l aw Society Gazette • Vol 107 No 4 buildinG boom pip pip, old boy top of her Game Homeowners will now be The personal insolvency The Gazette speaks with subject to the construction law aims to help both Myra Garrett, William health-and-safety scheme debtors and creditors Fry’s managing partner Law Society Law GazetteGazette€4.00 may 2013 may 2013

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n a month in which a dangerous and damaging public Future of the Law Society row broke out between the judicial and executive I very much want to point you Ibranches of government – hopefully now on the way to towards the excellent report of resolution in the type of private forum that it should never the Future of the Law Society have left – I am happy to point to an example of speedy Task Force. Sterling work and successful dispute resolution. It is also an illustration was undertaken by the task of how the Society effectively represents the profession, force, which was well steered “The Society’s in a way that we already do constantly – and which we by its chairman, John P Shaw. hope to be able to do even more of in the future, with the A survey was undertaken, concerns at this implementation of the recommendations of the Future of together with a lengthy unprecedented, the Law Society Task Force. and detailed consultation The issue I am referring to was this. In recent weeks, process with solicitors around objectionable colleagues reported to the Society that AIB Bank was the country, as well as bar and unnecessary proposing to require solicitors to sign ‘non-disclosure associations. The task force agreements’ – in addition to those sought from the also liaised with the Law proposal in relation solicitors’ clients – in advance of negotiations under the Society of England and Wales, to solicitors were Personal Insolvency Act relating to the clients’ debts. The the Law Society of Northern Society’s Business Law Committee and the Council, at its Ireland and the Law Society of speedily considered meeting on 5 April, viewed this as unprecedented, legally Scotland. The report has now and addressed unnecessary, and objectionable in principle. been circulated by e-bulletin On foot of this, I sought a meeting with senior figures to all solicitors and I would satisfactorily by of the legal department of AIB, and I was gratified to encourage you to read it. AIB” be granted one very quickly. I was accompanied at the meeting in Bankcentre by the chairman of the Business Unheralded work Law Committee, Paul Keane, and by director general It is a sad fact of our lives that much of the good work carried Ken Murphy. The Society’s arguments, both of law and out by solicitors goes unremarked or unreported. I said last principle, were listened to with open minds and, having month that the Calcutta Run was worthy of support. Given been thoroughly tested, I am pleased to say they prevailed. the huge benefits that accrue to the Peter McVerry Trust and AIB agreed to drop the heavy-handed requirement for to GOAL, it is perhaps surprising that the event has not been non-disclosure agreements to be signed by solicitors the subject of greater media support. You may not know, for in such cases, in return for the Society bringing to the example, that by the time the Calcutta Run has finished this attention of the profession in this Gazette the obligations of year, it is hoped that the total sum contributed over the lifetime confidentiality that solicitors have in such cases anyway. of the event will be close to €3 million. It is, in the view of the Law Society, perfectly reasonable I am also aware that law firms throughout the country for the bank to remind every practitioner of the need to involve themselves in pro bono work and charitable work keep confidential all matters discussed in such discreet that largely go unheralded. Indeed, our biggest and leading negotiations. I want to thank our colleague Paul Keane law firms show the way, and the smaller firms contribute for his and his committee’s hard work in immediately handsomely as well. Again, these initiatives are commendable, addressing the issues. His most helpful article on the topic but they usually go unnoticed and unreported. appears on page 9 of this Gazette, and I commend it to you. It is the duty of all of us to promote our profession and I want to place on record my appreciation for the very ourselves in the right way through our words and our deeds. constructive and professional approach taken by the AIB We should not apologise for being leaders in our local legal department in engaging with the Society to produce a communities, if that is the case. Neither should we apologise speedy and satisfactory resolution to this issue. for a job well done and for insisting on a fair reward for that. G

James McCourt President 2 contents Law Society Gazette www.gazette.ie May 2013

Law Society Gazette Volume 107, number 4 Subscriptions: €60/€90

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

Commercial advertising: Seán Ó hOisín, tel: 086 811 7116, RegularS email: [email protected] 4 News 51 Briefing For professional notice rates (wills, title deeds, 51 Council report: 22 February and employment, miscellaneous), see page 62. 12 Analysis 5 April 2013 Published at Blackhall Place, Dublin 7, 12 News feature: Carol Coulter 52 Practice notes tel: 01 672 4828, fax: 01 672 4877. describes the Child Care Law 55 Regulation: Solicitors Disciplinary Email: [email protected] Reporting Project Tribunal Website: www.gazette.ie 14 News feature: New construction 56 Legislation update: Printing: Turner’s Printing Company Ltd, regulations are set to impose a greater 12 March – 8 April 2013 Longford financial burden on homeowners 57 One to watch: National Vetting Bureau 16 Human rights watch: Making (Children and Vulnerable Persons) Act 2012 Editorial board: Michael Kealey (chairman), fundamental rights more accessible 58 Brief cases Mark McDermott (secretary), Mairéad Cashman, 60 Eurlegal: the EU’s clean fuel strategy Paul Egan, Richard Hammond, Mary Keane, Aisling Kelly, Tracy Lyne, Patrick J McGonagle, 19 Comment for the future; recent developments in Ken Murphy, Andrew Sheridan 19 Letters European law 20 Viewpoint: Changes to the monetary The Law Society of Ireland can accept jurisdiction limits of the Circuit and 62 Professional notices no responsibility for the accuracy of District Courts in civil proceedings contributed articles or statements appearing in this magazine, and any views or opinions 64 Captain’s blawg expressed are not necessarily those of the 41 People and places Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress 45 Obituaries occasioned to any person acting or refraining Rosemary Fallon from acting as a result of the material in Judge Patrick Keenan Johnson this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing 47 Student spotlight decisions on any advertisement or editorial article submitted to this magazine, and to 48 Books refuse publication or to edit any editorial 48 Book reviews: An Introduction to Irish material as seems appropriate to him. Planning Law (2nd edition) and Professional legal advice should always be Intellectual Property Law sought in relation to any specific matter. 49 Reading room 64 FSC independently certified wood and paper products used by the Law Society Gazette come from ecologically managed forests. Visit: www.fsc.org

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The Law Society Gazette is a full participating member of the Press Council of Ireland and M supports the Office of the Press Ombudsman. R e s c ne This scheme, in addition to defending the free- ycl azi e Mag dom of the press, offers readers a quick, fair and free method of dealing with complaints that they may have in relation to articles that appear on our pages. To contact the Office of the Press Ombudsman go to: www.pressom- budsman.ie or www.presscouncil.ie. 9 Law Society Gazette www.gazette.ie May 2013 contents 3

38 26

ame top of her G The Gazette speaks with pip pip, old boy Myra Garrett, William boom The personal insolvency Fry’s managing partner law Society Gazette • Vol 107 No 4 buildinG law aims to help both Homeowners will now be debtors and creditors subject to the construction health-and-safety scheme

€4.00 may 2013 Law Society GazetteLaw cover story 22 A pungent problem

may The Begley case has highlighted some 2013 important issues for solicitors and accountants, specifically in the context of criminal prosecutions that may arise from Revenue investigations – not to mention ent problem a punG ? the potential for self-incrimination in such Law Society of Ireland for practitionerS proceedings. Conor Kennedy and How the Revenue always gets its cut Michael Tuite explain 14 features 26 Doing the deal 34 Credit where its due Myra Garrett is managing partner of The Credit Union and Cooperation with William Fry and is consistently voted one Overseas Regulators Act 2012 sets out of the top ten mergers and acquisitions substantive changes in the regulation of lawyers in the country. Her passion for Ireland’s credit unions. Claire Moran her work puts her among some exalted looks at things differently company, says Lorcan Roche 38 Virtual reality 30 Pipped at the post Futurists were once convinced that, in The Personal Insolvency Act has the aim of the 21st century, all courtrooms would be making things easier for both debtors and modern, wired and efficient. ‘Where are creditors, write Paul Keane and our jetpacks?’ ask Mark Dillon and Mark Homan Philipp Amann 30

HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. Get more at lawsociety.ie Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] Gazette readers can access back issues of the magazine as far back as Jan/Feb 1997, right up PROFESSIONAL notices: send small advert details, with payment, to: Gazette to the current issue at lawsociety.ie. Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. You can also check out: All cheques should be made payable to: Law Society of Ireland. • Current news • Forthcoming events, including the Law Society COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, Annual Conference 2013 in the Europe Hotel tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] and Resort, Killarney, on 10/11 May HAVE YOU MOVED? Members of the profession should send change-of-address details to: • Employment opportunities • The latest CPD courses IT Section, Blackhall Place, Dublin 7, or to: [email protected] … as well as lots of other useful information 4 news Law Society Gazette www.gazette.ie May 2013 Nationwide Compiled by Kevin O’Higgins Kevin O’Higgins Dublin solicitors host a capital gathering has been a dublin Council member Dublin, Belfast and Liverpool The Friday events will events will feature a tour for of the Law Bar Associations will meet in take place in the impressive visiting members (Croke Park Society since Dublin this year. In-keeping surroundings of the Guinness and Glasnevin Cemetery) and 1998 with the 2013 theme of ‘The Storehouse and will include a the DSBA Tag Rugby Festival. Gathering’, the association is CPD seminar (by Carol Eager Bar associations around the hosting a weekend event from of William Fry on the topic of country have been invited to 21-22 June that is designed to insolvency), as well as a tour attend. Contact maura@dsba. appeal to both younger and older and evening event with dinner ie for details, or check www. Cross-border members. and entertainment. Saturday’s dsba.ie. cooperation LOUTH The County Louth Solicitors’ Bar ROG flies flag for FOD! Association is collaborating with cork P ic : D avid O’L eary Law Society Skillnets and the Law Society of Northern Ireland on a cross-border seminar on enforcement of judgments and other matters. This will take place in the Nuremore Hotel, Carrickmacross, on 14 June 2013. Conor MacGuill is organising a forum on District Court practice and procedure on 12 July 2013 at the Ballymascanlon House Hotel. Focusing on recent developments in this area, it will be chaired by Judge Ireland and Munster rugby legend Ronan O’Gara helped launch the new office of FOD Solicitors, which celebrated Flann Brennan. A social evening will its recent move from Grand Parade to 11 Pembroke Street, Cork. The ‘who’s who’ guest list partied like it was follow, to which spouses, partners 2008! O’Gara swapped a rugby ball for a chance to try out his legal skills as he posed for a shot with the team of and ‘significant others’ are welcome FOD Solicitors, seated at their boardroom table. (l to r): John Powell (solicitor), Eva Spitere (legal and marketing to attend. Conor is also putting the administrator), Trina Murphy (office manager), Finghín O’Driscoll (principal), Jonathan Lynam (solicitor), Ronan final touches to a litigation seminar O’Gara (Ireland and Munster fly-half) and Christina Nash (solicitor) dealing with quantum, costs and the Civil Liability Act 2004, which he hopes to organise in advance of the forthcoming sittings of the Forum proves Here’s MUD in your eye! High Court personal injuries list at wexford Dundalk, scheduled to begin on a winner 4 June. According to Helen Doyle, the and conveyancing, including the cork most recent CPD course was MUD Act and the requirement On 17 April, the SLA held a closed attended by about 60 members of to register rights of way. After Kerry gold forum for solicitors to discuss those the local bar. Presentations were lunch in the recently refurbished matters of greatest concern to their made on the local property tax National Heritage Park, the Law kerry practices. The event was organised and on the Solicitors’ Accounts Society’s Keith O’Malley spoke The Law Society’s annual by Pat Mullins and Robert Baker, Regulations. Rory O’Donnell made on management and professional conference takes place in the with contributions from Mary Linehan a presentation on points of practice development. sumptuous surroundings of the and Mary Dorgan. The event was Europe Hotel, Killarney, from attended by over 100 members, 10-11 May. Over 250 colleagues and the discussion proved to be Marble City pays tribute are expected from far and wide. An frank and engaging. The issues of action-packed programme of CPD most concern to members included kilkenny and social activities will take place. undertakings, solicitors’ relationships Tributes were made at Kilkenny the Marble City in 1994 and Patrick Mann and his colleagues in with the banks, representing clients Courthouse last week on the worked initially in the Circuit the Kerry Law Society will be there in bank negotiations, and the future occasion of the retirement of Court office before becoming to welcome Law Society President of the Law Society. Pat and Robert Liam Nolan, combined office the District Court clerk and, James McCourt and colleagues will be arranging a forum soon to manager with the Courts thereafter, the combined office from around the country. deal with undertakings. Service there. Liam arrived in manager. Law Society Gazette www.gazette.ie May 2013 news 5 NPP seeks In News this month... Electronic Official higher levels 6 Arthur Cox Foundation seeks 8 Solicitor numbers exceed 14,000 new publishing projects 9 Society wins at IITD awards Journal is of electronic 7 Chief Justice moves to heal 10 Upward-only rent reviews come payments judiciary and executive rift under scrutiny officially The National Payments definitive Plan (NPP), launched on 24 In the interests of better access April, aims to encourage a Expert advises on Circuit to law, the Council of the EU greater level of electronic has recently adopted a new payments in Ireland. A link Court practice direction regulation that provides that only to the plan in both English A new Circuit Court practice direction the Official Journal published and Irish can be found at: came into effect on 1 January 2013. in electronic format shall be www.centralbank.ie/press- According to Ronan O’Neill (head of authentic and shall produce legal area/press-releases/Pages/ the Circuit Criminals Trials Section effects, writes Mary Gaynor. NationalPaymentsPlan.aspx. at the Office of the DPP), the practice In exceptional and temporary The NPP aims to: direction will transform the way cases cases of unforeseen disruption • Introduce electronic forms are listed in the Circuit Criminal of the electronic publication, the of payment that will be Courts “by introducing efficiencies”. printed edition would have legal universally accepted and “It seeks to avoid unnecessary value. The regulation will enter be the preferred payment delays, identify cases in which a plea into force on 1 July 2013. The of choice for most, could be entered at an earlier stage, Official Journal of the EU has • Give Irish consumers and facilitate the commencement of been published in printed format and businesses access criminal trials on the trial date,” says since 1952 and is available in to the advantages of Ronan. electronic format (pdf) on the the most innovative Ronan has produced an article in EUR-Lex database at http:// payment methods, and this Gazette (see page 52 in Briefing). eur-lex.europa.eu. the knowledge and confidence to fully utilise them, • Ensure that payment Make a date with Courtdate.ie Legal drama systems will be robust A new website that aims to and select the courts where and reliable, identify solicitors available to they wish to appear. Solicitors at Bewley’s • Introduce pricing for take instructions at a particular experiencing difficulty with payments that will foster court has been launched. listing the courts should email the migration from cash Registration and subscription [email protected] and cheques to cards and on www.courtdate.ie is free, but where assistance will be provided. electronic payments. is limited to a maximum of five For practices that wish to courts per practice. exceed the maximum of five The plan acknowledges that By going to the ‘list your free listings on this site, each cash will remain a widely firm’ tab on www.courtdate.ie, additional court can be purchased used method of payment, any solicitor can list their practice for €299 (plus VAT) per annum. which must be provided in an efficient, secure manner, and aims to reduce the Bewley’s Lunchtime Cafe Theatre on usage of cheques, though ISIS gets shot in the arm Grafton Street will present the world these will remain available A series of initiatives to committee will be providing premiere of Under Pressure, written to those consumers who bring additional sentencing information on sentencing in by barrister Rachel Fehily, from 27 wish to use them and information to the judiciary, relation to specific issues and will May to 8 June 2013. consumers will not be lawyers and the public were hold further seminars on issues Under Pressure is a contemporary obliged to discontinue announced recently by the Irish relevant to sentencing. play set in the Law Library. It using them. Sentencing Information System The website, which is free dramatises a senior counsel’s The NPP is now moving (ISIS) Committee. to all, contains statistics on intense consultation with one of into implementation phase The committee will sentencing, case law on issues her clients – a surgeon accused of and welcomes feedback on recommence populating its surrounding sentencing, synopses murdering his wife. Was it an how best to deliver the plan. online database with information of the decisions of the superior accident or did he do it on purpose? Solicitors and their firms on sentencing. This will add courts on sentencing issues, links What is the prosecution offering the can email their views to to the existing information to full judgments, and access to defence? What will the dead wife of nppfeedback@centralbank. in relation to over 1,000 searching a database on actual the accused say? ie. cases on the ISIS website at sentences imposed in various Bookings can be made at: www. www.irishsentencing.ie. The crimes and cases. bewleyscafetheatre.com. 6 news Law Society Gazette www.gazette.ie May 2013 Foundation casts far and wide for new publishing ideas The Arthur Cox Foundation out in 1961, the primary 1961. Recent projects have will celebrate its 52nd birthday object of the foundation was included support for two legal in October 2013, writes Mark “the publication of a much- databases, one of which has yet McDermott, and is seeking to needed book on company to come to fruition. identify suitable new publishing law. The publication of such The foundation also projects that require financial a book, associated with the supports an annual student support. name of Arthur Cox, would prize of €1,500 for best overall Initially the brainchild be a permanent reminder results in Law Society PPCI of a group of friends and of his connection with this Business Law, combined with acquaintances of Mr Arthur Cox branch of the law. He has often PPC2 Corporate Transactions – the founder of the law firm of commented on the scarcity of elective. the same name – the foundation books on many aspects of Irish was initially established in his law and accountancy. Such New direction honour after he had refused to books cannot be published The Arthur Cox Foundation accept a presentation to mark Arthur Cox: worked 12 hours a day without financial assistance.” Board, on behalf of the Law his retirement from practice in on cups of tea and sandwiches and To date, the funds from Society (the trustee of the 1961. an occasional pipe this charitable trust have been foundation), is now seeking to The former senator, president used to assist the writing identify suitable new projects of the Law Society, chairman only interpret the law as it and publication of Irish legal that require financial support – of the Company Law Reform stood, but he could also, as textbooks and the development outside of mainstream projects Committee and director of all good lawyers should, drive of electronic databases of Irish undertaken by commercial several of Ireland’s largest public a coach and four through it legal materials. It provides publishers. It is inviting legal companies, had taken the highly when it suited him. From the funding to authors to carry practitioners to suggest new unusual step of retiring at the infant industries of the ’20s out research and meet other ideas for novel or worthwhile age of 70 in order to pursue a to our own day, he advised costs of the preparation and legal projects that could benefit vocation to the priesthood. and moulded, sat on countless publication of a text – and may from foundation funding. Launching the foundation boards, administered a large require recipients to refund the Consideration may be given on 10 October 1961, Mr DSA staff of up-and-coming young grants out of royalties. Grants to beneficial legal projects Carroll said that the fund solicitors, lectured, attended are in the range of €2,000 to that aim to incorporate new would be used to encourage the to his duties as a senator, €5,000. technology, the development publication of a “series of text and worked 12 hours a day of new legal databases, or new books on company law” as well apparently on cups of tea and First book software (such as apps). as a number of scholarships. sandwiches and an occasional The first book assisted appears All suggestions should be pipe. to have been JSR Cole’s Irish accompanied by a detailed Coach and four “No one will ever know the Cases On Evidence in 1972. project description, to include A fascinating cameo of Mr delicate and forever-secret Other early works given grants content, costings and potential Cox, taken from the ‘Dubliner’s cases in which his almost were JCW Wylie’s Irish Land market. All correspondence Diary’ in the Evening Press on infallible help was sought, for Law (1975) and McMahon should be addressed to Mary 11 October 1961, reads: “Arthur his conception of professional and Binchy’s Irish Law of Torts Gaynor, Secretary, Arthur Cox Cox was the acknowledged etiquette was absolute.” (1981). Foundation Board, Blackhall contemporary expert on According to the original Approximately 40 applica- Place, Dublin 7 or by email to: company law. He could not notice requesting funds, sent tions have been granted since [email protected].

To celebrate the re-launch of www.claruspress.ie when you visit our site and purchase a book from us during the month of May 2013, we will give you a 10% DISCOUNT off the normal retail price. Simply quote coupon code: LSGMAY* *Offer expires 30th May 2013. This offer cannot be used in conjunction with other offers. Terms and conditions apply. Law Society Gazette www.gazette.ie May 2013 news 7 Chief Justice moves to heal rift between judges and executive Chief Justice Susan Denham out”. He urged them “to engage has announced that a new forum constructively, respectfully and for communication between privately in returning their the judiciary and the executive relationship very quickly to an has been formed – and that its even keel”. work has already begun, Mark “We don’t take the cynical McDermott reports. view that it’s all about judges’ Speaking on 17 April 2013, pay,” he continued. “We think the Chief Justice said that the there are substantive issues here Government had accepted her that need to be addressed.” proposal for such a forum, The AJI’s complaint that where matters of mutual the judiciary was not being concern to the judiciary and the consulted had received criticism, executive could be considered. but Murphy contended that The new forum comprises the there was nothing unusual about Chief Justice, Attorney General it. “People who are affected by Máire Whelan, secretary general upcoming changes in legislation of the Department of the are consulted by governments Taoiseach Martin Fraser, and all the time.” the president of the Association Chief Justice: currently ‘issues of Director general: Morning Ireland appeal serious concern to the judiciary’ to both to ‘take it private’ of Judges of Ireland (AJI) Mr Chief Justice’s intervention Justice Peter Kelly. The Chief Justice intervened insolvency judges to be initially recent public expressions of quickly to pour oil on troubled AJI fears recruited solely from the ranks deep tensions between the waters. Taking the opportunity The AJI’s concerns were laid of county registrars”. Government and the judiciary”. of a speaking engagement at out by Mr Justice Kelly, in “It is clear from these public Griffith College, Dublin, on 17 media reports of a speech on No information comments that the mutual April, she said: “While I have 14 April, which said that “all Finally, it expressed its concern respect that should always had constructive discussions structures, both formal and with the dearth of wording for characterise the relationship with the Taoiseach on matters informal, which existed for three constitutional referenda between the Government and relevant to the executive and the communication between these to take place within months, the judiciary is under great judiciary, the normal conduit two branches of government “all [of which] have huge strain,” the Society stated. between the judiciary and [the judiciary and the executive] implications for the judiciary”. “This strain has the potential the executive is the Attorney have ceased”. While the AJI accepted the to cause major damage to the General. That avenue of contact Judges had accepted at need for a Court of Appeal, democratic system in Ireland continues as a positive and all stages that they had to it was “concerned as to the and to the country’s reputation proper route. bear their fair share of salary form of amendment to the abroad. It must be resolved “Issues of importance to the cuts, the organisation said, Constitution which may be without delay.” judiciary have been the subject but as the constitutional proposed”. The Society refused to come of regular meetings I have had guarantee concerning judicial Neither had the judiciary out in support of either side in with the Attorney General,” she remuneration had been been informed about the the dispute, however, but said continued. removed, the AJI had asked proposal concerning specialist that it shared the sincerely held She added, however, that it that an independent body family courts. concerns of the judiciary “about was clear that “new structures” be established to fix such “All of these matters have serious under-resourcing of were needed: “Because of the remuneration so as to ensure implications for judicial the courts system and about concerns of the judiciary, I judicial independence. “This independence,” it said. “An the proposed appointment suggested to the Government request was dismissed out of independent judiciary and the of specialised judges of the that there should be more hand,” the statement read. perception of an independent Circuit Court through an regular engagement to facilitate The AJI also expressed its judiciary is a vital element unprecedented and restricted constructive discussion on these concerns with subsequent in a properly functioning recruitment process. On both and other matters of mutual legislation that had been passed constitutional democracy.” of these issues, the Society has concern and interest to the in relation to pension provisions written to express its concerns judiciary and the executive.” of new judges “without notice Society’s ‘dismay’ to the Minister for Justice, This process of engagement or consultation”, which had Such was its concern with Equality and Defence in recent had now commenced, she “major consequences” for the public nature of the weeks.” said, and a meeting had been judicial recruitment in the disagreement between the Speaking on behalf of the held as recently as Monday 15 future. Government and the judiciary Society on RTÉ’s Morning April. In due course, she said The AJI referred to the that the Law Society issued a Ireland radio programme, that she intended to meet with enactment of the Personal statement on 16 April on the director general Ken Murphy the Taoiseach to discuss any Insolvency Act “without any matter, expressing its “dismay called on both sides to “dial it issues of mutual concern that notice or debate concerning at both the existence and the down, take it private and sort it emerged. 8 news Law Society Gazette www.gazette.ie May 2013 Number on the Roll of Solicitors now exceeds 14,000 The number of solicitors on the the practising year in question, 525 new admissions in 2012. Roll on 31 December 2012 was namely 31 December. As a result, Measured in terms of annual 13,965, meaning that, with new all comparisons are made on the increase in practising certificates, admissions in 2013 taken into same basis. the peak of the economic boom account, the number of solicitors The increase in practising was 2007 when a staggering 460 on the Roll now comfortably certificates in 2011 was 236, practising certificates were added exceeds 14,000. which was 39 higher than in to the number for the previous The number of practising 2012. However, the conversion year. The low point was 2009 certificates taken out by solicitors rate of new admissions into new when following a shockingly rose once again in the calendar practising certificates in 2012 was precipitous fall, the number of year of 2012 by 197, which was an higher – at 37.5% – than it was in practising certificates actually increase of 2.3% on the previous 2011 when the figure was 32.8%. contracted, by six, over the year. All of the figures on this page This is because considerably more number for 2008. relate to the number of practising new admissions to the Roll, a total Numbers have bounced back certificates on the final date of of 718, occurred in 2011 than the reasonably well since then, however, as the table shows, with numbers of practising certificates 2006 – 2012 the result that, on 31 December 2006 2007 2008 2009 2010 2011 2012 2012, there were 8,768 solicitors No of practising certs 7,416 7,876 8,231 8,225 8,335 8,571 8,768 holding practising certificates. It PCs increase/decline 379 460 355 -6 110 236 197 can confidently be expected that Admissions 536 642 777 705 729 718 525 the number of solicitors holding Roll 10,111 10,753 11,288 11,993 12,722 13,440 13,965 practising certificates will pass the 9,000 mark within the next year.

