROPRIATE CARE FACILITIES BEING AVAILABLE IN THIS JURISDICTION remand due to a lack of appropriate care as the concerns were such that, to release for necessity of wardship. This was based facilities being available in this jurisdiction. him on bail would result in harm to himself on the fact that the respondent suffered All too often, District Court judges are or others. Ultimately, an application was from a mental disorder and was detainable faced with impossible situations where made to the Wardship Court to bring under the mental-health legislation. An they continue to detain a vulnerable him under the protection of the court to application was made to the High Court for person on remand because releasing the facilitate a transfer outside the jurisdiction bail, which was granted, and the gentleman prisoner on bail would result in immediate to a facility that could provide therapeutic was detained to a psychiatric unit for his homelessness and safety concerns. care and rehabilitation. An application was safety and protection under the mental- The wards of court and the Mental Health made for bail conditions to be amended to health legislation, with reviews under the Act systems operate side by side. A ward of permit his transfer to Britain for treatment, mental-health tribunals. court is not detainable under the mental and the ward was successfully admitted It is clear, that solicitors advising clients health legislation, as wards are excluded to a psychiatric facility in England for in this expanding area will need to be aware from the Mental Health Act (section 283 of therapeutic treatment, with regular reviews of the provisions of the Parole Act 2019 the 1945 Mental Health Act). Therefore, being held before the Irish court. upon commencement, the Criminal Law a ward of court, if deprived of liberty, In a further case, a prisoner was held (Insanity) Act 2006 and the Mental Health is detained under the jurisdiction of the on remand; however, he was detainable Act 2001, as well as the various provisions Wardship Court. under the mental-health legislation, as of the wards of court system before he was suffering from a mental disorder they will be able to advise their clients ome recent cases illustrate this as defined. Failures to previously detain appropriately. alignment. In the first case, a person him in a psychiatric unit were brought who was detained on remand for to the attention of the District Court Smany months was brought to the attention judge, who – due to her concerns for his of the High Court by his solicitors in safety and welfare – was not agreeable to LOOK IT UP a District Court case. On a visit by the releasing him on bail. The District Court CASES: court’s medical visitor – an independent judge contacted the President of the High n AM v HSE [2019] IESC 3 consultant psychiatrist – serious concerns Court, raising concerns that a vulnerable n Kinahan v Minister for Justice and Law were raised about the psychiatric and man continued to be held on remand due Reform [2001] IESC 16; [2001] 4 IR medical care being afforded to the prisoner. to a lack of appropriate care facilities, and 454 On a successful application to the Wardship that he may be an appropriate person to be n M v Parole Board and Minister for Court, the man was declared a ward of brought under the protection of wardship, Justice and Equality [2020] IESC 24 the court, was released from prison, and as he lacked capacity to make decisions n Murray v Ireland [1991] WJSC-SC 999; transferred by order of the court to a based on the medical reports available. The [1991] ILRM 465 residential care facility. court directed an inquiry into wardship In another case, a prisoner was not under section 11 of the Lunatics Act 1891, LEGISLATION: suffering from a mental disorder as defined and an application to bring the gentleman n Criminal Justice Act 1960 under the mental-health legislation, yet the under wardship jurisdiction was listed n Criminal Law (Insanity) Act 2006 prisoner was vulnerable and suffering from before the Wardship Court. Although the n Lunatics Act 1891 a condition that rendered him incapable respondent met the criteria for the test for n Mental Health Act 1945, section 283 of managing his affairs. He was on remand capacity to be admitted to wardship, it was n Parole Act 2019 for summary offences for many months, deemed that he did not meet the criteria 40 MEDIATION Jan/Feb 2021 Law Society Gazette gazette.ie

AT A GLANCE n COVID has thrown a spanner in the familiar workings of the courts in dispute resolution n The process of mediation provides a solution n In the current climate, mediation has significant advantages in terms of costs, ‘ownership’, pressure, flexibility, confidentiality, and social distancing A MOMENT ON THE LIPS The pandemic has transformed how our courts are run and has forced us to be innovative in how we conduct our businesses. Mediation has an even more important role in this new reality than it had before, says Patrick Moylan

PATRICK MOYLAN IS PRINCIPAL OF O’KELLY MOYLAN SOLICITORS AND IS AN ACCREDITED MEDIATOR

COVID pandemic has caused the – yet every lawyer knows the value of a settlement in entire legal system to look at itself circumstances where the outcome of a court hearing is and find new ways of doing things. unknown. Courtrooms are cordoned off with warning tape and signs to govern The solution social distancing. The ability for While this dilemma unfolds, there exists a potential parties to a dispute to spend the solution in the Mediation Act 2017. Section 14 of the day in a courthouse negotiating act requires a solicitor to provide a client with certain the terms of settlement is gone. information regarding mediation prior to the issuing What cases are still going on for hearing are doing of legal proceedings and to certify the provision of so within a completely new rules structure. Parties same when issuing proceedings. So, the question arises must arrive at a certain time, enter the courthouse in as to whether this suggestion of mediation to resolve a certain way, and leave in a certain way. If settlement the dispute has become just another box that must is to be attempted in these cases, it will be done in be ticked in the pre-litigation process, or whether it the most pressurised of circumstances. If settlement is really something that can benefit a client and the is reached and a party is subsequently unhappy with client’s legal representatives. that settlement, then they will often criticise their The courts have long since seen the benefits of legal advisors for allowing them to settle in that way alternative dispute resolution. When a case is heard gazette.ie Law Society Gazette Jan/Feb 2021 MEDIATION 41 PIC: ALAMY

THE MEDIATION PROCESS ENCOURAGES THE PARTIES TO CONSIDER ALL SOLUTIONS AND TO BE CREATIVE AND OPEN-MINDED. THIS CAN OFTEN LEAD TO A MUCH MORE TAILORED SOLUTION TO A PROBLEM THAN MIGHT OTHERWISE BE ENVISAGED 42 MEDIATION Jan/Feb 2021 Law Society Gazette gazette.ie PIC: SHUTTERSTOCK in court, a judge must make a decision Private sessions that will usually be in favour of one party In this stage, the mediator meets privately or the other. It is a case of ‘all duck or no with each party and attempts to help them dinner’. Methods of alternative dispute reach clarity on what exactly is in dispute and resolution, and in particular mediation, can what the potential solutions might be. These soften that edge somewhat. A mediated meetings are entirely confidential, and no settlement agreement will usually have some information is given to the other party unless compromise on both sides. It is very much expressly agreed. There may be many rounds akin to the traditional type of settlement that of these private meetings to distil the dispute used to be thrashed out over the course of and any potential matters that might assist in a day in the court building, but which can, reaching an agreement. The best and worst for the moment at least, no longer occur. A alternatives to a negotiated agreement may mediation, on the other hand, can still take be explored. place in a socially distanced setting while ensuring health-and-safety guidelines are Negotiation adhered to. At this stage, the parties attempt to negotiate ther than the logistics of the a settlement of the dispute with the assistance The process mediation, the other real of the mediator, who challenges the parties For those solicitors that have not been objective of this stage is to to explore their strengths and weaknesses. involved in an actual mediation – and, from determineO the nature of the information and Working groups can be set up – for example, the scarcity of mediated settlements, there documentation that is to be exchanged by having the parties’ engineers liaise with one must be many – the following is a brief the parties in advance of the mediation, and another to work on a solution. overview of the process from within. To the mediator will guide the parties in this assist in this regard, the mediation process regard. This is done through the solicitors Closing joint session may be broken down into a number of and is a non-pressurised, structured way of If a mutually acceptable settlement is reached, stages. preparing a case. You also get a good insight the mediator invites the parties’ lawyers into the other side’s case. to draw up the legally binding mediated Pre-mediation settlement agreement, which is then signed by This is the stage of the process that occurs Opening joint session the parties. The mediator will usually then call in the lead-up to the actual mediation itself. This is the first part of the mediation a closing joint session. The mediator is chosen, usually by the itself. Most mediations begin with an At this session, the mediator will outline parties’ solicitors. The venue is chosen and opening meeting at which the parties, their the agreement in broad terms, and the is normally neutral, with at least three rooms representatives, and the mediator is present. parties will often close the mediation in a available: one room for each side and one for Many hotel meeting rooms are of sufficient positive manner – historically with a shake the mediator. The size and location of those size that this meeting can be done in a safe of hands, but perhaps with some other rooms is a matter for the parties and can be manner. The parties will usually make an form of acknowledgement in the current arranged to work in our new COVID reality. opening statement regarding the dispute, circumstances. The process may sound quite Experts and advisors can be available to the and the mediator will set out the ground procedural (and in some ways it must be) but, parties via telephone, Zoom etc. rules for the mediation. in fact, when one is involved in a mediation, it more resembles a courthouse-type negotiation. Substitute the courthouse meeting room for the private socially distanced sessions, and they are not that different. Obviously, up until COVID, the courthouse settlement was a mediation that happened as THE FORUM AND a matter of course. COVID has put paid to that. Mediation can now provide the solution THE STRUCTURE OF A by way of a properly explored and negotiated settlement that is done in a less pressurised MEDIATION PROVIDES environment.

THE PARTIES WITH GREAT The benefits There are multiple benefits to mediation. INPUT AND OWNERSHIP Time OF THE PROCESS AND In the new COVID world in which we live, a party may enter a courthouse at 2pm and THE OUTCOME leave at 3.30pm, having had their case heard gazette.ie Law Society Gazette Jan/Feb 2021 MEDIATION 43

THE MEDIATION ACT PROVIDES THAT, ONCE A MEDIATED SETTLEMENT AGREEMENT HAS BEEN CONCLUDED AND ENTERED INTO BY THE PARTIES, THEN IT IS A LEGALLY BINDING CONTRACT BETWEEN THOSE PARTIES and determined by a judge. The judge will Flexibility between those parties. The main caveat no doubt provide as much opportunity The mediation process encourages the in this regard is in respect of family-law as possible for the parties to ‘talk’. Some parties to consider all solutions and to be mediated settlements, which must be ruled judges are accommodating this by operating creative and open-minded. This can often by the court in judicial separation and two courtrooms simultaneously but, lead to a much more tailored solution to a divorce cases – where, of course, the court nonetheless, the judge has to ultimately problem than might otherwise be envisaged. retains its discretion as to whether or not determine the case. That is, after all, why The process is also somewhat flexible, and the settlement represents proper provision he or she is there. Often the parties will elements can be added to suit the case, for the parties, and where the best interests have had years when they could have such as a site visit with the engineers if the of children may be involved. negotiated but, without the forum, never dispute centres on physical property, for did. The forum used to be the courthouse example, or consultation with experts via The statute on the day of hearing. That is no longer the conference call or Zoom. Section 18 of the act provides that the case. Mediation can step into that void and period beginning on the day on which provide the parties with a structured forum Confidentiality an agreement to mediate is signed, and within which to negotiate and attempt to When you probe a client, what they often ending on the day that is 30 days after resolve their differences. fear most about litigation is the publicity of either a mediated settlement is signed a court hearing. Clients do not realise that by the parties and the mediator, or the Ownership most cases are not reported on in any way, mediation is terminated, whichever first The forum and the structure of a mediation and even pre-COVID, there were very few occurs, shall be disregarded in reckoning provides the parties with great input and members of the public in court. the time period for the purposes of a ownership of the process and the outcome. limitation period specified by the Statute of There is a certain time pressure, such as eople by their nature like to keep Limitations. the limit of the hours in a working day. their disputes private. Many dread This is good, as it prevents procrastination giving evidence, and in their minds The conclusion by the parties but, at the same time, there visualiseP courtrooms filled to the rafters The COVID-19 pandemic has had a huge is not the extraordinary pressure that the with everyone enjoying the spectacle effect on the world and how we live. It COVID-era courtroom could place on of cross-examination. All of these fears, has transformed how our courts are run parties trying to settle a case within such justified or unjustified, are allayed and and has forced us to be innovative in how a short period of time, while they are avoided by the mediation process. There we conduct our businesses and progress effectively at hearing, with a judge checking is no need to give evidence. There is no our cases. Mediation has an even more in on them. cross-examination. There is no public. The important role in this new reality than it whole process is private, and the outcome had before. Costs is private. It can provide parties with a safe forum Litigation is costly. Mediation is less so – or process in which a properly explored but there are still costs. The parties must The settlement and negotiated settlement can be reached prepare for the mediation, often as they Section 11(2) of the Mediation Act provides for the benefit of the parties, which will would for a case, and they must pay for the that, once a mediated settlement agreement ultimately benefit us as their lawyers in mediator and the venue, the costs of which has been concluded and entered into by the having satisfied clients. For mediation, the are usually shared equally. parties, then it is a legally binding contract time has come. 44 WOMEN IN THE PROFESSION Jan/Feb 2021 Law Society Gazette gazette.ie

HITTING A CENTURY AT A GLANCE n The Sex Disqualification (Removal) Act 1919 removed the prohibition of women entering the solicitors’ profession n Mary Dorothea Heron was the first woman to qualify as a solicitor in Ireland after the passing of the act n Eleanor O’Shea (née Murray) was the 43rd woman to qualify, in 1938

