Cat’s in the cradle Wham, bam... Wild thing An introductory overview of Planning proper pension Is there a case for extending the provisions of the Legal provisions in the event of rights to natural objects in Services Regulation Act divorce proceedings the environment? gaLAW SOCIETY ette€4.00 MARCH 2016

MONEY TALKS Countering terrorist financing gaLAW SOCIETY ette

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Prior to downloading the Gazette, make sure that you are using the most up-to-date versions of your favourite browser, for example, Internet Explorer, Safari, Firefox or Chrome. DIRECTOR OF LEGAL – IN-HOUSE A large multinational is looking to appoint a Senior Director of Legal to their Dublin operation. This is a client-facing position and the appointed Solicitor will establish strong relationships with both internal and external clients, business partners and foster a client focused approach with respect to the performance of all Legal & Risk Management responsibilities.

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JUNIOR SOLICITOR – FUNDS International Law Firm in Dublin is offering a unique opportunity for a Junior Solicitor who is interested in growing their career in the funds space. The applicant does not require previous funds experience but must have a keen desire to upskill in this area. The successful appointment will have an opportunity to work both domestically and internationally. This position will offer excellent remuneration and progression for the right person.

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To apply for any of the above vacancies or for a strictly confidential discussion, please contact Seán Fitzpatrick on 01-5005916, Tony Glynn on 01-5005918 or [email protected], Cora Smith B.Corp Law on +353 1 5005925 or [email protected] law society gazette www.gazette.ie March 2016 PRESIDENT’S??????????????? MESSAGE 1

WORKING TO FULL CAPACITY

owards the was founded in 2007 by one daughter and her partner, who end of last of my predecessors, Michael both tell me that they are already year a very Irvine, and others, and runs a in high-altitude training for the important piece number of worthwhile projects event. of legislation in disadvantaged countries, such In the past few weeks, I was – the Assisted as Malawi. Irish Rule of Law privileged to preside over two very Decision-MakingT (Capacity) International cannot continue with pleasant events in the Law School. Act 2015 – was passed by the these worthwhile projects without Firstly, there was a celebration to Oireachtas and signed into law. funding. commemorate the international This act marks a significant To this end, a very pleasant achievements of three victorious development in recognising the evening was had in the Law moot court teams, which was legal rights of vulnerable persons Society in early December, attended by the parents of the and in providing adequate when musical entertainment victorious students. TP Kennedy, support to be made available to was provided by various and Geoffrey Shannon and Jane assist people whose decision- very talented members of both Moffatt, respectively, coached and making capacity is in question, branches of the legal profession. mentored the three teams. or may shortly be in question. Some weeks previously, at the In addition, a room-naming The legislation is expected to cluster event in Cork, a small ceremony was held in the come into operation during 2016 cheque was presented to Irish revamped Green Hall, which has and, while welcome, represents Rule of Law International, being been called after past-president a significant challenge for our the entire proceeds of an earlier Michael V O’Mahony. Michael’s profession, as it will affect nearly cluster event. It all adds up to work for the Society, but in every area of practice. keeping these projects running particular the education side of The Assisted It is appropriate that I pay and is to the credit of numerous the house over a period of almost tribute to the Law Society’s lawyers who give up a lot of their 40 years, has been immense. Our Decision- Mental Health and Capacity free time to do so. special guests included Michael Making (Capacity) Task Force, in particular its Another charitable project is, and his extended family, partners chairperson, Patricia Rickard- of course, the annual Calcutta of McCann FitzGerald Solicitors, Act 2015 will Clarke, who has been a tireless Run. Towards the end of last year, both past and present, members of ‘impact on nearly advocate for change in the area. I was privileged to participate at the Law Society Council, and staff We are extremely grateful to the formal handing over of the of the Society. every area her and her colleagues in the proceeds of last year’s run to the Finally, the ‘Murphy Roadshow’ of practice task force for their huge work in two nominated charities, GOAL moved up some gears in the helping to bring about this very and the Peter McVerry Trust. past weeks when the director important piece of legislation. The charities received €72,000 general and I visited the Louth, each. Hopefully, this year’s Waterford, Galway, Tipperary ’ Charity begins at home Calcutta Run, which takes place and the Midland Bar Associations. Since assuming office, I have on 21 May next, will prove to be It was a great privilege to meet inevitably participated in many just as successful. As for my own up with so many colleagues and events and functions, a number participation, an old war wound to have honest, forthright, but of which were associated with, or prevents me from road-running always enjoyable exchanges with resulted from, the great charitable (excuses, excuses!), but I do hope everyone we met. I’m really efforts of a number of colleagues. to power-walk the course on the looking forward to more of the Irish Rule of Law International day, and I have conscripted my same as the year continues.

Simon Murphy President 2 CONTENTS law society gazette www.gazette.ie March 2016

gaLAW SOCIETY ette

LAW SOCIETY GAZETTE • Vol 110 No 2 No 110 Vol • GAZETTE SOCIETY LAW

Cat’s in the cradle An introductory overview of the provisions of the Legal Wham, bam... Services Regulation Act Planning proper pension provisions in the event of Wild thing divorce proceedings Is there a case for extending rights to natural objects in the environment?

32 gaLAW SOCIETY

ette€4.00 MARCH 2016 MARCH 2016 2016 MARCH cover story 28 Show me the money Eradicating money laundering and terrorist financing has become a priority for legislators and policymakers, and the focus on its prevention and detection looks set to Law Society of Ireland of Society Law MONEY TALKS intensify considerably, writes Helen Kehoe

Countering terrorist iSTOCK PIC: financing 40 features 32 Wake me up before you 40 Faith, hope and charity go-go This is an important and challenging time In 1996, the Family Law (Divorce) Act for charities operating in Ireland. Kevin was passed – that was the same year that Hoy and Alice Murphy examine some Di divorced Charles. With divorce and implications of the new regulatory regime pensions in mind, Jim Connolly asks: ‘Does my ARF look big in this?’ 44 In what capacity? The Assisted Decision-Making (Capacity) 36 Keeping it regular Act 2015 governs the law in relation to Director of regulation John Elliot adults who are experiencing difficulties provides an introductory overview of key with decision making – and it changes the aspects of the Legal Services Regulation definition of ‘capacity’. Kate Butler 44 Act as they apply to solicitors holds your hand