The larger the firm, the faster the growth Former The number of practising Hayes & Curran (126). There are just two firms based certificates is a traditional measure ByrneWallace comes next on outside Dublin among the 20 Chief Justice of the size of a solicitor’s firm. 85 practising certificates, followed largest in the jurisdiction – namely Based on this measurement, the by the very rapidly expanding Cork-based Ronan Daly Jermyn, appointed two biggest firms in the country Maples and Calder which, which grew by six practising were in a dead heat at 228 in 2012, added 13 practising certificates or 13% to rise to 12th chancellor practising certificates each on the certificates to the 58 they had at in size, and Holmes O’Malley last day of the most recent practice the end of 2011 – a surge of no Sexton of Limerick which is 17th of UL year, namely 31 December 2012. less than 22.6%. based on this measurement. Former Chief Justice John The very slight lead of just Murray has been appointed two practising certificates that largest firms as chancellor of the Matheson enjoyed over Arthur University of Limerick and Cox on 31 December 2011 – a Largest firms as at 31/12/2011 Largest firms as at 31/12/2012 chairman of its governing total of 208 practising certificates Firm name No of solicitors Firm name No of solicitors authority. to 206 – was close to exact parity 1. Matheson 208 1. Arthur Cox 228 A Limerick man, Judge a year later. In the year 2012, 2. Arthur Cox 206 1. Matheson 228 Murray was Chief Justice of Matheson grew its practising 3. A&L Goodbody 183 3. A&L Goodbody 212 Ireland from 2004–2011, certificate number by 9.6% while 4. McCann FitzGerald 177 4. McCann FitzGerald 170 having been a member of the Arthur Cox grew by 10.6%. 5. William Fry 154 5. William Fry 156 Supreme Court since 1999. By far the biggest growth 6. Mason, Hayes & Curran 125 6. Mason, Hayes & Curran 126 He also serves as a story in 2012, however, was that 7. ByrneWallace 95 7. ByrneWallace 85 member of the Council of of the third-largest firm, A&L 8. Eversheds 71 8. Maples and Calder 71 State and deputy chairman of Goodbody, which added no less 9. Dillon Eustace 62 9. Eversheds 70 the advisory panel of experts than 29 new practising certificates. 10. Maples and Calder 58 10. Dillon Eustace 63 on the appointment of judges It shot from 183 to 212 – a 11. Beauchamps 56 11. Beauchamps 61 to the European Court of remarkable expansion of 15.8% in 12. LK Shields Solicitors 48 12. Ronan Daly Jermyn 52 Human Rights. one year. 13. Ronan Daly Jermyn 46 13. LK Shields Solicitors 47 Mr Justice Murray said he Matheson, Arthur Cox and 13. Eugene F Collins 46 13. Eugene F Collins 47 was proud of his links with A&L Goodbody are the three 15. Hayes Solicitors 31 15. Hayes Solicitors 31 the university, which extend firms with more than 200 pract- 16. Holmes O’Malley Sexton 26 16. DAC Beachcroft Dublin 28 back to his late father, ising certificates. There are three 17. DAC Beachcroft Dublin 23 17. Holmes O’Malley Sexton 26 Cecil, who was a leading firms with practising certificate 18. Whitney Moore 22 18. Philip Lee 20 member of the committee that numbers between 100 and 200, 19. McDowell Purcell 20 18. Whitney Moore 20 campaigned for a university namely McCann Fitzgerald (170), 20. Lavelle Coleman 19 20. Walkers Ireland 19 for Limerick. William Fry (156) and Mason Law Society Gazette www.gazette.ie May 2013 news 9 Solicitors’ confidentiality duty extends to clients – and others It is at the core of a solicitor’s case, a similar obligation arises, his judgment: “From all of There may be arguments as practice that confidentiality whether by reason of some these cases, the contours of the to whether the solicitor must be maintained in relation to contractual obligation or some equitable doctrine of confidence be actually aware that the information imparted by the moral obligation. It is obvious can be described sufficiently for information is confidential, and client. Such an obligation is from the cases and, indeed, it is the purposes of this appeal, as when that information ceases to implied in the contract between a matter of common sense that follows: be confidential. There is a useful the solicitor and the client, writes the right of confidentiality, which 1) The information must, in fact, discussion in Lavery. Paul Keane (Reddy Charlton). the law recognises in these cases, be confidential or secret: it However, it is clear that we But what of a situation where a would be of little value if the third must, to quote Lord Green must not only keep our clients’ third party has given confidential parties to whom this information ‘have the necessary quality of secrets, but we have to keep other information to a client and which had been communicated were at confidence about it’, people’s secrets as well. is, in turn, passed on by the client liberty to publish it to another 2) It must have been to the solicitor? Does the solicitor party or, in this case, to publish communicated by the have any obligation to that third it to the general public, without possessor of the information in Look it up party, with whom the solicitor has the court being in a position to circumstances which impose no contractual relationship? intervene.” an obligation of confidence or Cases: The liability of a person who The 2007 Supreme Court trust on the person receiving it, • House of Spring Gardens v becomes aware of confidential decision in Mahon v Post 3) It must be wrongfully Point Blank Limited [1984] information, but is not bound Publications also dealt with the communicated by the person IR 611 by any contract or undertaking issue. That was a case where receiving it or by another • Mahon v Post Publications of confidentiality, was dealt with the planning tribunal asked the person who is aware of the [2007] IESC 15 by Keane J in Oblique Financial court to hold that it had power to obligation of confidence.” • Oblique Financial Services Services Limited v The Promise require the documents, which it Limited v The Promise Production Company (1994): circulated prior to public hearing, It follows, accordingly, that a Production Company [1994] “Now it is also obvious … that to be treated as confidential solicitor who receives confidential 1 ILRM 74 the obligation of confidentiality and to make orders restraining information from a client, which is enforced by the courts the Sunday Business Post from knowing that it is confidential, Legislation: is not merely applicable to the publishing those documents. may have a duty not only to the • Lavery, Paul (1996), parties to the contract, but also Fennelly J considered the client, but also to the confider The Action for Breach of in relation to third parties who British and Irish authorities of the information. That duty is Confidence in Ireland (Round may also come into possession and summarised the position enforceable by injunction and an Hall Sweet & Maxwell) of that information. In this as follows at paragraph 74 of action for damages.

Society a winner at IITD Awards 2013

The Law Society’s Professional Training Network has won the Irish Institute of Training and Development (IITD) award for most innovative use of technology and an outstanding achievement award in the ‘Networks and Groups’ category. Celebrating at the awards ceremony were (l to r): Alan Nuzum (CEO Skillnets Ltd), Tracey Donnery (programme manager, Finuas), Michelle Nolan (programme manager, Law Society), Attracta O’Regan (head of Law Society Professional Training), Sinéad Heneghan (CEO IITD), James O’Neill (president IITD), Kevin Hannigan (Law Society Finuas Network Steering Committee), Edward McDermot (Law Society), Simon Murphy (chairman, Education Committee) 10 news Law Society Gazette www.gazette.ie May 2013 Upwards-only rent reviews come under scrutiny

Another blow has been struck in the campaign to curtail the effect of upwards-only rent reviews in commercial leases, writes Joanne Lynch. Since 28 February 2010, section 132 of the Land and Conveyancing Law Reform Act 2009 prohibited upwards-only review clauses in commercial leases or agreements for a lease entered after that date. However, this has been little comfort for the hundreds of tenants who have pre-existing long commercial leases and who have rents set at open market Landmark decision to curtail upwards-only rent reviews? rates from the Celtic Tiger era, without any possibility of a future surrendered the lease and sought · If the meaning is ambiguous, without fine or premium … on reduction, for example, Korky’s, a new tenant on the open market. then a meaning should the basis of a letting with vacant HMV, and others. The landlord argued that the be given that allows the possession thereof to a willing On 25 March 2013, the High rent review clause only allowed agreement operate more lessee for a term equal to that Court delivered its judgment the rent to be increased, but effectively (‘business efficacy’ granted by the within written in Ickendel Ltd v Bewley’s Café conceded that, given market rule), lease”. Grafton Street Limited. This deflation, the last rent should · In interpreting the agreement, The parties had agreed that is a case where the plaintiff be maintained. It argued that a the broader context of there would be a minimum rent, landlord, Ickendell, applied to lower rent than the last agreed the agreement could be which was the initial rent from court to clarify the meaning of rent was not possible. The considered and, in commercial 1987, but the parties could not the rent review clause contained tenant argued that a lower rent agreements, the commercial have agreed a ‘market rent’, in the lease of their premises than the 2007 rent could be background. which no willing lessee would on Grafton Street, because the agreed, provided the rent did offer. tenant, Bewley’s Café Grafton not fall below the threshold Judge’s reasoning Therefore, the lease was Street Ltd, claimed the review rent set in 1987. Each rent fixed The rent review clause provided constructed so that ‘second clause was ambiguous. subsequently could reflect the that the rent payable is the revised rent’ is the greater of open market, whether upwards or ‘second revised rent’, which is either the current open market Background downwards. defined as being equal to the rate at the date of the rent review, The 35-year lease was agreed in The judge noted the main greater of the rent payable during or the initial rent in 1987. 1987 and rent reviews were held principles a court must consider the ‘preceding period’, or such This judgment, of course, every five years. The initial rent when interpreting a commercial revised rent as may, from time turns on the language of the in 1987 was €213,000. At the agreement between two legally to time, be ascertained (‘the lease in question and the fact last review in 2007, the rent was advised parties, including: market rent’), whichever is the that the term ‘preceding’ rather fixed at €1,463,964 at the height · That the wording of the greater. The judge held that then ‘immediately preceding’ was of the property boom. At the agreement be given its the term ‘preceding period’ used. 2012 review, the tenant raised ordinary and natural meaning, was ambiguous, since it did not It is understood that the the issue that, due to market as understood by a reasonable refer to ‘immediately preceding landlord intends to appeal deflation since 2007, it would person having an interest or period’, which would prohibit the this decision. Such an appeal not be possible for the landlord knowledge in the material rent being decreased; nor did it will probably turn on whether to achieve such a rent if they circumstances, refer to the ‘original rent’ fixed there was any real ambiguity, in 1987, and either construction as occurred when Clarke J’s law taken into account could be given to the term. judgment was overturned by The landlord’s interpretation the Supreme Court in Analog · Decision of Barron J in Erin the analysis of Lord Hoffman that the clause allowed ever- Devices BV v Zurich Insurance. A Executors and Trustee Co in ICS v West Bromwich BS increasing rents every five years court’s jurisdiction to construe Ltd v Farmer [1987] IEHC [1998], while deflation had decreased the an ambiguous term only comes 18 (unreported, High Court, · Co-operative Wholesale appropriate return was rejected. into play if there is genuine Barron J, 11 November 1987), Society v National The judge held that that would uncertainty as to the meaning of · Supreme Court decision in Westminster Bank plc [1995] substitute an unreal figure for what the parties have agreed in Analog Devices BV v Zurich EGLR 97 at paragraphs G-H, the rent of these premises in writing. Insurance Company [2005] 1 · Amax International Ltd v place of what the lease provided IR 274, where, from paragraph Custodian Holdings Ltd [1986] expressly for – which is “the full The author wishes to thank Angus 13, Geoghegan J approves EGLR 111. open market yearly rent for the Buttanshaw BL for reviewing this interior building let as a whole article Law Society Gazette www.gazette.ie May 2013 representation 11 news from the law society’s committees and task forces Independence, ethics and the in-house lawyer in-house and public sector committee How independent is the in- (European chief counsel, the part of the company/its house lawyer? The In-house Elavon Financial Services) and employees? and Public Sector Committee, Noreen Mackey (Competition For more details, email Law in partnership with Law Society Authority). This panel discussion will take Society Professional Training at Professional Training, will host Issues to be discussed include: place on Thursday 30 May 2013 [email protected], tel: 01 881 a panel discussion dealing with • Can a lawyer truly be an at Blackhall Place, from 2pm to 5727, web: www.lawsociety.ie/ the unique issues faced by in- effective legal advisor to a 4.30pm. Cost: €25. lspt. house lawyers in managing their company while retaining their relationships with their employer independence? and maintaining professional • Does membership of the independence. board change the dynamic of CAT Users Group Landmark decision to curtail upwards-only rent reviews? The experienced panel of that lawyer’s relationship with speakers will include: Orla the company? probate, administration and trusts committee Muldoon (chief counsel, • How do you deal with Representatives of the Probate, Tom Martyn, published for the Kellogg Europe), Mike Shea unethical behaviour on Administration and Trusts benefit of all practitioners. This Committee of the Law Society, article has also been published together with representatives in the Irish Tax Review (Irish of the Irish Tax Institute and Tax Institute) and can be viewed Cork, Galway seminars seek the Consultative Committee of here: www.lawsociety.ie/probate- Accountancy Bodies – Ireland, resources. (Members should log views on family law matters met with senior Revenue officials in with their member details to family and child law comMittee dealing with capital acquisitions view this page.) tax (CAT) online recently to The CAT Users Group will As it celebrates its 20th the committee aims to stimulate discuss issues of mutual concern. continue to meet to review any anniversary, the Family and debate on these topics and to It was agreed that a Capital issues of concern still outstanding Child Law Committee is ascertain the views of family Acquisitions Tax Users Group and will update the profession reaching out beyond the Pale to lawyers and the profession locally. be set up among those present to from time to time. congregate with colleagues in the These seminars will help to inform act as a liaison group for practical Solicitors with any queries in regions. The committee will hold the committee on submissions issues arising in the processing relation to filing CAT returns seminars in Cork on 16 May and, it might make on the topics of CAT returns using ROS using ROS should initially raise later in the summer, in Galway. discussed, and it looks forward to (Revenue Online System) to keep any concerns with their regional The seminars will consist lively debates on these matters. those matters of concern under office (contact details for regional of short presentations on Seminars are free – and the review. offices are contained in the issues relating to child law, good news is that two CPD Arising from this meeting, clarification article, or can be repossessions, mediation, personal points will be available for those ongoing issues were discussed found on the Revenue website insolvency and proposed reforms attending. Each event will be and certain solutions agreed, at www.revenue.ie/en/contact/ in the courts structure. Speakers followed by a wine reception. which should be of interest to index). If the issue cannot be will be a mix of committee For further details and to enrol solicitors filing CAT returns resolved at regional level, please members and lawyers from local for the first seminar in Cork on online using ROS. The matters at contact the secretary of the PAT bar associations. 16 May, email c.farrell@ issue can be accessed in an article Committee at p.courtney@ In reaching out to the regions, lawsociety.ie. written by Aileen Keogan and lawsociety.ie.

Dublin Metropolitan District, Dolphin House – practice direction: case management in child care proceedings family and child law comMittee It is six months since the of the practice direction, interested in receiving • Dispute resolution introduction of a formal review the Family and Child Law recommendations in respect of: conferences. of this practice direction. At Committee is seeking your views • Case management, present, the practice direction on the workings of the practice • Directions hearings, All views are welcome. Please is only operative in Dolphin direction and suggestions for • Guardian ad litem, forward same to Colleen Farrell, House. It is likely to be any refinements or amendments • Statement of proposed findings secretary of the Family and Child extended. to same. of fact (and acceptance of Law Committee, at c.farrell@ In advance of a formal review The committee is particularly same), and lawsociety.ie before 25 May. G 12 analysis Law Society Gazette www.gazette.ie May 2013

mental-health PROBLEMS a factor in child care cases

The Child Care Law Reporting Project has launched the first tranche of reports on its new website. Project director Carol Coulter outlines the advantages of such reporting

he first reports released and it prevents the recognition of are permitted to report on them by the Child Care Law good work and, in equal measures, while protecting the anonymity of the TReporting Project reveal a the recognition of areas in need of parties. The child welfare courts are prevalence of mental-health problems reform,” the report said. also being opened up in Britain. in neglect and certain abuse cases. The The report also noted a recent project launched its website, www. decision of Mr Justice George Legal framework childlawproject.ie, on 4 April with a Birmingham in the McAnaspie case, In fact, the legal framework for Dr Carol Coulter is first tranche of reports of proceedings where he ruled the court could, if it modifying the rule already existed in director of the Child from the courts, primarily child care saw fit, release documents relating to a the 2007 Child Care (Amendment) Act, Care Law Reporting applications in the District Court. The child who had died (HSE v McAnaspie, which provided for reporting of child Project, www. reports do not identify the children 15 December 2011). In this case, care proceedings, subject to protecting childlawproject.ie or their families, nor do they contain Daniel McAnaspie’s family was seeking the anonymity of the families any details that could lead to their guardian ad litem reports prepared for concerned, and under regulations to identification. the multiple hearings that took place be made by the responsible minister. The demand for the opening up of around his care by the This act mirrored the these courts to more public scrutiny HSE. He went missing Civil Liability and Courts had been growing for some time. from care and was later “The reports Act 2004 and 2005 For example, the Shannon/Gibbons found dead; a criminal will be carried regulations (SI 337 of report on the deaths of children in prosecution is pending. on the project’s 2005) that permitted the State care or known to the social The authors of the setting up of the Courts services, published in June 2012, child deaths report dedicated Service Family Law recommended that the in camera rule also pointed out that website at Reporting Project on a in childcare proceedings be changed judgments in such cases pilot basis in 2006, which to permit reporting. “By allowing a are made public in most regular intervals produced reports on veil of secrecy to cover the work of the European countries and eventually family law proceedings court in these types of issues, public and that, in Australia over two years. confidence in the system is damaged and Canada, the media several hundred No regulations will be available permitting the implementation of the to professionals 2007 act were made and members of until November 2012, when they were signed the public” by Minister for Children Frances Fitzgerald. The regulations name a number of bodies that can attend and report on child care proceedings, including the major academic institutions, the ESRI and the Free Legal Advice Centres (FLAC). The act does not include the media, which will be permitted to attend both child care and private family law cases under new legislation being prepared by Minister for Justice Alan Shatter. The making of the 2012 regulations (From l to r): Noeline Blackwell (director general, FLAC), Judge Rosemary Horgan (President of the District Court) and (SI 467 of 2012) permitted the Dr Carol Coulter (director of the Child Care Law Reporting Project) at the launch of the project’s dedicated website establishment of the Child Care Law Law Society Gazette www.gazette.ie May 2013 analysis 13

“Clearly, therefore, the parents as well as the children are often vulnerable, which underlines the importance of legislative protection of the anonymity Reporting Project, under the is certainly in need of greater sometimes cases involved of the children and the umbrella of FLAC, to attend transparency,” she said. “The all three. Above all, child professionals and report on child care cases issue at the core of public child neglect and abuse are and their involved. The and conduct additional research. care cases is whether the State seen linked to poverty, families” measures The reports will be carried on should remove the child from educational disadvantage for ensuring the project’s dedicated website, their parents’ care. The rights of and social marginalisation. anonymity are outlined in the www.childlawproject.ie, at regular parents and children, whether Clearly, therefore, the parents project protocol, which is also intervals and eventually several under the Constitution or under as well as the children are often published on the website. hundred will be available to international or national legal vulnerable, which underlines The legislation does contain a professionals and members of the provisions, must be respected and the importance of legislative provision for the court to restrict public. taken into consideration.” protection of the anonymity of the publication of reports, but One of the persistent themes to the children and their families. only in “special circumstances”, Central to Irish society emerge from the cases attended Of course, some of the parties and the court must give its reasons The project and website have been was the prevalence of mental- may identify themselves from the as to what those circumstances widely welcomed by practitioners, health problems as a contributing description of the circumstances are. There has been no such the judiciary, and those working factor to the neglect and, in of cases. But such identification ruling in any case attended by the in the child protection and welfare some cases, abuse of children. will only be possible to those project so far. area, including the minister Parental alcohol and drug abuse who are already aware of these A similar provision existed herself. also featured very strongly, and circumstances – the family itself in the 2004 act relating to the Speaking at the launch, reporting of private family President of the District Court law, but the issue arose only Rosemary Horgan said that the reported cases reflect judge’s assessment once, when the parties to the matters raised were central to The cases reported on so far by the centre and ricocheted between his proceedings were work colleagues some of the most important and Child Care Law Reporting Project grandmother’s and his mother’s of the reporter. There was no talked-about aspects of Irish team certainly reflect the wide house, not being fed or cared for in need to invoke the provision, as society, including the supports gamut of issues mentioned by Judge either. the reporter was happy to absent provided for vulnerable families; Horgan. Examples of abuse included herself from these proceedings. the circumstances in which Children of all ages, from very a young girl being forced by her As the project continues, it will child care and supervision order young infants to 18-year-olds drug-addict mother to provide a eventually build up a collection proceedings are brought; how emerging from the care system and urine sample the mother could use of hundreds of reports, a database the rules of evidence are applied; requiring after-care plans, have for urinalysis, and another young of statistics and trends, and how litigants, including vulnerable been represented. Examples of girl forced fully clothed into a cold observations on the operation of litigants, are represented and neglect include three very young shower, locked out of the kitchen, the child-protection system that otherwise supported; how children, all under the age of five, and denied food. The cases reported will, it is hoped, contribute to an child neglect is identified and being left alone in a flat without also include a number where the informed debate on how the law remediated; and how family food, light or heat; and a teenage judge was severely critical of the protects and upholds the rights reunification can be achieved. boy who ran away from a residential care being provided by the HSE. of vulnerable children and their “The area of public child law families. G 14 analysis Law Society Gazette www.gazette.ie May 2013

donning the hard hat

New health and safety legislation is set to impose a greater financial burden on domestic homeowners and employers in 2013, argue Greg Ryan and Shay Fleming

he end of 2012 saw the Work (Construction) (Amendment) own domestic dwellings has been introduction of significant Regulations 2012 are possibly the brought within the scope of the Tamending regulations to most far-reaching of the statutory construction regulations. The new construction health and safety through construction health-and-safety provision on clients and/or project the new Safety, Health and Welfare codes to date – and they come supervisors does not relieve them at Work (Construction) (Amendment) into operation on 1 June 2013. (the ‘client’ or project supervisor) of Regulations 2012 (SI 461 of 2012). The alarming aspect of the latest any duty imposed on them by these Greg Ryan is The new statutory change in the regulations relates to a retrospective regulations. principal of Greg definition of ‘client’ will arguably realigning of the definition of ‘client’ Ryan Solicitors bring homeowners within the highly as “a person for whom a project is Financial, civil and criminal technical and complex web of health carried out” with the definition in considerations and safety legislation, which is article 2(b) of Council Directive A major economic consequence underpinned by the criminal law. 92/57/EEC. That article defines for homeowners considering In addition, the Safety, Health and ‘client’ as “any natural or legal commissioning work to either Welfare at Work (General Application) person for whom a project is carried build a new home for themselves Regulations 2012 (SI 445 of 2012) out”. or to carry out renovations to their revoked earlier rules made under the The previous, more restrictive existing homes is that, where such Factories Act 1955 definition in the work involves any of the particular dealing with air and 2006 construction risks specified in schedule 1 to Shay Fleming is a steam receivers and “Homeowners regulations described the Construction Regulations 2006, practising barrister steam boilers, and carrying out a client as “a person including ‘work at height’, an introduce newer rules for whom a project additional financial cost burden will dealing with pressure construction is carried out, in the be incurred in complying with the systems and associated work involving course or furtherance very onerous design and management pressure equipment of a trade, business or duties as set out in regulations 6 to 10 into the well-known specified risks undertaking, or who of SI 461 of 2006. This includes: statutory workplace on their own undertakes a project · The appointment of project protective and homes may, in directly in the course supervisors (regulation 6), preventive scheme. or furtherance of · The duty to ascertain the suitability A new part 10 and future, be served such trade, business of project supervisor, as well as schedule 12, based with enforcement or undertaking”. designer and contractor appointees, on the adaptation of This definition · Duties of clients regarding the established technical notices for alleged clearly excluded a safety file (regulation 8), practice, are introduced breaches of the person or persons · Duties of clients regarding safety into the Safety, commissioning and health plans (regulation 9), and Health and Welfare statutory code” construction work on · Duties of clients in notifying the at Work (General their own homes. Health and Safety Authority. Application) Regulations 2007 by the The lacuna in the heretofore 2012 regulations. It is clear, however, technical transposition has now been Consequently, homeowners carrying that the amendments to both statutory addressed by amending provisions, out construction work involving regimes will increase the cost of set out in SI 461 of 2012. This latest specified risks on their own homes health and safety to homeowners and realignment of the definition of may, in future, be served with businesses alike. what constitutes a client removes a enforcement notices for alleged previous derogation from section 17 breaches of the statutory code, The ‘client’ definition of the Safety, Health and Welfare at including directions for improvement Homeowners will now be subject to Work Act 2005. plans (see section 65 of the Safety, the construction health-and-safety The explanatory note Health and Welfare at Work Act 2005), scheme by the change in the definition accompanying the new regulations and an improvement notice or of the word ‘client’. says that construction work prohibition notice (see sections 66 The Safety, Health and Welfare at commissioned by persons on their and 67 of the 2005 act). Law Society Gazette www.gazette.ie May 2013 analysis 15 donning the hard hat

Homeowners had better don their helmets when it comes to complying with new health-and-safety burdens