Just over 100 years since the solicitors’ profession was first Above: Mary Dorothea Heron. opened to women, the Gazette is delighted to augment Right: with her niece Elizabeth Campbell, to whom she was previously published accounts with additional biographical guardian, around 1935. Far right: details of two of these women pioneers Mary Dorothea Heron, circa 1957

ecember 2020 marked the 101st This information was contributed by Mary anniversary of the removal of the Dorothea’s niece, Linda Roberts, and by discriminatory ban on women solicitor Joan Byrne (O’Flynn Exhams LLP, joining the professions. The Cork) on behalf of Eleanor’s family. Law Society published These biographies further enrich the Law a booklet last year Society’s institutional archive and add to our with the biographies appreciation of the first 100 women solicitors. of some of these women, as well the First woman solicitor cover story of the Mary Dorothea Heron was born on 19 January/February August 1896 at 68 Harcourt Street, Dublin, 2020 Gazette. These the home of her maternal grandparents, writes are now enhanced Linda Roberts. by additional Dorothea’s mother was Mary Lyster biographical detail on Jameson, who graduated with a first-class the first woman solicitor honours degree in classics from the Royal (Mary Dorothea Heron), University of Ireland in 1894. Mary married and Eleanor O’Shea (née James Heron on 9 August 1895, at Rathgar Murray), the 43rd woman to Presbyterian Church, with Rev Prof James qualify as a solicitor, in 1938. Heron, father of the groom, officiating. gazette.ie Law Society Gazette Jan/Feb 2021 WOMEN IN THE PROFESSION 45

Mary Jameson was one of four surviving Celtic Church in Ireland and other books. He her beloved Dublin grandmother, Dorothea children of William Jameson (1826-1897), a was from Rathfriland, Co Down, and was the Jameson, gave her The Book of Dragons by solicitor, and Henrietta Dorothea Jameson first person in his family to attend university. Edith Nesbit for her Christmas present in (1837-1926), the daughter of the Bishop of 1903, so she did also enjoy lighter reading! Meath, Rev Joseph Henderson Singer. Mary orothea, known as ‘Deasy’ within had three brothers, one of whom, Claude, the family, spent her childhood in Exceptional student was also a solicitor. After her husband’s death, Downpatrick. She was the eldest of Dorothea attended Victoria College in Dorothea Jameson – known as Dora – moved fiveD surviving children. Her brother James Belfast, where she was an exceptional student. to Greystones, and there was regular contact was born in 1899, Pauline in 1903, Patrick Both sides of her family encouraged her and with (and visits to) the Jamesons after Mary’s in 1907, and Faithful in 1911. All of the the younger children to believe that education marriage. children were brought up as Presbyterians. and earning your living were vital for both James Heron was county surveyor of Co Dorothea was precocious and, already, in men and women. Down. He was the eldest of 13 children. His the 1901 census, before she was five, she The school was a major influence on parents were James Heron (1836-1918) and could read. I have a copy of an illustrated Dorothea. It had been founded in 1859 Margaret Turrettin (1837-1915). His father edition of The Lays of Ancient Rome, by Lord by Margaret Byers, the first cousin of was a Presbyterian minister, who was later Macaulay, inscribed ‘Mary Dorothea Heron, Dorothea’s grandfather, Rev Prof James professor of church history at the Assembly’s from her Father and Mother, August 19th 1901’. Heron. Margaret was a passionate advocate College, Belfast, and Moderator of the This was for her fifth birthday. In 1905, she of women’s education. She offered her female General Assembly of the Presbyterian Church received Longfellow’s The Song of Hiawatha students academic courses in subjects such in Ireland from 1901-1902. He wrote The as a Christmas present. I am glad to say that as history, philosophy, and science, as well as 46 WOMEN IN THE PROFESSION Jan/Feb 2021 Law Society Gazette gazette.ie

the classics, necessary for university entrance. that Dorothea used to visit James and the the Heron cousins who still lived in the She encouraged her students to aim for higher family at Acton Bridge, Cheshire, occasionally Rathfriland and Rostrevor area. The whole education and the professions. during the years of the World War 2. Jane has family enjoyed picnics, and there are many Dorothea enjoyed learning, and it came clear memories of Dorothea between the ages small, faded photos of large groups of the easily to her. In 1913, she was awarded a full of four and nine, and remembers her aunt’s extended family with a picnic basket at various set of the Brontë books for Latin composition, voice and face, always smiling, and of her very favourite sites. and a complete set of Shakespeare for her pleasant personality. In hindsight, she feels performance in classics, French, English and that, in personality, Dorothea was very like her Rostrevor retirement maths at the examinations held at Easter 1914. father James and their brother Patrick. About 1954, Samuel Heron retired to Dorothea went up to Queen’s University, Newtown. Dorothea went, too, to look after Belfast, in 1914. In 1918, she gained a second- Increased responsibilities him. Samuel’s brother Thomas (Dorothea’s class honours degree in classics. In 1921, she By 1946, Dorothea’s family responsibilities former employer) and his wife Norah also was awarded a first-class degree in law. Like increased again. This may explain her retired to Rostrevor. Faithful and James many women of her generation, her chance of retirement from work. The return of Michael Brewster, my three brothers and I used to marriage had gone with the losses of the First Heron, Thomas Heron’s son, from the RAF spend our holidays with Aunt Deasy and Great World War. to his father’s legal practice in 1946 may also Uncle Sam. Various cousins would visit or call have been a factor. For many years, Dorothea in, and Elizabeth rejoined the household. he began working for her uncle had shared a house in Stranmillis, south Winifred Smith, Patrick’s elder daughter, Thomas Heron at his Belfast practice, Belfast, with her uncle, Samuel Heron, an remembers visiting when staying with her TM Heron, from 1923 (the year she architect who worked in the city with Hobart maternal grandmother in Rostrevor. She qualifiedS as a solicitor) until 1946. Thomas and Heron. A moving population of student recalls that her Aunt Deasy was kind and had played rugby for Ulster. Dorothea worked members of the extended family came and thoughtful and would cook her roast chicken as an assistant solicitor, specialising in probate. went, as her niece Elizabeth Addis recalls. and boiled onions, and take her up the garden Her nephew Ian Brewster, who worked After the untimely deaths of Elizabeth’s to pick raspberries for pudding. She felt that in Belfast in the early 1960s, observes that mother Pauline (in 1931), and of her father Aunt Deasy was careful not to rush her, but Dorothea was a woman ahead of her time, and John Campbell, Elizabeth went to live in 1943 would let Winifred come to her, and then be that, at the time she was working, most clients for ten years with her guardian Dorothea glad to show her things. of solicitors were men and expected to have a and her great uncle Samuel Heron. From male solicitor. Dorothea’s sister, Faithful, felt their house, she attended school and college. fter her Uncle Sam died in March that her talents and intelligence were not used Elizabeth remembers rationing and a shelter 1957 at the age of 85, Dorothea to their full potential. under the stairs during World War 2. She moved to Portstewart, to be near recalls that Aunt Deasy was very exact in all her herA sister Faithful and family, who lived near Devastating blow arrangements and, of course, looked after all of Coleraine. My brothers and I remember visits Within a year of her starting work, the family Elizabeth’s affairs until she reached maturity. to see her, Ian on his bicycle. We were always had the devastating blow of the death of both She describes Aunt Deasy as a very private made welcome. My first ever overnight stay parents. Mary Heron died on 9 November person and that, even after ten years under the away from home was with Aunt Deasy, who 1923, and James Heron on 16 February 1924. same roof, she did not know her well, although made me feel safe, and encouraged my love of Faithful, who was only 12 when her parents they were very fond of each other. reading. Her bookshelves included the classics, died, remembered this as a very difficult My parents, Faithful and James Brewster, novels, plays, poetry, biographies, theology, time, and believed that she owed a great deal and their eldest son Ian joined the household philosophy and detective stories. Family to Dorothea. James had completed his civil after my father’s discharge from the RAF picnics with Aunt Deasy at the seaside were engineering degree, but Pauline was part-way in 1945, while he undertook a postgraduate also enjoyed. Alas, Dorothea did not have through her medical degree, and Patrick and diploma in public health at Queen’s. A second long to enjoy her retirement. She died on 9 Faithful were at school. son, Hugh, was born in November 1946. The October 1960, aged 64. It says a great deal for Dorothea’s strength house had four bedrooms, and it must have Fittingly, Dorothea is buried with her of character that she kept the family together been a busy one. Ian remembers meeting Uncle Samuel in Clonallan Parish Graveyard, and encouraged her three younger siblings his Great Uncle Sam off the tram along the Warrenpoint, Co Down. The simple to complete their education. Pauline gained Stranmillis Road on his return from work. inscription reads: a first-class honours degree in medicine at He also remembers Dorothea corresponding Heron Queen’s. Patrick was awarded a degree in with the extended family, including her Uncle Samuel Mayne Reid civil engineering, while Faithful was the first Claude and Aunt Emily Jameson, by then Newtown, Rostrevor woman graduate in agriculture in Ireland. living in Bath. And his niece Mary Dorothea Heron James and Patrick set up their own civil Elizabeth recalls weekend visits, first by engineering firms. Thus, Dorothea was train during the war, and later in Great Uncle What themes come out of these recollections juggling work and family responsibilities Sam’s car, to the farm belonging to Great of Dorothea’s nephews and nieces? All decades before it was ever talked about. Uncle Sam at Newtown, near Rostrevor, Co agree on a strong sense of family duty and The bonds between the five siblings were Down. Newtown was a base for visits from loyalty. She had a high moral code. She was close. Jane Stevenson (James’s daughter) recalls the extended family and for meeting up with quiet, unassuming and modest, and never gazette.ie Law Society Gazette Jan/Feb 2021 WOMEN IN THE PROFESSION 47

ELEANOR’S AMBITION WAS TO STUDY ARCHITECTURE; HOWEVER, HER MOTHER WAS NOT KEEN THAT SHE WOULD STUDY SUCH A MALE-ORIENTATED DISCIPLINE mentioned her working life or her academic achievements. She did not like or seek the limelight. She was an intensely private person. She was self-contained, although often surrounded by family members. Her strongest relationships were within the family, and her family can see some resemblances in her character to that of her siblings. That all of her 11 nieces and nephews pursued higher education and professional careers is a tribute to their Aunt Dorothea.

Eleanor Christina O’Shea (née Murray) Eleanor Christina Murray was the 43rd female solicitor to qualify in Ireland, signing the Roll on 14 January 1938, writes Joan Byrne (partner, O’Flynn Exhams LLP). Eleanor was born on 1 January 1915 to John and Mary Murray (née Bowe). The PIC COURTESY: JOAN BYRNE family lived at Marymount, Emmet Place, Youghal, Co Cork. Eleanor had three brothers and two sisters – James, John, Edward, Maureen and Tep. Her father John was a successful master Eleanor O’Shea was the 43rd woman to qualify as a builder. Ella, as she was known, accompanied solicitor, back in 1938 (seen here in a later photo) him to his various sites. She was also his chauffeur and, as a very young girl, drove her father in his large American car. She was an position in Dublin for a short time. She then ’60s, when the family was older, Ella joined a excellent driver and loved every minute of set up her own practice at Emmet Place, law practice in Westmoreland Street, where those precious times while on site. In fact, to Youghal. She also had an office in Tallow, Co she remained for approximately three years the best of my knowledge, her ambition was Waterford, which she attended once a month. before retiring. to study architecture; however, her mother Ella had a very engaging personality. She was not keen that she would study such a hile studying at UCC, she met had a great sense of humour and a ‘sense of male-orientated discipline. fellow student Frank O’Shea, and devilment’. An example would be allowing Ella attended Loreto Convent in Youghal they married some years later. her son Ray to accompany her on her trips to and, for her senior year, transferred to the WThey lived in Youghal and had their family: Tallow, carefully allowing him to steer the car Ursuline Convent in Waterford. She chose to Ray, David and Colette. Another child, while sitting on her lap. study law at University College Cork, where Eleanor, sadly died in infancy. She loved gardening, reading, baking, she qualified with distinction. She served In the early 1950s, they moved to Cork and walking, travelling, swimming and sewing. her apprenticeship in the office of Gerald Ella closed her practice. By the mid ’50s, the She also had a great interest in wildlife and O’Flynn, South Mall, Cork, and took up a family had relocated to Dublin. In the mid bird-watching. 48 WELLBEING Jan/Feb 2021 Law Society Gazette gazette.ie

AT A GLANCE n Workplace bullying is characterised by repetition (frequent and repeated episodes over a period of time) and an imbalance of power n Bullying in the workplace can be subtle and difficult to pinpoint n The issue involves the actions and reactions of the organisation, those involved, and all who witness the behaviour

Research into bullying and sexual harassment in the legal profession can teach us valuable lessons about best practice for law firms. Angela Mazzone and James O’Higgins Norman lead the way