Law Society Gazette Volume 110, number 2 law society gazette Subscriptions: €60 (€90 overseas) Blackhall Place, Dublin 7. Tel: 01 672 4828, fax: 01 672 4801, email: [email protected] Editor: Mark McDermott FIIC Deputy editor: Dr Garrett O’Boyle PROFESSIONAL NOTICES: send small advert details, with payment, to: Gazette Art director: Nuala Redmond Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Editorial secretary: Catherine Kearney All cheques should be made payable to: Law Society of Ireland. Printing: Turner’s Printing Company Ltd, Longford

COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, Editorial board: Michael Kealey (chairman), tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected]. Mark McDermott (secretary), Aoife Byrne, See the Gazette rate card online at www.lawsociety.ie/gazette-rates Mairéad Cashman, Hilary Forde, Richard Hammond, Teri Kelly, Tracy Cruikshank, Patrick J McGonagle, HAVE YOU MOVED? Members of the profession should send change-of-address details to: Aisling Meehan, Heather Murphy, Ken Murphy, IT Section, Blackhall Place, Dublin 7, or to: [email protected] Andrew Sheridan law society gazette www.gazette.ie March 2016 CONTENTS 3

18 36 regulars 4 Frontline 48 Books 4 Nationwide 48 Books reviews: Consumer Law: Rights 5 Representation and Regulation and The Law of Advertising in Ireland 7 News 51 Briefing 13 People 51 Council reports: 4 December 2015 and 29 January 2016 16 Comment 52 Practice notes 16 Letters 57 Regulation 18 Viewpoint: Can the concept of rights 62 Eurlegal: The regulation of aircraft leases 62 for humans be extended to rights for nature? 65 Professional notices 20 Viewpoint: Is a medical consent form a meaningless document? 70 Final verdict 22 Analysis 71 Recruitment 22 News in depth: A recent survey of the public by the Law Society 27 Human rights watch: ECHR impact report

47 Obituary 47 John PC Goff 70

Get more at No material from the Gazette may be published FSC independently certified wood and paper or used without the permission of the copyright products used by the Law Society Gazette holder. The Law Society of Ireland can accept no come from ecologically managed forests. Visit: www.fsc.org www.lawsociety.ie responsibility for the accuracy of contributed articles Gazette readers can access back issues of the or statements appearing in this magazine, and any PEFC certifies that wood and paper products magazine as far back as Jan/Feb 1997, right views or opinions expressed are not necessarily those used by the Law Society Gazette are sourced of the Law Society’s Council, save where otherwise by suppliers from sustainable, managed up to the current issue at www.gazette.ie. indicated. No responsibility for loss or distress forests. Visit: www.pefc.org occasioned to any person acting or refraining from You can also check out: The Law Society Gazette is a full participating acting as a result of the material in this publication • Current news member of the Press Council of Ireland and can be accepted by the authors, contributors, editor M supports the Office of the Press Ombudsman. R • Forthcoming events, as well as the fully s e e or publishers. The editor reserves the right to make cy in This scheme, in addition to defending the cle Magaz interactive version of the Gazette and the publishing decisions on any advertisement or article freedom of the press, offers readers a quick, magazine’s indices submitted to this magazine, and to refuse publication fair and free method of dealing with com- • Employment opportunities plaints that they may have in relation to arti- or to edit any editorial material as seems appropriate cles that appear on our pages. To contact the • The latest CPD courses to him. Professional legal advice should always be Office of the Press Ombudsman go to:www. … as well as lots of other useful information sought in relation to any specific matter. pressombudsman.ie or www.presscouncil.ie. 4 FRONTLINE law society gazette www.gazette.ie March 2016 nationwide News from around the country LOUTH Keith Walsh is principal of Keith Walsh Wee County welcomes Murphy and Murphy Solicitors, where Dundalk’s finest turned out he works on civil recently to welcome Law Society litigation and President Simon Murphy and family law cases director general Ken Murphy to their town – and to salute the new president of the Louth Bar Association, Catherine GALWAY McGinley. Catherine is the daughter of respected local solicitor Roger McGinley, District who was there to witness the inauguration. Judge The outgoing president, retires Conor MacGuill, respected the democratic traditions of the On 4 March, Galway colleagues association and handed over the gathered to break bread and presidency without the need partake in a refreshment or two for a show of force. Murphy & to pay tribute to the respected Murphy brought Louth solicitors and popular Judge Geoffrey up to date on the Legal Services Director general Ken Murphy, Law Society President Simon Murphy and Catherine Browne on his retirement. Regulation Act and fielded a raft McGinley (president of County Louth Solicitors’ Bar Association) The event also marked the of questions before being fed and appointment to the judiciary watered in the Market Tavern. Glengarry Glen Ross in the Town Ahern. An unforgettable night of Brian O’Callaghan (a recent The highlight of the evening Hall Theatre, starring local state in Dundalk for natives, visitors Galway local, late of Cork) and was the performance of solicitor Fergus Mullen and Tim (and thespians) alike. Mary Larkin. Thomas O’Donnell, Liam Geraghty and Gerard DUBLIN Moylan were honoured with presentations to celebrate their 50 years in practice. DSBA pilgrims head for Mayflower The Mayflower Hotel in Washington second best address’. It has hosted from the menu until his death of a DC is the venue for this year’s inaugural events for many US heart attack in 1972. Well Holy DSBA annual conference, which presidents since its foundation in Delegates to the conference takes place from Wednesday 1925. On the eve of his inaugural will find themselves in the thick God, it’s 21 September to Sunday address, in room 776, Franklin D of the US Presidential, House and 25 September. Roosevelt penned one of the most Senate elections, as well as the a CPD in The Mayflower is a historic hotel famous lines in US political history: centenary celebrations of the birth listed on the National Register of “The only thing we have to fear of JFK. DSBA president Eamonn Galway! Historic Places and located just is fear itself.” Restaurant patrons Shannon tells ‘Nationwide’ that you The Galway Solicitors’ Bar four blocks from the White House included FBI director J Edgar can fly direct from Dublin to Dulles Association’s next CPD event in one of the best neighbourhoods Hoover, who dined in the Mayflower Airport in DC with Aer Lingus. Full takes place on Thursday for retail, dining and entertainment. nearly every working day for 20 conference details are available at 24 March at 2pm in Galway It is known locally as ‘Washington’s years, selecting the same items www.dsba.ie. Courthouse (three hours of CPD, general), featuring Jim Connolly and Aoife Lavan Objections, your honour (both Goodbodys) on pension Following a sell-out seminar in Law Committee is offer a ‘new’ Solicitors), who has over 12 years’ adjustment orders and February on commercial property – objections and requisitions on title experience acting for corporate, obligations on employers in which featured Paul Coughlan BL on seminar on 10 March. private and public-sector clients relation to employee pensions. landlord and tenant matters, Gerry The line-up for the March on all aspects of commercial This will be followed by the Gallen (partner in Beauchamps) on seminar includes Ronan McLoughlin conveyancing transactions; and Easter social at 6pm in the navigating licensing issues facing (partner with Gallagher Shatter, and Mairead Cashman (senior solicitor Front Door Pub, Shop Street, property practitioners, and Tom previous partner in the commercial in charge of the commercial Galway. Power BL (AITI) on dealing with tax property department at Matheson); and property section of the law on property – the DSBA Property Aine Gleeson (associate with Hayes department, Dublin City Council). law society gazette www.gazette.ie March 2016 FRONTLINE 5 representation News from the Law Society’s committees and task forces