Indeed, homeowners may be and that such appointees are up materials, and the workforce directive 92/57/EEC), must be prosecuted on indictment in carrying appropriate employer were all provided by three understood as being applicable to the Circuit Criminal Court for and public liability insurance. different contractors, present on any construction site on which the more serious contraventions, the site at the same time. Under works involve particular risks, as including personal injury The Nussbaumer case the applicable Italian legislation, listed in annex II to the directive, occasioned during construction A reference for preliminary ruling a building permit was not or for which prior notice must be projects commissioned by under article 234 of the EC Treaty required for the works, although given. them (see sections 77 and 78 was sent by the Italian Tribunale a commencement certificate of the 2005 act). The effect of di Bolzano to indicating that Effect in Ireland any such prosecutions will be the European the works had Undoubtedly, the effect of the to criminalise homeowners Court of Justice “Homeowners commenced had new regulations will impose and potentially expose them in February 2009, will now be been lodged with an extra financial burden on to substantial fines and/or as part of criminal the municipal already hard-pressed and imprisonment/suspended proceedings subject to the authorities. financially stressed homeowners. sentences for breaches of their taken against construction In its ruling, However, the requirement statutory duties as clients Mrs Martha health-and-safety the ECJ referred for competent persons to be when building new homes for Nussbaumer, who to its earlier appointed by homeowners themselves or, indeed, when was the client/ scheme by the ruling on article in their new statutory role as carrying out renovations to their supervisor for change in the 3 of directive client will generate greater existing homes. the replacement 92/57/EEC in employment opportunities for Homeowners will also need of the roof of a definition of the Commission v Italy suitably qualified architects and to have adequate insurance in dwellinghouse. word ‘client’” (case C-504/06), engineers, as well as for those place before work is carried out The ECJ’s ruling dated 25 July 2008. health-and-safety consultants and will need to be aware of was handed down in October In Nussbaumer, the court ruled (who must hold recognised their obligations in ensuring that 2010 (case C-224/09). The facts in that the requirement to draw up qualifications) to have suitable statutory appointees, including this case were that the protective a health-and-safety plan, prior to and relevant experience and contractors, project supervisors, railing placed along the edge of the setting up of a construction carry appropriate professional and safety advisers are competent the roof, the crane used to hoist site (as laid down in article 3(2) of indemnity insurance. G 16 human rights watch Law Society Gazette www.gazette.ie May 2013

making fundamental rights more accessible

The Charter of Fundamental Rights of the EU makes fundamental rights more readily accessible and offers lawyers a new tool in their legal arsenal. Benjamin Koltermann and Killian O’Brien report

ith the entry into force seem to indicate a wider application CJEU held, nonetheless, that Mr of the Lisbon Treaty, the of fundamental rights. Iida’s “situation shows no connection W Charter of Fundamental Recently, by way of example, with European Union law” since Rights of the European Union has the Court of Justice of the EU he cannot claim a right of residence finally become a legally binding pronounced on the scope of based on Directive 2004/38/EC document. The charter purports application of the charter in the (directive on the right of movement to make fundamental rights more case of Iida v Ulm (C-40/11). This of union citizens and their family Benjamin readily accessible and offers lawyers reference for a preliminary ruling members) and has not applied for a Koltermann is a potentially effective new tool to concerned the question of whether right of residence within the meaning public relations defend the rights of their clients. a Japanese national residing legally of Directive 2003/109/EC (Long Term officer at the As the charter is an integral part in the member state of origin of his Residents Directive). Academy of of EU primary law, the rights can daughter and wife can rely on their Hence, the CJEU made clear, European Law be enforced before the CJEU and EU citizenship as the case does not before national courts where EU law grounds for his stay fall within the is concerned. However, the scope in this state, despite “The charter scope of application of application of the charter is still his family moving to of the charter. unclear and somewhat disputed. another member state. potentially Notwithstanding the Mr Iida submitted, constitutes apparent clarity of this Scope of application among other things, an important particular decision and Article 51(1) of the charter provides that his right to full the seemingly strict that its provisions are addressed enjoyment of his additional tool for interpretation of the Killian O’Brien primarily to the institutions, bodies, family rights under legal practitioners scope of the charter’s offices and agencies of the European article 7 of the charter, application pursued is course director in many areas of at the Academy of Union. It also applies to the member which is analogous thus far, the exact European Law states, however, “only when they are with article 8 of the domestic law as reading of article 51(1) implementing union law”. It is not ECHR, were affected. remains unclear, and it always immediately evident whether This would appear long as the case will be up to the CJEU national institutions are acting to be a classic example falls within the to further delineate within the so-called scope of EU law. of the exercise of the limits of the scope Moreover, although the charter states free movement by scope of EU law” of application of the that the fundamental rights must a union citizen (Mr charter. be respected by the member states Iida’s daughter) and would appear “only” when they implement EU law, to fall squarely within the scope of The charter in practice the explanations of the charter would EU law covered by the charter. The Concerning the material scope of the charter, the CJEU has made some tentative initial statements on seminar series the content of individual norms, A training project organised by domestic experts in this area, the as it did in the Irish request for a the Academy of European Law, series will bring the charter closer preliminary ruling in NS v SSHD with support from the European to the practitioner and enhance its and ME v Refugee Applications Commission, aims to shed light on practical applicability. Commissioner, Minister for Justice, how to make use of the charter in The next seminar for lawyers Equality and Law Reform (joined practice. in private practice will take place cases C-411/10 and C-493/10). Using an applied approach in Edinburgh, in cooperation with These joined cases concerned several involving case studies and the Faculty of Advocates. Further third-party nationals who had been workshops, as well as presentations information can be found at www.era. arrested following their illegal entry from established European and int/charter. into Greece and who then made a subsequent application to be granted Law Society Gazette www.gazette.ie May 2013 human rights watch 17

“As the charter is an integral part of EU primary law, international protection in breach of article 4 of the charter considered case falls within Britain and Ireland respectively. (prohibition of torture and opposite article 3 the rights can be the scope of EU The CJEU was asked whether inhuman or degrading treatment of the ECHR. The enforced before law. In several a member state that intends or punishment). The court went court in its decision other cases, the to return an asylum seeker to on to state that member states seems to have the CJEU and provisions of the the member state responsible and, by corollary, national courts equated the scope before national charter on the for examining the asylum may not initiate a Dublin transfer of these articles prohibition of request (Greece) in accordance where they cannot be unaware from the respective courts where EU discrimination with article 3(1) of the Dublin that systemic deficiencies in the treaties with law is concerned” were used to stop Regulation (343/2003) was asylum procedure and in the each other and, discrimination obliged to assess whether that reception conditions of asylum for that reason, based on age and state respects fundamental seekers in that member state it held that the application of sex (see, for example, Hennigs rights. amount to substantial grounds articles 1, 18 and 47 would C-297/10 and Test-Achats The CJEU first made clear for believing that the asylum not result in a different answer C-236/09). As a consequence, that national authorities seeker would face a real risk of than the application of article 4 practitioners would be well exercising the discretionary being subjected to inhuman or of the charter. This illustrates advised to take the provisions of power conferred on the degrading treatment within the the complex but potentially the charter into consideration in member states by article 3(2) meaning of that provision. This useful relationship between the arguing cases with a nexus to EU of the Dublin Regulation must would seem to indicate a positive jurisprudence of the Luxembourg law. The challenge, however, is be considered as acting within duty on member states to ensure and Strasbourg courts. twofold: first, to assess whether the scope of article 51(1) of that the content of article 4 of recourse to the provisions of the the charter. The CJEU further the charter is observed in all Relevance for legal practitioners charter is possible with regard held that the transfer of an other member states. The CJEU These examples show that the to the scope of application asylum seeker to a member state additionally turned its attention charter potentially constitutes laid down in article 51(1) and, where he would face the serious to the comparative scope of an important additional tool for second, what is the extent of the risk of inhuman or degrading protection offered by articles 1, legal practitioners in many areas substantive content of the right treatment would amount to a 18 and 47 of the charter when of domestic law, as long as the protected by the charter? G SpeakerS Paula Fallon: Cross-Border Legal Issues Ann Williams: Cross-Border Taxation Issues Richard Frimston: EU Succession Regulation Gráinne Duggan B.L.: Bequeathing Digital Assets Teresa Pilkington S.C.: Litigation Update Gerry Durkan S.C.: Family Law Update

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Frank Glennon Ltd trading as “Glennon” and “Glennon Insurances” is regulated by the Central Bank of Ireland Law Society Gazette www.gazette.ie May 2013 letters 19 Tilting at windmills not within PIAB job specifications From: Gordon Murphy, Niall Murphy & Co, Solicitors, Ballincollig, Co Cork n Tu esday 26 March, Patricia Byron, CEO Oof the Injuries Board, gave an interview on RTÉ’s flagship news programme, Morning Ireland, to discuss the most recent statistics revealed by her organisation’s annual report. While her comments have been reported largely without challenge by the mainstream media, various aspects of her performance have led to considerable comment online. In my view, it ranks as one of the more bizarre performances by the head of a statutory body for some time. Ms Byron bemoaned the increase in claims of 5% in the represent a clear annoyance one can only deduce, much prefer “emerging claims culture” and preceding 12 months that were and disappointment that more it if these individuals remained scaremongering about insurance processed through her offices at people are availing of the service blissfully unaware of their premium rises does not form part the Injuries Board and opined that she and her organisation are entitlements and suffered their of her remit. Ms Byron’s role it reflected an “emerging claims commissioned to provide by law. injuries in silence in order to keep under the 2003 PIAB Act is to culture”. That is not all, however. Ms the claims statistics low. “carry on and manage and control, Now, firstly, let us remind Byron, when challenged on that Surely the head of the Injuries generally, the administration of ourselves that, for claims to be particular point, indicated her Board was able to adduce data the board”. Tilting at windmills assessed through PIAB, there deep concern that “thoughts were to substantiate her allegations does not appear within her job must be agreement between the being put in people’s heads” to of claims harvesting? Well, not specification. She must, however, parties for assessment or, at the pursue their claims. quite. She, not for the first time, be doing a good job. How else very least, a failure to contest Now let us for a moment referred to “anecdotal evidence”, can one explain the ‘bonus’ of that assessment. Therefore, there ignore the frankly condescending which reminded one of the €31,000 awarded in 2010? appears to be no suggestion that attitude to claimants implicit words of Lionel Hutz [lawyer If one had tuned in late, one any of these claims referred to in such language and focus on in The Simpsons]: “Hearsay and would have been forgiven for by Ms Byron were other than the substance of her complaint. conjecture are kinds of evidence.” thinking that the comments on legitimate claims for damages What she really objects to is that, This, from a well-paid State Morning Ireland were made from a arising out of injury. through the nefarious influence of appointee on the national representative of one of the State’s Secondly, Ms Byron is CEO third parties, individuals are now airwaves, is nothing short of large insurance companies. They of a statutory body mandated more aware of their entitlement pathetic. were not. They were from the to process legitimate personal to bring claims for compensation The most puzzling aspect of independent head of the State’s injury claims made to it. Her for injuries sustained through the all of this is why she is concerned personal injury claims processing comments, therefore, seem to negligence of others. She would, at all. Surely speculating on an body. Truly bizarre! G 20 viewpoint Law Society Gazette www.gazette.ie May 2013

jurisdiction game changer?

Changes to the monetary jurisdiction limits of the Circuit and District Courts in civil proceedings have been proposed in the Courts Bill 2013. Richard Lee discusses the pros and cons

he Courts Bill 2013 proposes The bill proposes a separate The point I am making is that to increase the monetary jurisdiction limit of €60,000 for only a small percentage of personal Tjurisdiction limits of the personal injury actions in the Circuit injury claims will be in the €60,000 Circuit Court and District Court Court. The minister explained: “As a to €75,000 category – in my view, in civil proceedings. The District further measure to deal with concerns not enough to merit a separate Court limit will rise from €6,348.69 relating to possible inflation of awards jurisdiction. to €15,000. The Circuit Court limit and a consequent effect on insurance Richard Lee has will rise from €38,092.14 to €75,000 costs, I am proposing to restrict the High Court workload been practising – except in personal injury actions, jurisdiction of the Circuit Court to The effect of the bill should be to as a solicitor for where the limit will be €60,000. €60,000 in respect of personal injury reduce the workload of the High 22 years, is an In making the announcement, actions.” Court over time. The minister said: accredited mediator, Justice Minister Alan Shatter said that To my mind, this is the “The changes will also result in a a collaborative the proposed changes questionable aspect of proportion of litigation presently law practitioner, “should ultimately lead the bill. Effectively, it being conducted in the High Court in and a fellow of the to a reduction in the “To my mind, is proposing to put a the future being dealt with at Circuit Chartered Institute burden of legal costs this is the specific cap on Circuit Court level. Over time, this should of Arbitrators for individuals and Court judges in terms effect a reduction in the number of companies involved in questionable of what they can award appeals that have to be dealt with by litigation”. aspect of the bill. for personal injury our Supreme Court.” The minister also claims, which is not Only part of the work undertaken commented: “It is Effectively, it is warranted. by the High Court will be affected almost 22 years since proposing to put The existence of by the proposed changes, that is, change was effected insurance should not civil actions with a value between to the monetary a specific cap affect how parties are €38,092.14 and €75,000 and personal jurisdictions of our on Circuit Court treated before the injury actions with a value between courts. This is far too judges in terms courts. To my mind, €38,092.14 and €60,000 – which long. I believe it is in it is not appropriate would be handled by the Circuit the public interest that of what they that a defendant Court. jurisdictional issues can award for represented by an The 2011 annual report of be revisited more insurance company the Courts Service states that, in frequently, and I am personal injury should be treated civil business, a total of 26,378 considering what steps claims, which is differently to any other summonses, petitions and originating might be taken in the defendant. Given that motions issued in the High Court context of this bill to not warranted” High Court awards (including 8,179 personal injury ensure this occurs in are falling, it would cases; 1,539 breach-of-contract the future.” be preferred if the jurisdiction of the and recovery-of-debt cases; 5,282 The Courts Act 1991 doubled the Circuit Court should be €60,000 for summary summonses; and 1,120 jurisdiction of the District Court from all civil actions, with no distinction revenue summonses). IR£2,500 to IR£5,000 and doubled made for personal injury actions. The proposed jurisdiction change the jurisdiction of the Circuit Court The Injuries Board Annual Review should significantly reduce this from IR£15,000 to IR£30,000. The 2012 states that its average award was number. Over time, the changes 1991 act redistributed work within the €21,502. The Injuries Board statistics should result in shorter waiting times courts system – as will the Courts Bill, for 2011 indicated that less than in the High Court. when enacted. This redistribution 9% of its awards exceeded €38,000. of work will lead to a need to review According to the annual report of Circuit Court practice and procedure. When the the Courts Service 2011, the High The Circuit Court will see its civil jurisdiction changes occurred in 1991, Court and Circuit Court together jurisdiction increase to €75,000 – no insurmountable problems arose – made 1,556 personal injury awards. except for personal injury actions, but my memory is that waiting times Approximately 82% were less than where it will also increase, but to got longer. €38,000. an upper limit of €60,000. On the Law Society Gazette www.gazette.ie May 2013 viewpoint 21

other hand, all civil cases with The explanatory memoran- reduced), while in many For example, in a District a value between €6,348.69 and dum to the bill states: “There District Court areas, it was Court case with a value in excess €15,000 will no longer fall into will be some additional civil eight weeks or less. of €10,000, it may be in a client’s its jurisdiction. work for the District Court interest to The explanatory memorandum and the impact of this will be Costs and practice engage counsel. to the bill states: “The changes monitored.” The explanatory “It is likely that Similarly, for a in jurisdiction levels will result It is likely that the workload of memorandum Circuit Court in fewer cases in the High the District Court will increase to the bill states: the workload of case with a value Court, while the additional work significantly, with consequential “However, overall, the District Court in excess of arising from the increase in the effects on waiting times, which the bill should €50,000, it may jurisdiction in the Circuit Court is bad news for certain District result in reduced will increase be beneficial to will be balanced by the reduction Court areas compared with legal costs for all significantly, with engage senior in the caseload at the lower others. For example, the 2011 parties to litigation, consequential counsel. end of the jurisdiction when it annual report of the Courts including the A difficulty transfers to the District Court.” Service indicates that the waiting State.” effects on waiting arises in relation The Courts Service annual time for civil applications The minister, times, which is to District Court report 2011 indicates that, in civil in Dublin District Court in in announcing the costs, in that they business, a total of 42,696 civil 2011 was 30 weeks (though I bill, indicated that bad news for are measured on bills were issued in the Circuit understand this has now been it should reduce certain District a set scale that Court (including 7,881 personal the burden of legal is not reviewed injury cases and 21,741 breach- in camera rule costs for individuals Court areas regularly. The of-contract and recovery-of-debt and companies. compared with reality is that cases). The bill also importantly It is normal for many cases in the proposes changes to the in solicitors to run others” District Court District Court camera rule, which will permit cases in the District can involve a The bill proposes that the the attendance of bona fide Court without counsel, to retain very substantial amount of time jurisdiction limit for civil actions representatives of the press counsel in the Circuit Court, and work, which is not reflected in the District Court will increase in the family courts. This and retain both senior and junior in the scale fee. In my view, the to €15,000. The 2011 annual should serve to create a better counsel in the High Court. It scale should be abolished and a report of the Courts Service understanding of family law may be prudent to review this system put in place similar to that states that, in civil business, and outcomes in divorce and practice, particularly at the of the Circuit Court, particularly 117,498 civil summonses were separation cases and is very upper limits of the proposed given the proposed jurisdiction much to be welcomed. issued in the District Court. jurisdictions. change to €15,000. G 22 cover story Law Society Gazette www.gazette.ie May 2013 A pungent problem The Begley case has highlighted some important issues for solicitors and accountants, specifically in the context of criminal prosecutions that may arise from Revenue investigations – not to mention the potential for self-incrimination in such proceedings. Conor Kennedy and Michael Tuite explain

Conor Kennedy he imposition of a two-year custodial In considering these issues, one must also have is a Dublin-based sentence in the Court of Criminal regard to the various and conflicting statutory reporting barrister specialising Appeal for Mr Paul Begley in February requirements and the associated ramifications for exclusively in 2013 for the fraudulent solicitors and accountants when advising tax law reclassification of “Tax evasion and representing corporate clients. imported garlic (reduced By its nature, tax evasion involves Tfrom the six-year custodial sentence involves the the failure to declare and remit taxes imposed in the Circuit Criminal Court), failure to when required. The subsequent use of together with a significant increase in the the unremitted taxes also constitutes number of custodial sentences imposed declare and the proceeds of criminal conduct and, by the courts for tax evasion, has changed remit taxes when therefore, a money-laundering offence. the manner in which individuals with tax Both the Taxes Consolidation Act 1997 and difficulties now deal with the Revenue required. The the Criminal Justice (Money Laundering and Michael Tuite SC Commissioners. subsequent use Terrorist Financing) Act 2010 are, therefore, practises in the While Mr Begley was successful in of the unremitted relevant in circumstances where an areas of chancery, appealing the severity of the sentence accountant becomes aware of a client’s steps commercial and to the Court of Criminal Appeal, it was taxes also to evade tax – and both potentially expose taxation law highlighted in that appeal that Mr Begley constitutes the an accountant to criminal sanctions. was the architect of his own misfortune by cooperating with Revenue to the extent that proceeds of Revenue obligations he had furnished incriminating evidence criminal conduct Section 1078 of the Taxes Consolidation and documentation and had waived his Act 1997 provides that it is an offence to right to silence during the investigation and, therefore, be knowingly involved in the fraudulent stage. a money- evasion of tax. Furthermore, a person is In this regard, the Begley case has guilty of an offence where that person highlighted a number of issues for solicitors laundering knows or is reckless as to whether a client and accountants, specifically in the context offence” is engaged in tax evasion or facilitates the of criminal prosecutions that may arise from client in the fraudulent evasion of tax. Revenue investigations and the issue of self-incrimination Section 1079 of the Taxes Consolidation Act 1997 applies in such proceedings by virtue of the cooperation given to only to companies. It places an obligation on a certain Revenue. classification of persons, including accountants, who in Law Society Gazette www.gazette.ie May 2013 cover story 23

Fast facts

> Tax evasion is a criminal offence, and there is a growing trend for individuals to seek legal advice > Such advice would invariably caution against the dangers of self-incrimination or providing information>> that could be used against an individual in a criminal A pungent trial > But failure to provide information to Revenue may compound the taxpayer’s difficulties > Legal advisers will have to carefully formulate advice and consider the possibility that Revenue may have sufficient evidence to commence a criminal prosecution 24 cover story Law Society Gazette www.gazette.ie May 2013 the normal course of work become aware offences to the appropriate State agencies, who have received a letter of investigation. that a client company has knowingly, or and a ‘relevant professional advisor’ for Revenue defines an investigation as “an is in the process of, furnishing inaccurate the purposes of availing of the privilege of examination of a customer’s affairs where information to Revenue to communicate ascertaining the legal position of the client Revenue has strong concerns of serious tax the nature of the offence to the company purs uant to section 46(2) of the act. offences having occurred”. in writing and request that the matter be Accountants, as designated persons, are Where an accountant receives information rectified within six months from the date of required to report to the gardaí and Revenue from a client about a tax offence that was that communication. any knowledge or suspicion that prompted by the receipt of an investigation If, at the end of six months, they have that another person letter from Revenue, it is reasonable to the company does not rectify “Where the is engaged in money laundering assume that such information constitutes the tax offence or fails to discovery of or terrorist financing as soon a confidential communication made for report the matter to Revenue, as practicable after acquiring the dominant or overriding purpose of “Audit work, the accountant must cease a tax offence that knowledge or forming that pending or contemplated litigation. In such routine book- to act as auditor, or cease to arises during suspicion. The penalties for circumstances, privilege exemption may advise the company in tax failing to make the statutory apply to that communication. keeping, matters, for a period of either the course report range from a fine or However, where the discovery of a accounts three years from the date of of preparing a term of imprisonment not tax offence arises during the course of preparation and the report to the company exceeding five years, or both. preparing accounts, tax submissions or an or until the accountant is accounts, tax As a relevant professional audit, such a discovery would not constitute tax compliance satisfied that the matter has submissions advisor, an accountant is not information subject to such privilege. In assignments been rectified or reported, obliged to disclose information such circumstances, there is a statutory whichever is the earlier. or a revenue received from, or obtained requirement to disclose the offence to do not give rise Notice of the resignation audit, such a in relation to, a client in the Revenue. Failure to make such a disclosure to privileged must also be furnished to course of ascertaining the legal will place an obligation on an accountant Revenue. Failure to report the discovery would position of the client. The act to issue a section 1079-type letter to the circumstances, offence to the company, resign not constitute does not define ‘legal position’; company, containing details of the offence as the relevant as auditor where the tax default information however, the revised Anti- and directing that the matter be rectified is not corrected, and notify Money-Laundering Guidance for within six months. professional Revenue of that resignation subject to the Accountancy Sector document While the notification of the tax offence adviser is constitute an offence. such privilege. (issued by the Consultative to the company is in contravention of the Committee of Accountancy money-laundering provisions, the protection neither providing Money-laundering obligations In such Bodies in Ireland on 23 afforded under the Tax Acts arguably ensures legal advice, The Criminal Justice circumstances September 2010) states that that no liability or action can be taken nor instructed (Money Laundering and the activities associated with against an accountant for having initially Terrorist Financing) Act 2010 there is a ascertaining “the legal position of notified the company. in respect of consolidates the anti-money- statutory the client are taken to encompass Where the company fails to rectify the litigation” laundering legislation in the involvement of the relevant tax default within the six-month window, a single statute. This act requirement professional adviser in the the accountant must cease to act and notify increases the obligations on a to disclose provision of advice on, defending Revenue of the resignation. At the same wide range of legal persons, or representing the client, in time, the accountant must also prepare and referred to as designated the offence to relation to judicial proceedings”. submit a money-laundering report to the persons, and includes credit Revenue” However, that document gardaí and to Revenue. and financial institutions, notes that audit work, routine The submission of the money-laundering lawyers, accountants, trust and book-keeping, accounts report to the gardaí and Revenue is made, company service providers, and tax advisers. preparation and tax compliance assignments unknown, to the company. This report The act contains requirements to identify do not give rise to privileged circumstances, must be made as soon as practicable after customers, to report suspicious transactions as the relevant professional adviser is neither acquiring the knowledge or forming the to the gardaí and Revenue, and to have providing legal advice, nor instructed in suspicion that money laundering has specific procedures in place to provide, to respect of litigation. occurred and would almost certainly contain the fullest extent possible, for the prevention Most importantly, the ‘tipping off’ sufficient information to enable Revenue of money laundering and terrorist financing. by a designated person is prohibited, as undertake an investigation with a view to Under the act, the deriving or obtaining is the making of any disclosure that is initiating a criminal prosecution. of property through criminal conduct likely to prejudice any ongoing or future constitutes an offence. The subsequent investigation. The British experience use of that property is considered to be The practice in Britain is of interest, as it “proceeds of criminal conduct”. The failure Predicament has sought to deal with similar issues. In or the misreporting of income to Revenue, The receipt of a Revenue audit/investigation February 2012, HM Revenue and Customs and the retention of funds lawfully due to letter invariably prompts a client to inform (HMRC) issued a new code of practice to the exchequer, constitutes tax evasion and, his or her accountant of the commission govern the procedures to deal with suspicion therefore, proceeds derived from criminal of a tax offence. In the event of an audit, of serious fraud. Under the new system, conduct. Revenue undertakes not to prosecute where taxpayers suspected of tax fraud will receive An accountant is defined as a ‘designated the taxpayer makes a qualifying disclosure a letter from HMRC offering an opportunity person’ for the purposes of compliance of the tax offence. However, no such to make a disclosure. Taxpayers will have 60 with and reporting of money-laundering undertaking is given to those individuals days to agree to the contractual disclosure Law Society Gazette www.gazette.ie May 2013 cover story 25 facility (CDF) terms and provide an outline the company, despite its prejudicial effect Legal advisers, therefore, will have to disclosure or deny that any tax fraud has to any ongoing or future money-laundering carefully formulate advice and consider been committed. Agreement to the CDF investigation. Therefore, clarification the possibility that Revenue may have terms will involve a full disclosure within a either by legislative or practice statement is sufficient evidence to commence a criminal set period of time and the completion of a required to address this anomaly. prosecution. In this regard, it is submitted number of certificates. In addition, and mindful of the fate that the procedures adopted in Britain To secure penalty mitigation and immunity suffered by Mr Begley, there appears to should be considered as one means of from prosecution, a taxpayer must provide full be little incentive for a taxpayer to make meeting some of these problems. cooperation. However, HMRC retains the full disclosure of a tax default where that option to conduct a criminal investigation in individual’s affairs, or that of his or her cases where cooperation breaks down, or into company, are under investigation. Look it up matters not included in the outline disclosure. Because tax evasion is a criminal offence If a taxpayer decides not to cooperate or punishable by imprisonment, there is a Legislation: denies involvement in any tax fraud, HMRC growing trend for individuals to seek legal • Taxes Consolidation Act 1997 may commence a criminal investigation into advice. Such advice would invariably caution • Criminal Justice (Money Laundering and any suspected tax fraud. against the dangers of self-incrimination or Terrorist Financing) Act 2010 providing information that could be used Anomaly against an individual in a criminal trial. Literature: While tax evasion constitutes an offence However, the failure to provide information • Anti-Money-Laundering Guidance for under the Tax Acts and the Money Laundering and assistance to Revenue may compound the Accountancy Sector (Consultative Acts, there is an anomaly between the the taxpayer’s difficulties in light of the Committee of Accountancy Bodies in statutes. On the discovery of a tax offence, incriminating information furnished by the Ireland, 23 September 2010) the Tax Acts require an accountant to notify accountant in the money-laundering report.

british decision on professional privilege I want my lawyer! There is a clear need for legal advice when engaging with regulators, but clients need to understand their advisors’ potential disclosure obligations to the relevant regulatory authorities, write Liam Kennedy and Davinia Brennan