DR ANGELA MAZZONE AND PROF JAMES O’HIGGINS NORMAN ARE WITH THE NATIONAL ANTI-BULLYING RESEARCH AND RESOURCE CENTRE AT DUBLIN CITY UNIVERSITY MAKE IT STOP esearchers define workplace bullying as a systematic the spectrum of the legal profession (for and persistent exposure to negative and aggressive example, law firms, in-house, barristers’ behaviours at work, primarily of a psychological chambers, judiciary, government – of whom nature, with the effect of humiliating and 67% were women, 32% men, and 0.2% intimidating the target. non-binary/self-defined). Findings show that Workplace bullying is characterised by experiences of bullying are widespread in the repetition (frequent and repeated episodes legal profession, with half of the women and over a period of time) and imbalance of power a third of men reporting experiences of bullying (either in terms of hierarchical structure or victimisation. In 57% of cases, the bullying psychological) between the perpetrator and the target. episodes were not reported by the targets. Bullying constitutes an evolving and often escalating hostile treatment, rather than a series of discrete and Bullying in the workplace disconnected events. Unfortunately, bullying is a Acts of bullying in the workplace can be common phenomenon in many workplaces – and difficult to pinpoint. Subtle behaviours can the legal profession is no exception. In 2019, the be common and, when occurring in isolation, International Bar Association (IBA) conducted may be framed as signs of uncivil behaviour. a multinational survey of 135 countries However, these acts can still be undermining and 6,980 respondents from across and stressful for the targets, and are defined as gazette.ie Law Society Gazette Jan/Feb 2021 WELLBEING 49 PIC: ALAMY

bullying if systematic and persistent. negatively affect someone’s performance, the target unable to defend. The inclusion of Examples described by members of the • Being told not to bill working hours, so one-time acts is relevant since, in the online legal profession include: that someone more senior could take the context, certain unrepeated acts – such as • Exclusion – for example, silent treatment, rewards, posting an embarrassing picture online – harm ignoring or excluding someone from • Being denied opportunities for professional the target by the repetitive exposure to others. conversations and social events, and being development, and frozen out at work, • Creating dysfunctional dynamics in the Sexual-harassment distinction • Verbal abuse – for example, shouting, workplace – for example, playing staff Although sexual harassment constitutes verbal threats and insults (for example, members off against each another. bullying in some jurisdictions, in Ireland it is nasty nicknames), considered as a phenomenon distinct from • Overwork and undue pressure – for In recent years, the increased use of digital bullying. According to section 8 of the Equality example, being pressured to work long media has resulted in a new form of Act 2004, sexual harassment is any form of hours, bullying in the workplace, referred to as unwanted verbal, non-verbal, or physical • Threats to personal standing – for example, ‘cyberbullying’. Workplace cyberbullying can conduct of a sexual nature that has the making nasty comments on someone’s be defined as all-negative behaviour occurring purpose or effect of violating a person’s physical appearance or personality, through electronic means of communication dignity and creating an intimidating, • Withholding information and giving that is either repetitive and long-lasting, hostile, degrading, humiliating or offensive misleading information, which will, in turn, or occurs one time but is intrusive, leaving environment for the person. 50 WELLBEING Jan/Feb 2021 Law Society Gazette gazette.ie

Sexual harassment could potentially target attitudes related to someone’s gender – but The internet provides a virtual environment any human being, though most victims are mostly targeted at women. Some examples for enacting sexual harassment behaviours. female. International survey data collected include denigrating comments against Sexual harassment in cyberspace includes by the IBA show that one in three females women, or comments that women do not offensive sexual messages or images actively and one in 14 males reported having been belong in management. initiated by a harasser toward a target, sexual sexually harassed in a work context (overall, • Unwanted sexual attention involves remarks, and so-called ‘dirty jokes’. All 75% of cases were not reported). International expressions of sexual interest that are these are considered harassing when they findings also show that males are harassed to a unwelcomed and offensive to the recipient. are neither invited or consented to, nor lesser degree than females. It should be noted Some examples include: welcomed by the recipient. that, in many societies, it may be shameful – Unwanted sexually explicit comments, for males to report sexual-harassment questions and jokes, or unwanted lthough individuals who are episodes. This is especially true in societies flirtation, attention, glances, gestures, and targeted online are not physically in that perpetuate gender stereotypes in which stares, danger, targets of sexual harassment masculinity is associated with dominance – Repeatedly contacting the target or asking mightA perceive threats to use physical force and femininity is associated with weakness for a date in a harassing way, despite the just as real as in face-to-face situations. The and subservience. Thus, males are expected targeted individual ignoring/denying the sharing of sexual images without consent to respond with passive coping strategies request, has recently become a criminal offence (for example, ignoring) to show that they – Referring to someone’s body inapprop- in Ireland, under a law approved by the are strong enough not to be bothered by the riately or offensively, Oireachtas. sexual-harassment episode. This might be one – Purposely touching or brushing up against of the reasons why sexual harassment could be the target. Workplace dynamics underreported among males. • Sexual coercion includes bribes or threats Research has shown that bullying in the about the target’s employment to ensure workplace should be understood as a Examples of sexual harassment their sexual cooperation. Some examples systemic problem, which is related to the • Gender-based harassment refers to a broad include offering a promotion in exchange for actions and reactions of the organisation, the range of verbal and non-verbal behaviours sexual favours or threatening termination of individuals involved, as well as all those who conveying insulting, hostile, and degrading employment unless sexual demands are met. witness the behaviour. There are bystanders

FOCAL POINT INTERVENTION RECOMMENDATIONS • Raise awareness: targets of both bullying only a minority of legal professionals (22%) within the workplace. It is also crucial to pro- and sexual harassment might be uncertain take part in training programmes, and that mote clear and accessible written policies, about whether the abusive behaviour quali- these are not always effective in tackling bul- guidelines and complaint processes. fies as bullying or sexual harassment. There- lying and sexual harassment. Anti-bullying • Tackling false beliefs: it is paramount to let fore, strong prevention programmes place a and anti-sexual-harassment training should go of the belief or attitude ‘to let sleeping focus on raising awareness of both phenom- not be conceived as a once-off, generalised dogs lie’ in relation to bullying and sexual ena and on providing tools and resources in measure. Rather, they should be experi- harassment. Admitting that bullying and relation to how to recognise and deal with enced as ongoing, evidence-based training, sexual harassment exists, and that everyone abusive behaviours of various natures. and should be suited to an employee’s role is doing their utmost to tackle it, is a sign of a • Empathy training: such training, and per- as much as possible.) proactive firm that cares for employee well- sonal and interpersonal skills training in law • Collaboration with experts: firms should con- being. schools aimed to enhance feelings of consider regularly monitoring bullying and sex- • Resources and mechanisms of support: cern towards others, does not just help ame- ual harassment in the workplace, using work- counselling services for legal professionals, liorate professional and social relationships, place climate surveys, with distinct sections who may be in distress because they have but can also encourage equality and respect on bullying and sexual harassment. Based on reported or are dealing with bullying and in the workplace. the collected data, expert advice on how to sexual harassment, is vital. For this type of • Change firm culture through effective train- tackle bullying and sexual harassment in the support, solicitors anywhere in Ireland can ing: tackling bullying and sexual harassment workplace, and what tools to use to measure call LegalMind. It offers ‘in the moment’ 24/7 should be a combined effort of both tar- this, can be sought out. support over the phone with a qualified, gets, bystanders and the firm. Develop and • Policies: recent findings show that bullying experienced and accredited counsellor or encourage participation in training aimed at is more likely to happen in organisations psychotherapist, and further mental-health tackling hierarchical relationships, gender without clear anti-bullying policies and pro- support if required. The service is completely discrimination, and sexism, and that encour- cedures. Such policies should reflect the independent and confidential, and can be ages diversity. (Note: research indicates that promotion of respect, dignity and diversity accessed by calling 1800 81 41 77. gazette.ie Law Society Gazette Jan/Feb 2021 WELLBEING 51

BULLYING IN THE WORKPLACE SHOULD BE UNDERSTOOD AS A SYSTEMIC PROBLEM, WHICH IS RELATED TO THE ACTIONS AND REACTIONS OF THE ORGANISATION, THE INDIVIDUALS INVOLVED, AS WELL AS ALL THOSE WHO WITNESS THE BEHAVIOUR

(that is, witnesses) who are willing to act to bullying and sexual harassment, and esteem, symptoms of post-traumatic stress, and actively help and support the target. either inaction and/or ignorance by the and burnout). Employees who are targets However, in general, it is very difficult for organisation are contributing factors. For of bullying and sexual harassment in the bystanders to stand up against this. Some instance, research has shown that legal workplace also show increased intentions to reasons for inaction may be related to the professionals who generate high profits for leave their job, reduced job satisfaction, and fear of retaliation, fear of losing one’s own firms are sometimes tolerated, despite their low levels of organisational commitment. job, and to the belief of not having enough bullying behaviour, displaying immunity Bystanders are also severely affected, and organisational authority to intervene. from firms’ anti-bullying policies. This feeds report negative mental-health outcomes In some other instances, the bystander in, significantly, to organisational culture and (increased levels of stress) due to exposure might either ignore the bullying or frame is noticed and felt by employees at all levels to a toxic environment. Witnessing repeated it as a normative behaviour, especially in the workplace. episodes of abuse at work is associated with when it is recurrent within the organisation repression of empathy, desensitisation to without consequences or without the hen bullying is prevalent, negative behaviours, feelings of isolation, perpetrator being held accountable in any sexual harassment and gender hopelessness, and ineffectiveness. way. The organisational response or lack discrimination also occur at a of response to bullying in the workplace is Whigh rate. This indicates that a culture of Voice your opinion critical. Where there is no accountability for bullying is likely to sustain and tolerate In early 2021, the Law Society will facilitate bullying in an organisation, it can quickly sexual harassment and vice versa. Workplaces the roll-out of a survey to collect data become an entrenched problem. with a strong hierarchical structure, as is about the nature, prevalence, and impact In relation to sexual harassment, this often the case in the legal profession, are of bullying and sexual harassment in the phenomenon is often actively hidden by more likely to experience sexual harassment solicitors’ profession in Ireland. The the perpetrators and, as such, might not be (that is, superiors sexually harassing their survey process will be carried out by an directly witnessed by any other co-workers. subordinates), and the targets are more independent research organisation and will However, when bystanders are present, likely to normalise the abusive behaviours, ensure confidentiality and anonymity to they can play a key role in disrupting and framing sexual harassment as a normative all participants. It comes as a result of the changing a workplace culture that fosters ‘part of the job’. In such workplaces, it could IBA report, wherein a range of suggested sexual harassment and other gender-based be acceptable (especially for men) to show measures on how the legal profession forms of mistreatment. their masculinity through aggressive and can effectively and proactively address dominating behaviour. This contributes to workplace bullying and sexual harassment Organisational culture a hyper-masculine and sexualised corporate were put forward. Included in this was The legal profession is dominated by a culture, where sexist attitudes and gender a recommendation to gather data and culture characterised by competition, profit, inequality sustain and tolerate sexual improve transparency around these issues and high pressure. These factors, together harassment. in the profession. Keep a look-out for with established hierarchical structures, communication about this from the Law significant power imbalances, and pressure Mental-health outcomes Society in early 2021. to measure work input rather than output Research has consistently shown that (for example, billable hours) can create a workplace bullying and sexual harassment (The content of this article is based on recent ‘toxic’ environment. have adverse consequences on the target’s research conducted in the social sciences. The The culture of an organisation is and bystanders’ physical health (such as, present article does not aim to provide either recognised as contributing significantly heart problems, sleep problems, low self- legal information or legal advice.) 52 ANALYSIS News in depth Jan/Feb 2021 Law Society Gazette gazette.ie 26 YEARS, 9 MINISTERS, 1 DIRECTOR GENERAL As Law Society Director General Ken Murphy prepares to retire, he shares his reflections of 26 years in office and assesses the importance of his relationships with no fewer than nine Ministers for Justice

KEN MURPHY IS DIRECTOR GENERAL OF THE LAW SOCIETY

ne of the key themes of ing relationship with every indi- Of the nine Ministers for Jus- the massive hit series vidual minister and department tice in my time as director gen- The Crown has been of Government and, cumula- eral, five have been from Fine Oa dramatisation of the politi- tively, with the Government as a Gael, three from Fianna Fáil, cal and personal relationships whole, as well as with the Oppo- and one from the Progressive over decades that a single Brit- sition. However, centre stage for Democrats. ish monarch has had with her the solicitors’ profession is the Both at my commencement numerous successive prime min- Department of Justice and, at as director general in 1995 and isters. To date, by the end of the its head, the minister of the day at my impending conclusion in fourth series, those leaders have responsible for that key portfolio. 2021, the Ministers for Justice ranged from Winston Churchill have been women. In addition, to Margaret Thatcher. Yes, Minister both Nora Owen in 1995 and Inspired by this (tongue firmly The Society’s presidents change the incumbent Helen McEntee in cheek), as I prepare to retire annually. Accordingly, it is the have had the same political party after 26 years as director general, director general who maintains affiliation, namely Fine Gael. I reflect here on the political and continuity over the years with The third and only other woman A CAMPAIGN BY personal working relationships I both the public servants in the to have served as Minister for have had with no fewer than nine Department of Justice and the Justice in this period was Frances THE LAW SOCIETY successive Ministers for Justice. minister. The contact is regular, Fitzgerald, also of Fine Gael. FOLLOWED, Naturally, the Law Society and the relationship is extremely Only two Ministers for Justice seeks to have a positive work- important. served full five-year Government UNPRECEDENTED BEFORE OR PIC: LENSMEN SINCE, AS THE PROFESSION FOUGHT TO PROTECT ITS INDEPENDENCE IN THE PUBLIC INTEREST. THE CAMPAIGN WAS

SUCCESSFUL Nora Owen (justice minister from 1994 to 1997) gazette.ie Law Society Gazette Jan/Feb 2021 News in depth ANALYSIS 53 PIC: KEN WALSH PHOTOGRAPHY 54 ANALYSIS News in depth Jan/Feb 2021 Law Society Gazette gazette.ie PIC: LENSMEN terms during the period under review – John O’Donoghue (1997-2002) and Michael McDowell (2002-2007). Four justice ministers over the last 26 years were solicitors: John O’Donoghue, Dermot Ahern, Alan Shatter and Charlie Flana- gan. Two – Michael McDowell and the late Brian Lenihan – were barristers.