ALTERNATIVE DISPUTE RESOLUTION COMMITTEE ADR process approved by High Court Practitioners should be aware of drafting stage. According to the the mediation process. a recent decision of Mr Justice minister, that bill will introduce Perhaps equally significant will Cross made in the High Court an obligation on solicitors and be the pre-action protocols to on 16 December 2015. The barristers to advise any person be issued by the minister under court was invited to make an intending to commence legal section 219 of the Legal Services order by the defendants pursuant proceedings to give consideration Regulation Act 2015 governing to order 56A, rule 2(1)(i) of to using mediation as an clinical negligence (or medical) the Rules of the Superior Courts alternative means of resolving actions, which may involve a pre- 1986, or based on the inherent disputes. action agreement to mediate as a jurisdiction of the court, inviting There is an expectation that requirement. the parties to use alternative the bill will also provide that, Practitioners should refer to dispute resolution (ADR) following the commencement of the ADR Guide 2015, published process to settle or determine proceedings, a court may – on its by the Alternative Dispute proceedings. own initiative or at the request of Resolution Committee in The proceedings in Gaffney a party – invite parties to consider September 2015, a copy of which v Depuy International Limited mediation as an alternative, and the Society will send shortly to involved a personal injury claim suspend proceedings to facilitate every firm in the State. alleging that the plaintiff was provided with a defective hip implant by Depuy, which was the IN-HOUSE AND PUBLIC SECTOR COMMITTEE subject of a recall by Depuy in August 2010. The order made by Mr Justice In-house solicitors – date for your diaries Cross relates not just to the The In-house and Public Sector • Training and education for in- Gaffney case but to all other cases Committee, in partnership with house solicitors, listed for trial before the High Law Society Professional Training, • Trainees in an in-house setting, Court arising out of the same is holding a panel discussion on • Marketing the value and role of set of circumstances, or such the challenges and opportunities in-house solicitors, and proceedings not yet listed for facing the in-house sector and the • Workplace and professional trial. types of support the Law Society issues facing in-house solicitors. Mr Justice Cross, after hearing can provide. The discussion will arguments over a number of days take place from 3-5.30pm on In addition, Red C, the independent on the motion brought by Depuy 19 May 2016 in the James market research firm, was engaged International Limited, approved O’Sullivan Room at the Education by the Law Society to conduct of an ADR process as appended Centre, Blackhall Place, Dublin 7. an independent and confidential to his order and directed that Working as an in-house survey of the in-house sector in no further proceedings in the solicitor in Ireland is an ever- early February. The survey was litigation would be listed for changing, challenging and exciting designed to gather information hearing, save by application to experience. In recognition of about important aspects of in- the court. this, the Law Society wishes to house solicitors’ organisations and The Law Society’s ADR engage more closely with solicitors • Identify key issues and trends work, the issues they face, and the Committee believes that that working in this sector so that it relating to in-house solicitors, types of support they would like the this is the first time a court has can better understand its specific so that the Society can best Law Society to provide. approved of an ADR process issues and needs, and provide meet their specific needs, and Please join us at the panel designed particularly to deal focused support. • Assist in marketing and framing discussion, where we will share with a class of actions that, in To this end, the Law Society, the value of in-house solicitors and discuss the survey’s findings, the views articulated in the High in consultation with its In-house and trainees to existing and the specific topics dealt with in the Court, could occupy the personal and Public Sector Committee, has prospective employers. briefing document, and the next injuries list of the High Court taken up a number of initiatives. steps that should be taken to help for a number of years to come. An internal briefing document, The committee has been working support the in-house sector. This development comes In-house Solicitors – A Growing on developing proposals and Full details, including a brochure against the background of a Constituency: An Overview of Key actions in a number of areas and booking form, will be posted statement made by the Minister Issues, has been prepared with two addressed in the document, on the Society’s website in due for Justice in the Dáil concerning aims: including: course. a Mediation Bill, currently at the THE DIFFERENCE IS IN THE DETAIL

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1916 commemorated in the Four Courts on Easter Monday PIC: GETTY Readers may have noticed position. Taoiseach Jack Lynch the timely appearance after presented the proclamation on Christmas of the Proclamation behalf of the law firm to the Law of the Republic in the corridor Society. outside the Solicitors’ Reading According to the Courts Room in the Four Courts. This Service, on Easter Monday corridor is known informally (28 March), events in the Four as ‘slaughter corridor’, due to Courts will include a 1916 the war memorial marking the exhibition – ‘Bullets, books and solicitors who died in WWI and barricades: the story of the Four was the subject of a number of Courts Garrison’ – in the Round heated letters to the Gazette some Hall. There will be a series of years ago. talks relating to the Rising. Entry The corridor has a plaque to is free, with tickets available from the memory of solicitor John Mr O’Connor’s firm presented Blackhall Place. It ended up in a RTÉ, which is hosting a day of S O’Connor, who was featured the proclamation to the Law consultation room, before being events on Easter Monday on the in the Jan/Feb Gazette. Society following the purchase of displayed in its current prominent theme ‘Reflecting the Rising’.