Last month, we reported on the British Supreme Court of their work to Revenue and the gardaí. Breach of such a decision in R (on the application of Prudential plc and reporting obligation is punishable by a fine and/or up to five another) v Special Commissioner of Income Tax and Another, years’ jail. which confirmed that privilege will not extend to legal advice While solicitors have no obligation to disclose information given by non-lawyers, such as accountants. The recent that is subject to legal professional privilege under the 2010 Begley case highlights the importance of instructing lawyers act (section 46(1)) or information obtained from a client in for legal advice in respect of tax issues, particularly in regard the course of ascertaining the legal position of the client Liam Kennedy is to Revenue investigations, and also when dealing with other (section 46(2)), an accountant, as a ‘relevant professional a partner in A&L regulators to ensure a client’s position is not prejudiced. advisor’, will generally not be able to rely on the privilege Goodbody and is a Clients should be aware of the implications of section exemption (unless, for example, they were preparing a Law Society Council 1079 of the Taxes Consolidation Act 1997. In simple forensic report on lawyers’ instructions for use in litigation), member terms, accountants (or other advisors) who assist or advise but may be able to rely on section 46(2). in preparing tax returns, and so on, may be obliged to It is important that professionals bear such reporting inform Revenue if they discover that a corporate client has obligations in mind when advising corporate clients, and knowingly furnished false information to Revenue (unless ensure that their clients understand their advisors’ potential the company rectifies the matter within six months or reports disclosure obligations to the relevant regulatory authorities. the matter to Revenue). Careful analysis would be required Lawyers are well placed to guide the client in respect of such before determining whether an advisor was obliged to make issues, because of the complexity of the legal issues involved a report in a particular situation, especially if the advisor and because such lawyer/client communications in respect of was a lawyer, in which case it would also be necessary to the client’s legal obligations will be protected by privilege. Davinia Brennan consider whether the information was privileged. If a report In many cases, it may make sense for the client to adopt is a professional was required, then a breach of the obligation is punishable a proactive strategy of communicating directly with the support lawyer in by a fine and/or up to two years’ jail. authorities to resolve the issue, rather than ‘playing catch A&L Goodbody In addition, an accountant (like a lawyer), is a ‘designated up’ following an advisor’s report. In any communications person’ under the Criminal Justice (Money Laundering and with regulators, the lawyer should ensure that the client Terrorist Financing) Act 2010 and is required to report and understands the need to be truthful in any communications, disclose any suspected tax evasion discovered in the course but also appreciates the risk of self-incrimination. G 26 profile Law Society Gazette www.gazette.ie May 2013 Doing the

dealMyra Garrett is managing partner of William Fry and is consistently voted one of the top ten mergers and acquisitions lawyers in the country. Her passion for her work puts her among some exalted company, says Lorcan Roche

n 30 years, I can recall only a dozen or so times say I wasn’t expecting a moment of transcendence when when it was palpable and real: Springsteen on the dispatched to interview Myra Garrett, managing partner of almost addictive catharsis of live performance; William Fry. Fay Weldon on learning to trust her instincts I mean, come on. Mergers and bloody acquisitions? as a novelist and the attendant satisfaction of feeling the work Hooked on doing deals Igrow stronger; Salman Rushdie on the “I thoroughly enjoy She is small, bird-like. Shy in front of the Lorcan Roche is an inspiration, as well as sheer relief, of the cut and thrust camera. She agrees to be photographed award-winning having survived (fatwa, divorce, self- in the boardroom, but prefers a more writer and doubt); sean-nós singer Iarla Ó Lionáird of the deal. I enjoy intimate space for the interview. A farmer’s journalist on the joy that suffuses his body, and it when you are daughter, no airs or graces. Self-effacing, perhaps soul, when he closes his eyes personable. Voice gentle. Accent neutral, and is transported; Stephen Fry on the putting it together, some traces of Mount Merrion where she reliable pleasures of Shakespeare; Prof when you are trying was brought up. Some Mount Anville and Jonathan Miller on the (eventual) rewards UCD, where she was educated. of devotion to a life of the mind; Hurt to establish what Photos out of the way, she is more on Beckett; Pinter on precision; Nuala your priorities are, relaxed. She laughs easily, and often. O’Loan on her love of God, justice, and Put it to her that she is, demonstrably, ‘balm’ that came from ordinary decent what you might hold very good at what she does, she smiles, people up North. back, what you are arches an eyebrow: “Am I”? Moments where the interviewee’s Well. She is consistently voted one passion comes alive, when eyes shine. prepared to give. I of the top ten mergers and acquisitions Where the interviewer understands – “Ah, enjoy that process. lawyers in the country. She has twice been this is one of those lucky few who’ve Immensely” nominated for the ‘European Women in located something they truly love in their Business Law Awards’. She has accolades work.” from various... Not to generalise or be dismissive, but one doesn’t She interrupts, gently: “I think at the end of the day, to always expect the ‘love-factor’ to reveal itself when do well in your job, you have to have some basic affinity interviewing a lawyer. (It does happen, however – I have for the task in hand. You should be prepared to work hard, more than once been surprised by the intensity with which obviously. And, ideally you should enjoy it, or at least some practitioners engage with their craft.) But let’s just enjoy certain aspects of it.” Law Society Gazette www.gazette.ie May 2013 profile 27 P ic : feargal w

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So she enjoys mergers and acquisitions? planning – and I also really enjoy getting to Fast facts “Oh yeah. The thing about mergers and know a client’s business, getting to know the acquisitions is, it’s basically negotiating, client, the personal interaction. And then the > Educated at Mount Anville and UCD, it is doing deals. And that involves sitting negotiations...” Myra Garrett is managing partner at down with the client, understanding their Her eyes shine, and it is evident: Myra William Fry business, what they are trying to achieve, Garrett is hooked. On doing deals. > She says that, to do well in your job, you what their tactics are – coming up with She becomes animated: “I thoroughly have to have some basic affinity for the task in hand >> strategies. Being aware that the game plan enjoy the cut-and-thrust of the deal. I enjoy can change as you get into it. That your it when you are putting it together, when you > What does she look for in a candidate? planning and preparation is vital. I’m lucky, are trying to establish what your priorities Someone who is independent minded, in that I really enjoy that part of it – the are, what you might hold back, what you not afraid to speak out Summer BB TEAM BUILDING EVENTS @ BLACKHALL PLACEQ Summer BBQ Classic Package for only €22.50pp Package pricing includes: Catering - Arrival Summer Punch • 3 Choice Menu option • Selection of chefs summer salads • Dessert of the season Exclusive Venue Hire - Outdoor space at The Law Society • The Blue Room or The Presidents Area (numbers dependent) • Minimum Number - 60 people. Full inclusive Event & Catering Package for only €62pp Experience the exhilaration of beating your colleagues at the Celtic Challenge, or the Eliminator Challenge in the historic grounds of The Law Society of Ireland. Package pricing includes: Catering - 2 Choice Menu option • Selection of chefs summer salads • Dessert of the season Fun & Games - Choice of two team building events - The Celtic Challenge or The Eliminator • Full event management on the day • Scoring of each teams Exclusive Venue Hire - Outdoor space at The Law Society • The Blue Room or The Presidents Area (numbers dependent) • Minimum Number - 60 people.

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Talk to Hacketts about: Contact: Joe Hackett Managing Director • Data Capture and Data Collection 17 Lower Baggot Street • Computer Forensics Dublin 2 • eDiscovery t: 01 676 0301 • Email Investigation and Search www.jdh.ie • Scanning and Coding • Reprographics Law Society Gazette www.gazette.ie May 2013 profile 29 What does she look for in a candidate? “I year, but that can happen. M&A can tend to go look for someone who is independent minded. in cycles. When you’ve had a busy cycle, like Not afraid to speak out. Has their own views we did at the end of 2012, it can take a bit of on things.” time to regain momentum.” Given that the majority of lawyers generally We discuss gender balance. “At the moment, come from middle-class backgrounds, does at least 60% of our graduate intake would she find there is sometimes a sameness or be female. But by the time they get to their predictability in those views? mid or late 30s, that differential has all but She stops to think: “Traditionally, maybe disappeared. In our firm, at senior level, it is you are right; it would have been middle class, about 30% female – and that, by the way, is but I think that that was the same for most high. But we do lose a lot of our very strong professions and for most careers that required female associates. And not just for family a college degree. I think that is changing, reasons. I have seen a lot of women who just slowly. I realise it is not entirely open yet, but say ‘this is not for me’.” there is much broader access to college now, The long hours, she says, can be gruelling, and we are seeing quite a range of people. energy sapping. She explains that clients in are prepared to give. I enjoy that process. And we are open to that because it is – and the US west coast are just starting to get going Immensely.” I realise it can be something a cliché – but it when it is ‘supposed’ to be close-of-day here. She explains her modus operandi: “When really is important to have diversity, to engage She does her best – gym sessions, walking to I am working out a deal with a client, I will with different viewpoints.” and from work, keeping life uncluttered (for always ask, ‘Okay, what is really important She continues describing her ideal example, no holiday home). to you?’ And then I will look at the business candidate (and, without being all Freudian, But, really, the deal is what keeps her going: and establish what is really important from she could possibly be describing herself): “For some people, it is not enough. For me, a business point of view. And with those “Someone who has a bit of spunk, who it is.” G fundamentals clearly established and agreed is interesting, and interested, and who is upon, I will work out the negotiating goals, personable. I think interpersonal skills in slice of life the things we really must have, the things our business are essential. So, someone who we really want to hold on to. But at the same is able to engage with people. Who likes Your father is a dairy farmer, your mother time, I am always aware, and I make the people. And also someone who is practical. a lecturer in UCD. There were no family client aware, that in any deal you never get Yes, of course, you want someone who is connections, so why law? everything you want.” academically bright, but they need to be “I really don’t know. I suppose I went up the Sort of like marriage? She practical. And business hill to Mount Anville and came back down laughs (but says nothing: she “At the moment, at minded.” to UCD. I wasn’t completely sure what I is, after all, a lawyer). wanted to do. Law was considered a good, Is the ability to plan and to least 60% of our Down to business general kind of degree. You could move into put together a deal a natural graduate intake would We discuss how events business, you could do accountancy. So I talent? Is it something you such as the banking crisis in did law.” can be taught? be female. But by the Cyprus (announced the day “I don’t know,” she says. time they get to their of the interview) impact on Your younger sister Kathleen is a senior “Not everyone has it. Not M&A: “There is still a lot of partner at Arthur Cox. Who’s smarter, you or everyone can do it. And not mid or late 30s, that nervousness in the markets. her? everyone enjoys it. But I do.” differential has all All it takes is something like “She is.” Clearly. that, which is quite extreme, but disappeared” for international buyers in Home life? The ideal candidate particular to be given pause She lives in Rathmines. She is married to an She says she thoroughly enjoyed law and for reflection. But obviously, as we know, accountant. She has two daughters, 18 and UCD, but not for a moment did she imagine any jolt to the European system will create 16, and a 12-year-old son. “Yes, they are that she’d wind up a senior partner in an nervousness.” always on the go, which, as a result, means international firm. Moreover, she hadn’t a Ireland, she emphasises, is still seen as you are always on the go.” clue what M&A really entailed: “I was open- “good value”. Obviously, people are moving minded as to what practice area I would go away from bonds. “The area where we are How do you combine work and family? into. Obviously, even all those years ago, you seeing a big increase in interest at the moment “I was asked back to my old school to give had to specialise. You went into commercial is loan-book portfolios and commercial a talk on that very topic for a past pupils’ property, or corporate, or litigation. I did property, especially where you have good networking event. And my husband had been my rotations in all of the main departments. grade commercial property with good tenants. up at the school and had seen my name on a By pure chance, I finished my rotations in The recent sale of the State Street building poster – I had forgotten to tell him, which in corporate, and I stayed in corporate.” in the south Dublin docklands is a good itself is kind of revealing – and he said, ‘Oh, There was an affinity; she felt she just example. It was structured by way of debt I see you are giving a talk at your old school’. ‘clicked’ there. sale.” And the girls asked what it was about, and I Is she directly involved in hiring? “I would M&A last year, she says, was “very good”, said it was about work/life balance, and they be aware of most hires that are going on, but while 2009 was obviously “devastating” as the literally rolled around the place laughing at I would not be actively involved in them all. M&A tap turned off. But there has been a the idea that I, of all people, had conquered But certainly at more senior levels, I would consistent increase in activity, in particular in that one!” have a role.” 2011 and 2012. “It has been a bit slower this 30 personal insolvency Law Society Gazette www.gazette.ie May 2013 Pipped at the post

Paul Keane is The economic crisis has produced an enormous level of insolvency and resultant misery. managing partner However, the Personal Insolvency Act has the aim of making things easier for both debtors at Reddy Charlton McKnight, an and creditors, write Paul Keane and Mark Homan associate of the Institute of Taxation in Ireland, and nnual income 20 pounds, annual and personal insolvency arrangement (PIA). a member of the expenditure 19 pounds 19 and 6, The DRN is designed for no income, no asset Society of Trust and result happiness. Annual income consumer debt cases where the levels of qualifying debts Estate Practitioners 20 pounds, annual expenditure do not exceed €20,000. The authorised intermediaries 20 pounds ought and 6, result responsible for supporting applications will be MABS or misery.” These were the words similar organisations. of Mr Micawber, a character with considerable personal “Aexperience of insolvency, in Charles Dickens’ David Insolvency Service of Ireland Copperfield. The Insolvency Service of Ireland (ISI), established The Personal Insolvency Act 2012 has the objectives of: with effect from 1 March 2013, will administer the • Ameliorating the difficulties experienced by debtors in provisions of the Personal Insolvency Act and oversee the discharging their indebtedness due to insolvency, implementation of the legislative regime. The ISI will be Mark Homan is a • Enabling creditors to recover debts due to them in an responsible for overseeing the three new debt settlement partner in Baily, orderly and rational manner, and arrangements contained in the act. It will serve as a checks Homan, Smyth, • Enabling insolvent debtors to resolve their indebtedness and balances mechanism to ensure compliance with the McVeigh and a without recourse to bankruptcy and thereby facilitating act, and it shall have the structures, functions and powers member of the Law their active participation in economic activity. consistent with an effective independent body. Society’s Business The principal functions of the ISI are set out at section Law Committee The Minister for Justice has estimated that, in the first 9(1) of the act. They are to: year of its operation, the new legislation will result in • Monitor the operation of the arrangements relating to nearly 20,000 applications for the debt relief mechanisms personal insolvency, and 3,000 bankruptcies. • Consider applications for DRNs, Three mechanisms have been introduced by the act • Process applications for protective certificates, for the resolution of the debts of insolvent persons: debt • Maintain the registers, relief notice (DRN), debt settlement agreement (DSA) • Provide information to the public, Law Society Gazette www.gazette.ie May 2013 personal insolvency 31

“PIP applicants must provide evidence of professional indemnity insurance, and a compensation fund of not less than €9,000,000 is envisaged for the protection Pipped of debtors and creditors” at the post

Wilkins Micawber: “Welcome poverty! Welcome misery, welcome houselessness, Fast facts welcome hunger, rags, tempest and beggary! Mutual confidence will sustain us to the end!” > three mechanisms have been introduced by the act for the resolution of the debts of insolvent persons: debt relief notices, debt settlement agreements, and personal • Advise the Minister for Justice and Equality • Prepare and issue guidelines as to what insolvency arrangements > the Insolvency Service>> of Ireland will be in relation to its functions, constitutes a reasonable standard of living • Authorise persons to perform the functions and reasonable living expenses, responsible for overseeing the three new of an approved intermediary, • Arrange for the education and training debt settlement arrangements contained in • Authorise individuals to carry on practice as of approved intermediaries and personal the act personal insolvency practitioners, insolvency practitioners (PIPs), and > another key function of the service is • Supervise and regulate persons practising as • Contribute to the development of policy in its role in authorising and supervising personal insolvency practitioners, the area of personal insolvency. personal insolvency practitioners MAKE A DIFFERENCE IN A CHILD’S LIFE Leave a legacy Make-A-Wish® Ireland has a vision – to ensure that every child living with a life threatening medical condition receives their one true wish. You could make a difference by simply thinking of Make-A-Wish when making or amending your will and thus leave a lasting memory.

“Make-A-Wish Ireland is a fantastic organisation and does wonderful work to enrich the lives of children living with a life-threatening medical condition. The impact of a wish is immense – it can empower a child and increase the emotional strength to enable the child to fight their illness. It creates a very special moment for both the child and the family, which is cherished by all.” Dr. Basil Elnazir, Consultant Respiratory Paediatrician & Medical Advisor to Make-A-Wish

“I cannot thank Make-A-Wish enough for coming into our lives. Having to cope with a medical condition every hour of everyday is a grind. But Make-A-Wish was amazing for all of us. To see your children that happy cannot be surpassed and we think of/talk about that time regularly bringing back those feelings of joy happiness and support.” Wish Mother If you would like more information on how to leave a legacy to Make-A-Wish, please contact Susan O’Dwyer on 01 2052012 or visit www.makeawish.ie Law Society Gazette www.gazette.ie May 2013 personal insolvency 33

The ISI will be more directly involved with application for the particular arrangement. what pips do the implementation of DRNs than DSAs Section 161 of the act provides that the ISI or PIAs. In the case of DRNs, the ISI must may regulate the procedures governing the • Act on behalf of a debtor for DSA and PIA, assess the application and, if appropriate, authorisation of persons to carry on practice • Analyse debtor’s financial position, certify to the court that the application is in as a PIP, standards to be observed by a PIP, • Advise in relation to appropriate order. In relation to the DRN process, the ISI qualifications (including levels of training, arrangement, may liaise with creditors and other parties, education and experience) of a PIP, records • Apply for protective certificate, make payments under the DRN, investigate to be maintained, and the information and • Arrange and manage creditors’ meeting, relevant matters, seek to extend the process, returns to be provided to the ISI. The ISI may • Draft DSA or PIA, and bring the DRN process to an end if authorise or refuse applications. However, • Manage the process throughout the necessary. when exercising this discretion, it must provide lifetime of the arrangement. The ISI has recently embarked on an the reasons for such a refusal and inform the information campaign. Pursuant to section PIP applicant of his/her entitlement to make 23(1) of the act, the ISI has published representations in this regard. must provide the debtor with information guidelines as to what constitutes a reasonable The PIP authorisation process is rigorous. on the procedure, general effect and the standard of living and reasonable living Applications must be accompanied by evidence likely costs. The PIP is also responsible for expenses for debtors (see www.isi.gov.ie). The of competency and proof of satisfactory preparing proposals to creditors regarding guidelines will effectively inform knowledge of the act and the the arrangement. an intermediary or PIP, when law generally in relation to PIPs are responsible for assisting debtors compiling an arrangement, as “While having the insolvency of individuals. in compiling a prescribed financial statement to what level of living expenses regard to the In consultation with the ISI, and, in doing so, they must give full and are reasonable for a debtor after the Law Society and some of honest disclosure of all the facts. Based on the payment of a portion of differing needs the accountancy bodies are set this statement, the PIP will advise the debtor debt – that is, after the payment of persons, to run short courses, which as to any alternative options. of debt, what will be left for the the ISI should will culminate in an exam. PIPs will have ongoing supervision by the debtor to live on? Applications must also be ISI to ensure compliance with the act, ISI The publishing of these pay particular accompanied by a report by guidelines and regulations. guidelines is a crucial role for regard to the age a qualified accountant, in the Section 161 of the act provides that the ISI. The act provides that prescribed format, confirming the ISI may regulate the circumstances the ISI must have had regard and health of that the appropriate financial and purposes for which a PIP may charge to certain considerations in family members systems and controls are, or will fees, costs or seek to recover outlays. The doing so, including poverty be, in place for the protection of payment of fees is ultimately a contractual indicators, CSO surveys in and whether debtors’ monies. matter between the PIP and the debtor, relation to household income they have a PIP applicants must provide subject to the agreement of the creditors. and expenditure, the Consumer evidence of professional The PIP should provide the debtor with Price Index, differences in physical, sensory, indemnity insurance, and a details of fees and the likely cost of the household size and composition, mental health compensation fund of not less arrangement. It is envisaged that the differing needs of persons, and than €9,000,000 is envisaged regulations will provide that the fees the need to facilitate social or intellectual for the protection of debtors should be paid throughout the life of the inclusion of debtors and their disability” and creditors. Finally, a arrangement, as opposed to them being paid active participation in economic registration fee, as of yet all up front. While some level of upfront activity. undetermined, will be payable to the ISI. fees will be allowed, the structure will be While having regard to the differing needs The ISI may also prepare and publish designed to avoid all fees being paid up front of persons, the ISI should pay particular regard guidelines in relation to the duties of PIPs, for fear that the incentive for a PIP to push to the age and health of family members and which the PIP must have regard to in carrying through a particularly difficult arrangement whether they have a physical, sensory, mental out his/her duties. might be lessened. Anecdotally, it appears health or intellectual disability. The ISI Once authorisation is granted, it remains in from other jurisdictions that the banks, who must consult widely on this matter, and the force for one year and, unless revoked, may be are ordinarily the largest creditor and who guidelines will be reviewed annually. renewed by the ISI. Upon appointment, the usually hold the veto, have a view in relation PIP must confirm consent in writing to the to what the PIP’s fee should be and will only Personal insolvency practitioners debtor and notify the ISI. Similarly, should agree fees within that band. It remains to be Another key function of the ISI is its role in the PIP resign, he/she must notify the ISI seen what level of fees will be palatable for authorising and supervising PIPs. As stated and provide a statement of reasons for the the creditors. above, we are not concerned in this article resignation. The ISI will have investigatory in the ISI’s role vis-á-vis the authorised powers and may inspect PIPs and investigate The court’s role intermediary’s role in DRNs, as these positions complaints made against them. The final piece of the new personal will be taken up mostly by MABS or similar In becoming a PIP, the practitioner will insolvency structure is, of course, the organisations agree to keep proper books and records and court. Applications for DSAs and PIAs In order to avail of a DSA or PIA, a debtor dedicated DSA and PIA accounts. are brought to the Circuit Court, except must appoint a PIP, which will invariably be an in circumstances where the debtor’s debts accountant or lawyer, although qualification Role of PIPs are over €2.5 million. The Circuit Court for the role is not confined to those two The PIP holds meetings with the debtor and applications will be dealt with by specialist professions. PIPs will be responsible for advises whether or not the eligibility criteria judges, who mostly currently comprise providing advice to a debtor and making the for a proposal have been satisfied. The PIP county registrars. G 34 financial regulation Law Society Gazette www.gazette.ie May 2013 credit where it’s due The Credit Union and Cooperation with Overseas Regulators Act 2012 sets out substantive Claire Moran is a solicitor in the changes in the regulation and compliance, governance and restructuring of Ireland’s commercial and credit unions. Claire Moran looks at things differently credit union law department of Michael Powell t is undeniable that the credit union sector the regulations apply. To this end, the Central Bank has Solicitors, Cork. in Ireland has been subjected to considerable conducted a nationwide exercise of visiting credit unions She wishes to upheaval in recent times. The keenly anticipated to assess the risk categories into which they fall. thank Finbarr work of the Government-appointed Commission These ‘probability, risk and impact system’, known O’Leary, partner, on Credit Unions manifested itself in the final as PRISM inspections, have resulted in the compilation for his assistance report of the commission in April. This report of a centralised database by the Central Bank, which in reviewing this sets out wide-ranging recommendations to change the way provides the yardstick by which credit unions will be article I in which credit unions are regulated and regulated. While, in the past, some governed – both internally and externally. elements within the sector were strongly It was on foot of this report that the “The intention of opposed to tighter regulation, it is clear Credit Union and Cooperation with Overseas the Central Bank that opposition is no longer an option, Regulators Act 2012, a landmark piece with hundreds of thousands of people of legislation setting out substantive to police the new and small businesses dependent on credit changes in the areas of regulation and regulations has been unions for access to cheap credit. compliance, governance and restructuring came into being. When one considers made clear – shortly Sophisticated model also the developments brought about by after the enactment The act has introduced increased the Central Bank’s proposed fitness and regulatory requirements on credit probity regime and the Personal Insolvency of the Credit Union unions and has effectively introduced Act 2012, and it is clear that the challenges Bill in December a sophisticated compliance model. now faced by the credit union sector are This model is designed to ensure that great and plentiful. 2012, a Dublin- each credit union adopts a compliance based credit union programme. Each credit union must also Tiered regulation € implement policies, procedures, systems The act has introduced measures for the was fined 21,000 and plans to monitor compliance on an regulation of credit unions on a basis for a breach of anti- ongoing basis, including requirements proportionate to their asset value. In a money-laundering under all legal and regulatory move broadly welcomed by credit unions, requirements. the act provides for ‘tiered’ regulation regulations” This programme is to be overseen and specifically states that, in making by a compliance officer, who must be regulations under the act, the Central Bank shall have appointed by the board of directors and who must have regard to the need to ensure that the requirements the necessary authority and resources to manage the imposed by the new regulations are effective and compliance programme. The intention of the Central proportionate to the nature, scale and complexity of the Bank to police the new regulations has been made clear credit union, or the category of credit union to which – shortly after the enactment of the Credit Union Bill Law Society Gazette www.gazette.ie May 2013 financial regulation 35

in December 2012, a Dublin-based credit be required in order to ensure that there Fast facts union was fined €21,000 for a breach of anti- is effective oversight of the activities of money-laundering regulations. the credit union. As with the regulation of > The Credit Union and Cooperation with Reporting requirements have also credit unions, the governance arrangements Overseas Regulators Act 2012 has increased. Credit unions will be required to will take into account the nature, scale and introduced measures for the regulation of submit an annual compliance statement to complexity of the business being conducted credit unions on a basis proportionate to the Central Bank certifying their compliance by the credit union. their asset value In line with good governance standards, >> within two months of their financial year-end, > ‘Probability, risk and impact system’, or within such other period as the regulator credit unions will be required to document known as PRISM inspections, have may decide. Credit unions are further in writing their governance arrangements, resulted in the compilation of a required to develop and maintain a risk- setting out the roles, responsibilities and centralised database by the Central management system and controls to allow it accountabilities of each officer. They will be Bank. This provides the yardstick by to identify, assess, measure and report risks required also to have in place the necessary which credit unions will be regulated to which it is or might be exposed. A risk- oversight, policies, procedures, practices, > each credit union must implement management officer is to be appointed in each systems, controls, skills, expertise and policies, procedures, systems and plans credit union to oversee this function. reporting arrangements to ensure compliance to monitor compliance on an ongoing with these requirements. These new basis, including requirements under all Reporting lines requirements will pose quite a challenge for legal and regulatory requirements Clear organisational structures with well- credit unions, where previously an informal > credit unions must develop and maintain defined, transparent and consistent reporting approach may often have been taken to such a risk-management system and controls lines and governance arrangements will matters. Date for your Diary

Law Society annuaL conference 10th/11th May 2013

ConferenConferenCeC reates rates Minister alan shatter will be the keynote speaker at the 2013 full delegate package: €300 law society annual Conference. Access to full conference, Gala Dinner on Friday, 10th May, B&B accommodation for one night sharing with another delegate or registered accompanying person and a light lunch on Saturday, 11th May, all Mícheál Ó Muircheartaigh, in Europe Hotel and Resort. If you will not be sharing the legendary Gaa commentator, and request a single room, a single supplement of has also been been confirmed €75 will be charged.