Open government Is there an advantage for the Law Society, as many solicitors instinctively expect, in the Min- ister for Justice being a solicitor? The answer to that is both ‘yes’ and ‘no’. It is ‘yes’ to the extent that the complexity of a legal-practice issue may be more readily understood by the minister if he or she is a solicitor (or, John O’Donoghue (justice minister from 1997 to 2002) equally, a barrister). IN MY However, for all Ministers for values such as independence, Nor is all of the contact initi- EXPERIENCE OF Justice, in my experience of deal- access to justice, and the rule of ated on the Society’s side. Ireland ing with them, very properly the law, are fundamental to such a being so small, and people know- DEALING WITH public interest invariably comes process. ing each other as we do, it was a first – far ahead of the interest There is a very large number not infrequent occurrence for me MINISTERS, VERY of the profession. Accordingly, of bills every year on which the to look at my phone screen and PROPERLY THE the key to successful lobbying is Society is invited to make sub- see that the minister was calling to align the two interests in their missions. Most of the engage- personally. My counterparts as PUBLIC INTEREST minds through evidence and ment is in writing, and is as much CEOs of bars and law societies in argument. Reliance on the core to do with issues of detailed other jurisdictions, particularly INVARIABLY values of the legal profession, drafting as it is on policy matters. larger ones, were often amazed COMES FIRST – PIC: LENSMEN FAR AHEAD OF THE INTEREST OF THE PROFESSION. ACCORDINGLY, THE KEY TO SUCCESSFUL LOBBYING IS TO ALIGN THE TWO INTERESTS IN THEIR MINDS THROUGH EVIDENCE AND

ARGUMENT Michael McDowell (justice minister from 2002 to 2007) gazette.ie Law Society Gazette Jan/Feb 2021 News in depth ANALYSIS 55 PIC: JASON CLARKE PHOTOGRAPHY ister based on mutual respect and trust. Anything confidential said by a minister to me on such occasions over the years never was, and never will be, disclosed by me.

A real partnership My relationship with each of the nine successive ministers was always slightly different, based on the personalities and political attitudes of the individual ministers. I had known almost all of them personally before MY RELATIONSHIP they became ministers. Indeed, some I had known personally WITH EACH for decades before they had even OF THE NINE entered politics. A well-informed understanding of the political SUCCESSIVE world in which they operated, of the pressures and influences to MINISTERS WAS Brian Lenihan (justice minister from 2007 to 2008) which they were susceptible, was ALWAYS SLIGHTLY essential. when I would mention the ease In addition, the minister Although the politics of their DIFFERENT, with which I could make direct would invariably be a guest in Government, political party and contact with a justice minister, or Blackhall Place at the Society’s department are always powerful BASED ON THE the minister with me. annual dinner and, probably also influences, there is invariably a PERSONALITIES in the course of a year, at other significant extent to which the The official visit events hosted by the Society. personal views of the minister AND POLITICAL In addition to correspondence However, all these opportuni- can be decisive in shaping policy. and other communication, every ties to seek to inform and, per- Law Society representations can ATTITUDES OF year or so I would organise a haps, influence the Minister for shape policy, too. From dozens THE INDIVIDUAL meeting with the minister – held Justice are valueless unless there of potential examples, I will pick either in the department or in is a relationship with the min- just two to illustrate my point. MINISTERS the minister’s office in Leinster House – to go through an agenda PIC: JASON CLARKE PHOTOGRAPHY of items in relation to which the Society wished to communicate its views. Officials would be present at these meetings. In addition, and far more frequently, the minister and the Law Society Director General would be in attendance at events in the course of the working day, or after it, often with large numbers present. These would be events to do with law-and- justice activities and would frequently provide an opportunity for a quiet tête-à-tête with the minister on some pressing matter of the day. At such public events, I would be very far from the only individual seeking a moment or two with the minis- terial ear. Dermot Ahern (justice minister from 2008 to 2011) 56 ANALYSIS News in depth Jan/Feb 2021 Law Society Gazette gazette.ie PIC: LENSMEN

Alan Shatter (justice minister from 2011 to 2014)

In relation to a historic issue Clarke, Ernest Cantillon and a solicitor to the High Court ALTHOUGH THE of status for the solicitors’ pro- I served on the working group Bench, that of the impeccably POLITICS OF THEIR fession – that of eligibility for that recommended to Govern- qualified Michael Peart, who judicial appointments – when I ment that solicitors with litiga- would prove to be one of the GOVERNMENT, became director general, only tion experience should be eligible outstanding judges of his genera- the District Court was open to for appointment to the bench at tion, was made later in 2002 by POLITICAL PARTY a solicitor who wished to apply every level of the courts system. the then new minister, Michael AND DEPARTMENT for a career on the bench. Draft That recommendation was McDowell. legislation had been introduced turned into draft legislation ARE ALWAYS by Minister Nora Owen to pro- by her successor, John O’Dono- Bed of nails vide for the eligibility of solicitors ghue, and enacted as the Courts The single most complex and POWERFUL to become judges of the Circuit and Court Officers Act 2002. The controversial piece of legislation INFLUENCES, Court although, to the disap- historic first appointment of directly affecting the solicitors’ pointment of the Law Society, to

THERE IS no court higher than that. PIC: LENSMEN As that bill was approaching INVARIABLY A Committee Stage, I spoke per- SIGNIFICANT sonally with every member of the Joint Oireachtas Committee EXTENT TO WHICH on Justice, arguing that the cen- turies-old monopoly of the Bar THE PERSONAL on senior judicial appointments VIEWS OF THE was a relic of history that operated contrary to the public inter- MINISTER CAN est. Three future Ministers for Justice, all solicitors, who were BE DECISIVE IN members of that committee, were SHAPING POLICY. vigorously supportive – namely John O’Donoghue, Alan Shat- LAW SOCIETY ter and Charlie Flanagan (who was the chair of the committee). REPRESENTATIONS As a political compromise, Nora CAN SHAPE Owen agreed to establish a working group to report to Govern- POLICY, TOO ment on the issue. Geraldine Frances Fitzgerald (justice minister from 2014 to 2017) gazette.ie Law Society Gazette Jan/Feb 2021 News in depth ANALYSIS 57 PIC: LENSMEN

ON THE DAY THE BILL WAS PUBLISHED, I EXPRESSED THE SOCIETY’S DEEP

Charles Flanagan (justice minister from 2017 to 2020) CONCERNS ABOUT THE profession during the last 26 followed, unprecedented before ships (LLPs). Many hundreds of years was the bill subsequently or since, as the profession fought improvements to the bill, includ- UNDERMINING enacted as the Legal Services Regu- to protect its independence in the ing in relation to LLPs, were OF THE lation Act 2015. Alan Shatter was public interest. The campaign made by his successor Frances the minister who published the was successful. I never believed Fitzgerald. The commencement INDEPENDENCE bill in 2011, without any prior that the minister who introduced order for solicitors’ firms to consultation in relation to its the bill intended it to threaten the become LLPs (of which approxi- OF THE contents, and to the dismay of the independence of the profession mately one-third of all partner- PROFESSION solicitors’ profession. and, indeed, he denied it had that ships have now availed) was On the day the bill was pub- potential. Nevertheless, in the signed by her successor as Minis- ON RTÉ’S SIX lished, I expressed the Society’s face of expressions of deep con- ter for Justice, Charlie Flanagan. deep concerns about the under- cern, both nationally and interna- Helen McEntee was appointed ONE NEWS. I mining of the independence of tionally, Mr Shatter amended the in late June 2020. My first and INSISTED THAT the profession on RTÉ’s Six One bill fundamentally to remove that only business meeting with her News. I insisted that for the legal threat. was regrettably, but of necessity, FOR THE LEGAL profession to be independent In addition, in response to my by Zoom. While the pandemic of Government control was an lobbying on behalf of the Society, persists, my successor as director PROFESSION TO essential prerequisite for an inde- he agreed in principle that the general may find it more difficult BE INDEPENDENT pendent judiciary, access to jus- bill should be amended to create to establish their own personal tice, and the rule of law. the possibility of solicitors’ firms relationship with the Minister OF GOVERNMENT A campaign by the Law Society forming limited liability partner- for Justice. CONTROL WAS PIC: GAZETTE STUDIO AN ESSENTIAL PREREQUISITE FOR AN INDEPENDENT JUDICIARY, ACCESS TO JUSTICE, AND THE

Helen McEntee (justice minister from 2020 to present) RULE OF LAW 58 ANALYSIS News in depth Jan/Feb 2021 Law Society Gazette gazette.ie MATHESON SURGES FROM THIRD TO TOP Practising certificate figures for the year ending 31 December 2020 have seen a change at the top of the ‘PC league table’, with Matheson leapfrogging its nearest rivals, reports Ken Murphy

KEN MURPHY IS DIRECTOR GENERAL OF THE LAW SOCIETY

atheson is now the last date (31 December) of the tors to top this year’s table, with largest law firm in previous practice year. The brag- 327 practising solicitors. Ireland, having been ging rights as Ireland’s largest law Matheson has achieved this with thirdM in each of the last six years. firm had been owned by either a whopping year-on-year increase In each of these years, the Law A&L Goodbody or Arthur Cox of 42 PCs over its 2019 and 2018 Society has published the num- LLP throughout that period. But total (which was unchanged in ber of practising certificates Matheson has now leapfrogged both years). This expansion of (PCs) of the largest firms on the both of these large-firm competi- fractionally under 15% in PC

LAW FIRM PRACTISING SOLICITOR NUMBERS (AS OF 31/12/2020)

2020 2019 Diff +/- Firm name 31/12/2020 31/12/2019 ranking ranking over 2019 1 3 Matheson 327 42 285 2 1 A&L Goodbody 320 7 313 3 2 Arthur Cox LLP 312 13 299 4 4 McCann FitzGerald 284 18 266 5 5 Mason Hayes & Curran LLP 259 20 239 6 6 William Fry 207 0 207 7 8 ByrneWallace 137 5 132 MATHESON 8 9 Eversheds Sutherland 112 4 108 9 11 Maples and Calder (Ireland) LLP 108 3 105 NOW HAS THE 10 10 Ronan Daly Jermyn 106 -1 107 BRAGGING 11 13 Beauchamps 95 3 92 12 12 Freshfields Bruckhaus Deringer LLP 88 -13 101 RIGHTS AS 13 14 Dillon Eustace 86 -2 88 14 20 Hayes Solicitors 64 3 61 IRELAND’S 15 16 Eugene F Collins 63 -1 64 15 - Philip Lee 63 - - LARGEST LAW 15 16 Pinsent Mason LLP 63 -1 64 15 18 LK Shields Solicitors LLP 63 1 62 FIRM, HAVING 15 15 Walkers 63 -2 65 BEEN THIRD IN 20 - DAC Beachcroft Dublin 53 - - TOTAL 2,873 2,658 EACH OF THE These figures represent the total number of solicitors with a practising certificate, advised to the Law Society, up to and including 31/12/20. The total firm figure represents a firm’s primary and suboffices on LAST SIX YEARS the Law Society’s database gazette.ie Law Society Gazette Jan/Feb 2021 News in depth ANALYSIS 59

numbers places it seven solicitors the rank order of most firms this was a by-product of Brexit and ahead of A&L Goodbody (which year is the same, or almost the has now come to an end. this year has 320), and Arthur Cox same, as in previous years. As a result of a decision made LLP (with 312). These are the by the Society in the latter part only three firms with more than ‘Brexit’ PCs of 2020, based on a deep-dive 300 practitioners. The firm that appeared seventh review of policy and the relevant on the table last year, Allen & law undertaken by the Society’s Others expanding too Overy LLP, does not feature at all Regulation of Practice Commit- Below the 300 number are two this year. In addition, Freshfields tee, the Society now no longer firms, McCann FitzGerald and Bruckhaus Deringer LLP, down issues practising certificates to Mason Hayes & Curran LLP, to 88 PCs in this year’s table, firms of solicitors who do not which have also grown substan- is unlikely to feature at all next have an office, or plan to have an tially in PC numbers – by 18 and Managing partner of Matheson, year. Neither of these City of office, in this jurisdiction. 20 respectively – in the past year. Michael Jackson London-headquartered firms – Mason Hayes & Curran has both members of the elite ‘magic Total PCs in 2020 now grown its number of prac- Elsewhere in the table, by a circle’ – has ever had an office The total number of practising titioners impressively over two curious coincidence, no fewer in this jurisdiction nor, to the certificates issued by the Law successive years, with an 8.3% than five firms all tied on 63 best of the Law Society’s knowl- Society on 31 December 2020 was increase by the end of 2020, PCs, namely Eugene F Collins, edge, do they plan to establish 11,854. This is a reduction of 105 added to the 5.2% growth of the Philip Lee, Pinsent Mason LLP, one. The phenomenon of large on the record 11,959 practising previous year. LK Shields LLP, and Walkers. international law firms, with no certificates on 31 December 2019, The only other firm with more DAC Beachcroft Dublin joined establishment in this jurisdiction, and is largely accounted for by the than 200 practitioners, William the table for the first time. Given taking out Irish practising certifi- decline in ‘Brexit’ PCs taken out Fry, remains steady with 207 PCs the relative stability in this table cates for their solicitors who have in 2020 by comparison with the this year – the same as last year. every year, it is no surprise that recently come on the Roll here previous year. 60 ANALYSIS Eurlegal Jan/Feb 2021 Law Society Gazette gazette.ie I’VE GOT THE POWER The European Commission has proposed new rules curbing the power of digital companies. It’s hammer time, says Cormac Little