McCann FitzGerald bites into the Big Apple nd McCann FitzGerald has opened 152 AGM an office in New York. Corporate partner Gary McSharry will head of SBA up the branch, which is located at The 152nd annual general meeting Tower 45 at West 45th Street in of the Solicitors’ Benevolent the midtown district of Manhattan. Association will be held at the He has particular expertise Law Society’s Blackhall Place advising US clients, having headquarters on Tuesday 19 April already spent a number of years in 2016, at 12.30pm, to consider New York. the annual report and accounts Gary commented: “There is Barry Devereux (managing partner, McCann FitzGerald) and Gary McSharry for the year ended 30 November a growing demand for an Irish 2015, elect directors, and deal corporate law presence in the US merger and acquisition transactions required significant input from Irish with other matters appropriate to – evidence of which is that many in the past 24 months involved corporate lawyers as well as US a general meeting. THE DIFFERENCE IS IN THE DETAIL of the largest US corporate and Irish companies. These deals lawyers.” Ars gratia artis Kennedys hires Mason Hayes & Curran is new partner sponsoring a new children’s Kennedys has expanded its Dublin art education programme office with the appointment of partner Professionals and business people expect the highest standards. With AIB Private Banking called ‘RHA Kids’. The Daniel Scanlon into its growing you are assured of an enhanced banking service that saves you time and effort. Our signature two-year sponsorship will insurance and litigation practice. support the Royal Hibernian Scanlon joins from Maples & Calder, new banking experience provides you with the relationship-based service that you appreciate. Academy’s children’s art where he was a key member of its We understand the value of great advice. Our financial planning service gives you access to education programme and will insurance disputes and commercial expert, impartial guidance to help you make informed financial choices to secure your future. fund a special art education litigation group since 2011. It’s details like these that make us different. programme with three schools Daniel qualified with Mayer in Ringsend. Brown in London in 2002 and also The programme includes a worked in its New York office. He If you would like to find out more about AIB Private Banking, contact Patrick Farrell, series of in-house children’s then moved to Simmons & Simmons Head of AIB Private Banking, directly on: (01) 641 7634 or email [email protected] art workshops by some of in Hong Kong before taking a role at Ireland’s best known artists. Matheson in Dublin. Typically our clients have an annual salary or income which exceeds €250,000. These will take place Kennedys’ Dublin office was one Saturday each month established in 2011, following the throughout 2016. merger of the firm with its long- Allied Irish Banks, p.l.c. is regulated by the Central Bank of Ireland. standing Dublin associate. 8 NEWS law society gazette www.gazette.ie March 2016

FOCUS ON MEMBER SERVICES New legal advice scheme announced for those in mortgage arrears PIC: iSTOCK B&B at the The Government has provided in writing to the legal announced an important new adviser. Law Society initiative to provide access to The overall objective is to Exclusive to members, the independent expert financial ensure that an insolvent person Law Society’s B&B offers a and legal advice for people who who is at risk of losing their competitive alternative to are insolvent and in serious home can access independent expensive city-centre hotels. mortgage arrears on their home. financial and legal advice, which Situated in the historic The scheme is being will help them to identify their building at Blackhall Place, the coordinated by the Departments best options for returning to B&B is five minutes from the of Justice and Social Protection, solvency – with the priority being Smithfield and Museum Luas working with the Money Advice to remain in the home, where stops and close to Heuston and Budgeting Service (MABS), that is a sustainable option. Station, the Four Courts and the the Legal Aid Board, the MABS will act as the gateway Criminal Courts of Justice. Insolvency Service of Ireland, for a person to access advice A single room is €45 and €65 and the Citizens’ Information under the scheme, which will for a double/twin room, with Board – in consultation with the be provided without charge to breakfast included (continental Courts Service. The Legal Aid Board is setting up a those eligible. Professionals at weekends). All rooms The Legal Aid Board is panel of solicitors to deliver the legal on panels will agree to provide are ensuite, with television, currently setting up a panel of advice component of the scheme specified services at fixed cost wi-fi and tea/coffee making private solicitors to deliver the to the scheme. Legal aid for the facilities. Residents can avail legal advice component of the Personal Insolvency Acts, where defence of repossession cases will of free parking onsite, with the scheme (see advertisement in creditors refuse a personal not be covered under the scheme, reassuring presence of 24-hour this issue, p26). It’s expected that insolvency proposal by a and persons seeking this will be security. this will provide: borrower that includes their subject to the normal legal-aid The B&B is available • Legal advice, home mortgage arrears. means and merits criteria. for bookings seven days a • A new ‘duty solicitor’ The scheme is expected to week. Late arrivals are easily service at repossession The scheme will also provide for begin operation in April and will accommodated, but early hearings before the County financial advice and assistance be in place for a maximum period booking is recommended. Registrar (similar schemes from a personal insolvency of three years. Full details will To check availability or already operate successfully practitioner (PIP), dedicated be published over the coming to book a room, contact Law in England and Northern MABS mortgage arrears adviser, weeks on the websites of the Society reception at general@ Ireland), or other financial adviser, as Legal Aid Board and the other lawsociety.ie or 01 672 4800. • A legal aid service for the appropriate. The financial implementing Government new court review under the analysis and advice will be agencies.

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Pre-contract title investigation THERE’S AN APP FOR THAT The Conveyancing Committee due to the large amount of is considering moving towards new legislation that affects making a recommendation that all conveyancing, which is not Time is money title matters are investigated pre- covered by existing contractual contract instead of post-contract, warranties, APP: OFFICETIME PRICE: €7.99 as has been the position until now. • Pre-contract enquiries protect This will be a significant change purchasers, I couldn’t recommend the or a task for a particular client in conveyancing practice if it is to • The move to electronic OfficeTime app more, writes or file reference, time that proceed. conveyancing will require all Dorothy Walsh. I have been task with an hourly rate (where The rationale for the current title matters to be addressed searching for for an app that applicable), and export that practice is that solicitors do pre-contract, and any move allows me to record the time I information in a note format. It not want or need to spend too at this time to pre-contract spend on various tasks that are also facilitates attaching a flat much time investigating all title title investigation would be an difficult to time record when rate to the likes of a phone call matters pre-contract, in case the interim step, I’m not at my PC or don’t have or a text message, or whatever transaction might not ultimately • There is no uniformity of pre- access to the time-recording you wish to set up as a flat rate proceed to contract. contract enquiries, system in my case-management category. The time or amount The downside of a move to • It is envisaged that if there is to software. can be saved against a client’s a full investigation of all title be a recommendation to move The bill of costs is, of course, name or file reference in the matters pre-contract would to pre-contract investigation a reflection of the time spent app. include that the cost of title of all title matters, it would be on a case or a file. However, As soon as I finish a client investigation is incurred before a on the basis that a standard set more often than not, I am now call, I click into the app and, on binding contract is in place. of requisitions on title with in a position where work done the homescreen, click ‘+New The reasons a change is being replies would be issued by a for a client – research, emails, Session’ (for a timed task) or considered include: vendor’s solicitor, along with text messages, telephone calls ‘+New Expense’ (for a flat- • There is a perceived disconnect the contract for sale, and a – when I am out of the office rate task). I mark the project between the traditional purchaser’s solicitor would be are not getting included in that according to the client’s name, conveyancing theory as entitled to raise any additional bill, due largely to the time it while the category is recorded reflected in the standard matters pre-contract. takes to add the details in after as a phone call. contract for sale and what is the event. I found that while I I have been amazed at the occurring in practice, in that If you have a view on the above was billing for work done in the time I was failing to bill for extensive title enquiries are or related issues, the committee office and in court, at meetings, before using this app. With this routinely being raised pre- would like to hear from you. for instance, I was missing a app, my bill of costs for clients contract, You can make your submission lot of billable time consumed are totally transparent, accurate, • There is a view that this to the following dedicated email outside of the office. and reflect the actual time I have gives rise to time-consuming address, set up to get feedback Enter OfficeTime. The app spent on files – whether in or out duplication of work, from the profession on this allows you to set up an expense of the office. • The increase in the number topic: precontractenquiries@ of pre-contract enquiries is lawsociety.ie. European opportunities for Irish-speaking lawyers? With the derogation on the full a professional qualification in the use of Irish in the structures of the Irish language to their portfolio of European Commission and European skills – an important element in the Parliament due to be phased area of Irish constitutional law in out between 2015 and 2021, particular.” graduates from UCC’s MA in Irish The one-year course will start Language and European Law will in September 2016 and is aimed be uniquely placed to capitalise on at holders of law degrees or other increased employment opportunities professional qualifications in law for lawyer-linguists and legal who already have a good standard translators. of Irish and who wish to raise According to Prof Pádraig Ó that standard significantly while Macháin, director of the course, specialising in European law. it’s also suitable for people For more information, email who want to work in Ireland: [email protected] or visit www. “Holders of this degree will add ucc.ie/en/ckd49. 10 NEWS law society gazette www.gazette.ie March 2016