for the 2013 conference. accompanying Person package: €200 One night’s B&B accomodation (Friday, 10th May) The theme of the conference is ‘firming up for the future: sharing with a delegate, Gala Dinner on Friday, Building legal agility and a Positive Perspective’ and takes 10th May, light lunch on Saturday, 11th May. place in the Europe Hotel and Resort, Killarney. additional night: €200 Minister Shatter will speak on ‘Courts Reform and the B&B accomodation per room Personal Insolvency Act, 2012’, while Mr Ó Muircheartaigh will encourage delegates to move ‘Up the Field and Face the Ball Book online at – Exercising a Positive Perspective’. www.lawsociety.ie/annualconference While the programme for each day is still being finalised, the following speakers have also been confirmed: Simon Murphy, Barry M O’Meara & Son Solicitors Richard Hammond, Hammond Good Solicitors Paul Keane, Reddy Charlton Solicitors Chris Callan, Callan Tansey Solicitors th th Sonia McEntee, McEntee Solicitors 10 /11 May 2013 Catherine Guy, ByrneWallace Solicitors For more information on conference packages, please visit the Events area of the Society’s website. the europe Hotel & ResoRt if you have any queries about your booking, please contact the conference organisers at [email protected]. Killarney May

Law Society Gazette www.gazette.ie May 2013 financial regulation 37 Date for your Diary unions will be expected to conduct extensive will affect credit union members at every due diligence to assess the fitness and probity end of the spectrum, ranging from those of candidates to ensure that they meet the with borrowings of less than €20,000 – new standards – and will continue to meet the who will be able to apply for debt-relief standards on an ongoing basis. certificates allowing for the write-off of their Law Society debt, subject to a three-year supervision Reserve requirements period – to those with secured debt of up The final report of the Commission on Credit to €3 million and unsecured debt up to an Unions established that 51 of the country’s unlimited amount, who may be entitled to annuaL conference 403 credit unions are failing to meet the secure a settlement arrangement with their th th requirement that their reserves exceed 10% creditors. 10 /11 May 2013 of their assets. Of these, 25 are seriously The report of the commission highlighted undercapitalised. that loan arrears across the sector collectively In addition to those 51 credit unions stand at €1 billion and that credit unions that fail to meet the minimum reserve have had to put aside €801 million to requirements, a further 50 are reckoned provide for bad debts. The Credit Union not to be strong enough to survive on their Development Association, headed up by chief own. With this in mind, the act has provided executive officer Kevin Johnson, has voiced A policy is to be drawn up for identifying, for the establishment of the Credit Union its concerns that the impact of the personal managing and resolving conflicts of Restructuring Board (REBO). insolvency legislation could interest, which will apply to all officers of A statutory body, REBO is be such that it will deter a credit union. There will be an increased expected to be in place for “The Credit Union credit unions from lending responsibility for each officer of the credit three years or more with to those who are financially union to ensure that no conflict of interest a view to overseeing and Fund is at the excluded by the banks – and exist between his or her own interests and the assisting in any mergers or disposal of a may potentially lead to the transfer of engagements emergence of widespread interests of the credit union, and also in terms newly appointed ConferenCe rates of declaring his or her own interests to the between credit unions. unregulated moneylending. ConferenCe rates board. REBO will initially Stabilisation The Irish League of Credit Minister alan shatter will be encourage credit unions Unions has also expressed to put forward their own Committee to provide the view that the legislation the keynote speaker at the 2013 full delegate package: €300 Fitness and probity The Central Bank has also launched a proposals as to how to financial support to is weighted against the Access to full conference, Gala Dinner on Friday, law society annual Conference. consultation process with respect to a move forward. There is no sector. 10th May, B&B accommodation for one night sharing credit unions that proposed fitness-and-probity regime. It is denying, however, the steel The full impact of these with another delegate or registered accompanying planned to introduce the scheme from July within the velvet glove here are not meeting their new measures for reform person and a light lunch on Saturday, 11th May, all 2013 for credit unions with assets of greater – should these proposals not in the sector remain to be Mícheál Ó Muircheartaigh, in Europe Hotel and Resort. If you will not be sharing regulatory reserve than €10 million. Smaller credit unions will be accepted as viable, REBO seen. Despite an increased the legendary Gaa commentator, and request a single room, a single supplement of be afforded an additional grace period and itself can then act in pairing requirements, enthusiasm by those €75 will be charged. has also been been confirmed will have to comply two years later. credit unions together in but which are, in spearheading the need for The implementation of these standards a merger, or a ‘transfer of reform within credit union for the 2013 conference. accompanying Person package: €200 for credit unions will ensure that members engagements’ situation. The the opinion of the circles, it is clear, however, One night’s B&B accomodation (Friday, 10th May) have confidence that those individuals funding for this restructuring Central Bank, viable that never before have The theme of the conference is ‘firming up for the future: sharing with a delegate, Gala Dinner on Friday, holding senior and board positions in will be provided, in part, boards of directors and Building legal agility and a Positive Perspective’ and takes 10th May, light lunch on Saturday, 11th May. credit unions can demonstrate that they by the Credit Union Fund, credit unions” managers of credit unions place in the Europe Hotel and Resort, Killarney. are competent, capable, acting honestly, which has been established for faced such a challenge in additional night: €200 ethically and with integrity, and are this purpose and for the purpose of meeting progressing and securing the future of their Minister Shatter will speak on ‘Courts Reform and the B&B accomodation per room financially sound. The introduction of this the costs and expenses of REBO itself. credit unions. The question is, can the bridge Personal Insolvency Act, 2012’, while Mr Ó Muircheartaigh will fitness-and-probity regime complements Credit unions shall contribute to the fund be built between the sector’s volunteer encourage delegates to move ‘Up the Field and Face the Ball Book online at the governance framework brought about by paying a levy, the level of which will vary ethos and the need to bring the sector into – Exercising a Positive Perspective’. www.lawsociety.ie/annualconference by the act. Ultimately, the regime will in accordance with the capacity of the credit line with the professional financial services involve the Central Bank designating certain union to pay and the nature, scale, risk and establishment? G While the programme for each day is still being finalised, job functions as ‘pre-approval controlled complexity of the business of each individual the following speakers have also been confirmed: functions’ (PCF), where those positions are of credit union. The fund is also at the disposal Simon Murphy, Barry M O’Meara & Son Solicitors such a nature that the people occupying them of a newly appointed Stabilisation Committee Look it up Richard Hammond, Hammond Good Solicitors would exercise a significant influence over the to provide financial support to credit unions Paul Keane, Reddy Charlton Solicitors affairs of the credit union. that are not meeting their regulatory reserve Legislation: Chris Callan, Callan Tansey Solicitors th th The Central Bank may then examine the requirements, but that are, in the opinion of · Credit Union and Cooperation with the Central Bank, viable credit unions. Sonia McEntee, McEntee Solicitors 10 /11 May 2013 proposed appointment of any individual to a Overseas Regulators Act 2012 PCF to ensure that they are fit and proper to Catherine Guy, ByrneWallace Solicitors · Credit Union Bill 2012 discharge their responsibilities. In the event Hard-hitting legislation · Personal Insolvency Act 2012 For more information on conference packages, that the Central Bank is not satisfied, then the The Credit Union Commission has predicted please visit the Events area of the Society’s website. the europe proposed appointment could be refused. that the personal insolvency legislation will Literature: Hotel & ResoRt The regime will require increased reporting hit credit unions hard and will add further if you have any queries about your booking, please contact · Report of the Commission on Credit to the Central Bank on the part of the credit to the worsening of the financial position of Unions (30 March 2012) the conference organisers at [email protected]. Killarney union and its cooperation with it. Credit the sector. The provisions of the legislation 38 technology Law Society Gazette www.gazette.ie May 2013 Virtual

Mark Dillon is head of information reality and evidence at Futurists were once convinced that, in the 21st century, all courtrooms would be modern, the International Criminal Court in wired and efficient buildings. Now the once prohibitive costs have fallen dramatically, The Hague and the idea of ‘e-courts’ is no longer unrealistic. ‘Where are our jetpacks?’ ask Mark Dillon and Philipp Amann

n the mid 1990s, when commentators first While the vision and the reality were somehow started to discuss technology in the courts in misaligned, it does not mean we should give up hope. earnest, the impression given was that the demise The costs that were once prohibitive have dropped of paper records was imminent, to be replaced dramatically, and the reality of e-courts nationally, in the Dr Philipp Amann by electronic records. The term ‘e-court’ became medium term, is no longer unrealistic. is the information fashionable, and reformists and futurists were management officer Iconvinced that, by the beginning of the new century, The matrix of the Organisation all courtrooms would be modern, wired and efficient The term e-court is an abbreviation of the term for Security and buildings. In Britain, Richard Susskind, IT adviser to the ‘electronic court’ and, although sometimes defined as a Cooperation current Lord Chief Justice of England, even published a virtual web-based court, the most common usage refers in Europe’s book called The End of Lawyers?, in which he predicted to a physical courtroom with technology that allows Transnational that courts and court users would be transformed by the proceedings to operate without the use of paper records Threats use of technology. – from filings, to the issuing of judgments, and the Coordination Cell When the Bloody Sunday Inquiry opened its public electronic disclosure and presentation of evidence. hearings in Derry in 2000, the future had arrived. This For many, an e-court is understood to be the use of was an e-court in every sense of the word. The use of videoconferencing, but while an e-court may have this technology received a huge amount of press coverage, facility, it is insufficient alone to transform a court to an and judges from other courts were given tours and e-court. demonstrations of the future at work. Typically, an e-court should include all of the Today, the concept is less often written about, and following: the term ‘e-court’ appears to have slipped from the • A ‘virtual’, web-based courthouse that provides 24/7 contemporary legal lexicon. For most of us, the new online access to court services, model court never materialised, and even though a • Online access to relevant records and information, paperless courtroom concept is contained in the Courts such as court calendars to all parties, Service’s strategic ICT plan, it is unlikely to materialise • A modern courtroom that offers audio and video in the near term because of fiscal tightening in all areas capabilities, with the ability to allow for the electronic of the public service. presentation of evidence and, finally, Law Society Gazette www.gazette.ie May 2013 technology 39 Virtual reality

“Lawyers need to appreciate that the technology • The capability to upload supports the e-court model. analyse how the process works. When new and present evidence in an that exists The courtrooms are situations arise, they are discussed in this electronic format. in society is fitted with state-of-the-art forum and practical solutions can be agreed technology. In addition upon. Parties, including representatives The International Criminal going to have to each participant having of the defence and victims, feel they have Court (ICC) recently an increasing access to email, there is an input on any changes, which is an celebrated its tenth an electronic evidence important element in getting buy-in and anniversary. It is a treaty- impact on the presentation system in user acceptance. based tribunal established nature of trials, place. When a witness While the ICC functions differently to to investigate and try needs to mark an exhibit, the national courts, lessons can be learned international crimes, such as and they will this is done electronically, war crimes, crimes against need to be able saved and stored with his/ humanity, and genocide. It to comprehend her testimony. Proceedings Fast facts is a permanent court and are captured on video, using is different from the ad hoc this technology in several cameras operated by > typically, an e-court should include tribunals established to order to litigate technicians, and broadcast a ‘virtual’, web-based courthouse that try the crimes committed via the web. provides 24/7 online access to court in the former Yugoslavia effectively and to They are also equipped services, as well as and Rwanda. The UN’s present evidence for capturing electronic > online access to relevant records and International Court of Justice transcripts in real time and information, such as court>> calendars to all is also based in The Hague. in an appropriate have full interpretation parties, form” services. This is important, > a modern courtroom that offers audio and Disclosure because several languages video capabilities, with the ability to allow In our context, what is special about the may be spoken in the same hearing. for the electronic presentation of evidence ICC is that its courtrooms are e-courts An e-court protocol determines how and, finally, and the legislation governing the admin- participants should submit evidence, and a > the capability to upload and present istration of the proceedings specifically user group meets regularly to review and evidence in an electronic format 40 technology Law Society Gazette www.gazette.ie May 2013 and transferred to other courts. But first involved during the oral hearings, a need of being conservative and slow to change let us look at when it might be viable to to make the proceedings accessible to a their habits. use this e-court model. wider audience, and a large number of However, now that support and back- documents. In the United States, it is often office staff in the courts as well as in law Avatar used in white-collar criminal cases and firms are embracing IT developments, it is The authors, who have both worked in civil cases involving banks, pharmaceutical only a matter of time before it gets inside this type of environment for a long time, and energy companies. In fact, there is a the courtroom. How soon it becomes are supporters of the concept of e-courts growing body of knowledge internationally a reality will largely depend on the generally. related to developing and implementing emergence of someone or some group to However, it is important to acknowledge e-courts. champion the cause. that the organisational, technical and Last but not least, the nature of the human resources required to design, evidence collected also plays an important Minority report implement and support the functioning role in the decision. Since the volume of What has changed in the decade since of an e-court are considerable. The evidence that is electronic in nature is the Bloody Sunday Inquiry is that infrastructure is expensive to install and increasing, there is a need to adapt the increased availability and use of (mobile) manage and becomes obsolete quickly. infrastructure to process it efficiently – communication technologies and cheaper Another factor is the number of that is, electronically. hardware costs have made the e-court documents used in the case. The ICC took more accessible to users and, in theory, a policy decision at its inception that “in The 13th floor the public. Any new developments to proceedings before the court, evidence Will we see e-courts in Ireland? In the physical infrastructure of our courts ... shall be presented in electronic form short, the answer is yes, although it cannot ignore this. whenever possible” – perhaps may take some time. As Lawyers need to appreciate that the anticipating that they would previously mentioned, the technology that exists in society is going be dealing with large volumes Courts Service is already to have an increasing impact on the nature of evidence. However, even “The technical aware of the concept and, of trials, and they will need to be able to in cases with a small volume challenges that consequently, it forms part comprehend this technology in order to of electronically stored of their current strategic litigate effectively and to present evidence information, the e-court is come with the goal to see how technology in an appropriate form. always used. This is largely increased use can positively affect the The technical challenges that come with because the infrastructure is administration of the courts. the increased use of networked and mobile in place and the users – the of networked In addition to offering devices, but also the increased use of cloud judges, the prosecution and and mobile a remedy to ‘big data’, storage solutions, will make prosecutions the registry – are familiar technology will play and litigation difficult without a modern with and trust the system. devices, but also a significant role in judicial infrastructure capable of Generally speaking, however, the increased streamlining, standardising, examining the data/evidence. the larger the volume of and automating judicial Therefore, the main driver of change documentary evidence, the use of cloud procedures. This can reduce will be the need to react to a changing more efficient it becomes storage solutions, the time of proceedings, world. Costs will be driven down and to present and mange lower the costs in the mid already we are seeing the emergence documents in an electronic will make and long term, and help of open-source solutions that are very format. prosecutions increase the quality of effective. The question to be and litigation decisions through improved We believe that creating secure, easy-to- addressed is: what is access to information, use, and efficient web-based courthouses the tipping point – 100 difficult without increased transparency and and incentivising users to bring their own documents? 1,000? 15,000? a modern judicial accuracy. device to the courtroom could be a viable This is a difficult question The fact that an increasing and efficient approach in implementing to answer, and the reality is infrastructure amount of evidence will e-courts in this country. Pushing some of that it is more intuitive than capable of be created primarily in the costs to the users can be justified by scientific. It was often said electronic form is another the benefit gained. about the Bloody Sunday examining the reason for the necessity to Finally, any new systems introduced Inquiry that technology data/evidence” have e-courts in Ireland, if to the courts must meet the highest reduced the time spent in we are to process such cases standards in terms of integrity, security oral hearings by a third. in a timely, economical and and reliability to have the trust of all Although this figure is not effective manner. parties. The design, development and based on any empirical analysis, it reflects There are numerous examples in other implementation will require effective the perception that, in big cases – that common law jurisdictions, especially change management, particularly senior- is to say, cases with a large volume of Australia and the United States, of level support to manage all stakeholders documentary evidence – technology can the model working well. Planners and and guide the project to success. Given speed up oral hearings and therefore policymakers in this country will not be the rapidly evolving nature of technology, reduce costs. obliged to re-invent the process an e-court must be capable of growth We mention the Bloody Sunday Governments are generally more and development. Moreover, it should Inquiry because it is a good model for constrained than industry in investing in be compatible with the technology used when it was useful to use the e-court development, but inevitably are forced to by the parties and should be standardised model. There were multiple parties develop. Lawyers too are often accused throughout the entire country. G Law Society Gazette www.gazette.ie May 2013 people and places 41 P ic : L ensmen

To honour Galway-based solicitor Billy Glynn’s year as president of the Irish Rugby Football Union, a dinner was held in Blackhall Place on 7 March 2013 – just two days prior to Ireland’s draw with France in the final home match of this year’s Six Nations Championship. Some guests were chosen by the Society. Some were chosen by Billy Glynn. All had played rugby at some level and were lifelong lovers of the game. A very special category was solicitors (together with one barrister who subsequently became a judge) who had worn the green jersey of Ireland. (Seated, l to r): Colin Patterson (won 11 caps for Ireland, 1978-80, and played in three tests for the Lions in South Africa in 1980), retired High Court Judge John Quirke (won three caps for Ireland, 1961-1968), president of the IRFU Billy Glynn, President of the Law Society James McCourt, retired Circuit Court Judge Frank O’Donnell, retired Dublin City sheriff Brendan Walsh and Donal Spring (won seven caps for Ireland, 1977-1981). (Standing, l to r): Trevor Ringland (won 34 caps for Ireland, 1981-1988 winning two Triple Crowns and toured New Zealand with the Lions in 1983), Brian Woodcock, former TD Tom Enright, director general Ken Murphy, Tony Ensor (won 22 caps for Ireland, 1972-1978), Donald Binchy and James MacGuill (both former presidents of the Law Society) P ic : L ensmen

The Society has always valued its relationship with the solicitor colleagues who have pursued careers as members of the Oireachtas. There are fewer in this Oireachtas than previously, which makes each solicitor TD or senator all the more important. At a dinner for a number of them recently were (front, l to r): Joanna Tuffy TD (Dublin Mid-West), Senator Colm Burke, Senator Catherine Noone, Law Society President James McCourt, Michelle Mulherin TD (Mayo), Charlie Flanagan TD (Laois Offaly) and Sean Conlan TD (Cavan Monaghan). (Back, l to r): Director general Ken Murphy, senior vice-president John P Shaw, deputy director general Mary Keane, junior vice- president Stuart Gilhooly, Kevin O’Higgins and Martin Lawlor (both Council members). Some solicitor TDs and senators were unavailable on the evening in question, including Minister for Justice Alan Shatter,who was abroad on official business 42 people and places Law Society Gazette www.gazette.ie May 2013 President meets Laois solicitors A ll pics : D enis B yrne P hotography

James McCourt (Law Society At the Laois Solicitors’ Association meeting at the Heritage Hotel on 13 March 2013 were (from l to r): Tom O’Grady, James President) and Eimear Dunne McCourt (Law Society President), John White and Ken Murphy (director general)

Elaine Dunne, Gerard O’Donoghue, James McCourt (Law Society President) and Jim Binchy, James McCourt (Law Society President) and Vincent Garty Brian Hutchinson

Win a two-night break at the Cliff House Hotel, Ardmore Regarded as one of the finest original 18th century campaign Martijn Kajuiter, is the driving force smaller luxury five-star hotels in furniture, including deep sofas and behind the hotel’s Michelin-star Ireland, the Cliff House Hotel in cosy fireplaces. restaurant, bar food and breakfast Ardmore, Co Waterford, is a 39- Upstairs, rooms are defined by menus. What nationality is he? room Irish seaside boutique hotel their cliffside location, with floor- The answer can be found at on the south side of Ardmore Bay. to-ceiling glass doors that open www.thecliffhousehotel.com. This privately owned hotel onto large private verandas. Huge Answers should be emailed to features an intimate destination stone baths are a novel feature, [email protected] no later spa, The Well – and a Michelin- while glass-sided showers ensure than Friday, 17 May 2013. The first star restaurant. All of its luxury that ocean views and fresh sea air correct entry drawn wins. rooms and suites are sea facing, are always present. This prize is valid from Sundays while many are interconnected to Thursdays inclusive; it is not to provide family-friendly Answer this question valid during bank holidays or configurations. To win a mid-week, two-night school-holiday periods and it Split-level, loft-style suites break in the two-floored Cliff expires on 15 December 2013. suggest the atmosphere of a chic, Veranda Suite, exclusive to readers More information on the private home. Ground-floor living of the Law Society Gazette, simply stunning Cliff House Hotel can be areas are accented with pieces answer the following question: The found at www.thecliffhousehotel. from the hotel’s collection of Cliff House Hotel’s executive chef, com. Law Society Gazette www.gazette.ie May 2013 people and places 43 Irish Legal History Society celebrates Silver Anniversary The Irish Legal History Society get it for me” – James Campbell’s held its Silver Anniversary path to judicial office, 1915- (spring) meeting in the debating 1918’, in which he described, chamber of the Graduates’ from vivid correspondence, Memorial Building of Trinity how Campbell became the College Dublin on 15 February penultimate Lord Chancellor of 2013. Chaired by the president, Ireland. Robert D Marshall (solicitor), the A vote of thanks to Mr Hogan society was pleased to welcome was proposed by Mr Justice the Dr Patrick Hegarty (provost Hardiman and seconded by of TCD) and Thomas A Finlay Dr David Capper (QUB), the who, as Chief Justice of Ireland, northern secretary of the society. with the late Lord Lowry (then The auditor of the Hist, Hannah Lord Chief Justice of Northern MacCarthy, proposed the motion Ireland), was patron of the society that the society was worthy of upon its foundation 1988. support, which was seconded by The meeting was held in the Daire Hogan delivers the 25th Anniversary address inTCD Dr Patrick Geoghegan, a vice- format of the College Historical president of both the society and Society (the ‘Hist’), which Michael Laffan (UCD). The completion was presented at the the Hist. kindly lent the ballot box and meeting was sponsored by the meeting to Dr Maebh Harding An enjoyable reception auditor’s bell for the occasion. Law Society of Ireland and the (solicitor) of Portsmouth followed in the saloon of the Also present were Ken Murphy Bar Council of Ireland. University for her article entitled Provost’s House, where Dr (director general of the Law ‘The Curious Incident of the Hegarty, in welcoming the Society), David Nolan SC ‘Curious incident’ Marriage Act (No 2) 1537 and the society, spoke about a number (chairman of the Bar Council), The WN Osborough Irish Statute Book’. of his predecessors who were Mark Mulholland QC (chairman Composition Prize in Irish Legal Daire Hogan (solicitor and lawyers. of the Bar Council of Northern History was inaugurated by the former president) addressed The next meeting will be Ireland), Dr David McConnell society in 2012 and the prize the society in a talk entitled ‘ “I held at Stormont on Friday 8 (president of the Hist) and Prof of €500 for the first bi-annual want the chancellorship. You can November 2013.

on the move McCann FitzGerald appoints Leman welcomes five new partners Ursula Tipp

Ursula Tipp is the newest partner at Leman Solicitors and heads up the international business and tax team. Ursula joins Lemans from Byrne Wallace. As a dual-qualified German Rechtsanwaltin and Irish solicitor, she has multijurisdictional experience, McCann FitzGerald has appointed five new partners at the firm’s Dublin offices. They are Joshua Hogan representing businesses from the US and (banking and financial services), Richard Leonard (real estate), Jenny Mellerick (procurement), Rory Europe. She has practised in a number of law O’Malley (corporate) and Lisa Smyth (restructuring and insolvency). This brings the total number of firms across Europe, EU institutions and a partners at the all-equity firm to 67 multinational company 44 people and places Law Society Gazette www.gazette.ie May 2013 Taking on the Ring of Kerry with the ring of confidence! Members of Dublin law firm Leman will be taking to the roads (and lakes!) of Kerry in September for the ‘Iron Leman’ challenge, which is being held in aid of Youth Suicide Prevention Ireland. Two teams will race against each other around the Ring of Kerry – by boat, bicycle and on foot – on 7 September 2013. They expect to cover a combined distance of 384km in an effort to raise €20,000 for the charity. The firm will be covering the transport, logistics and accommodation costs, but are asking supporters to make a contribution by visiting www.yspi.eu/leman. Supporters are being invited to sponsor a kilometre or more, at €25 per kilometre. For updates on the tally, follow Leman on Twitter (@ LemanSolicitors) or ‘like’ them on Participants in last year’s ‘Iron Leman’ Malin to Mizen challenge were (from l to r): Larry Fenelon, John Walsh, Lisa Jackson, Facebook. All sponsorship offers will Orlaith Doorley, Sarah Keenan, Declan Tormey, Maria Edgeworth, Linda Hynes, Catherine Lyons, John Hogan, Gavin Bluett, be gratefully considered. Gearóid Grogan. Kerry beckons this year

Terry Browne (country manager at Danske Bank) and Dr Eamonn Hall, chairman of the adjudication panel comprising 25 legal experts, have announced the Attending the closing reception for the Diploma in Aviation Leasing and Finance, run in collaboration shortlist for this year’s Danske Bank Irish Law Awards, with the Law Society Diploma Programme, the Law Society Finuas Network and the Aviation Finuas which will take place on 3 May in the Four Seasons Network were (front, l to r): Noreen Fitzpatrick (Skillnets Ltd), Philip Shepherd QC and Marie O’Brien Hotel, Dublin, hosted by Miriam O’Callaghan. For a full (A&L Goodbody). (Back, l to r): Michelle Nolan, (Law Society Finuas Network), Conor Stafford (Aircastle), list of all categories and finalists, visit the awards website William Johnston (Arthur Cox) and Julie Shackleton (Law Society Diploma Programme) at www.irishlawawards.ie

The Law Society’s rugby team recently overcame the King’s Inns team on 22 February. The winning side conceded an early try but went on to win 22-13 Law Society Gazette www.gazette.ie May 2013 obituary 45

rosemary fallon 1946 – 2013 Rosemary died on 6 March integrity and her sensitivity to the 2013 after a short illness, needs of others. While she spared bravely borne, and is survived no effort in assisting anyone in particularly by her loving need, she was always utterly fair, brother, Joseph Dunne, to whom with a powerful sense of what was she was always affectionately – and was not – right and just. She ‘Rolly’. Rosemary was the only never showed any favouritism or member of staff to have worked bowed to any pressure to do so. with Eric Plunkett when he She was there for everybody, was secretary of the Society, treating all with equal respect and subsequently with three and dignity. Those in the Society successive directors general: whom Rosemary assisted, without Jim Ivers, Noel Ryan and Ken anybody else’s knowing about it, Murphy. She retired in early will remember her generosity and 2012 after more than 40 years’ complete discretion. service with the Law Society, Many will remember her many of them as its executive with enduring gratitude as officer responsible for issuing an exemplary mentor, who annual practising certificates supported, encouraged and and overseeing the requirements challenged them in their for professional indemnity professional and personal insurance. To the solicitors’ development. profession and fellow staff Others will remember her as alike, Rosemary will always be a loyal confidante who had the associated with that important character to keep her counsel. area of the Society’s regulatory Those fortunate to have worked functions. with her beloved husband Tom, to Rosemary’s death was a whom the Society is also hugely shocking tragedy, particularly indebted, recall that they were when seen in the context of the well matched in their respective very recent death (in October work ethics. Both of them worked 2012) of her beloved husband to the highest standards, with Tom Fallon (barrister and former meticulous attention to detail and, journalist). Tom’s name was also never counting the hours, gave long associated with the Society worked with her will remember first meeting with her and the total commitment to the tasks at as counsel in disciplinary matters. those qualities that bonded us impact of her extraordinary grace hand. To all who personally knew to her, including her playfully and presence. Rosemary was a very special her, Rosemary was the jewel in mischievous but totally innocent Those who have been lucky person. We are better people for the crown of much collegiality sense of fun. Some of us can still enough to have worked with having known her. and friendship. Those of us who recall, many years later, our very her will know of her complete VD consult a colleague 01 284 8484 The Consult a Colleague helpline is available to assist every member of the profession with any problem, whether personal or professional