CORMAC LITTLE SC IS HEAD OF THE COMPETITION AND REGULATION UNIT OF WILLIAM FRY AND CHAIR OF THE LAW SOCIETY’S EU AND INTERNATIONAL AFFAIRS COMMITTEE

n December 2020, the Euro- gateway for businesses to reach vices (like Facebook) to interme- pean Commission launched a their customer base. Given diation services (such as Apple’s much heralded and far-reach- their ‘footprint’, gatekeepers App Store). The DMA seeks to Iing reform of the rules govern- often act as private rule-makers. prevent gatekeepers from impos- ing online commerce and activ- The application of the DSA is ing unfair conditions on both ity. Specifically, the commission broader. It contains a series of businesses and consumers while has proposed a new regulation obligations that apply to all pro- ensuring the transparency of key on contestable and fair markets in viders of online services (with services. the digital sector (Digital Markets some exceptions for smaller Gatekeepers are large compa- Act) while also recommending the companies). This proposal aims nies that provide at least one CPS adoption of a new regulation on a to regulate how digital inter- while having a durable cohort of single market for digital services mediaries engage with their users across various EU member (Digital Services Act) – DMA and customers and what content states. Specifically, if an entity THE DSA AND DSA, respectively – amending the they provide, while also mod- satisfies three cumulative quan- eCommerce Directive. These initia- ernising the eCommerce Direc- titative criteria, it is likely to be THE DMA AIM TO tives result from an extensive pub- tive originally adopted in 2000. designated as a gatekeeper: lic and stakeholder engagement Under the DSA, providers of • The first criterion relates to CREATE A SAFER led by the commission, including online services must stipulate in size that impacts the EU’s DIGITAL SPACE the April 2019 independent expert their terms and conditions any internal market. Such an effect report, Competition Policy for the restrictions they impose on con- is presumed if the relevant IN WHICH THE Digital Era. tent, while acting responsibly in entity provides a CPS in three The growth of online services the enforcement of such limita- or more member states while FUNDAMENTAL has created major benefits for con- tions. Digital companies must the undertaking to which it sumers while opening new markets also publish regular reports belongs either generates an RIGHTS OF ALL for businesses. That said, these regarding such policies. Hosting annual turnover in the Euro- EU-BASED USERS changes have not always been services and online platforms are pean Economic Area (that is, positive. Illegal goods are sold on subject to further obligations as the 27 EU member states plus ARE PROTECTED, various websites, disinformation is are entities categorised as ‘very Norway, Iceland and Liech- spread, and certain platform pro- large online platforms’ (that is, tenstein) of €6.5 billion in its WHILE ESTABLISH- viders act as bottlenecks between those not designated as gate- three most recent financial ING A LEVEL traders and consumers. Accord- keepers under the DMA). years, or has an average mar- ingly, the DSA and the DMA ket capitalisation (for listed PIC: ALAMY PLAYING FIELD aim to create a safer digital space Scope of the DMA companies) or equivalent fair in which the fundamental rights The DMA does not aim to market value (for private com- TO PROMOTE of all EU-based users are pro- apply to the entire online world. panies) of at least €65 billion INNOVATION, tected, while establishing a level Instead, it targets the provi- in its most recent financial playing field to promote innova- sion of so-called ‘core platform year. GROWTH, AND tion, growth, and competitiveness. services’ (CPS) by gatekeepers. • The second focuses on control COMPETITIVENESS Such services range from search of an important link between Purpose of the reform engines (for example, Google traders and consumers. This The DMA seeks to curb the Search) to video-sharing plat- is presumed to be met where, News from the EU and International Affairs Committee. Edited by TP power of ‘gatekeepers’, that is, form services (such as YouTube) in its most recent financial Kennedy, Director of Education platforms that serve as a key and from social networking ser- year, the entity operates a CPS gazette.ie Law Society Gazette Jan/Feb 2021 Eurlegal ANALYSIS 61 PIC: ALAMY

with a minimum of 45 million entrenched and durable posi- If these three quantitative cri- mission regarding the size of the active end-users per month tion. This is satisfied where teria are satisfied, the relevant actual CPS provider and/or the in the EU, with more than the relevant entity meets the company is presumed to fall into absence of barriers to entry in 10,000 active EU business cus- thresholds detailed in the the gatekeeper category. That the provision of its service(s). By tomers per annum. second criterion in each of its said, a potential gatekeeper may contrast, if the three quantitative • The third addresses whether three most recent financial seek to rebut this presumption by criteria are not met, the commis- the relevant entity has an years. providing evidence to the com- sion may categorise a particular 62 ANALYSIS Eurlegal Jan/Feb 2021 Law Society Gazette gazette.ie

entity as a gatekeeper based on In such situations, the relevant vant operating systems to third a qualitative assessment of vari- business should be allowed parties, and ous factors, including its finan- to provide products through • Giving advertisers/advertising cial size, and economies of scale/ their own software using the agencies access to the relevant scope. relevant platform. performance measuring tools. • Allow business users to com- Gatekeeper status plain to any relevant regula- The DMA allows a gatekeeper to The DMA provides that gate- tory authority. request the commission to grant keepers carry a special respon- • Refrain from requiring busi- an exemption, on public interest sibility to ensure that businesses ness users to avail of its iden- grounds, from any of the ‘dos and consumers are treated fairly tification service. and don’ts’. Moreover, the com- while ensuring an open digital • Provide, on request, details mission may also suspend the environment and contestable of spending and commission operation of a particular provi- markets. (This duty is not dis- regarding a given advertise- sion where, due to the excep- similar to the special obliga- ment to both advertisers and tional and extenuating circum- BASED ON THE tion on dominant entities under advertising agencies. stances, the economic viability of EU/Irish abuse of dominance a gatekeeper is threatened. COMMISSION’S rules not to undermine compe- Gatekeepers are also required to tition.) Moreover, the commis- ‘inform’ the commission regard- How and when? MARKET sion may impose certain obliga- ing proposed acquisitions of other Under the DMA, a poten- EXPERIENCE, THE tions on entities likely to have an digital companies regardless of tial gatekeeper must consider entrenched and durable position whether the relevant transaction whether it meets the three quan- DMA STIPULATES in the future. is mandatorily notifiable under titative criteria described above. TWO SETS the EU Merger Regulation or If so, it should duly inform the Dos and don’ts under national merger control commission who, on the basis the OF ‘DOS AND Based on the commission’s mar- rules in any individual EU mem- three criteria are satisfied, will ket experience, the DMA stipu- ber state. In doing so, gatekeepers designate the relevant entity as a DON’TS’ THAT lates two sets of ‘dos and don’ts’ must provide relevant informa- gatekeeper. Within six months of that gatekeepers must follow in tion on the target, including its being designated as a gatekeeper, GATEKEEPERS their business activities. The first most recent annual global and the relevant entity must also fol- MUST FOLLOW IN set contains obligations that are EEA annual turnover, details of low both sets of ‘dos and don’ts’. not subject to further specifica- its user numbers, and the ratio- THEIR BUSINESS tion, whereas the second may nale for the acquisition. However, Enforcement be clarified by the commission interestingly, unlike transactions The commission has the exclu- ACTIVITIES. to ensure compliance with the notified to the commission or to sive right to enforce the provi- THE FIRST SET DMA. Under the first set, gate- any national competition author- sions of the DMA. (That said, keepers must: ity, gatekeepers do not require third parties, allegedly harmed CONTAINS • Refrain from combining per- clearance before completing rel- by an infringement of the DMA, sonal data sourced from the evant digital transactions. may sue a gatekeeper for dam- OBLIGATIONS provision of a CPS with the Under the second set of ‘dos ages in a national court.) The THAT ARE personal data gleaned from and don’ts’, a gatekeeper is sub- commission’s proposed enforce- the offering of other services ject to a long list of obligations, ment powers under the DMA NOT SUBJECT (unless the end-user has con- including: are broadly similar to its cur- sented). • Refraining from using confi- rent functions regarding EU TO FURTHER • Allow their business customers dential data sourced from the competition rules. The DMA SPECIFICATION, to sell products or services at provision of a CPS to its busi- gives the commission the power different prices on other plat- ness customers in competing to issue formal information WHEREAS THE forms. Put another way, ‘most- with such entities, requests, to take witness state- favoured nation’ clauses are • Allowing customers to delete ments, to launch dawn raids, to SECOND MAY BE banned. any pre-installed software accept commitments, and/or to CLARIFIED BY THE • Desist from requiring business applications – commonly re- adopt interim measures. After users or consumers using one ferred to as apps, giving the relevant gatekeeper COMMISSION CPS to use, at least. one other • Desisting from ranking its own the opportunity to contest any CPS. products and services more preliminary adverse findings, the TO ENSURE • Permit businesses to market favourably to those offered by commission may impose fines COMPLIANCE to customers acquired using competitors, of up to 10% of a gatekeeper’s the relevant CPS and to con- • Providing full interoperability most recent annual global turn- WITH THE DMA clude contracts ‘off-platform’. information regarding the rele- over for any substantive breach. gazette.ie Law Society Gazette Jan/Feb 2021 Eurlegal ANALYSIS 63

In addition, fines of a maximum and informal) to be deployed by enforcement challenge it faces words, major digital players will, of 1% of the relevant turnover the latter. That said, there is sig- arising from the fact that the as gatekeepers, be required to act may be levied for any procedural nificant momentum behind both unilateral conduct of strong but and be prohibited from acting in infringement. the DMA and the DSA due to not dominant digital players falls particular ways. From the com- recent developments in the polit- outside the reach of EU compe- mission’s perspective, this will Next steps ical (think of the two most recent tition law. Another key difficulty hopefully prevent the big tech- The journey before either the US presidential elections) and is that competition rules are nology companies from creating DMA or the DSA becomes economic spheres (for example, applied on an ex post basis – in lasting damage to the structures law is likely to be challenging. the surge in online commerce other words, the commission may of competition. That said, it is These proposals will go before because of the COVID-19 pan- only intervene when an infringe- likely to take at least 18 months the European Parliament and demic). Accordingly, while the ment has occurred. Given the and possibly longer before the the Council of Ministers – both battle ahead will be hard-fought, time involved in pursuing any DMA and the DSA come into institutions must agree before both the DMA and the DSA are investigation, the relevant sector effect. Until then, competition/ either regulation is adopted. The ultimately likely to be adopted may have irrevocably changed or antitrust law will remain the key DMA and the DSA will be of relatively unscathed. ‘tipped’ because of the allegedly arrow – as is obvious from the significant interest to any entity illegal conduct. Accordingly, any ongoing actions against Google providing digital services in the Broader implications remedy imposed by the commis- and Facebook on both sides of EU, not least to the major tech- The proposed adoption of the sion may be either insufficient the Atlantic – in the commis- nology companies. Expect an DMA is an acknowledgement on and/or tardy. The DMA will sion’s and other competition army of lobbyists (both formal the part of the commission of the apply on an ex ante basis. In other authorities’ quiver.

BREXIT FOCUS UK NATIONALS AND THEIR NON-EEA FAMILY MEMBERS LIVING IN IRELAND Brexit came fully into effect on 31 Non-EEA family the online renewal system. After 31 December December 2020, and UK nationals The Department of Justice has When advising/assisting clients There will be no change for UK living in Ireland or family members indicated that separate arrange- in relation to the making the online nationals who wish to live in Ire- of a UK national living here with ments are being put in place for application: land after 31 December 2020. them will be subject to certain non-EEA family members and/or • Applicants will be asked to con- Their rights under the CTA will changes. dependants of UK nationals who firm that they have been exer- continue to be protected as set are, as of 31 December 2020, exercising EU treaty rights to reside out above. UK nationals cising EU treaty rights under the in the State on or before 31 A new scheme will be intro- Practitioners should be aware EU Free Movement Directive and December 2020 and continue duced for UK nationals who that the Department of Justice who hold a valid Irish Residence to do so, come to Ireland after 31 Decem- has confirmed that nothing will Permit (IRP) on that basis, known • Submit their current valid IRP ber 2020 and wish to bring change for UK nationals living as ‘EU FAM’. Family members of card, their non-EEA family members. in Ireland. Practitioners will be a UK national, from 31 December • Clients have until 31 December Details of the scheme have now able to advise such clients that 2020, will hold the same residence 2021 to apply. been published and are available the protections provided by the rights in Ireland and can continue to practitioners. See Notice 5 Common Travel Area mean that to live, work or study in Ireland. The Department of Justice has (‘Joining your UK national fam- such clients living here (and, like- Practitioners should advise such indicated that it will continue to ily member in Ireland’) of 23 wise, Irish citizens living in the clients that it will be necessary to process applications received December on www.inis.gov.ie/ UK), will continue to travel freely, exchange their current valid IRP before the end of the transition en/INIS; attention is drawn spe- live, work and access education, Card for a new one. It will be nec- period (31 December 2020) from cifically to the Scheme in Relation healthcare and social services in essary to state in the application non-EEA family members of UK to Non EEA Family Members of each other’s country after the UK that the client’s residence rights nationals resident in Ireland, and UK Citizens Intending to Reside leaves the EU. derive from EU free movement exercising rights in accordance in the State policy document Practitioners should note that under the Withdrawal Agreement. with the Free Movement Directive published by the department on UK nationals do not require any The programme will apply from and the entitlements guaranteed 23 December. documentation under the With- 1 January 2021 and be adminis- under the Withdrawal Agreement. drawal Agreement to continue tered by the Immigration Service Practitioners have been provided Ross McMahon is managing part- their lives in Ireland after 31 of the Department of Justice for with comfort that these applica- ner of David F Mc Mahon & Co, December 2020, although they applications nationwide. Practi- tions will continue to be processed Solicitors, and a member of the are free to request same if they tioners should note that appli- even if a decision is not made until EU and International Affairs Com- wish. cations are to be made through after 31 December 2020. mittee. 64 BRIEFING Council report Jan/Feb 2021 Law Society Gazette gazette.ie