Stage International à Paris – get ready for 2016 programme The Stage International is a two- month internship programme hosted by the Paris Bar. Following a selection process, I was chosen by the EU and International Affairs Committee to participate as the Law Society’s delegate, writes Ruth Jordan (solicitor). The Paris Bar has hosted the Stage since 1991 and, each year, invites a limited number of lawyers from other jurisdictions to participate. Approximately 40 lawyers from 30 different countries took part in this year’s Stage. The tuition fee (which includes a trip to Brussels to visit the European institutions) is covered by the Paris Bar. The Stage offers a unique Participants in the Stage International in Paris. Irish participant Ruth Jordan can be seen in the middle of the second-last row opportunity to develop business and personal relationships with The first month provides an the Commercial Court and the French and an interest in a legal other lawyers from different legal overview of the civil system, Council of State. and cultural exchange. systems and cultures. It consists in particular the French legal For the second month, I had I would like to sincerely thank of one month attending classes at system, and specific lectures the good fortune to be placed in both the EU and International L’École de Formation du Barreau focused on intellectual property, a leading commercial firm, De Affairs Committee for selecting and one month’s work placement employment law, family law, Pardieu Brocas Maffei, where me and my employer, VHI in a law firm. I took part in the arbitration, European law, and I gained valuable experience Healthcare, for facilitating time Francophile programme but, for ethics. Field trips included visits to in the firm’s Competition and off in order to take advantage of the first time, the Paris Bar also various judicial and administrative Regulation Department. I would this fantastic opportunity. (See simultaneously ran an Anglophile institutions, such as the National highly recommend the Stage advert in next issue announcing programme. Assembly, the Court of Appeal, to anyone with a solid level of Stage 2016.)

New DCU LLM Damages launched The School of Law and Government international law.

PIC: MOYA NOLAN, IRISH EXAMINER at DCU is currently accepting The programme welcomes applications for its LLM (masters applicants at any stage in their in law) programme 2016/17 careers. There is an expectation of academic year. Although a general a 2.1 honours degree in law or in LLM, students can choose modules an interdisciplinary degree with a in particular areas, such as strong legal component. For details, public law, human rights law or contact [email protected]. Human Rights Essay Prize winners announced The Law Society Human Rights the Victims’ Rights Directive in Committee congratulates Breifne Ireland. Muldoon on winning first place The committee extends it in its Annual Human Rights thanks to all who entered the Essay Prize for his essay on the competition. impact of the Convention on the For information on the work It was a glittering occasion as 400 solicitors and barristers joined judges Rights of Persons with Disabilities and events of the Human Rights and ambassadors for the launch of Damages by Tadhg Dorgan BL and Peter on Irish mental health law. Committee, visit: www.lawsociety. McKenna BL, pictured here with Ms Justice Baker at Kings Inns James Roddy took second place ie/Solicitors/Representation/ for his essay on the impact of Committees/Human-Rights. law society gazette www.gazette.ie March 2016 NEWS 11

23% of solicitors practise in 20 largest firms As it has done annually for a dropped by 20 in the course of number of years, the Gazette 2015. McCann FitzGerald, Mason publishes the number of Hayes & Curran, William Fry, practising certificates issued by ByrneWallace, Maples and Calder, the Law Society to each of the 20 and Eversheds maintained the largest firms in this jurisdiction same ranking in 2015 as in 2014. at the end on the most recent Ronan Daly Jermyn moved ahead practice year. of Dillon Eustace, however, due It reveals that on 31 December, to its PC numbers growing by 12, 2015, the 20 largest firms, while Dillon Eustace remained between them, had 2,294 unchanged with 78 PCs. practising certificates – an At the lower end of the top 20 increase of 108, or 5% on the league table, the biggest growth number at the end of 2014. in PC numbers was recorded by Perhaps surprisingly, this was a Walkers Ireland (up nine, to a lower rate of growth than the 9% total of 40 PCs) and by McDowell increase in the practising year There were 2,285 private solicitors by 20 (7%). Its PC tally Purcell Solicitors (plus 11 to to 31 December 2014 – despite practitioner firms of all sizes, of 269 in 2014 increased to a new 39), while Philip Lee (up four) the economy having experienced including a great many sole record of 289 in the year under shared 20th position with Whitney GDP expansion of some 7% in practitioner firms, on 31 Dec- review. If it maintains this rate Moore, which grew by one. 2015. ember 2015. The 20 largest firms of growth, it should comfortably As in previous years, 18 of There were 9,707 practising represent less than 1% of the exceed 300 PCs by the end of the 20 largest firms are Dublin- certificates (PCs) issued by the total number of firms. But their 2016. based, the only exceptions Law Society to the solicitors’ practising certificate number, at A&L Goodbody has resumed being Cork firm Ronan Daly profession as a whole in 2015. 2,294, constitutes a massive 23% second place in the table, Jermyn (which also has offices in This represented an increase of of all PCs issued. having overtaken its close rival Dublin and Galway) and Holmes 4% over the 9,323 issued in the Once again, Arthur Cox was the Matheson this year – largely O’Malley Sexton (Limerick and previous year. largest firm in 2015, increasing its because Matheson’s PC number Dublin).