The service is completely confidential and totally independent of the Law Society 46 obituary Law Society Gazette www.gazette.ie May 2013

judge patrick keenan johnson 1922 – 2013

Judge Patrick Keenan Johnson judge, he was assigned to the was born in Ballymote, Co Sligo, then district of Rathfarnham and in 1922. He was the second Dundrum. He was appointed youngest of six children and to the District Court area of attended Ballymote National Waterford and Kilkenny in School, where he was taught by 1979 and served there until his the late John A Barnes (father of retirement in 1992. In 1982, he former DPP Eamonn Barnes). was appointed a member of the At that time, very few children Special Criminal Court. got the opportunity to avail of a While serving as a judge, second-level education. Keenan Keenan was renowned for his was fortunate that Master Barnes energy as a worker and his keen took a keen interest in his pupils interest in the law. He always and in developing their talents. liked to administer justice with Master Barnes tutored Keenan compassion and humanity. for his matriculation examination, Outside of the law, he continued which enabled him to proceed to to be involved in community university and study law in 1938 at activity and was a driving force the age of 16 years. behind the acquisition of a It is a notable achievement permanent residence for the that Keenan went directly Waterford charity, Children’s to university from national Group Link. In his years working school, without ever attending as a judge, Keenan realised secondary school. In 1939, he that children from troubled was awarded a silver medal in backgrounds and difficult home the Law Society Preliminary environments needed the stability Examination. He qualified as a and consistency that organisations solicitor in 1943 and was awarded like Children’s Group Link a special certificate in his final provide. examination. As he was only 20 In 2005, he returned to his when he qualified, at that time His deep religious conviction was grandchildren. He always said that native Sligo, where he continued he was still considered a minor, his mainstay during this difficult Helen and Geraldine kept him to enjoy a happy and fulfilled so he had to wait seven months and lonely period. He also young at heart, and he revelled retirement. Fortunately, Keenan’s post-qualification to reach his immersed himself in his work and in the fact that his daughters final illness was relatively short 21st birthday – then the age of in providing support and guidance were the same age as his older and, though his passing leaves majority – before setting up his to his children. grandsons. a huge gap in the lives of his own practice in Ballymote, with a In 1970, Keenan married Keenan always took a genuine family and friends, they have the sub-office in Riverstown. Therese Campbell, the newly interest in young people and was consolation of knowing that he In the early years, together appointed district health nurse a great man to provoke debate led a happy, complete and fulfilled with a group of friends, he took from Trillick, Co Tyrone. It was a and discussion with them. In life. He died on 23 February 2013, great delight in putting on shows whirlwind romance, with Keenan later years, this was to prove an aged 90 years. featuring local artists. He wrote proposing after four weeks of immense benefit to him and, Our deepest sympathy goes to many of the comic sketches courtship and marrying within following his retirement as a judge his wife, Therese; his daughters, and sometimes rendered piano five months. It proved to be a of the District Court, he went on Ann, Patricia, Helen and accompaniment. He married long and happy union. Keenan to lecture and tutor law students Geraldine; his sons, Brendan, Helen Stephens in 1949 and they and Therese were blessed with at the Society’s Law School. Keenan and Hugh; and to his had five children. Keenan was two girls, Helen and Geraldine. Keenan was appointed a judge extended family. devastated at Helen’s untimely Keenan was also blessed with ten of the District Court in 1975 and, Ar dheis Dé go raibh a anam dílis. death after a short illness in 1966. grandchildren and four great- having spent a year as a moveable TE T Law Society Gazette www.gazette.ie May 2013 student spotlight 47 Top marks for PPC1 trainees at annual awards reception Eight trainees were crowned winners at the Law Society’s annual awards reception on 19 February for the client consultation, negotiation and mediation competitions. Four trainees also received runners- up awards at the Blackhall Place ceremony. Competition winners were presented with individual trophies, certificates and cheques to mark their achievements, and winners’ names will be engraved on the various competition cups. The awards reception was well- attended by training solicitors and by their parents, who travelled from as far afield as Clare and Cork to show their support for these up-and-coming solicitors. with some difficult scenarios. Aisling O’Reilly (Maples & University, California, from 1-5 Ciara Burke (Carmody & Ciara and Fiona went on to Calder) and Ciara O’Buachalla July. Company, Solicitors) and Fiona represent Ireland at the Brown- (William Fry) were declared Last year also saw the Shipsey (Hayes Solicitors) came Mosten International Client runners-up. introduction of a new legal first in the client consultation Consultation Competition, hosted Nine days after the awards skills event – the mediation competition, beating 22 other by the University of Glasgow in reception, Vincent and Genevieve competition. This competition teams to the top spot. Dónal Ó April, which was won by students went up against King’s Inns, NUI involves a team of three trainees, Néill (John Quigley & Co) and from Canada’s Osgoode Hall Law Maynooth and NUI Galway with each one being assigned the MacDara Norris (Crowley Millar) School. in the National Negotiation role of client, solicitor advocate were runners-up. Vincent McConnon and Competition – winning through and mediator. The clients and This year’s theme was ‘Serious Genevieve Ryan (Matheson) beat to represent Ireland at the solicitors seek a resolution to a crimes against the person’, and all 17 other teams to claim first place International Negotiation fictional dispute with another teams performed well in grappling in the negotiation competition. Competition in Chapman client/solicitor pair, at which a pair of co-mediators seek to bring all parties to an amenable resolution. Sizing Europe – ECtHR moot competition

P ic : C ouncil of E urope Unusual twist In an unusual twist for the inaugural competition, two teams attained the exact same mark and were declared joint winners, namely: Christine O’Sullivan (Fagan Bergin), Aoife Redmond (Lavelle Coleman), Olivia Higgins (Keane Solicitors), Barry Connolly (Flynn O’Driscoll), Thomas Ryan and Fiachra Cork (ByrneWallace). Both teams will go forward to represent Ireland at the 13th Annual International Law School Mediation Tournament in 2014, at a venue yet to be decided. This tournament is held under the auspices of the International Academy of Dispute Resolution (www.inadr.org). The Law Society The leading Irish team that represented Ireland at the Moot Court Competition at the European Court of Human Rights from had the privilege of hosting the 25-27 February were (l to r): Rian Derrig, Brian O’Beirne (coach), Hannah Hassell, Eileen Scollan and Laura Twomey 12th Annual Tournament from 11 to 15 March. G 48 book reviews Law Society Gazette www.gazette.ie May 2013 An Introduction to Irish Planning Law (2nd edition) Berna Grist. Institute of Public Administration (2012), www.ipa.ie. ISBN: 978-1-9045-411-65. Price: €30 (incl VAT).

a labyrinth to be negotiated informative review of the role of environmental assessment, and solely by the valiant and then national and local policy, which appropriate assessment in the with considerable trepidation”. the practitioner would do well to planning process. I wholeheartedly agree. An consider in any planning issue. I particularly liked the Introduction to Irish Planning Law The book then goes into the concluding chapters, which goes a way towards providing ‘nuts and bolts’ of planning, review relevant legislation, a comprehensive review for with short chapters on planning unfinished housing estates, and practitioners and students that permission, appeals and judicial future developments in the area is well referenced and gives review, exempted development, of planning law, confirming effective signposting for those enforcement and compensation. that this area of the law still wishing to do further research. Dr Grist also covers strategic remains a political football. For The book starts with a short infrastructure applications and practitioners, this is a useful introductory chapter that sets strategic development zones. publication to have at hand, and out the Irish and European Of particular interest is I am quite happy that it is now legislative framework. The the chapter ‘Planning for on my bookshelf! The author notes in the preface following chapters give a short conservation’, where Dr Grist that changes to planning review of development plans, outlines the basic principles of Yvonne Kelly is a senior executive legislation in the recent past local area plans, regional conservation and explains the solicitor in Dublin City Council. “have turned the acts and planning guidelines and planning requirements of environmental associated regulations into policy – giving an interesting and impact assessment, strategic

Intellectual Property Law Eva Nagle. Thomson Reuters (2012), www.roundhall.ie. ISBN: 978-1-8580-067-10. Price: €225 (hardback, incl VAT).

The increasing prominence and the relevant concepts and will, detailed analysis. Perhaps the key mainstream prevalence of aspects hopefully, see expansion in future feature of this book is its impressive of intellectual property law in legal editions. balance between accessibility and practice has been palpable over A further four chapters detail relevant detail. the past two decades. So, too, has the law in relation to trademarks, Other features are worthy of the proliferation of legal books, discussing registrability and note. The author has provided three either on individual topics within use, before concluding with chapters relating to allied issues, intellectual property law or in a particularly helpful chapter namely passing off; endorsement, relation to the overarching topics in pertaining to the principles that may personality merchandising broad terms. Intellectual Property arise whether taking or defending and character merchandising; Law by Eva Nagle falls into this infringement actions. Two chapters and breach of confidence. In latter category. examine patents, again from the addition, the final chapter of the Within its 441 pages and 15 perspectives of registrability and book provides helpful guidance on capacious depth, this author chapters, the author covers the infringement actions. regarding enforcement and has opted for extensive breadth key headline areas, together with The foregoing is undoubtedly remedies, including consideration and has crucially so done without useful treatment of ancillary topics. the sine qua non of any broad of transnational jurisdictional comprising vital content. She has The first four chapters consider book on intellectual property law. issues that will be of interest to written, in an accessible manner, a the nature of copyright, ownership However, merely noting that those practitioners. Finally, the table of worthy tome that will be of benefit and authorship, infringement and core topics are covered does not do cases runs to 16 pages across to any practitioner in the field of defences thereto. Ever the ‘ugly justice to the work of the author in 14 jurisdictions, which aptly intellectual property law. duckling’ of intellectual property setting out each of these topics in a demonstrates the authoritative topics, design merits a solitary logical, cohesive manner, building nature of the text. Richard Hammond is partner in chapter that usefully summarises from general overviews through to Where other books have focused Hammond Good, Mallow. G

Law Society Library services Wifi is Book loans • Online catalogue plus app • Enquiry service available in the Precedent service • Document delivery • Judgments alerter library. Ask at the desk for log-in Further details on any of these services are available by contacting details. the library on tel: 01 672 4843/4, email: [email protected]. Law Society Gazette www.gazette.ie May 2013 reading room 49 Legal information website set THOMSON REUTERS to be useful free resource ROUND HALLTM A website run by the UCC law faculty aims to be a very useful resource to help you to keep abreast of Irish law journal contents

UCC’s Irish Legal Information Initiative (www.legalperiodicals. org) seeks to complement its contribution to BAILII (British and Irish Legal Information Institute) and IRLII (Irish Legal Information Institute). ONLINE LEGAL It contains an index to Irish legal periodicals from 1997 RESEARCH (some earlier!) to date. Links are provided to online articles TRANSFORMED where copyright permission allows. Journals indexed total A NEW, IMPROVED 27 Irish titles, including mainstream journals such as AND MORE Commercial Law Practitioner, Dublin University Law Journal, Irish POWERFUL Employment Law Journal, The Irish Jurist journal title from the menu and and your Gazette! browsing volume contents, or you can ONLINE LEGAL You can use the index by selecting a search with keywords. RESEARCH

JusT PUBLISHED EXPERIENCE IS HERE New books available to borrow • Anderson, Mark and Victor Warner, A-Z ed; Sweet & Maxwell, 2011) WESTLAW IE Guide to Boilerplate Commercial Clauses • Sinclair, Neil, Sinclair on Warranties and (Bloomsbury Professional, 2012) Indemnities on Share and Asset Sales (8th • Arthur Cox Employment Law Yearbook 2012 ed; Sweet & Maxwell, 2011) (Bloomsbury Professional, 2013) • Spierin, Brian, Wills: Irish Precedents and • Brownlie, Ian, Principles of Public Drafting (2nd ed; Bloomsbury Professional, International Law (8th ed; Oxford University 2013) Press, 2012) • Toulson, RG and CM Phipps, Confidentiality • Bullen & Leake & Jacob’s Precedents of (3rd ed; Sweet & Maxwell, 2012) Pleadings (17th ed; Sweet & Maxwell, 2012) • Byrne, Raymond and William Binchy, Annual New e-books available to borrow – contact the SEE IT. BELIEVE IT. Review of Irish Law 2011 (Round Hall, library for login details 2012) • Ashford (ed), The IBA Rules on Taking 1800 50 90 34 • Cartwright, John, Misrepresentation (Sweet & Evidence in International Arbitration [email protected] Maxwell, 2012) (Cambridge University Press, 2013) • Gale, Charles James, Gale on Easements • Harrison, Karen and Nicholas Ry, The Law westlaw.ie (19th ed; Sweet & Maxwell, 2012) Relating to Financial Crime in the United • Kingston, Suzanne, European Perspectives Kingdom (Ashgate, 2012) on Environmental Law and Governance • Loughrey, J, Directors’ Duties and (Routledge, 2013) Shareholder Litigation in the Wake of the • Lewis, Amanda, Business Services, Partnering Financial Crisis (Edward Elgar, 2012) and Outsourcing Contracts: a Practical Guide • Matrisian, Matt, The Power of Practice (4th ed; Thomson Reuters, 2012) Management (John Wiley & Sons, 2013) • Petersen, Andrew V, Commercial Mortgage • Monopoli, Paula, Law and Leadership Loans and CMBS: Developments in the (Ashgate, 2012) European Market (Sweet & Maxwell, 2012) • Susskind, Richard, Tomorrow’s Lawyers • Sara, Colin, Boundaries and Easements (5th (Oxford University Press, 2013) Winner Outstanding Achievement Most Innovative Use Networks & Groups of Technology 2013 Irish Institute of 2013 Irish Institute of Training & Development Training & Development (IITD) Awards (IITD) Awards

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LSPT ad Gazette May 2013.indd 1 16/04/2013 15:06 Law Society Gazette www.gazette.ie May 2013 council report 51 briefing Law Society Council meetings 22 February and 5 April 2013 Court jurisdictional changes from the ranks of county registrars It was agreed that the president and views of members of the pro- Serious concerns were expressed by rather than the wider pool of prac- should write to the Minister for fession in Ireland ever undertaken. a number of Council members re- tising solicitors. The minister’s re- Justice seeking the appointment of The task force had also conducted garding the dramatically increased sponse had focused on the desire a third taxing master. comprehensive research into the workload that would be placed on to provide extra judicial resources activities of other law societies and the Circuit and District Courts as at little or no cost. It was agreed Anti-money-laundering had examined the Society’s gov- a consequence of the proposed in- that the president should reiterate The Council was briefed on the ernance, following meetings with creases in jurisdictions contained the Society’s concerns and request contents of the Fourth Anti-Money- each of the Society’s directors to in the Courts Bill 2013. The view a response to the principle ex- Laundering Directive, which had learn more about how the Society was expressed that more judges pressed in his earlier letter. been published on 5 February, to- delivers its core functions. and court staff would unquestion- gether with the proposed response A number of clear messages had ably be required in order to avoid Professional indemnity insurance of the CCBE to its provisions. emerged from the task force’s re- increases in the delays that already Stuart Gilhooly reported that the search, which indicated that the existed in both courts and which members’ survey on PII had indi- Future of the Law Society profession wanted the Society to would be greatly exacerbated by cated a significant improvement in Task Force re-balance its objectives to put the changes. It was agreed that the the most recent renewal process, At its meeting on 5 April, the more emphasis on representa- president should write to the min- with a reduction in premiums of Council approved the report and tion. In addition, the task force’s ister requesting that the Govern- an average of 23%. recommendations of the Future research indicated a need for the ment would provide the resources of the Law Society Task Force, Society to strengthen its com- necessary to make the changes in Garda interviews which had been appointed by the munication function and had also jurisdiction work and to make no The Council discussed the practi- Council with the following terms identified a number of measures to increase in the jurisdictional limits cal and cost issues that would have of reference: “In light of the con- improve the way the Society does until the necessary resources were to be considered by the working tents of the Legal Services Regula- business. available. Failing this, the proposed group being established by the tion Bill, to consider the ongoing The task force had acknowl- increases should be reduced to the minister to advise on a system role to be played by the Law So- edged that the implementation of levels recommended by the Law providing for the presence of a ciety, its functions in promoting its report would have cost implica- Reform Commission in its 2010 legal representative during garda the solicitors’ profession, and in tions for the Society, as would the report. interviews. continuing to safeguard the public implementation, in due course, interest and to make recommen- of the Legal Services Regulation Specialist judges of the Delays in taxation of costs dations to the Council in relation Bill. The Council endorsed the Circuit Court The Council discussed the serious to same.” unanimous view of the task force The Council discussed correspon- delays that were arising in relation The Council noted that the task that the Society has an obligation dence between the president and to matters being heard by the tax- force had consulted with repre- to ensure that these cost implica- the minister regarding the pending ing masters, which were causing sentatives of 24 bar associations tions are minimised. The Council appointment of specialist judges of significant difficulties for practi- and that an independent research approved the report of the task the Circuit Court to deal with cases tioners and businesses around the agency had surveyed the views of force on the basis that the cost of under the Personal Insolvency Act country. For a myriad of reasons, the entire profession through an implementing its recommenda- 2012. The president had expressed the pressure on both taxing mas- online survey and telephone in- tions could be met from current the Society’s concerns that the ap- ters was considerable, and signifi- terviews. The survey was the most resources, without any increase in pointments were to be made solely cant backlogs were building up. comprehensive survey of attitudes the practising certificate fee. G

40

Enjoy a set 2 course lunch @ € 20 in 40 minutes or dine for free Menu changes daily. Please state 40 minutes or free to your server upon arrival to avail of this offer 52 practice notes Law Society Gazette www.gazette.ie May 2013 briefing Practice direction Practice direction for Dublin, Midlands and South Eastern Circuits A working group was established prior to the trial date, because the 2) Once a case is proceeding on raise issues if they consider them in November 2011 to identify accused will be formally arraigned indictment, we write to An relevant. and report on efficiency measures at this pre-trial hearing. Under Garda Síochána requesting all The pre-trial hearing is attend- in the criminal justice system in the old system, approximately secondary disclosure that the ed by the accused and a legal rep- respect of the Circuit Court and 50% of accused entered a plea on defence normally requests after resentative of both the prosecu- District Court. It was established the morning of the trial, and we the return for trial. We would tion and defence. At the hearing, at the request of Chief Justice would expect the vast majority of hope to be in a position to pro- the accused is required to enter a Denham and Minister for Justice these cases now to enter the plea vide all primary and second- formal plea before the court and, and Equality Alan Shatter. The at the pre-trial hearing date. ary disclosure prior to the first if it is intended to proceed to trial workings of the group culminated The practice direction also pro- mention date, and certainly in at that stage, a plea to one count in the signing of the practice di- vides for the assigning of a specif- advance of the arraignment without prejudice will suffice. rection in Dublin by the Presi- ic mention date on a Friday in the date. This change moves the This is an important aspect of the dent of the Circuit Court on 17 Circuit Court, not less than three goalposts forward in respect pre-trial hearing and was not part October 2012, in the Midlands weeks after the return for trial. of disclosure by two to three of the working group’s original by Judge Hunt on 6 November Under the old system, we sought months. plan. It subsequently emerged as 2012, and in the South Eastern a return to the present or next sit- 3) We now write to the defence an idea to ensure that the defence Circuit by Judge Alice T Doyle tings, and the gardaí had to cau- solicitors after the first mention would engage with the process. on 13 December 2012. The prac- tion the accused once the Courts date, drawing their attention to There are a number of issues tice direction seeks to avoid un- Service provided the DPP’s Office section 29 of the Criminal Jus- that the prosecution must address necessary delays, identify cases with a date, which often led to ad- tice Act 1999, which essentially at the pre-trial hearing. These in which a plea could be entered journments, as the accused could sets out that a court shall take are: at an earlier stage, and facilitate not be cautioned. into account, in sentencing an a) An indication whether section commencement of trials on the The practice direction further accused, the stage at which the 21 notices have been served and trial date. provides that “guilty pleas will accused entered a plea of guilty. are being relied upon, be accepted on the first mention b) An indication under section 22 Practice direction in Dublin date” and that “the court will fix The pre-trial hearing in Dublin whether a formal admission is The practice direction in Dub- an arraignment date not less than At the time of writing this article, being made or relied upon, lin came into effect on 1 January eight weeks later, by which time 17 pre-trial hearings have taken c) Whether there is any CCTV 2013 and, in many ways, it is seek- all usual pre-arraignment mat- place. To date, pleas of guilty or video-link requirements or ing to recalibrate the work prac- ters must be dealt with and a plea have been entered in four cases, whether there is a use of a pos- tices of all criminal practitioners must be entered or a trial date re- hearings have been confirmed in sible intermediary, in Dublin. A pre-trial hearing quested. In more complex cases, six, and adjournments have been d) Does the complainant require will take place on a Friday at least a longer adjournment can be re- granted in seven cases. While it is representation under section 4 four weeks prior to the trial date. quested, but no further mention acknowledged that this is a very of the Criminal Law (Rape) Act Since October, when a trial date is dates will be requested, save in small number and, therefore, may 1981? fixed, the Circuit Court in Dublin exceptional circumstances.” not be representative, it translates e) Are there any witness difficul- has been fixing (in anticipation of This clearly puts pressure on as 24% pleas, 35% hearings and ties? the practice direction) a pre-trial the prosecution, and we have re- 41% adjournments. Half of the f) Are there any requirements for hearing date. This, in essence, re- vised our work practices accord- adjournments have been request- interpreters? quires both the prosecution and ingly. We have introduced the ed by the defence. Both pleas of g) Are there any outstanding dis- the defence to more or less be at following new procedures: guilty and adjournments generate closure requests? the same stage of preparation for 1) All section 56 orders are sought savings for An Garda Síochána. h) Has the prosecution engaged a trial as they actually would be on in the District Court when the I believe that, over time, a with the defence with a view to the morning of a trial. DPP directs trial on indict- tweaking of the questions might agreeing memorandums of in- By ‘moving the goalposts’ for- ment. Section 56 of the Crimi- be desirable to make it more user- terview? ward by a month, unnecessary nal Justice Act 2007 says that a friendly for practitioners. In my adjournments should be avoided. copy of the recording of the view, some of the questions are The requirements in relation The pre-trial hearing should interview with the accused can too prescriptive and there are to the defence are arguably less help eliminate issues such as last- be given to the defence only some questions that could have onerous. They are: minute disclosure requests or last- where the court has so ordered. been omitted. It is running as a pi- a) Are there any factors affecting minute service of additional evi- Historically, on the first men- lot scheme for a year, and I think the possibility of the trial not dence, which can lead to trials be- tion date in the Circuit Court, all parties to the hearings should proceeding (to prevent applica- ing adjourned. It now means the defence counsel asked for a sec- not be afraid to suggest incre- tions for adjournment on the defence have to take instructions tion 56 order and the matter mental improvements as to how morning of trial)? from their client at least a month was remanded to a further date. the hearings are conducted, and b) Are there any outstanding dis- Law Society Gazette www.gazette.ie May 2013 practice notes 53 briefing

closure requests? ness to be tried could be made memos of interview. This ques- Accordingly, and while I appre- c) Will interpreters be required at the pre-trial hearing, tion, I think, should also be on the ciate it may be more difficult to en- and, if so, will the defence be in c) Imputations as to character Dublin questionnaire. gineer outside of Dublin, it would a position to indicate same? – the defence requirement to be immensely beneficial if the time d) If there is confirmation that give seven days’ notice to the Reform of the pre-trial procedure could be found, say a month before any requirements might affect prosecution pursuant to section While the initiative is to be wel- the trial date, to conduct a full pre- the running of the trial (like 33 of the Criminal Procedure comed, the pre-trial hearing and trial hearing. Furthermore, it may the need for CCTV or an in- Act 2010 could be extended to questionnaire will, undoubtedly, be preferable to fix the pre-trial terpreter), that this would be 28 days notice prior to the pre- require practitioners to re-calibrate hearings to two months prior to attended to by the defence. trial hearing, their work practices by moving the trial date, so that, if a trial date d) Expert evidence adduced by the the goalposts to a month prior to is vacated, there is time to fill the Given that their client will now defence pursuant to section 34 the trial date. I feel that the real vacated trial date with another trial. be arraigned, the defence has to of the Criminal Procedure Act strength of the practice direction in engage with the client and take 2010. The defence requirement Dublin is the fact that all parties are Ronan O’Neill is head of the Circuit instructions a month prior to the to give ten days’ notice to the in court and the accused is formally Criminal Trials Section, Office of the trial date. prosecution could be extended arraigned. Director of Public Prosecutions. No additional fee is payable, to 28 days notice prior to the as there is no additional work for pre-trial hearing. either side, as the pre-trial proce- dure merely requires that existing Midlands and South Eastern Dublin Circuit: assignment work that would have been com- Circuit pleted at a later stage is concluded The questionnaire for practitio- of hearing dates earlier in the process. By stream- ners on circuit is to be completed family and child Law committee lining the dates to one mention and be returned to the Circuit Solicitors are reminded that, not Following recent discussions date and one arraignment date, Court office in the county in alone are hearing dates assigned with county registrar Susan Ryan, superfluous mention dates have which the proceedings are listed from the list to fix dates in the it appears that a considerable been eliminated. for trial, and a copy served on court, but also dates are assigned amount of difficulty is being the other side not later than one in the case progression process by caused in the administration of the Suggested areas for the expan- month before the date fixed for the county registrar. Practitioners lists by solicitors coming in and sion of the pre-trial hearing trial. The questions for the prose- are encouraged to, if possible, seeking to vacate dates already a) Applications to sever the in- cution are the same as those asked agree in advance with their assigned. This is particularly true dictment could be made at the in Dublin. The defence is asked, opposing solicitor on possible if there is only a short time to the pre-trial hearing, in addition to the questions on the dates for the hearing of the case. hearing date. G b) Applications in relation to fit- Dublin questionnaire, about the

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(*) Fees quoted are for solicitors. Non-legal personnel are subject to an application process and supplemental fee. (**) Reduced fee of €900 for Skillnet members Please note that late applications are still being accepted on the courses which began in April.