REPORT OF LAW SOCIETY COUNCIL MEETING 11 DECEMBER 2020 IWLA tribution, as recommended completed its work and a report PII The Council extended its congrat- by the Regulation of Practice had been sent to the Minister The Council heard that all exist- ulations to Michele O’Boyle and Committee. for Justice. The matter is now ing insurers had remained in the Maura McNally (chair of the Bar expected to move to an imple- market for the renewal, and one Council), who were named joint Banking charges on deposits mentation group, and progress new insurer had joined. While an winners of the Irish Women Law- Following recent indications will continue to be monitored by issue had arisen as a result of a late yers’ Association ‘Woman Lawyer that some Irish banks will begin the Society. change in underwriting criteria, of the Year’ Award for 2020. to impose charges on deposit increases in premiums had been in holdings that exceed certain LSRA report on education line with expectations and lower Resolutions passed thresholds, a dedicated working The Council discussed the than those in England, Wales and The Council passed resolutions to: group has been established to recently published report and in non-legal PII markets. • Amend the Council regulations examine the issue. the recommendation to estab- It was agreed that sufficient to include rules of procedure The matter is also being con- lish an entity called Legal Prac- time would be set aside to accom- to be utilised in the event of an sidered by the Regulation of titioner Education and Training modate a detailed discussion on alleged breach of the regula- Practice Committee, which will (LPET), to be comprised of the issue of PII at the January tions or the code of conduct by issue guidance to the profession seven members, none of whom 2021 Council meeting. a Council member, in due course. would be involved in legal edu- • Approve the Solicitors Practising cation in Ireland. Human Rights Committee Certificate Regulations 2020 and Extraordinary members The Council noted that it Noting that the British Govern- the Registered European Lawyers The president sought and was envisaged that LPET would ment had recently announced Qualifying Certificate Regulations obtained the Council’s approval have an ambitious body of work, its decision not to hold a public 2020, for the appointment of Law and that it would be necessary inquiry into the death of solicitor • Make provision for the organ- Society of Northern Ireland to establish a dedicated task Pat Finucane, the Council agreed isation of Council meetings representatives: Rowan White force within the Society to fully to write to the British ambassador during the currency of public- (president), Suzanne Rice (senior address the changes proposed in to express its concern. health guidance and restrictions vice-president), Brigid Napier the report. In that regard, the Council that affect corporeal gatherings, (junior vice-president), Eileen noted that the British Supreme and Ewing, and John Guerin. LSRA report on unification Court had found a failure to hold • Approve the practising cer- The meeting noted publication an effective investigation into Mr tificate fee for 2021 as rec- Review group of the report, which had not Finucane’s death, and all previ- ommended by the Finance The Council noted that the recommended unification of the ous examinations of his death had Committee and, in relation to Review Group on the Admin- two branches of the legal profes- not been compliant with human- the Compensation Fund con- istration of Civil Justice had sion in Ireland. rights standards.

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CONVEYANCING COMMITTEE UNDERTAKINGS BREAK CLAUSES FROM RECEIVERS – The Conveyancing Committee ancing’/‘resources’ – and view ‘con- has published a commentary on veyancing guidelines’/‘landlord A REMINDER break clauses in commercial leases and tenant’. The Conveyancing Commit- committee’s view is that the cli- and has provided a sample clause This sample clause is not pro- tee reminds practitioners of its ent could consider reporting the for the assistance of practitioners. vided by the committee as a rec- practice note published in the delays to the appropriate regu- These can be found at www.law ommended precedent, merely as a January/February 2019 Gazette latory body for the professional society.ie (see ‘solicitors’/‘repres- sample to help illustrate the com- (p59) in relation to receiver con- who gave the undertaking, or entation’/‘committees’/‘convey- mentary, and for general guidance. tracts, and specifically in relation the client could consider issuing to accepting undertakings from proceedings to compel compli- CONVEYANCING COMMITTEE receivers. ance. Practitioners are reporting In relation to sales by lend- REQUISITIONS ON to the committee that they are ing institutions, the committee encountering long delays by is of the same view in relation to TITLE – 2019 (REVISED) receivers in some cases in com- complaints to the Central Bank plying with their undertakings. about a bank and/or issue of pro- EDITION In those circumstances, the ceedings. The Conveyancing Commit- transactions commencing on or tee recently made revisions to after 1 January 2021. The accom- its 2019 Requisitions on Title to panying explanatory memoran- include new requisitions on the dum was also updated and can IF LIFE GIVES YOU LEMONS, vacant-sites levy, and published it be found on the precedents page WE’RE HERE TO HELP to the profession in the December also. 2020 issue of the eZine. In case of heavy demand for The revised edition has been hard copies of the revised docu- Consult a Colleague in total confidence made available in fillable PDF ment in the short term, please Call us on 01 284 8484 format on the ‘precedents’ page at bear in mind that practitioners www.lawsociety.ie (click the ‘solic- can use the online version on the itors’ tab/‘practising’/‘precedents’ precedents page until such time as A confidential free service from the DSBA. and scroll to Requisitions on Title all print orders are fulfilled. www.consultacolleague.ie 2019 (Revised) Edition), and was To order hard copies, visit www. recommended for use for all lawsociety.ie/publications.

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Library ad Gazette Jan_Feb 2017.indd 1 25/01/2017 15:09 66 BRIEFING Guidance notes Jan/Feb 2021 Law Society Gazette gazette.ie ADVERTISING REGULATIONS TRANSFERRED TO LSRA Solicitors are advised that respon- and robust regulations are essen- fee’, ‘free first consultation’, or sonally responsible for the publi- sibility for the regulation of the tial to preserve the integrity of other words or phrases of a sim- cation of the linked advertisement. advertising of legal practitioners, the profession, and the adoption ilar nature that could be con- An obvious example of this would including solicitors, has now of this recommendation is wel- strued as meaning that legal ser- be Google, which lists hyperlinks transferred from the Law Society comed. Under the LSRA regula- vices in connection with claims of websites based on key search- to the Legal Services Regulatory tions, section 4 prohibits adver- for personal injuries would be words. Authority. tisements that: provided by the legal practitio- More general recommenda- Pursuant to section 218 of the • Are likely to bring the legal ner at no cost to the client, tions that were made by the Soci- Legal Services Regulation Act 2015, profession into disrepute, • Refer to the quantum of a pos- ety and were incorporated into the SI 644/2020 (the Legal Services • Are in bad taste, sible award of damages, save LSRA regulations also included Regulation Act 2015 (Advertising) • Reflect unfavourably on an- insofar as by reference to the the amendment to the definition Regulations 2020) commenced on other legal practitioner, Personal Injuries Assessment of ‘client’ from ‘his’ to ‘his/her’. 18 December 2020. The author- • Are false or misleading in any Board Book of Quantum or This was considered necessary for ity is now responsible for regu- respect, or other guidelines as may be pub- the purposes of gender neutrality. lating the advertising of all legal • Are published in an inappropri- lished by the Personal Injuries Finally, and as per the Society’s services by legal practitioners. ate location. Assessment Board or other recommendation, the previous Solicitors are assured that statutory authority or statutory exemption clause that distin- advertisements relating to all legal More generally, advertisements body, guished between an advertisement services (except ‘personal injuries’ are also prohibited from making • Expressly or by implication and a ‘communication to give – see below) that were published any express or implied reference suggest that there are circum- information on the law’ has also in compliance with the Society’s to the success rate of the legal stances in which legal services been retained. This is to be wel- Solicitors Advertising Regulations practitioner, or to include state- involving contentious business comed, as this clause, now found 2019 will remain compliant with ments about the legal practitio- may be provided without there under section 10 of the LSRA the LSRA regulations, and no ner’s success rate. being any risk that the client regulations, provides an effective further action is necessary. may be required to pay costs means of differentiation between The Society is of the view that Personal injuries to any other party or parties, general advertisements and infor- the LSRA regulations are a posi- Previously, the Society enforced unless that actually represents mation pieces that serve an over- tive and effective realignment of certain controls on the advertis- the legal position. riding public interest. the previous regulatory regime, ing of personal-injury legal ser- As the authority is now wholly and the Society’s Solicitors Adver- vices, and supports the additional In addition to the above, any responsible for regulating the tising Regulations 2019 provided a specifications now contained in advertisement relating to ‘per- manner in which legal practitio- useful template for the construc- the LSRA regulations. In sum- sonal injuries’ must now include a ners advertise their professional tion of the LSRA regulations. In mary, the authority’s new regu- clear reference to the prohibitions services, the Society no longer addition, the Society provided latory regime makes clear that on charging costs in the circum- provides a vetting service to two written submissions to the advertisements relating to ‘per- stances contained in section 149 of solicitors, where advertisements authority as part of its public con- sonal injuries’ shall not: the 2015 act. were approved prior to publica- sultation process. • Expressly or impliedly solicit, Solicitors are also advised to tion. All queries relating to the Solicitors will note that the encourage, or offer any induce- exercise caution in respect of any new regulatory regime should be broad prohibitions contained in ment to any person or group or connection (known or otherwise) made directly to the authority, via section 4 of the LSRA regula- class of persons to make claims that they may have online with the email address LSRA-inbox@ tions are identical to those under for personal injuries or seek other advertisements. Where an LSRA.ie. the previous regulatory regime legal services in connection online advertisement published by For further information, enforced by the Society. The with such claims, (or on behalf of) a solicitor links to please visit www.lsra.ie/for-law- Society recommended no change • Include words or phrases such other information available else- professionals/advertising-legal- to these provisions because broad as ‘no win, no fee’, ‘no foal, no where online, the solicitor is per- services. LISTEN UP! Tune in to Gazette audio articles at Gazette.ie gazette.ie Law Society Gazette Jan/Feb 2021 67 PROFESSIONAL NOTICESNOTICES

WILLS Allen, Johanna (Josie) (de- RATES ceased), late of Ballydavid, Thurles Road, Littleton, Thurles, Co Tipperary. Would any person PROFESSIONAL NOTICE RATES having knowledge of the where- RATES IN THE PROFESSIONAL NOTICES SECTION ARE AS FOLLOWS: abouts of any will made by the Wills – 152 (incl VAT at 21%) above-named deceased, who died • € on 7 June 2020, please contact • Title deeds – €304 per deed (incl VAT at 21%) Butler Cunningham & Molony, • Employment/miscellaneous – €152 (incl VAT at 21%) Solicitors, Slievenamon Road, Thurles, Co Tipperary; DX HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €30 EXTRA 40006 Thurles; tel: 0504 21857, 22315; email: [email protected] ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. ALL NOTICES MUST BE EMAILED TO [email protected] and PAYMENT MADE BY ELECTRONIC FUNDS Cahill, Michael (deceased), who TRANSFER (EFT). The Law Society’s EFT details will be supplied following receipt of your died on 20 January 1947, late of email. Deadline for March 2021 Gazette: 12 February 2021. Seraghtown, Crossakiel, Kells, Co No recruitment advertisements will be published that include references to ranges of post-qualification Meath. Would any person having experience (PQE). The Gazette Editorial Board has taken this decision based on legal advice that indicates knowledge of the whereabouts that such references may be in breach of the Employment Equality Acts 1998 and 2004. of any will made by the above- named deceased please contact Rogers and Byron, Solicitors, Cannon Row, Navan, Co Meath; named person please contact the Town Centre, Portmarnock, Co died on 7 November 2020, please tel: 046 902 1939, email: info@ Chief State Solicitor’s Office, Dublin; tel: 01 845 9100, email: contact Marcella Power, Fiona rogersandbyron.ie Osmond House, Little Ship Street, [email protected] Twomey Solicitors, 3 Eastgate Vil- Dublin 8; tel: 01 417 5177, email lage, Little Island, Co Cork; DX Conway, Kathleen (née Grif- [email protected] Kelly, Gerard (deceased), late of 189 001; tel: 021 435 5405, email: fiths) (deceased), retired accoun- Glebe House, New Road, Straf- [email protected] tant, late of 11 Marian Place, Ben- Griffiths, James (orse Jimmy) fan, Co Kilkenny (formerly of nettsbridge, Co Kilkenny, who (deceased), retired carpenter, late 14 Alexandra Manor, Clane, Co McLiesh, Dorothy Victoria died on 23 May 2019. Would any of Gowran Road, Bennettsbridge, Kildare, and Mask Drive, Artane, (otherwise Dorothy Victoria person having knowledge of the Co Kilkenny, who died on 15 April Dublin 5). Would any person with Butler) (otherwise Victoria But- whereabouts of any will made by 2020. Would any person having any knowledge of a will executed ler) (deceased), late of 60 Wood- the above-named deceased, or if knowledge of the whereabouts of by the above-named deceased, stock Court, Woodstock Gardens, any firm is holding same, please any will made by the above-named who died on 24 July 2020, please Ranelagh D06 W261, formerly of contact JA Canny & Co, Solici- deceased, or if any firm is holding contact O’Shea Russell Solicitors, 11 Maxwell Court, Maxwell Road, tors, 44 Friary Street, Kilkenny; same, please contact JA Canny & Main Street, Graignamanagh, Rathmines, D06 CM33. Would DX 27 013 Kilkenny; tel: 056 777 Co, Solicitors, 44 Friary Street, Co Kilkenny; tel: 059 972 4106, any person having knowledge of a 1977, email: [email protected] Kilkenny; DX 27 013 Kilkenny; email: [email protected] will executed by the above-named tel: 056 777 1977, email: tony@ deceased, who died on 26 Decem- jacanny.com McCarthy, Sally (deceased), late ber 2020, please contact Murchan Daly, Caitriona (deceased), of 105 Rathfarnham Road, Dub- & Company, Solicitors, 68 Lower late of Blackheath Park, Clon- Hurley, Beatrice (deceased), late lin 16. Would any person having Lesson Street, Dublin 2; tel: 01 tarf, Dublin 3, who died on 18 of 49 Beechpark, Portmarnock, Co any knowledge of a will made by 676 8522, email: murchanlaw@ October 2020. Would any per- Dublin. Would any person hav- the above-named deceased, who gmail.com son having knowledge of the ing knowledge of the whereabouts whereabouts of any will made of any made by the above-named by the above-named deceased, deceased, who died on 5 Decem- or if any firm is holding same, ber 2020, please contact Gary please contact Nuala Far- Irwin, Solicitors, 3 Portmarnock rell, tel: 087 773 3125, email: Town Centre, Portmarnock, Co [email protected] Dublin; tel: 01 845 9100, email: [email protected]