Law firm practising solicitor numbers (as of 31/12/2015)

2015 2014 Diff +/- Firm name 31/12/2015 31/12/2014 31/12/2013 ranking ranking over 2014

1 1 Arthur Cox 289 20 269 258 2 3 A&L Goodbody 260 -2 262 246 3 2 Matheson 245 -20 265 238 4 4 McCann FitzGerald 212 8 204 184 5 5 Mason Hayes & Curran 188 10 178 147 5 6 William Fry 188 11 177 174 7 7 ByrneWallace 107 11 96 93 7 8 Maples and Calder 107 13 94 81 9 9 Eversheds 95 11 84 72 10 11 Ronan Daly Jermyn 87 12 75 68 Human Rights Essay Prize 11 10 Dillon Eustace 78 0 78 74 12 12 Beauchamps 74 2 72 68 winners announced 13 13 Eugene F Collins 55 -2 57 55 14 14 LK Shields Solicitors 53 4 49 50 15 15 Hayes Solicitors 41 5 36 36 16 19 Walkers Ireland 40 9 31 21 17 21 McDowell Purcell Solicitors 39 11 28 26 18 16 Holmes O’Malley Sexton 36 0 36 29 19 17 DAC Beachcroft Dublin 34 0 34 32 20 18 Whitney Moore 33 1 32 28 20 20 Philip Lee 33 4 29 24 These figures represent the total number of solicitors with a practising certificate, advised to the Law Society, up to and including 31/12/2015. The total firm figure represents a firm’s primary and suboffices on the Law Society’s database 12 NEWS law society gazette www.gazette.ie March 2016

Law and Women programme puts women front and centre In the Jan/Feb 2015 Gazette, Teri During January 2016, L&W is based on a shared set of Kelly (director of representation – jointly financed by the Law expectations and is structured and member services) reported Society and the Bar of Ireland – and effective for both parties. that the solicitors’ profession organised training for mentees There will be a mid-pilot review in Ireland was the first in the and mentors at various stages of the roll-out of this mentee-led world to have a female majority. of their careers. Solicitors and programme in July 2016. It is important that our female barristers shared these training All joint committee members, solicitors are supported in their of the Law and Women (L&W) sessions, which were facilitated at mentors volunteering their careers so that they can achieve pilot mentoring programme, Law Society and Bar venues. time, and colleagues committed equal treatment, equal pay, and a joint initiative by the Law Matching of mentoring pairs for to being mentors are to be equal advancement opportunities. Society and the Bar of Ireland, 12 hourly sessions over a 12-month congratulated. All excitedly A new initiative to help in collaboration with the Irish period took place during February. await the outcome of this pilot achieve this aim was profiled Women Lawyers’ Association A mentoring agreement approved phase and look forward to in the Gazette (see December (IWLA), to support women in by both mentee and mentor this programme becoming a 2015), with the announcement legal practice. ensures that the relationship successful annual event. Legal Society nominates two to LSRA board Vacancies The Law Society Council has unanimously approved Geraldine upgraded Clarke and James MacGuill as nominees to the board of An enhanced online legal vacancies the Legal Services Regulatory facility has just been launched Authority. Both are past- by the Law Society at www. presidents who have represented legalvacancies.ie. the Society nationally and The Legal Vacancies website has internationally at CCBE and IBA long been the premier source for level. information on legal employment The LSRA board will have 11 opportunities in Ireland. The new members, each serving a term facility will significantly improve of three years. The Society was services to both job-seekers and required to provide the names of employers. Upgraded resources will two nominees, one male and one mean that job-seekers can sign up female. The chair will be chosen for personalised job alerts. There by the Government from among will be several new options for the nominated lay members of employers, including the capability the board. Geraldine Clarke James MacGuill to differentiate their job listing as a ‘Hot job’ or as ‘Job of the week’.

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Contact us at 1800 882 231 and mention “LAWSOC” for a 30-day trial. law society gazette www.gazette.ie March 2016 PEOPLE 13

County Louth Solicitors’ Bar Association AGM PIC: CIARA WILKINSON: [email protected]

Attending the County Louth Solicitors’ Bar Association AGM on 10 February 2016 were (front, l to r): John McGahon (treasurer), Niall Breen (incoming secretary), Conor MacGuill (outgoing president), Catherine MacGinley (president elect), Ken Murphy (director general), Simon Murphy (Law Society president), Nicola Kelly (outgoing secretary), Noelle Cantrell, Martin Mulligan, Sinead Creighton and Stephen Reel. (Middle, l to r): Rory O’Hagan, Aoife McGuinness, Barry Callan, Elaine Grills, Emer Hall, Sheila Maguire, Una Lyons, Caroline McArdle, Niall Lavery, John Kieran, James MacGuill, Catherine Allison, Seamus Roe, Michael Allison, Brendan Walsh, Ciara Hughes, Paula Tiernan, Ciara Maguire and Catherine Berrills. (Back, l to r): Keith Walsh, Donal O’Hagan, Eithne Harte, Roger MacGinley, Olivia McArdle, Frank McDonnell, Don McDonough, Tom Hardy, Niall O’Hagan, Sharon McArdle, Richard McDonnell (PRO), Brian Berrills and Gary Matthews City of Tribes hears first-hand about the new LSRA

The Galway Solicitors’ Bar Association met in the courthouse on 18 February. President of the Law Society Simon Murphy and director general Ken Murphy addressed the gathering about how the new Legal Services Regulation Act will work in practice. This year’s GSBA committee members are James Seymour (president), David Higgins (vice-president), Cairbre O’Donnell (treasurer), John F Martin (PRO) and Ian Foley (honorary secretary). (Front, l to r): Louisa McKeon, Cairbre O’Donnell, Simon Murphy (president, Law Society), Ken Murphy (director general), James Seymour (president, GSBA) and Fionnuala Leahy. (Back, l to r): Michael Ryan, Ian Foley, Una O’Donnell, Davitt Geraghty, Gerard O’Donnell, Paschal Mullery, Peter Allen, John Martin, Martin Kerrigan, Tom McLoughlin and Niamh Kavanagh 14 PEOPLE law society gazette www.gazette.ie March 2016