For further information: W: www.lawsociety.ie/diplomas E: [email protected] P: 01 672 4802

Diploma ad full page Gazette May 2013.indd 1 23/04/2013 13:11 Law Society Gazette www.gazette.ie May 2013 regulation 55 briefing Solicitors Disciplinary Tribunal Reports of the outcomes of Solicitors Disciplinary Tribunal lations Committee at its meet- On 31 July 2012, the Solicitors inquiries are published by the Law Society of Ireland as provided ings held on 7 October 2008 Disciplinary Tribunal found the for in section 23 (as amended by section 17 of the Solicitors and 11 November 2008 that respondent solicitor guilty of mis- (Amendment) Act 2002) of the Solicitors (Amendment) Act 1994 deeds of charges were lodged conduct in his practice as a solici- at the Land Registry for regis- tor in that he: In the matter of Brian Johnston, Law Society of Ireland (applicant) tration, when this was not the a) 6927/DT113/10 – failed to re- a solicitor formerly practising Brian Johnston (respondent so- case, ply adequately or at all to cor- as Brian Johnston & Co, Solici- licitor) h) Failed to comply with a direc- respondence from the Society Diploma tors, 79 Park Street, Dundalk, On 16 November 2012, the Solici- tion of the Complaints and and, in particular, letters dated Co Louth and in the matter of tors Disciplinary Tribunal found Client Relations Committee 29 May 2009, 5 August 2009, the Solicitors Acts 1954-2008 the respondent solicitor guilty of made at its meeting held on 11 25 September 2009, 28 Octo- [6927/DT65/10 and High Court misconduct in his practice as a so- November 2008 to respond to ber 2009, 9 February 2010 and Programme record no 2013/1 SA] licitor in that he: the Society within 48 hours of 2 March 2010, Law Society of Ireland (applicant) a) Failed to comply with instruc- the meeting to provide confir- b) 6927/DT114/10 – failed to re- Legal Education for the Real World Brian Johnston (respondent tions from the bank to ensure mation of the charges lodged in ply adequately or at all to cor- solicitor) the bank obtained good and the Land Registry. respondence from the Society On 16 November 2012, the Solici- marketable title to properties and, in particular, letters dated tors Disciplinary Tribunal found and that the bank’s security was The tribunal ordered that the 29 May 2009, 5 August 2009, the respondent solicitor guilty in place, matters go forward to the High 25 September 2009, 28 Octo- Irish Law Awards of misconduct in his practice as a b) Informed the bank in let- Court, and the President of the ber 2009, 9 February 2010 and Law School of the Year solicitor in that he: ters dated 14 August 2006, 15 High Court, on 21 January 2013, 2 March 2010, a) Failed to honour an undertak- August 2006, 18 August 2006 made the following orders: c) 6927/DT117/10 – failed to re- award winner 2012 and finalist 2013 ing to pay a named lending in- and 19 February 2007 that se- 1) That the name of the respon- ply adequately or at all to cor- stitution the net funds due to be curity requirements had been dent solicitor shall be struck respondence from the Society paid by his clients by Tipper- fulfilled, that the borrower had from the Roll of Solicitors, and, in particular, letters dated ary County Council under the good marketable title to the 2) That the Society do recover the 29 May 2009, 5 August 2009, terms of the compulsory pur- properties over which it was costs of the Solicitors Disci- 25 September 2009, 9 February coursE namE start datE FEEs* chase order, anticipated that the bank would plinary Tribunal when taxed or 2010 and 2 March 2010. b) Failed to adequately respond to have a fixed charge, and that ascertained, the Society’s correspondence the bank’s security was in order, 3) That the Society do recover the The tribunal ordered that the costs of the High Court pro- Diploma in Technology Law (new) (incl iPad Mini 16GB) Saturday 13 April €2,470 and, in particular, letters dated when this was not the case, matters go forward to the High 1 December 2009 and 5 January c) Failed to adequately reply to ceedings when taxed or ascer- Court, and the President of the 2010 respectively. the bank and the complainant tained. High Court, on 18 February in relation to the security posi- 2013, made the following orders: Diploma in Commercial Litigation Wednesday 17 April €2,150 The tribunal ordered that the mat- tion of properties to which the In the matter of Brian John- 1) That the name of the respon- ters go forward to the High Court, bank had loaned approximately ston, a solicitor formerly prac- dent solicitor shall be struck and the President of the High €7 million, tising as Brian Johnston & from the Roll of Solicitors, Diploma in Employment Law (incl iPad Mini 16GB) Saturday 27 April €2,470 Court, on 21 January 2013, made d) Failed to reply to correspon- Co, Solicitors, 79 Park Street, 2) That the respondent solicitor the following orders: dence from the Society dated Dundalk, Co Louth and in the do pay the Society the costs of 1) That the name of the respon- 7 April 2008, 23 April 2008, matter of the Solicitors Acts the Solicitors Disciplinary Tri- Certificate in District Court Advocacy Saturday 13 April €1,160 dent solicitor shall be struck 6 May 2008, 23 May 2008, 13 1954-2008 [6927/DT113/10; bunal in each of the three ap- from the Roll of Solicitors, October 2008 and 23 October 6927/DT114/10; 6927/DT117/ plications, to be taxed in default Certificate in Civil Litigation Updates(new) 2) That the Society do recover the 2008, 10 and High Court record no of agreement, (Friday 5 July, Saturday 6 July, Thursday 11 July, Friday 12 July, Friday 5 July €1,200** costs of the Solicitors Disciplin- e) Failed to comply with a direc- 2013/9 SA] 3) That the Society do recover the assignment due date 26 July) ary Tribunal when taxed or as- tion of the Complaints and Cli- Law Society of Ireland costs of the High Court pro- certained, ent Relations Committee made (applicant) ceedings against the respon- Certificate in Intellectual Property Rights Management(new) Monday 15 July to Friday 3) That the Society do recover the at its meeting of 3 September Brian Johnston (respondent dent solicitor, to be taxed in €1,200 (intensive one week course) 19 July costs of the High Court pro- 2008 to respond within 48 solicitor) default of agreement. G ceedings when taxed or ascer- hours, tained. f) Failed to comply with a direc- (*) Fees quoted are for solicitors. Non-legal personnel are subject to an application process and supplemental fee. tion of the Complaints and Cli- (**) Reduced fee of €900 for Skillnet members In the matter of Brian Johnston, ent Relations Committee at its Get more at gazette.ie Please note that late applications are still being accepted on the courses which began in April. a solicitor formerly practising meeting held on 7 October 2008 Gazette readers can access back issues of the magazine as as Brian Johnston & Co, Solici- to send copies of the mortgages far back as Jan/Feb 1997 right up to the current issue at gazette.ie. tors, 79 Park Street, Dundalk, lodged at the Land Registry to For further information: Co Louth and in the matter of the complainant, You can also check out current news, forthcoming events, W: www.lawsociety.ie/diplomas the Solicitors Acts 1954-2008 g) Stated in a letter to the Society employment opportunities and the latest CPD courses, as well as E: [email protected] [6927/DT78/09 and High Court dated 29 September 2008 and to lots of other useful information at lawsociety.ie. P: 01 672 4802 record no 2013/2 SA] the Complaints and Client Re-

Diploma ad full page Gazette May 2013.indd 1 23/04/2013 13:11 56 legislation update Law Society Gazette www.gazette.ie May 2013 briefing Legislation update 12 March – 8 April 2013 Details of all bills, acts and statutory instruments since 1997 (Excise Duties) (Vehicles) Act 1952 Rules of the Superior Courts are on the library catalogue – www.lawsociety.ie (members’ and and the Finance (No 2) Act 1992, (Order 123) 2013 students’ areas) – with updated information on the current stage and provides for related matters. Number: SI 101/2013 a bill has reached and the commencement date(s) of each act. Commencement: Sections 3 to Amends order 123 of the Supe- All recent bills and acts (full text in PDF) are on www.oireachtas.ie 5 apply as respects licences taken rior Court Rules to provide for the and recent statutory instruments are on a link to electronic out, under section 1 of the Finance procedure regulating the making statutory instruments from www.irishstatutebook.ie (Excise Duties) (Vehicles) Act 1952 of, and application for access to, a or, as the case may be, the provi- record made of court proceedings, ACTS PASSED finance including the regulation of sion concerned of the Finance (No including an audio recording. Child Care (Amendment) Act customs. 2) Act 1992, for period beginning Commencement: 23/3/2013 2013 Commencement: Various dates on or after 1/1/2012 (per section 2 Number: 5/2013 (see act) of the act); 2/4/2012 for section 1 Rules of the Superior Courts Amends section 17(2)(a) of the and section 6; 1/5/2012 for section (International Criminal Court Child Care Act 1991 to provide Finance (Local Property Tax) 7(1) (per section 7(2) of the act) Act 2006) 2013 that the maximum duration of an (Amendment) Act 2013 Number: SI 117/2013 interim care order (where parental Number: 5/2013 Water Services Act 2013 These rules amend the title and consent has not been provided) is Amends part 2 of the Finance (Local Number: 6/2013 rule 1 and insert a new part IX increased from 28 days (as amend- Property Tax) Act 2012 by providing Makes provision in relation to the into order 98; substitute part VI ed by section 267 of the Children exemptions from local property tax installation and maintenance of of order 136; insert forms 14 to Act 2001) to 29 days. Amends for residential properties used by water meters in dwellings; for that 18 inclusive and amend the title of section 17(2)(b) of the act to pro- a charitable body for recreational purpose provides for the forma- appendix AA of the Rules of the Su- vide that where there is Health activities connected with its chari- tion of a subsidiary company, Irish perior Courts to regulate the pro- Service Executive (HSE) and pa- table purpose and for residential Water, by Bord Gáis Éireann and cedure in the High Court under rental consent, the duration of an properties purchased or adapted the performance of certain func- part 3 of the International Criminal interim care order can exceed 29 for occupation by permanently and tions under the Water Services Act Court Act 2006 for the issue of ar- days. Also provides that the maxi- totally incapacitated individuals. 2007 by Bord Gáis Éireann and rest warrants under section 20, mum duration of an extension to Also amends part 2 of the Finance Irish Water; amends the Gas Act provisional arrest warrants under an interim care order (where HSE (Local Property Tax) Act 2012 to 1976 and the Water Services Act section 22 and surrender orders and parental consent has not been provide an exemption for a tempo- 2007; provides for the collection under section 25, and to provide provided) is increased from eight rary period of at least three years of certain information by Bord for procedure under part 4 of the days to 29 days. for residential properties that have Gáis Éireann and Irish Water; and International Criminal Court Act Commencement: 13/3/2013 been affected by a significant level provides for related matters. 2006 in relation to applications to of pyrite-induced damage. Pro- Commencement: Commence- the High Court for the issue of a Electoral (Amendment) (Dáil vides for related matters. ment order(s) to be made as per freezing order under section 38 Constituencies) Act 2013 Commencement: 13/3/2013 section 1(2) of the act and the discharge or variation of Number: 7/2013 such an order under that section, Provides for the number of mem- Health (Alteration of Criteria selected statutory for the issue of an enforcement or- bers of Dáil Éireann, for the revi- for Eligibility) Act 2013 instruments der under section 40, and for the sion of constituencies, and for the Number: 10/2013 Circuit Court Rules (Recording appointment of a receiver under number of members to be elected Amends the Health Act 1970 to of Proceedings) Rules 2013 sections 38 and 41. for such constituencies. Imple- change the eligibility rules for Number: SI 100/2013 Commencement: 18/3/2013 G ments the recommendations of medical cards for persons aged 70 Inserts a new order 67A in the Cir- the Constituency Commission years and over; provides for the cuit Court Rules to provide for the Prepared by the Report 2012, Dáil and European furnishing of personal data in cer- procedure regulating the making Law Society Library Parliament Constituencies (Prn tain circumstances and provides for of, and application for access to, a A12/0834), which was established related matters. record made of court proceedings, under the Electoral Act 1997 to re- Commencement: Commence- including an audio recording. port on the constituencies in light ment order(s) to be made as per Commencement: 23/3/2013 of the results of the 2011 census. section 1(3) of the act Commencement: 20/3/2013 District Court (Recording of Motor Vehicle (Duties and Proceedings) Rules 2013 Finance Act 2013 Licences) Act 2013 Number: SI 99/2013 Number: 8/2013 Number: 9/2013 Inserts a new order 12B in the Dis- Provides for the imposition, re- Sets out the legislative basis to trict Court Rules to provide for the peal, remission, alteration and the increases in motor tax rates procedure regulating the making regulation of taxation, of stamp and trade plate licences contained of, and application for access to, a duties, and of duties relating to in the financial resolution passed record made of court proceedings, excise, and otherwise makes fur- by Dáil Éireann on 6/12/2011. including an audio recording. ther provision in connection with Amends and extends the Finance Commencement: 23/3/2013 CAN WE TALK?

There is nothing quite like talking to someone who has been there. LawCare has over Health Support and 100 volunteers Lawwho, Society Gazette collectively, www.gazette.ie May 2013 have dealt with a broad varietylegislati ofon upersonalpdate 57 problems Advice for Lawyers including alcoholism, addiction, stress and depression.briefing If you or someone you know 1800 991801 One to watch needs help then call us in complete confidence. www.lawcare.ie One to watch: new legislation National Vetting Bureau (Children provides that the database shall be c) Established by or under an en- Functions of the bureau and Vulnerable Persons) Act 2012 comprised of three registers: actment (other than the Com- The bureau shall perform the fol- CAN WE TALK? 1) The register of relevant organisa- panies Acts) whose functions lowing functions in relation to the The National Vetting Bureau (Chil- tions, include the regulation, registra- provision of vetting services: There is nothing quite like talking to someone who has been there. LawCare has over dren and Vulnerable Persons) Act 2) The register of specified informa- tion, licensing or other authori- a) The consideration and process- 2012 was enacted by the Oireachtas tion, sation of persons who undertake ing of Healthapplications Support for vetting and 100 volunteers who, collectively, have dealt with a broad variety of personal problems on 26 December 2012. The act aims 3) The register of vetted persons. relevant work or activities. disclosureAdvice received for byLawyers it from including alcoholism, addiction, stress and depression. If you or someone you know to make provision for the protection d) Who represents for the purposes relevant1800 organisations 991801 registered of children and vulnerable persons Relevant organisation of the vetting procedures under in the register of relevant organ- needs help then call us in complete confidence. and provides for the establishment Section 2 defines a ‘relevant organ- this act, another person, trade, isations,www.lawcare.ie and maintenance of a database sys- isation’ as a person (including a body profession or body, organisation b) The making of such enquiries tem to be known as the National Vet- corporate or an unincorporated body or group or other body of persons within the Garda Síochána as ting Bureau (Children and Vulnerable of persons): that undertakes relevant work or the bureau deems necessary to Persons) Database System. The act a) Who activities. establish whether there are any also provides for establishment of a i) Employs (whether under con- criminal records or specified system of procedures for vetting dis- tact of employment of other- Specified information information relating to persons closures in respect of certain work or wise) any person to undertake ‘Specified information’ is defined who are the subject of applica- activities. relevant work or activities, under section 2, in relation to a tions for vetting disclosure, ii) Enters into a contact for ser- person who is the subject of an ap- c) The examination of the database Vulnerable person vices with any person for the plication for vetting disclosure, as to establish whether it contains CAN WE TALK?

LIVINGSection 2 defines a ‘vulnerable per- provisionON by thatCAN personYOUR of WEinformation TALK? concerning a finding KNEES? or particulars of specified infor- There is nothing quite like talking to someone who has been there. LawCare has over son’ as a person, other than a child, services that constitute rel- allegation of harm to another per- mation relating to persons con- who: There is nothingevant quite work or like activities, talking to someoneson that, if whoreceived has by beenthe bureau there. LawCarecerned, Healthhas over Support and 100 volunteers who, collectively, have dealt with a broad variety of personal problems Health Support and 100 volunteers who, collectively, have dealt with a broad variety of personal problemsAdvice for Lawyers a) Is suffering from a disorder of the iii) Permits any person (whether from: d) The making of such enquiries including alcoholism, addiction, stress and depression. If you or someone you know Advice for Lawyers 1800 991801 mind, whether as a resultincluding of men- alcoholism,or not for commercial addiction, of stressany a) andThe Garda depression. Síochána Ifpursuant you orto someoneas the bureau you knowdeems necessary needs help then call us in complete confidence. Alcoholism, chemical1800 991801 dependence, stress and emotional prowww.lawcare.ieblems are progressive Health Support and tal illness or dementia, needs help thenother call consideration) us CANin complete to underWE confidence.- TALK?an investigation of an offence or for the purposes of establishing LIVING ON YOUR KNEES? www.lawcare.ie b) Has an intellectual disability, take relevant work or activities pursuant to any other function Advice for Lawyers There is nothing quite like talking to someone who has been there. LawCare has theover identity of the persons con- illnesses. The earlierc) Is suffering fromthey a physical areim- detectedon the person’s behalf, and treatedconferred on the Gardath eSíochá easier- cerned, the road to recovery. If Health Support and 100 volunteers who, collectively, have dealt with a broad variety of personal problems Advice for Lawyers Alcoholism, chemical dependence, stress and emotional problems are progressive pairment, whether as a includingresult of alcoholism,iv) Is a provider addiction, of courses stress of ed and- depression.na by or under If you any or enactment someone or youe) knowThe Healthassessment Support for the purposes and 1800 991801 1800 991801 you or someone youinjury, illness know or age, or needs needs help then callucation help us inor completetraining, then including confidence. call the commonus inlaw, or completeof disclosureAdvice confidence. for(or otherwise) Lawyers of illnesses. The earlier they are detected and treated the easier the road to recovery. If www.lawcare.ie d) Has awww.lawcare.ie physical disability, which is internship schemes, for per- b) A scheduled organisation pur- specified information relating to of such a nature or degree: sons and, as part of such edu- suant to subsection (1) or (2) the 1800persons concerned 991801 for the you or someone you know needs help then call us in complete confidence. i) As to restrict the capacity of cation or training or scheme, of section 19, in respect of a purposeswww.lawcare.ie of determining wheth - the person to guard himself or places or makes arrangements person and which is of such a er or not it should be disclosed, herself against harm by another for the placement of any per- nature as to reasonably give rise f) The making of such enquiries of person, or son in work experience or ac- to a bona fide concern that the scheduled bodies or the Garda LIVING ON YOUR KNEES? ii) That results in the person re- tivitiesLIVING where a necessary ON part YOURperson may: KNEES?Síochána, as the case may be,

quiring assistance with the ac- of the placement involves par- i) Harm any child or vulnerable as the bureau deems necessary Alcoholism, chemical dependence, stress and emotional problems are progressive tivities of daily living includingAlcoholism, chemicalticipation in dependence,relevant work or stress person, and emotional problems arefor the progressive Healthpurposes Support of assessing and Health Support and Advice for Lawyers Advicedressing, for Lawyers eating, walking, wash- LIVINGactivities. ON YOURii) Cause KNEES? any child or vulner- illnesses. The earlier they are detected and treated the easier the road to recovery. If illnesses. The earlier they are detected and treated the easier the roadcertain to recovery. information If relating to 1800ing and 991801 bathing. you or someoneb) Who carries you knowon the needsbusiness help of then callable us person in compl to be harmed,ete confidence. the persons1800 concerned, 991801 you or someone you know needs help then call us in complete confidence. Health Support and Alcoholism, chemical dependence, stress and emotional problems are progressive www.lawcare.ie www.lawcare.ieAdvice for Lawyers illnesses. Theany earlier employment they are agency detected within and treatediii) Put the to easier harm anythe childroad orto vulrecovery.- g) The If making, in accordance with Database1800 system 991801 you or someonethe youmeaning know of needs the Employment help then call us innerable compl person,ete confidence. or the provisions of this act, of vet- Sectionwww.lawcare.ie 6 of the act provides for the Agency Act 1971 for the em- iv) Incite another person to ting disclosures in respect of the establishment by the chief bureau of- ployment of persons to under- harm any child or vulnerable persons concerned to relevant ficer of a database system. The act take relevant work or activities. person. organisations. G STRESSED?