Gorman, Patrick (deceased), Hurley, Michael (deceased), late late of 5B Newtown Park, Tal- of 49 Beechpark, Portmarnock, Co laght, Dublin 24, and Commu- Dublin. Would any person having nity Nursing Unit, Clonskeagh knowledge of the whereabouts of Hospital, Clonskeagh, Dublin 6, any will made by the above-named who died on 14 September 2018. deceased, who died on 5 Decem- Would any person having knowl- ber 2020, please contact Gary edge of a will made by the above- Irwin Solicitors, 3 Portmarnock 68 PROFESSIONAL NOTICES Jan/Feb 2021 Law Society Gazette gazette.ie

Mahon, Sarah Rose (Rosie) person having knowledge of the on 26 September 2020, please John Conroy and let by him to (deceased), late of Drummin, Bal- whereabouts of any will made by contact HD Keane Solicitors, Thomas Higgins, and to the west linagare, Castlerea, Co Roscom- the above-named deceased please 22 O’Connell Street, Water- partly by Dodder House aforesaid mon, who died on 9 October contact Denis McSweeney, Solici- ford; DX44014 Waterford; tel: and partly by the road leading 2020. Would any person having tors, 16 Herbert Place, Dublin 2; 051 874856, email: enquiries@ from Rathgar to the River Dod- knowledge of the whereabouts of email: elainedenise@denismc- hdkeane.com der”, as delineated on the map any will made by the above-named sweeney.com drawn thereon and including the deceased please contact Callan Weir, Paul (deceased), late premises the subject of this adver- Tansey Solicitors, The Crescent, O’Brien, Patrick (deceased), of 41 Frankfurt Avenue, Rath- tisement, was demised to Alfred Boyle, Co Roscommon; DX late of Green Lane, Kenmare, Co mines, Dublin 6, who died on Howard and William Howard for 65002 Boyle; tel: 071 966 2019, Kerry, who died on 19 October 6 December 2020. Would any a term of 189 years from 1 May email: [email protected] 2019. Would any person having person having any knowledge of 1871 at the yearly rent of £47. knowledge of the last will made by the whereabouts of a will made Take notice that the said Frank Markey, Anna (deceased), resi- the above-named deceased, or its by the above-named deceased O’Riordan intends to apply to the dent Drumlin House, St Mary’s, whereabouts, please contact Mul- please contact John Wallace, NJ county registrar of the county of Castleblayney, and formerly c/o downey Counihan & Co, Solici- Downes & Co, Solicitors LLP, Dublin to vest in him the fee sim- Oriel House Nursing Home, tors, Office 3, Clon Court, Main Dominick Street, Mullingar, Co ple and any intermediate interests Armagh Road, Rooskey Vale, Street, Clonee, Dublin 15; tel: 01 Westmeath; tel: 044 934 8646, in the said property, and any party Monaghan (approx 20 years), for- 825 5863, fax: 01 801 3249, email: email: [email protected] asserting that they hold a superior merly St Davnet’s, same address, [email protected] interest in the aforesaid property who died on 18 December 2015. TITLE DEEDS is called upon to furnish evidence Would any person having knowl- O’Callaghan, Patricia (de- Harbour Street, Tullamore, Co of title to same to the below- edge of the whereabouts of any ceased), late of 89 Landscape Offaly – registered owner: Ann named within 21 days from the will executed by the above-named Park, Churchtown, Dublin 14, McKeon (deceased). date of this notice. deceased please contact John who died on 26 November 2020. Would any person having knowl- In default of any such notice O’Keeffe & Co, Solicitors, 2nd Would any person having knowledge of the whereabouts of title being received, Frank O’Riordan Floor, City Gate Building 1000, edge of any will made by the documents relating to the above- intends to proceed with the appli- Mahon, Cork; tel: 021 2409 240, above-named deceased, or any mentioned property or if any cation before the Dublin county email: [email protected] knowledge of the above-named firm is holding same, please con- registrar at the end of 21 days deceased, or if any firm is hold- tact Belgard Solicitors, Block B, from the date of this notice and Nagle, Bridget (o/w Brigid) ing any will or documents, please Cookstown Court, Old Belgard will apply to the Dublin county (o/w Bríd) (deceased), late of contact McKenna and Co, Solici- Road, Tallaght, Dublin 24; DX registrar for such directions as Rockboro Heights, Waterpark, tors, Fitzwilliam House, 4 Upper 104019 Tallaght; tel 464 9120, may be appropriate on the basis Carrigaline, Co Cork, formerly Pembroke Street, Dublin 2; DX email: [email protected] that the person or persons ben- of Knockrobin, Compass Hill, 109065 Fitzwilliam; tel: 01 485 eficially entitled to the superior Kinsale, Co Cork, who died on 4563, email: lisa@mckennaand In the matter of the Landlord interests including the freehold 8 November 2020. Would any cosolicitors.com and Tenant Acts 1967-2019, and reversion in the aforesaid prop- person having knowledge of the in the matter of the Landlord erty are unknown or unascer- whereabouts of a will made or O’Shaughnessy Michael (de- and Tenant (Ground Rents) (No tained. purported to have been made by ceased), late of 10 Cluain Muil- 2) Act 1978, and in the mat- Date: 5 February 2021 the above-named deceased, or if leann, Tyone, Nenagh, Co Tip- ter of an application by Frank Signed: Gleeson McGrath Baldwin any firm is holding same, please perary, and formerly of Tullira, O’Riordan LLP (solicitors for the applicant), 29 contact Niamh O`Connor, JW Ardrahane, Co Galway, who died Any person having a freehold Anglesea Street, Dublin 2 O’Donovan LLP, Solicitors, 53 on 10 October 2020. Would any estate or any intermediate interest South Mall, Cork; tel: 021 730 person having knowledge of the in all that and those 49 Highfield In the matter of the Landlord 0200, email: [email protected] whereabouts of any will made or Road, Rathgar, Dublin 6, held and Tenant (Ground Rents) Acts purported to have been made by under an indenture of lease dated 1967-2019 and in the mat- Nichol, John (deceased), late the above-named deceased, or if 7 March 1871 between John ter of the Landlord and Tenant of Clough, Castlecomer, Co any firm is holding same, please Conroy of the one part and Alfred (Amendment) Act 1980 and in Kilkenny. Would any person hav- contact John M Spencer, solicitor, Howard and William Howard of the matter of an application ing knowledge of any will made Cudville, Nenagh, Co Tipper- the other part, whereby all that by Terence Grace of 9 Old by the above-named deceased, ary; DX 20 007 Nenagh; tel: 067 and those “the piece of ground, Golf Links Road, Newpark, who died on 6 December 2020, 31622, email: [email protected] yard and premises with the build- Kilkenny in the county of please contact Cogan Daly Solici- ings thereon on Highfield Road, Kilkenny tors, Brighton House, 50 Teren- Power, Aileen Mary (deceased), Rathgar, bounded on the north Any person(s) having interest ure Road East, Rathgar, Dublin 6; late of Lacopple (otherwise by Highfield as aforesaid, on the in the superior interest and/or tel: 01 490 3394, email: contact@ Loughcopple) House, Fethard, south partly by Mr Bond’s hold- freehold estate of the following cogandalylaw.ie Co Tipperary, and previously ing and partly by the houses property: the hereditaments and Ballyduff House, Kilmeaden, Co and premises belonging to the premises at Newpark Lower in O’Brien, Michael (deceased), Waterford. Would any person said John Conroy called Dod- the parish of St Maul, barony of late of 18 Congress Gardens, having knowledge of the where- der House and let by him to Mr Gowran and county of Kilkenny, Glasthule, Co Dublin, who died abouts of any will made by the Barnett, on the east by house and and now known as 9 Old Golf on 19 August 2020. Would any above-named deceased, who died premises belonging to the said Links Road, Newpark, Kilkenny, gazette.ie Law Society Gazette Jan/Feb 2021 69 PROFESSIONAL NOTICESNOTICES

said premises are called upon to aforesaid premises, and any party furnish evidence of title to the asserting that they hold a superior SOLICITOR’S PRACTICE below-named firm of solicitors interest in the aforesaid premises within four weeks of the date of (or any of them) are called upon FOR SALE – GALWAY this notice. to furnish evidence of the title to In default of such evidence the aforementioned premises to Exceptional Private Client Practice for sale in Galway. being received, the said Terence the below named within 21 days Would suit an ambitious person looking to work for them- Grace intends to proceed with an from the date of this notice. selves with the aid of an experienced retiring practitioner. application before the county reg- In default of any such notice istrar of the county of Kilkenny being received, Rambutan Lim- to purchase the fee simple in ited intends to proceed with the CONTACT: the above premises and for such application before the county David Rowe at Outsource, 01 6788 490 directions as may be appropriate registrar at the end of 21 days [email protected] on the basis the person or persons from the date of this notice and entitled to the superior interest will apply to the county registrar including the freehold interest in for the city and county of Galway the said premises are unknown for directions as may be appropri- and unascertained. ate on the basis that some of the PARTNERSHIP OPPORTUNITY Date: 5 February 2021 persons beneficially entitled to Signed: Kearney Roche & McGuinn the superior interest including the A well established and thriving Dublin City Firm (practising (solicitors for the applicant), 9 The freehold reversion in each of the primarily in Plaintiff Personal Injury Litigation with considera- Parade, Kilkenny aforesaid premises are unknown ble Work in Progress) is seeking a dynamic Solicitor to join the or unascertained. Firm as a Partner with a view to some of the current Partners In the matter of the Landlord Date: 5 February 2021 retiring from the Firm within the next few years. and Tenant (Ground Rents) Acts Signed: McMahon O’Brien Tynan Tremendous Opportunity. 1967-2019, and in the mat- (solicitors for the applicant), Mill ter of the Landlord and Tenant House, Henry Street, Limerick ENQUIRIES IN CONFIDENCE TO: (Ground Rents) (No 2) Act 1978: an application by Rambutan In the matter of the Landlord David Rowe at Outsource, 01 6788 490 Limited, having its registered and Tenant (Ground Rents) Acts [email protected] office at O’Neill Foley, Pat- 1967-2019, and in the mat- rick’s Court, Patrick’s Street, ter of the Landlord and Tenant Kilkenny (Ground Rents) (No 2) Act 1978: in the county of Kilkenny. firm of solicitors within four In the matter of portion of the an application by Rambutan Take notice that the said Ter- weeks of the date of this notice. three-storey retail shop situated Limited, having its registered ence Grace intends to apply to the In default of such evidence of at 10-12 William Street, Galway, office at O’Neill Foley, Pat- Circuit Court for the county of the current holders of the inter- being the premises described in rick’s Court, Patrick’s Street, Kilkenny for a reversionary lease est of the said Henry William a lease dated 28 January 1936 Kilkenny in the aforementioned property McCreery in the abovementioned from Michael Whelan and John In the matter of portion of the pursuant to part III of the Landlord property being received within Whelan to the Blackrock Tailor- three-storey retail shop situated and Tenant (Amendment) Act 1980, a period of four weeks from the ing Company Limited as “all that at 10-12 William Street, Galway, and any party asserting that they publication of this notice, the the premises being portion of the being the premises described hold an interest in the said prop- said Terence Grace intends to premises 10 Williamsgate Street, in a lease dated 3 October 1951 erty are called upon to furnish evi- proceed with the said application Galway, in the county of Galway, from Michael Whelan and John dence of title to the below-named before Kilkenny Circuit Court consisting of a shop, lavatory, and Whelan to the Blackrock Tailor- firm of solicitors. In particular, for a reversionary lease and for yard on the ground floor, together ing Company Limited as “all that such person or persons who are such directions and/or orders as with the three rooms on the first portion of the premises known entitled as successors or assigns to may be appropriate on the basis floor of the said premises, and the as 10 Williamsgate Street, Gal- the interest of one Henry William the person or persons entitled to three rooms on the second floor way, situate in the parish of Saint McCreery, pursuant to lease of 16 the superior interest including the of the said premises, and more Nicholas and barony and county April 1915 made between the said freehold interest in the aforesaid particularly described on the of Galway, hereinafter referred to Henry William McCreery of the premises are unknown or unas- map or plan attached hereto and as the said premises, as more par- one part, and John Murphy of the certained. thereon coloured red”. ticularly delineated on the map other part, whereby inter alia, the Take notice thereafter that Take notice that Rambutan endorsed hereon and thereon aforementioned premises were the said Terence Grace intends Limited, having its registered coloured blue”. demised to the said John Murphy, to submit an application to the office at O’Neill Foley, Patrick’s Take notice that Rambutan his executors, administrators, and county registrar for the county Court, Patrick’s Street, Kilkenny, Limited, having its registered assigns for a term of 99 years from of Kilkenny for the acquisition of being a private company limited office at O’Neill Foley, Patrick’s 29 September 1914, subject to a the freehold interest and all inter- by shares, intends to submit an Court, Patrick’s Street, Kilkenny, yearly rent of £7 and to the cove- mediate interests in the aforesaid application to the county registrar being a private company limited nants and conditions therein con- premises, and any party assert- for the city of Galway for acqui- by shares, intends to submit an tained, should provide evidence ing they hold a superior interest sition of the freehold interest application to the county registrar of their title to the below-named and/or freehold interest in the and intermediate interests in the for city and county of Galway for 70 PROFESSIONAL NOTICES Jan/Feb 2021 Law Society Gazette gazette.ie