SADSI soars at The Irish Times Student Debate PIC: NICK BRADSHAW

The Solicitors’ Apprentices’ Debating Society of Ireland has won the grand final of The Irish Times Annual In full flight – Aaron Vickery (SADSI) argues passionately Student Debate, which took place at the Royal College of Surgeons, Dublin, on 19 February 2016. Prof at the grand final of The Irish Times Annual Student Brent Northup (chair of Communications at Carroll College, Montana) congratulates team winners Ross Debate O’Mahony and Aaron Vickery (both SADSI) and individual prize-winner Cliodhna Ní Cheileachair (UCD L&H) Bringing Street Law to Stanhope Street

Pictured at the Law Society with teachers and transition year students from St Joseph’s Secondary School, Stanhope Street, are Law Society PPC1 volunteers Aisling Ray, Naomi Pollock and Lisa Quinn O’Flaherty

The most recent Street Law A total of 38 PPC1 volunteers his team on this programme. ‘Talk less, teach more’. Street Programme concluded with were involved, with over Participating trainees attend an Law aims to teach relevant law- a series of mock trials with 500 transition year students orientation weekend facilitated by related content, focuses on law participating schools. Now in its taking part in 14 DEIS schools Georgetown experts in advance of that is useful in students’ daily third year, this Diploma Centre throughout Dublin. their school placements. lives, the legal processes involved, initiative places PPC1 trainees Street Law originated in Trainees learn about the unique constitutional principles and the in secondary schools where they Georgetown University (USA). activity-based, learner-cantered values on which these are based teach a six-week Street Law The Law Society is fortunate to Street Law methodology. This – all taught in an engaging and Transition Year programme. partner with Prof Rock Roe and is emphasised through the tag interesting manner. law society gazette www.gazette.ie March 2016 PEOPLE 15

Irish lawyers and the rule of law in newly democratic Myanmar

In September 2015, I responded Helen Yandell to the local Rule to a notice in the Law Society of Law Centre. Gazette, advertising a volunteer This workshop was geared opportunity with Irish Rule of Law toward improving the skills of International (IRLI) in Myanmar, legal education teachers who writes Aisling Woods (solicitor with travel to rural communities and Howard Synnott Solicitors). IRLI teach residents about issues is the joint charity of the Law affecting their communities. Society and the Bar of Ireland, This encourages capacity with a focus on strengthening the building, raises awareness of the rule of law in the developing world. values of the legal profession, A team of Irish lawyers was promotes access to justice, being put together, led by Freda and creates awareness of social Grealy (head of the Law Society’s justice issues. Diploma Centre) to support the Big changes are happening in work of local NGO ‘Bridges Myanmar. Aung San Suu Kyi’s Across Borders South East Asia Irish and Myanmar facilitators at the second annual National Mock Trial Event in National League for Democracy Community Legal Education’ Yangon, Myanmar (NLD) won a landslide victory (BABSEACLE) in its community in the November 2015 general legal education work, and During our time in Myanmar, Justice Centre on the ethical elections, bringing to an end the specifically Myanmar’s second the Irish lawyers divided up practice of client-centred dominance of the military. This annual National Mock Trial Event, and supported BABSEACLE lawyering with director Bruce means that the NLD will now be held in Yangon in February 2016. to provide additional training Lasky. Stephanie O’Brien, Mary able to form a government – the I was excited, then, to join workshops to various legal aid Clear and I travelled nine hours first administration not selected the team of volunteer solicitors centres. Freda and Rory facilitated to Mandalay with BABSEACLE by the military establishment and travel to Myanmar to work a workshop in the Mawlamyaing directors Wendy Morish and since the 1960s. with BABSEACLE in early February. The team included Pat MacGonagle (McGonagle Solicitors), Lisa Conkey (BLM), Come together, right now Mary Clear (Brophy & Martin), Are you ready to help the Stephanie O’Brien (Office of the homeless again this year? DPP), Clara Wallace (McCann Last May saw the 17th year of FitzGerald) and Rory O’Boyle the Calcutta Run – the Legal (Law Society Diploma Centre) to Fundraiser. Over 1,100 took part join Freda, who had been based in and a whopping €164,000 was Myanmar since November 2015 raised for the Peter McVerry Trust on a six-month sabbatical working and GOAL, in aid of homeless with BABSEACLE. youths in Dublin and Calcutta. The Community Legal This year’s Calcutta Run will Education Mock Trial Event is take place on Saturday 21 May. a practical learning experience Why not try beating your personal for both law students and their best, or if you’re not an avid teachers, which gives them the runner, why not walk the 5k or opportunity to improve their legal 10k route? skills and their understanding of You are encouraged to start values and professional ethics. training now. We have helpful Goal’s Calcutta kids say ‘thanks’! Legal education in Myanmar training plans and nutritional is very traditional, with little and sports injury advice at www. includes a barbecue, bar, DJ and personal fundraising page at opportunity for skills-training, and calcuttarun.com. family fun day on the grounds of idonate.ie. Just click ‘yes’ to the many of the teachers do not have Both the 5k and 10k courses Blackhall Place. fundraising page question while practice experience. Indeed, many start and finish at Blackhall You can support the Calcultta registering and a profile will lawyers in Myanmar who have Place and wind their way through Run by becoming a supporter automatically be set up for you. been practising for years may have the beautiful Phoenix Park. At firm or by putting together a It’s that easy! had little opportunity to experience the end of the run, participants team for the DX Team Challenge. The homeless need your a courtroom that values concepts will be able to relax and enjoy All information can be found on support. Sign up today at www. such as due process in this once the Finish Line Festival, which the website. You could set up a calcuttarun.com. military-controlled nation. 16 COMMENT law society gazette www.gazette.ie March 2016 letters War memorials and the fight for Irish freedom From: Frank MacGabhann, solicitor, Skerries, Co Dublin iaran O’Meara’s article about that Cpoor unfortunate apprentice Jasper Brett, who committed suicide after returning from WWI (November 2015, p26), laments that, as a result of his suicide, his name is not inscribed on that (to my mind) truly awful war memorial that says that “they sought the great prize of death in battle” – not for their friends, as Mr O’Meara states, but for “King and Empire”. He impliedly mentions me in his article, as I wrote the letter to the Gazette (March 2003, p7) objecting to its being put back on public view for lawyers to shudder silently as they passed by it. I plead guilty to not being ‘mature’ in believing that those lawyers (and others) who fought for their own country’s independence should be placed on a higher plane that those who fought for an empire that was brutalising peoples all over LawCare is there to help the globe. From: Mary Jackson, LawCare cope financially, to just feeling year – to support the solicitors To my mind, Mr O’Meara coordinator for Ireland isolated and alone. They are who are solving society’s legal should lament that the refer to the article on suicide all too aware of the stigma problems. We aim to encourage Law Society in 1914, as he prevention in the Gazette and finger-pointing that may and give hope when things get states, actually “encouraged I( November, p24). I write in my arise when finally there is an too much. the recruitment” of young capacity as the CEO of LawCare, admission of inability to cope. An Irish solicitor phoned apprentices and, therefore, a charity that provides support As the article said, “solicitors our helpline a few years ago, was complicit in their for lawyers across Britain and become social workers, repeating over and over again: senseless deaths. Has the Ireland. LawCare is partly funded confessors, marriage counsellors, “Am I the only one in this Council of the Law Society by the Law Society of Ireland, but interventionists … based on the position?” He had accumulated formally apologised for this? is completely independent of it. intention to help their client in big debts, lost his job, and was Where is the memorial LawCare is unique, in that the best way possible”. Given the going out every day in his suit, to William Corrigan, the it is a helpline service that is typical ‘type A’ legal personality as he did not want his family to solicitor Volunteer who both free and, more importantly, and the problem-solving demands know, keeping up appearances. was sentenced to death but confidential. Its raison d’etre is of the job, this can leave lawyers With help from LawCare, a reprieved, and the other to help lawyers to work and live exposed to higher chances of volunteer, and the Solicitors lawyers who fought for their better, surrounded as they are anxiety and depression where Benevolent Association, he got own country’s freedom during by competing pressures, both mental health is compromised. back on the right track. the 1916-1921 period? Where professional and personal. So, while the thrust of the So this is a reminder of our is their memorial? Where Lawyers ring our helpline excellent article was all about service – free, confidential and is the memorial to the Four or email our website with all supporting the very important available to all lawyers, their Courts Garrison of the Irish kinds of issues, ranging from bill on suicide prevention, what staff and families. See Volunteers who fought there having a bad day, feeling I would like to emphasise is that www.lawcare.ie, helpline: in 1916? Where is their overwhelmed, and struggling to LawCare is here – 365 days a 1800 991 801. memorial? law society gazette www.gazette.ie March 2016 COMMENT 17