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If you feel you need to cut down, or if Advice for Lawyers 1800 991801 people are annoying you by complaining that you drink too much, why not call our free www.lawcare.ie confidential helpline? 58 brief cases Law Society Gazette www.gazette.ie May 2013 briefing Brief cases Judgment abstracts are compiled by the Incorporated Council of Law Reporting and are reprinted with kind permission banking LAW constitutional measure – whether zoning was di- sider fresh evidence of approved Financial Servic- Family rights version of religious property. medical officer before detaining es Ombudsman Right to marry Planning and Development Act accused for in-patient treatment Appeal – mort- – applicants en- 2000, ss9, 10, 11, 12, 34 and first – whether failure to consider fresh gage – duty to gaged to be mar- schedule – Constitution of Ireland report rendered order for deten- explain conseq- ried – second ap- 1937, articles 28A, 40.3, 43, and tion ultra vires – whether deten- uences of switch- plicant arrested 44.2.6 – European Convention on tion unlawful – whether fact that ing from fixed to variable rate for deportation – right of appli- Human Rights and Fundamental invalid order for detention could mortgage – respondent upholding cants to apply to any High Court Freedoms 1950. be rectified could validate order notice parties’ complaint – whether judge for article 40 inquiry – court Portions of development plan for purpose of article 40 inquiry fiduciary relationship – whether declining to order production of quashed (2011/56JR – Clarke J – – Mental Health (Criminal Law) misrepresentation by silence – second applicant – whether mar- 27/4/2012) [2012] IEHC 163. Review Board – whether referral whether factual assertions misstat- riage to Irish national conferring Christian v Dublin City Council of patient to board superseded ed – whether serious and significant automatic right on foreign na- original district court order – errors in findings. tional to reside in State – whether criminal whether board made subsequent Henry Denny & Sons (Ireland) Ltd deportation of second applicant Evidence order for detention – statutory in- v Minister for Social Welfare [1998] 1 unlawful. Right to silence – terpretation – purposive approach IR 34 applied – Ulster Bank Invest- O’Shea v Ireland [2006] IEHC privilege against – interests and welfare of patient ment Funds Ltd v Financial Services 305, [2007] 2 IR 313 considered self-incrimina- – whether court should interpret Ombudsman [2006] IEHC 323 (un- – Izmailovic v Garda Commissioner tion – inferences act purposively to protect interests reported, Finnegan P, 1/11/2006) [2011] IEHC 32, [2011] 2 IR 522 – direction to and welfare of patient. followed – Central Bank Act 1942, distinguished – Constitution of Ire- appellant to answer questions put JB v Mental Health (Criminal s57CL – Central Bank and Finan- land 1937, article 40. to him by garda – failure to inform Law) Review Board [2008] IEHC cial Services Authority of Ireland Act Application refused (2012/435 gardaí of information where not 303, [2011] 2 IR 15 considered 2004, s16. SS – Hogan J – 9/3/2012) [2012] detained and no access to solicitor – L v Kennedy [2010] IEHC 195, Appeal allowed, matter remit- IEHC 110. – whether direction breached right [2011] 2 IR 124 not followed – ted to respondent (2011/84MCA McHugh v Minister for Justice to silence – whether breach led to Ejerenwa v Governor of Cloverhill – M White J – 16/11/2011) [2011] and Equality unfair hearing – whether entitled Prison [2011] IESC 41 (unreport- IEHC 439. to take into account failure to deny ed, SC, 28/10/2011); Liu v Gov- Irish Life and Permanent plc v Personal rights offence where such evidence not ernor of the Dóchas Centre [2011] Financial Services Ombudsman Journalist – expression – educate given by prosecution – whether en- IEHC 372 (unreported, Hogan public opinion – new media – titled to draw inferences – whether J, 6/10/2011); JO’G v Governor Financial Services Ombudsman whether rights confined to tradi- accused’s failure to previously deny of Cork Prison [2006] IEHC 236, Loan – terms – remainder of agreed tional journalists – balancing with offence was pivotal to judge’s deci- [2007] 2 IR 203 approved – BG loan funds – refusal of drawdown – other public interests – discretion sion. v District Judge Murphy (No 1) whether failure to hold oral hearing of court. People (DPP) v Finnerty [1999] 4 [2011] IEHC 359 (unreported, constituting serious and significant In re O’Kelly (1974) 108 ILTR IR 364 followed – Summary Juris- Hogan J, 20/9/2011) distin- error – whether erroneous analysis 97 distinguished – Mahon v Keena diction Act 1857 (c43), s2 – Criminal guished – In re Philip Clarke [1950] of correspondence – whether com- [2009] IESC 64, [2010] 1 IR 336 Damage Act 1991, s2 – Constitution IR 235; MR v Byrne [2007] IEHC pensation of €350 reasonable for applied – Goodwin v UK (app no of Ireland 1937, article 38.1. 73, [2007] 3 IR 211 approved – failure to comply with instructions. 17488/90) (1996) 22 EHRR 123 Questions answered in the Criminal Law (Insanity) Act 2006, Ulster Bank Investment Funds Ltd followed – Howlin v Morris [2005] negative and case dismissed ss4 and 13 – Constitution of Ireland v Financial Services Ombudsman IESC 85, [2006] 2 IR 324 consid- (2011/2461SS – Hedigan J – 1937, article 40.4.2. [2006] IEHC 323 (unreported, ered – Constitution of Ireland 1937, 7/6/2012) [2012] IEHC 421. Release ordered (2012/637SS Finnegan P, 1/11/2006) followed – article 40.6.1. DPP (Sweeney) v Roibu Hogan J – 5/4/2012) [2012] J&E Davy t/a Davy v Financial Ser- Ex parte order vacated IEHC 152. vices Ombudsman [2010] IESC 30, (2012/4FTE – Hogan J – Insanity C(E) v Central Mental Hospital [2010] 3 IR 324 considered – Cen- 18/9/2012) [2012] IEHC 376. Detention – legality – jurisdiction – tral Bank Act 1942, s57CL – Central Cornec v Morrice ultra vires – mental health – fitness defamation Bank and Financial Services Author- to be tried – in-patient treatment Discovery ity of Ireland Act 2004, s16. Right to property – procedure where accused found Journalistic priv- Appeal allowed, matter remit- Right to religious freedom – prin- unfit to be tried – procedure where ilege – source ted to respondent (2011/169MCA ciple of proportionality – prohibi- court ordered detention for in- – object of privi- – Cross J – 16/11/2011) [2011] tion on diversion of religious prop- patient treatment – whether court lege – false story IEHC 422. erty – discrimination – whether required to remand accused follow- about plaintiff Hyde v Financial Services possible to assess effect of measure ing finding of unfitness to be tried published by defendants – plaintiff Ombudsman on rights in absence of reasons for – whether court required to con- seeking discovery of documents – Law Society Gazette www.gazette.ie May 2013 brief cases 59 briefing defendants claiming journalistic – professional conduct – whether solicitor/executrix – conflict be- Motor Insurance Directive) Regula- privilege – whether documents undertakings binding the plaintiff tween interests of estate beneficia- tions 2003 (SI 651/2003) – Regu- privileged – whether plaintiff en- – whether plaintiff aware of un- ries and non-estate beneficiaries lation 864/2007/EC. titled to discovery. dertakings – whether defendants – test for removal of executor – Damages awarded (2010/5675P Garda Síochána Act 2005, s62 – owing duty of care to plaintiff – ‘serious misconduct’ test – ‘serious – O’Neill J – 20/4/2012) [2012] Defamation Act 2009, ss25 and 26 whether proceedings bound to fail special circumstances’ test – onus IEHC 177. – European Convention on Human – whether abuse of process. of proof – executrix formerly solic- Kelly v Groupama Rights and Fundamental Freedoms, Shangan Construction Ltd v TP itor to testator and to companies article 10. Robinson & Co (unreported, HC, associated with non-estate assets Personal Injuries Discovery ordered (2011/5977P 10/7/1990); United Bank of Kuwait – defendant principal beneficiary Road traffic – evidence – liab- – O’Neill J – 10/8/2012) [2012] Ltd v Hammoud [1988] 1 WLR of estate assets – solicitor’s duty of ility – contributory negligence – IEHC 353. 1051 considered – Rules of the Su- confidentiality – solicitor’s duty of whether plaintiff driving on cor- Walsh v News Group Newspapers perior Courts 1986 (SI 15/1986), disclosure – solicitor having irrec- rect side of road – whether plain- Ltd order 19, rule 28. oncilable duties – whether grant tiff travelling at excessive speed – Proceedings dismissed (2011/ of probate should issue to execu- whether defendant failed to keep intellectual property 3035P – Murphy J – 8/3/2012) trix – whether executrix conflicted proper lookout – apportionment Copyright [2012] IEHC 112. in professional capacity – whether of liability – quantum – injuries – Data protection Coleman v O’Neill conflict between interests of estate pain and suffering – loss of earn- – infringement and non-estate beneficiaries. ings – loss of employment oppor- of copyright – probate Dunne v Heffernan [1997] 3 tunity – whether plaintiff’s loss of unknown inter- Costs IR 431 applied – Hilton v Barker earnings claim based on credible net subscribers Action to prove Booth & Eastwood [2005] UKHL figures – whether evidential basis – applicants notifying notice party will in solemn 8, [2005] 1 WLR 567 approved for future loss of earnings claim of breaching of copyright – notice form – testament- – Flood v Flood [1999] 2 IR 234; – credibility – false or misleading party terminating internet service ary capacity – Spencer v Kinsella [1996] 2 ILRM evidence – application for dis- of subscribers repeatedly breach- entitlement of 401; Moody v Cox and Hatt [1917] 2 missal – test to be applied – onus ing copyright – respondent direct- unsuccessful party to probate ac- Ch 71; O’Carroll v Diamond [2005] of proof – standard of proof – ing notice party to cease scheme tion to costs – successful opposi- IESC 21, [2005] 4 IR 41; Carroll v whether plaintiff’s evidence false with applicants – whether reasons tion to plaintiff acting as executrix Carroll [1999] 4 IR 241; and Bristol or misleading – whether plain- provided by respondent – whether – conflict of interest – whether and West Building Society v Mothew tiff knowingly tendered false or respondent obliged to provide reasonable ground for litigation [1998] Ch 1 considered – Succes- misleading evidence – whether reasons – notice party entitled to – whether conducted bona fide – sion Act 1965, ss10(3), 26 and 27. information supplied to expert appeal direction of respondent – whether costs should be awarded Defendant’s claim allowed actuary was false or misleading whether applicants entitled to seek against plaintiff personally or out (2009/3286P – Laffoy J – – whether plaintiff deliberately certiorari of respondent’s direction. of estate – whether plaintiff acted 28/3/2012) [2012] IEHC 140. exaggerated claim – whether EMI Records (Ireland) Ltd v UPC unreasonably in fiduciary capacity Re Rhatigan: Scally v Rhatigan plaintiff tendered false or mis- Communications Ireland Ltd [2010] in contesting second issue. leading evidence concerning IEHC 377 (unreported, Charleton In bonis Morelli: Vella v Morelli tort ability to engage in driving post- J, 11/10/2010) followed – Scarlet [1968] IR 11; Elliot v Stamp [2008] Personal accident – whether false or mis- Extended SA v Société belge des au- IESC 10, [2008] 3 IR 387; Re ELO injuries leading aspects of claim severable teurs, compositeurs et éditeurs SCRL & R Trusts [2008] JRC 150; Re Y Conflict of laws – whether injustice would result (SABAM) (Case C–70/10) (unre- Trust [2011] JRC 135; Bristol & – injury incurred from dismissal. ported, ECJ, 24/11/2011); L’Oréal West Building Society v Mothew in France – Carmello v Casey [2007] IEHC SA v eBay International AG (Case [1998] Ch 1; Hunter v Hunter assessment of 362, [2008] 3 IR 524 and Hig- C–324/09) (unreported, ECJ, [1938] NZLR 520; and Re Bed- damages – choice of law – French gins v Caldark Ltd [2010] IEHC 12/7/2011) considered – Data Pro- doe [1892] 1 Ch 547 considered – law – whether practice of French 527 (unreported, Quirke J, tection Act 1998, s10. Succession Act 1965, ss10(3), 27(4), judges to have regard to book of 18/11/2010) followed – Ahern v Notice quashed (2012/167JR – 78 and 120 – Rules of the Superior previous awards non-obligated Bus Éireann [2011] IESC 44 (un- Charleton J – 27/6/2012) [2012] Courts 1986 (SI 15/1986), order practice – whether court bound by reported, SC, 2/12/2011) applied IEHC 264. 99. previous awards of French judges in part – Gammell v Doyle [2009] EMI Records Ireland Ltd v Data Costs of first module awarded to – whether assessment of dam- IEHC 416 (unreported, Hanna J, Protection Commissioner both parties out of estate and costs ages matter of practice – whether 28/7/2009); Farrell v Dublin Bus of second module awarded to de- court could have regard to levels [2010] IEHC 327 (unreported, practice and procedure fendant out of estate (2009/3286P of compensation in Irish courts – Quirke J, 30/7/2010); and Shelly- Dismissal of – Laffoy J – 1/10/2012) [2012] categories of compensation – tem- Morris v Bus Átha Cliath [2003] 1 proceedings IEHC 387. porary disablement – pain and suf- IR 232 considered – Civil Liability Solicitor’s under- Re Rhatigan: Scally v Rhatigan fering – deprivation or disruption and Courts Act 2004, s26. takings – plaintiff of specific practices or activities Proceedings dismissed (2007/ alleging negli- Executor – permanent non-pecuniary loss 9146P – Smyth J – 20/1/2012) gence and breach Grant of probate – conflict of – aesthetic injury – sexual damage. [2012] IEHC 151. of duty by directors of credit union interest – professional duties of European Communities (Fourth Nolan v Mitchell G 60 eurlegal Law Society Gazette www.gazette.ie May 2013 briefing Eurlegal Edited by TP Kennedy, Director of Education The EU’s clean fuel strategy for the future Breaking the oil dependence of transport and setting a target of 60% greenhouse gas emissions reduction from transport by 2050 were called for in the European Commission’s 2011 white pa- per, Roadmap to a Single European Transport Area – Towards a Competi- tive and Resource Efficient Transport System. Included in the white pa- per’s initiatives was development of a sustainable alternative fuels strategy with an appropriate infra- structure, as well as guidelines and standards for refuelling infrastruc- tures. Prior to that, the Renewable Energy Directive (2009/28/EC) set a target of 10% market share of renewables in transport fuels. Earlier this year, on 24 January 2013, the commission published a package of measures setting out a ‘clean fuel strategy’, which com- prised a commission communica- Post 2020, the commission will not be supporting biofuels based on food crops and animal fats tion, Clean Power for Transport: A European Alternative Fuels Strategy To date, market development of receive public support – and not for LNG bunkering is seen as vital (COM (2013) 17 final), a proposal alternative fuels has been obstruct- biofuels based on food crops and to kick-start the development, as for a directive on the deployment ed by technological shortcomings, animal fats. well as further decrease prices for of alternative fuels infrastructure consumers’ lack of acceptance, technology and LNG fuel. In April (COM (2013) 18 final), and a com- and lack of adequate infrastruc- Staff working document 2012, the commission and the Eu- mission staff working document, ture. While initiatives for alter- The complementing staff working ropean Maritime Safety Agency, Actions Towards a Comprehensive native transport fuels exist at EU document highlights that LNG with stakeholders, launched activi- EU Framework on LNG for Ship- and national level, an overarching is the most promising alternative ties to progress the introduction of ping (SWD (2013) 4 final). coherent and stable strategy with shipping technology in the short LNG for shipping in the EU. The an investment-friendly regulatory to medium term, at least for short next steps include establishment Commission communication framework was identified as es- sea and possibly inland waterways, of a European Sustainable Ship- In its communication, the com- sential. as well as fisheries and offshore ping Forum, with member states mission draws attention to the The communication outlines services. A case has been made for and EU industry to progress the fact that the EU’s “supply of oil, the alternative fuel strategy and LNG in shipping, in terms of both sustainable waterborne transport and thus our mobility, depend to a maps its implementation across economics and the environment. toolbox, which the commission large degree on politically unstable every form of transport. As there is Economically, it is a potential vi- had outlined in its staff working regions … Price hikes driven by no single fuel solution, the strategy able alternative to heavy fuel oil, paper (SEC (2011) 1052 final) in speculation on the impact of oil is built on a comprehensive mix and a viable spot market for LNG September 2011. The commission supply disruptions have cost the of alternative fuels, namely lique- for shipping is expected to estab- also identified a need to provide European economy an additional fied petroleum gas (LPG); natural lish, which may see prices drop fur- information to ‘demystify’ LNG, €50 billion per year over the last gas (including biomethane) in the ther. On the environmental front, as public perception is that it is a three years.” form of LNG, compressed natu- in comparison to bunker oil used dangerous technology – despite its To move away from such a vul- ral gas (CNG), and gas-to-liquid currently, LNG reduces sulphur excellent safety record. Targets on nerable position, the strategy is to (GTL); electricity; liquid biofuels; emissions down to almost 0%, development of LNG bunkering gradually replace oil with alter- and hydrogen. The commission is which fulfils existing and planned facilities and infrastructure are set native fuels and to construct the of the view that, post 2020, only emission limits for designated out in the proposed directive. necessary infrastructure to support biofuels made from ligno-cellu- sulphur emission control areas that replacement. It is envisaged losic biomass, residues, waste and (SECAs) in the EU (for example, Proposed directive that this will also boost growth and other non-food biomass, including English Channel, North Sea, Bal- The proposed directive is aimed at jobs in the EU. algae and microorganisms, should tic Sea). A minimal infrastructure addressing the ‘chicken and egg’ Law Society Gazette www.gazette.ie May 2013 eurlegal 61 briefing

problem of a lack of alternative fuel nual targets). Under the proposals, directive 2012/27/EU on energy inland ports of the TEN-T Core infrastructure due to insufficient member states are expected to co- efficiency). Consumers would have Network by 31 December 2025. number of vehicles/vessels, result- operate through consultations or the right to contract electricity si- For road travel, publicly accessible ing from scarce consumer demand joint policy frameworks. Only fu- multaneously with numerous sup- LNG refuelling points would have (arising from non-competitive els included in the national policy pliers. The rationale behind this to be established within distances prices of the self same vehicles/ frameworks would be eligible for is that they could then contract of 400km by 31 December 2020. vessels). Without consumers buy- EU and national support measures separately for electricity supply The proposed directive also sets ing the requisite vehicles/vessels, for alternative fuels infrastructure. for their electric vehicle. Prices out technical specifications with no real incentive has been seen Separate articles in the pro- charged at publicly accessible which the refuelling points would for development of infrastructure. posed directive deal with the top- charging points have to be reason- have to comply. Similarly, CNG The proposed directive aims to put ics of electricity supply for trans- able. Any penalty or prohibitive refuelling points are to be within in place measures to ensure suffi- port, hydrogen supply for trans- fees for recharging an electric ve- 150km by 31 December 2020, to cient infrastructure coverage for port, and natural gas supply for hicle by a user not having contrac- allow circulation of CNG vehicles economies of scale on the supply transport. tual relations with the recharging EU wide and to comply with tech- side and network effects on the de- point operator are forbidden. nical specifications by 31 Decem- mand side. In short, it is expected Electricity supply ber 2015. to establish a common framework With respect to electricity sup- Hydrogen supply The proposals also envisage rel- of measures for the deployment of ply, the proposals require mem- In terms of hydrogen supply, it evant, clear and simple informa- alternative fuels infrastructure. ber states to ensure a minimum is foreseen that member states tion on the compatibility between At the outset, it is envisaged that number of recharging points for where hydrogen refuelling points all fuels on the market and vehicles each member state will adopt a electric vehicles by 31 December already exist would ensure avail- to be available: (a) at the pumps national policy framework for the 2020. In the case of Ireland, that ability of a sufficient number in all refuelling points, at vehicle market development of alternative number is 22,000 – 2,000 of which of publicly accessible refuelling dealerships, and at technical con- fuels and their infrastructure. An- have to be publicly accessible. Re- points. Distances between refuel- trol facilities; (b) in vehicle manu- nex I to the proposed directive lists charging points are categorised as ling points are set within 300km als; and (c) on vehicles. the elements that each framework ‘slow’ (that is, a recharging point to facilitate circulation of hydro- is to contain, and they include that allows for a direct supply of gen vehicles by 31 December Moving forward measures to support the build-up electricity to an electric vehicle 2020. Moreover, refuelling points It is clear from the measures envis- of alternative fuels infrastructure with a power of less than or equal have to be compliant with the aged in the commission’s package (such as building permits, parking to 22 kW) and ‘fast’ (a recharg- technical specifications in annex that Europe-wide coordination lots permits, fuel stations conces- ing point that allows for a direct III of the proposed directive. will form the backbone of the sions); supporting measures (for supply of electricity to an electric move to large-scale deployment example, tax incentives, public vehicle with a power of more than Natural gas of alternative fuels. The build-up procurement, preferential access to 22 kW) and would have to comply For natural gas supply, member of alternative transport fuel infra- restricted areas, dedicated lanes); with the technical specifications in states are tasked with ensuring structure is expected to be ground- deployment and manufacturing annex III of the proposed direc- publicly accessible LNG refuel- ed in private investment. However, support (such as yearly public bud- tive. Shoreside electricity supply ling points for maritime and inland EU support is to be made available get allocation for alternative fuels for waterborne vessels is expected waterway transport in all mari- by way of TEN-T funds, cohesion infrastructure deployment and to to be provided in ports, provided time ports of the Trans-European and structural funds, and Europe- support manufacturing plants for it is cost-effective and has environ- Transport (TEN-T) Core Net- an Investment Bank lending. G alternative fuels technologies); re- mental benefits. All publicly acces- work by 31 December 2020. In ad- search, technological development sible recharging points would be dition, publicly accessible LNG re- Diane Balding is a member of the and demonstration; as well as na- equipped with intelligent meter- fuelling points for inland waterway Law Society’s EU and International tional targets (2020 targets and an- ing systems (see article 2(28) of transport are to be provided in all Affairs Committee.

Recent developments in European law litigation documents on behalf of a non- Regulation 1393/2007 on the Furthermore, the Polish Case C-543/10, case C-325/11, Polish party to proceedings. If no service of judicial and extrajudicial provision does not comply with Alder v Orlowska, 7 January 2013 such representative is authorised, documents in civil or commercial fundamental rights. It does not Polish law re- the court documents addressed to matters. Where the regulation guarantee the rights of the defence. quires the ap- that party shall be placed in the case applies, service must be carried The Polish system does not pointment of a file and shall be deemed to have out by one of the means of guarantee the non-Polish party representative been served. transmission provided for by the knowledge of the judicial act in in Poland to The CJEU ruled that such regulation. Other means provided sufficient time to prepare a defence serve judicial provisions were incompatible with for by national law are precluded. or a translation of that document. G 62 Professional notices Law Society Gazette www.gazette.ie May 2013 notices

wills Rates Cahir, Noreen (deceased), late of 16 Killian Park, Shan- non, Co Clare, and formerly of Professional notice rates Kells, Corofin, Co Clare, who rates in the Professional notices section are as follows: died on 28 January 2013. Would • Wills – €147 (incl VAT at 23%) any person having knowledge of • Title deeds – €294 per deed (incl VAT at 23%) a will made by the above-named Employment/miscellaneous – €147 (incl VAT at 23%) deceased please contact Ruth • Casey at Messrs John Casey & Highlight your notice by putting a box around it – €33 extra Company, Solicitors, Bindon House, Ennis, Co Clare; DX 25 All notices must be paid for prior to publication. Cheques should be made 007 Ennis; tel: 065 682 8159, fax: payable to Law Society of Ireland. Deadline for June Gazette: 22 May 2013. For further 065 682 0519, email: ruth.casey@ information, contact the Gazette office on tel: 01 672 4828 (fax: 01 672 4877) caseylaw.biz

Coleman, Maurice (deceased), late of 52 Ramleh Park, Milltown, Co Laois. Would any person hav- having knowledge of a will made miscellaneous Dublin 6. Would any person hav- ing knowledge of a will (or docu- by the above-named deceased ing knowledge of any will made ments relating to a will) made please contact Adrian P Bourke, Contents of legal practice by the above-named deceased, by the above-named deceased, solicitor, at Adrian P Bourke & for sale, to include a selection who died on 12 February 2013, who died on 1 December 2012, Company, Solicitors, Victoria of framed antique and modern please contact John O’Connor, please contact Sheehan & Co, So- House, Ballina, Co Mayo; tel: legal cartoon prints, large col- Solicitors, 168 Pembroke Road, licitors, 1 Clare Street, Dublin 2; 096 22055, fax: 096 21070, email: lection of legal books, server, Ballsbridge, Dublin 4; tel: 01 668 DX 168; tel: 01 661 6922; email: [email protected] PCs and printers, telephone 4366, fax: 01 668 4203, email: [email protected] system, scanner, fax, pho- [email protected] Oakes, Carmel (deceased), tocopier; binding machine, Mullins, Colm Anthanius (de- late of 145 Downpatrick Road, Dictaphone Thought Tank Gillespie, Donal Gerard (de- ceased), late of Riverside House, Crumlin, Dublin 12, who died with two handsets, stationery ceased), late of Dooey, Glen- Ardgroom Village, Beara, Co on 14 February 2013. Would any press, desks, filing cabinets colmcille, Co Donegal, and 36 Cork, and Flat 5, Chiltern Court, person having knowledge of the and associated equipment. Orpen Drive, Belfast, Co Antrim, 61 Pages Hill, London N10 1EN. whereabouts of any will made by Contact: irenedonnelly@ Northern Ireland, who died on Would any person having knowl- the above-named deceased please eircom.net 26 July 2009. Would any person edge of a will made by the above- contact Brendan D O’Connor having knowledge of the where- named deceased, who died on 27 & Co, Solicitors, 179 Crum- abouts of any will made by the December 2012, please contact lin Road, Dublin 12; tel: 01 453 Practice for sale. Profitable gen- above-named deceased please Maria O’Sullivan & Co, Solici- 6218, email: brendandoconnor@ eral practice for sale, servicing contact DP Barry & Co, So- tors, Bank Place, Castletownbere, eircom.net clients mainly in Dublin, Louth licitors, Bridge Street, Killybegs, Beara, Co Cork; tel 027 71772, Co Donegal; tel: 074 973 1174, email: [email protected] fax: 074 973 1639, email: info@ barrylaw.ie Murphy, Margaret (deceased), late of Tonacrick, Lahardane, Bal- Holmes, Nuala (deceased), late lina, Co Mayo, who died on 10 of 6 Chantiere Gate, Portlaoise, October 2006. Would any person

Is your client interested Excellent established Solicitor’s practice for sale in selling or buying a in Galway City. SOLICITOR’S OFFICE TO LET 7-day liquor licence? Suit an ambitious person 33 Bachelors Walk, Dublin 1. looking to work for themselves If so, contact Liquor with the aid of an experienced O’Connell Bridge, massive daily footfall, close to Four Courts, Licence Transfers retiring practitioner. Dublin Castle, Land Registry, Registry of Deeds, Government, Contact: Financial, Professional and related Services; especially suitable David Rowe at Outsource to expanding firm. Rent/Term reasonable. Contact 01 6788 490 Contact: Corry Mc Mahon 0404 42832 [email protected] +353 86 2566106, [email protected] Law Society Gazette www.gazette.ie May 2013 Professional notices 63 notices

and Meath with a good mix of liti- of the following property, that is, appropriate on the basis that the or unascertained. gation, conveyancing and probate. the Parochial House, Croom, in persons beneficially entitled to Date: 3 May 2013 Would suit an ambitious solicitor the county of Limerick. the superior interest including the Signed: Maurice Power, Solicitors seeking to work for himself/herself Take notice that Fr Joseph Ken- freehold reversion in the afore- (solicitors for the applicants), Lord Ed- and build on an established client nedy PP and Fr Anthony Mullins, mentioned premises are unknown ward Street, Kilmallock, Co Limerick base. All expressions of interest diocesan administrator, intend will be treated with the strictest to submit an application to the recruitment confidence. Closing date 15 June county registrar for the county of 2013. Contact box no 01/05/13 Limerick for the acquisition of the freehold interest in the foresaid NOTICE TO THOSE PLACING title deeds property, and any party asserting In the matter of the Landlord that they hold a superior interest RECRUITMENT ADVERTISEMENTS IN and Tenant Acts 1967-2005 and in the aforesaid premises are called THE LAW SOCIETY GAZETTE in the matter of the Landlord upon to furnish evidence of the ti- and Tenant (Ground Rents) (No tle to the aforementioned premises Please note that, as and from the August/September 2) Act 1978 and in the matter of to the below named within 21 days 2006 issue of the Law Society Gazette, NO recruitment the Parochial House, Croom, from the date of this notice. advertisements will be published that include references situate in the townland of In default of any such notice to years of post-qualification experience (PQE). Croom, barony of Coshma and being received, the applicants in- county of Limerick – applicants: tend to proceed with the applica- The Gazette Editorial Board has taken this decision based Fr Joseph Kennedy PP and Fr tion before the county registrar at on legal advice, which indicates that such references may Anthony Mullins, diocesan ad- the end of 21 days from the date ministrator of this notice and will apply to the be in breach of the Employment Equality Acts 1998 and Take notice that any person having county registrar for the county of 2004. any interest in the freehold estate Limerick for directions as may be Celebrate your Wedding at The Law Society

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wild, weird and wacky stories from legal ‘blawgs’ and media around the world

Horns of a dilemma Gardaí are investigating the theft of rhino heads and horns from the National Museum Archives in Swords, Co Dublin, RTÉ reports. Three masked men entered the building and tied up the security man on duty at around 10.40pm on 17 April. The three men loaded the rhino heads and horns from the building into a large white van. The raiders were in the building for approximately one hour. The security man, who was uninjured, later Stickler judge holds himself in contempt freed himself and raised When a mobile phone rang in “I got very embarrassed, and I’m witnesses and personal friends. the alarm. The value of the court during a prosecutor’s closing sure my face turned red,” Voet told Voet held himself in contempt property stolen is estimated argument in a domestic violence the publication later. “I thought it and walked downstairs during a to be in the region of trial, a Michigan judge didn’t have would never happen to me.” court recess to pay the same $25 €500,000. to look far to find the culprit. The judge is known for being a fine he imposes on other offenders! Chief Ionia District Judge stickler about mobile-phone use in Raymond Voet himself was to court and has signs posted outside blame, MLive.com reports. He his courtroom warning the public had failed to lock his new phone that individuals face a $25 fine and Attorney files suit over suit properly before court proceedings could lose their electronic device if got started – and then had trouble it goes off during a hearing. In the seeking $7,646. According to the turning it off, as it offered him past, phones have been removed suit, the amount represents the suggestions about voice-dialling. from police officers, lawyers, price of the suit ($646), the cost of his time when he argued with store personnel for 90 minutes ($2,000) and punitive damages Lawyer says 70% of clients ($5,000). “Leave it to a lawyer to file want to strangle him suit over a suit,” the story says. A California criminal defence and filed criminal-threat charges Ginsberg claims that he lawyer who asked a judge to against Mirabal. purchased a three-button remove him from a case because of Tursi is now downplaying the suit with a faint pinstripe a client assault is now moderating confrontation, saying that he and in December, but when he his accusations. his client “kind of veered off to the returned to pick up the garment, The client is now on trial for the left and bada-boom”, the lawyer he was given a used grey jacket alleged incident and lawyer Andy fell against the wall. In testimony and trousers that were two sizes Tursi is being called as a witness, before a grand jury, Tursi said too big. He says that he tried the San Jose Mercury News conflicts aren’t unusual: “70% of returning the suit at Brooks reports. my clients want to strangle me (at) Brothers’ Liberty Street store In a 2010 private conference one time or another.” A Manhattan personal injuries in Manhattan, but store staff with the judge, Tursi originally Mirabal testified at his trial in lawyer claims in a lawsuit that refused it. claimed that his client, Ernesto mid April that he never assaulted or Brooks Brothers gave him the David Rees, the manager Mirabal, had slammed the lawyer’s threatened Tursi, but did threaten wrong suit after he asked the of the Liberty Street store in head into a jail wall, made to reveal damaging information store to do some alterations on Manhattan, told the New York threats and mentioned his family. unless the lawyer changed his his new purchase. Daily News that Ginsberg should Prosecutors unsealed the transcript strategy in the 2010 trial. The New York Daily News contact him and he would be reports that Robert Ginsberg is happy to help. G Keane McDonald is an executive search fi rm focusing on legal appointments. We specialise in the recruitment of high calibre legal professionals both in Ireland and overseas. Applicants are assured the utmost confi dentiality and discretion when working with us. Opportunities

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For the latest opportunities, please visit our website: www.benasso.com Talk to the Irish Legal Recruitment Specialists or contact Michael Benson BCL Solicitor in strict confidence at Benson & Associates, Legal Recruitment Specialists, Suite 113, The Capel Building, St Mary’s Abbey, Dublin 7, tel: +353 1 670 3997

Legal Recruitment Specialists

For more information please visit our website or contact Michael Benson bcl. solr. in strict confidence at: Benson & Associates, Suite 113, The Capel Building, St. Mary’s Abbey, Dublin 7. T +353 (0) 1 670 3997 E [email protected]