acquisition of the freehold interest interest in the property are called and intermediate interests in the upon to furnish evidence of such aforesaid premises, and any party title to the property to the under- IS YOUR CLIENT INTERESTED IN SELLING OR BUYING asserting that they hold a superior mentioned solicitors within 21 interest in the aforesaid premises days of this notice. (or any of them) are called upon Take notice that, in default of A 7-DAY LIQUOR LICENCE? to furnish evidence of the title to such notice being received, the email: [email protected] the aforementioned premises to applicant, Daniel McNamara, the below named within 21 days intends to proceed with the appli- web: www.liquorlicencetransfers.ie from the date of this notice. cation before the county registrar In default of any such notice at the end of 21 days from the date Call: 01 2091935 being received, Rambutan Lim- of this notice and will apply to the ited intends to proceed with the county registrar for the county of application before the county Clare for such directions as may said property to the below named of Cork for acquisition of the registrar at the end of 21 days be appropriate on the basis that solicitors within 21 days from the fee simple and any intermediate from the date of this notice and the persons beneficially entitled date of this notice. interest in the aforesaid prem- will apply to the county registrar to the superior interest includ- In default of any such notice ises, and any party asserting that for the city and county of Galway ing the freehold reversion in the being received, Midsal Homes they hold a superior interest in for directions as may be appropri- property are unknown or unas- Ltd intends to proceed with the the aforesaid premises (or any of ate on the basis that some of the certained. application before the county reg- them) are called upon to furnish persons beneficially entitled to Date: 5 February 2021 istrar at the end of 21 days from evidence of the title to the afore- the superior interest including the Signed: Kerin, Hickman & the date of this notice and will mentioned premises to the below freehold reversion in each of the O’Donnell (solicitors for the appli- apply to the county registrar for named within 21 days from the aforesaid premises are unknown cant), 2 Bindon Street, Ennis, Co the city of Dublin for directions as date of this notice. or unascertained. Clare; RJH 0359/EK may be appropriate that the per- In default of any such notice Date: 5 February 2021 son or persons beneficially enti- being received, Kmont Property Signed: McMahon O’Brien Tynan In the matter of the Landlord tled to the intermediate interests, Holdings Limited intends to pro- (solicitors for the applicant), Mill and Tenant Acts 1967-1994 and including the fee simple, in the ceed with the application at the House, Henry Street, Limerick in the matter of the Landlord aforesaid property are unknown end of 21 days from the date of and Tenant (Ground Rents) (No or unascertained. this notice and will apply to the In the matter of the Landlord 2) Act 1978, and in the mat- Date: 5 February 2021 county registrar for the county and Tenant Acts 1967-2019 and ter of an application by Mid- Signed: Mason Hayes & Curran of Cork for directions as may be in the matter of an application sal Homes Limited, and in the (solicitors for the applicant), appropriate on the basis that the by Daniel McNamara of Clon- matter of the property at the South Bank House, Barrow Street, persons beneficially entitled to adrum, Mullagh, in the county rear of 80 Meath Street, Dub- Dublin 4 the superior interest including the of Clare, and in the matter of lin 8 freehold reversion in each of the the property now known as Take notice that any person having In the matter of the Landlord aforesaid premises are unknown ‘Villa Maria’, Spanish Point, in an interest in the freehold estate and Tenant Acts 1967-2005 and or unascertained. the county of Clare or any intermediate interests of in the matter of the Landlord Date: 5 February 2021 Take notice that any person hav- that part of the property now and Tenant (Ground Rents) (No Signed: Callan Tansey (solicitors ing a freehold interest or any known as the rear of 80 Meath 2) Act 1978 and in the matter for the applicant), Crescent House, intermediate interest in all that Street, Dublin 8, held under an of an application by Kmont Boyle, Co Roscommon and those the property known as indenture of lease made 16 July Property Holdings Limited in ‘Villa Maria’, Spanish Point, in 1951 between Albert Siev of the respect of the premises known In the matter of section 50 of the county of Clare (hereinafter one part and Kevin McCann of as 52 Hanover Street, Cork the Land and Conveyancing called ‘the property’), the subject the other part (‘lease’), for a term (formerly 66 Hanover Street, Law Reform Act 2009 and in matter of a lease dated 10 October of 150 years from 29 June 1951 at Cork) the matter of an application by 1853 and made between Burdett the annual rent of £10 and subject Take notice that any person hav- Kouchin Properties Limited, Morony of the one part and Anna to the covenants and conditions ing an interest in 52 Hanover Pottery Road Owners’ Man- Maria Morony of the other part therein contained. Street, Cork, now forming part agement Company Limited by for a term of 900 years from the Take notice that Midsal Homes of Rearden’s Pub, and formerly 66 Guarantee, and Joinery Apart- 29 September 1853, subject to an Limited intend to submit an Hanover St Cork, the subject of ments Limited (‘the appli- annual rent of £2 pounds thereby application to the county registrar an indenture of lease dated 2 Jan- cants’) reserved, and to the covenants by for the county of Dublin at Áras uary 1864 between John Fitton of Any person being the freehold the lessee and conditions therein Uí Dhálaigh, Inns Quay, Dublin the one part and John Hatton of owner, or deriving title from or contained. 7, for the acquisition of the free- the other part (the ‘lease’) for a under the freehold owner, of all Take notice that Daniel McNa- hold interest and all intermediate term of 200 years from 1 Novem- that and those the lands bounded mara intends to submit an appli- interests in the aforesaid prop- ber 1863, subject to a yearly rent by Stillorgan Road (N11) to the cation to the county registrar for erty, and that any party asserting of £9. west, Clonkeen Road to the east, the county of Clare for the acqui- that they hold the fee simple or Take notice that Kmont Prop- and Kill Lane to the north, or sition of the freehold interest in any intermediate interest in the erty Holdings Limited intends the lands fronting onto the east- the property, and that any party aforesaid property are called upon to submit an application to the ern side of Clonkeen Road, both asserting that they hold a superior to furnish evidence of title to the county registrar for the county in the areas of Deansgrange, gazette.ie Law Society Gazette Jan/Feb 2021 71 PROFESSIONAL NOTICESNOTICES

Foxrock and/or Blackrock, Dub- will not erect or permit to be to the semi-detached houses now lin 18, or any part thereof, such erected on any part of the lands already built on the west side of lands constituting the lands hereby conveyed to the west of the Clonkeen Road, opposite to FOR SALE retained by General Estates and the back avenue shown on the the lands hereby conveyed. Sec- WELL ESTABLISHED MIDLANDS-BASED Trust Company Limited at the maps annexed hereto any dwell- ondly that should they develop

LAW FIRM time that such company con- inghouse or premises that shall the lands hereby conveyed they Retiring Principal. Good terms veyed adjoining land to Michael not be of a cubic capacity and will do so in accordance with the and very high turnover. Excellent Joseph Noonan by deed of appearance at least equal to the plan already lodged by [Gen- opportunity for ambitious Solicitors. conveyance dated 2 June 1944 last three dwellinghouses already eral Estates] with the Dublin Central Large Town location. Clean (the 1944 deed), and the lands built to the north of the unde- County Council or in accordance 10-year claims history. retained by the said Michael veloped eastern road frontage with some substituted plan to be Areas of practice: Joseph Noonan at the time that adjoining the public roadway approved of by the county coun- Litigation, Conveyancing, Criminal such person conveyed a por- known as the upper road afore- cil and that they will indemnify Legal Aid, Probate. tion of the said adjoining land said. Secondly, that he will not the vendor against all claims by Principal seeking to retire but happy to Joseph Pius Noonan, William erect or permit to be erected on the county council or any other to remain with the firm to assist with Mark McCarthy, John Gregory the lands hereby conveyed east of proper body, person or corpora- transition, on terms to be discussed. Hogan and James Matthew the said back avenue any dwell- tion in respect of the development Office lease available if required.

Quinlan by deed of conveyance inghouse or premises that shall of the property hereby conveyed Expressions of interest and dated 3 April 1945 (the 1945 not be of a cubic capacity and arising out of each development, further information and discussion, deed), and claiming to be the appearance at least equal to the and the vendor hereby acknowl- in confidence, by email to dominant owner in respect of, semi-detached dwellinghouse edges the right of the purchasers [email protected] or to otherwise have an interest already built on the west side of to production of the documents in the performance of, the fol- the Clonkeen Road. Thirdly, that specified in the schedule hereto 2021, O’Regan J indicated that lowing freehold covenants (‘the should he develop the interior of and to the delivery of copies it is the court’s intention to grant freehold covenants’) entered into the lands hereby conveyed, he will thereof and hereby undertakes for the order sought by the applicants by the purchasers under the 1944 do so in accordance with the plan the safe custody thereof.” at a further sitting of the High deed and the 1945 deed and now already lodged by the vendor with Take notice that the applicants Court (chancery motions (2) list) affecting lands on which Men- the Dublin County Council or in have applied to the High Court at 10.30 am on 22 March 2021, tec House and The Highline in accordance with some substituted (record no 2020/266SP), as own- unless any person claiming to be Dun Laoghaire Industrial Estate, plan approved by the said county ers of the servient lands and ser- the dominant owner in respect of, Pottery Road, Dun Laoghaire, council and that he will indemnify vient owners in respect of the or to otherwise have an interest in Co Dublin, are situate, being the vendor against all claims by freehold covenants, for an order the performance of, the freehold the lands registered in Folios the said county Council in respect discharging in whole the free- covenants appears in court on 57749F and 36221F of the regis- of the development of the prop- hold covenants, on the ground that date and shows just cause as ter of freeholders county Dublin, erty hereby conveyed.” that continued compliance with to why the court should do oth- and which lands were part of the 1945 deed – “Firstly, that the freehold covenants would erwise. lands conveyed under the 1944 they will not erect or permit to constitute unreasonable interfer- Date: 5 February 2021 deed and the 1945 deed and are be erected on the lands hereby ence with the use and enjoyment Signed: AMOSS Solicitors (solici- now owned by the applicants conveyed any house or houses of the servient land; and take tors for the applicants), Warrington (‘the servient land’). that shall not be of a cubic capac- further notice that, at a sitting of House, Mount Street Crescent, 1944 deed – “Firstly, that he ity and appearance at least equal the High Court on 18 January Dublin 2

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PRO BONOBO THE TRUTH IS OUT THERE Not content with sharing their plans to deal with a zombie apoc- alypse (see November Gazette, p73), the US Government has made available nearly 3,000 pages of material that is claimed to be a collection of CIA-related UFO records. Open Culture reports that release of material on what they now call UAPs (‘unidenti- fied aerial phenomena’) followed the filing of numerous Freedom of Information Act requests by The Black Vault. The scanned, poorly photocopied documents are available at www.theblackvault. com. ‘PSYCHO SQUIRREL’ TERRORISES NYC LAWYER At least three people in New York ran up my leg and I thought: the squirrel to run up a tree and have been attacked by a deranged ‘It’s a small rodent, how bad stare at her. LOSES squirrel, The Guardian reports. could this be?’ The next thing I Other neighbours have also The rodent’s reign of terror has knew, the blood started to fly. It been attacked, including a LGOPNR made people afraid to go out was a wrestling match that got woman who was chased down without anti-squirrel weaponry. very bloody, very quickly. It was the street by the same squirrel. One victim said that she was angry, vicious and incredibly City officials have advised hiring targeted by the toothy terror strong.” She eventually man- a licensed trapper, and Godzilla in December. “The squirrel aged to get rid of it, only for has been paged. BIT OF CHEESE WITH THAT? A gang of wine thieves pelted finally abandoned their vehicle hurt, and the bottles missed French police with Burgundy in after crashing into a toll barrier their target. An Australian barrister has vowed a motorway chase, The Guardian 35km north of Lyon. It was the second time that the not to back down after losing a reports. The hotel owner was report- five-star hotel had been broken legal battle to keep ‘offensive’ The gang stole €350,000- edly woken by the fire alarm, into in two days. Just 24 hours number plates on his taste- worth of wine from a luxury jumped in his car, and kept up previously, thieves broke into ful neon-yellow Lamborghini, hotel, but had to hurl their with the gang’s van while calling the property and stole €200,000 reports Legal Cheek. haul at pursuing officers as they for reinforcements. worth of fine wines from the Peter Lavac was ordered to sped down the motorway. They Investigators say nobody was same cellar. remove his ‘LGOPNR’ plates. In his appeal, the 74-year-old argued that most people would not realise JET-SKIING JOCK'S JAUNT TO JAIL the meaning. A second appeal was A man who rode a jet-ski from despite never having driven a jet- Ramsey at 1pm, McLaughlan dismissed after the plates were Scotland to the Isle of Man to see ski before. He had expected the walked 25km to Douglas. Author- deemed offensive by a magistrate. his girlfriend has been jailed for journey to take 40 minutes, pros- ities said McLaughlan’s “deliber- Lavac is taking the setback in breaching COVID rules, The Irish ecutors said. ate and intentional attempt to his stride and apparently has some Times reports. After departing the Isle of circumnavigate” the restrictions replacements in mind, including Dale McLaughlan (28) made Whithorn in the morning and had posed a risk to himself and ‘XLEGO’ – an abbreviation for the four-and-a-half-hour trip, arriving in the northern town of the island’s residents. ‘extra-large ego’. LegalMindLegalMind LegalMind Supporting Mental HealthSupporting Mental HealthLegalMindLegalMind and and Resilience Resilience Supporting Mental Health and Resilience ininSupporting Mental Health the Supporting Mental Healththe Legal Legal Community Community and Resilience Resilience in the Legal Community in inthe the Legal Legal Community Community LegalMindLegalMind is a is a confidential, confidential, independent, independent, low lo-costw-cost mental mental health health LegalMind is a confidential, independent, low-cost mental health supportsupportLegalMindLegalMind for for solicitors is asolicitors is a confidential, confidential, and and their dependants. their dependants. independent, independent, lolow w-cost-cost mental mental health health support for solicitors and their dependants. supportsupport for for solicitors solicitors and and their dependants. their dependants. 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