Insurance industry ‘disingenuous’ on costs From: Richard E McDonnell, me) before they will process in an accident (as a result of their spy on claimants whose injuries are Richard H McDonnell Solicitors, anything. insured’s negligence) illness-related not especially serious. Huge sums Ardee, Co Louth As for the insurance industry, I social welfare payments received of additional costs are generated by efending the solicitors’ would like to draw your readers’ by that claimant, which, of course, this policy on needless discovery profession can be difficult attention to some significant factors was fair enough – except that and other court applications, all Din the face of the constant that I believe have contributed the insurance industry kept those designed to try to catch out a attacks on it by the media, in no small measure to their deductions for themselves and never claimant with an inconsistency or politicians, and the insurance declining profits and, therefore, to refunded the Department of Social mistake (whereby, for example, a industry. It is notable that, whenever the significant increases in recent Welfare. claimant may have complained of the most vocal critics from the times in the cost of motor and other Now that they have to do so, a sore back to their GP ten years media and politics have legal insurance. The spokespersons millions of euro must be refunded previously but had forgotten about difficulties of their own, the first for insurers (and, indeed, the annually to the exchequer, which this many years later, which is place they run to is their solicitor’s Injuries Board) are quick to blame has, of course, hugely impacted on then triumphantly pounced upon by office. Never is reference made ‘the lawyers’ and ‘legal costs’ the profits of the insurance industry. the insurer as a way to discredit to the huge amount of pro bono for this, but they are being very Another development in the past the claimant). Liability is often work done by solicitors (especially disingenuous. Legislation that couple of years is the hostile and strenuously denied and contested outside of Dublin) on a daily basis, came into effect last year requires very aggressive manner in which (thus necessitating the engagement or the fact that local authorities, insurance companies to repay to insurance companies now deal of consulting engineers by both banks, and virtually every public the State certain illness-related with the claims of people injured in sides) as a tactic to soften up a sector office seem to require a social welfare payments from accidents, even where the accident plaintiff, only to be conceded ‘on the customer’s solicitor to confirm compensation awards made to was entirely the fault of a third party. steps of the court’. everything (for example, that an persons as a consequence of Every claimant seems to be viewed, So, next time you hear a applicant for local authority housing personal injuries claims. Prior to at best, as exaggerating their spokesperson for the insurance is separated and living apart from that, insurance companies insisted injuries or, at worst, as a fraudster. industry (or a politician or a his spouse – though how we are on deducting from a loss-of- They increasingly hire private media star) blame ‘the lawyers’ for supposed to know that is beyond earnings claim of someone injured investigators (at great expense) to everything, spare us a thought.

Time to take a stand against unfair water MAKE A charges collection legislation? DIFFERENCE IN A From: Michael O’Dwyer, Early of principle or otherwise. this to deal with as well! & Baldwin, Solicitors, Fairview, The question of the payment Section 48(5) is of particular CHILD’S LIFE Dublin 3 or non-payment of water charges concern, as it imposes an Leave a legacy s a solicitor with a should not be a matter for obligation on the solicitor to considerable amount of solicitors to become involved in, effectively collect water charges on Make-A-Wish® Ireland has a vision – experience in dealing but rather should be treated in behalf of Irish Water and to deduct to ensure that every child living with A a life threatening medical condi- with conveyancing work, having the same way as the payment of same from the proceeds of sale. tion receives one true wish. Think qualified as far back as 1986, I other utilities, such as gas and Where is all of this going to end? of Make-A-Wish when making or have serious concerns about the electricity. It should be up to Irish For too long, solicitors have amending your will and thus leave a obligations and ramifications Water to pursue or not to pursue, been made the soft target, and this lasting memory. imposed on vendors’ solicitors by successfully or otherwise, any is something that should no longer the implementation of section 48 person or persons who they believe be tolerated. I believe that the of the Environment (Miscellaneous to be liable for those charges. Law Society should protest in the Provisions) Act 2015. Furthermore, it should not be strongest manner against this. It is quite clear, to put it mildly, the responsibility of the solicitor to Indeed, I feel so strongly on that there is serious opposition to have to engage directly with Irish the issue that I believe that my water charges in this country, and Water and seek documentation colleagues should give serious it is most unfair to drag solicitors from them, which might arise in consideration to taking a stand, into that conflict. To me, it beggars certain circumstances, and to have not only in regard to opposing this belief that a solicitor is supposed to furnish them with personal unjust piece of legislation, but also to tell his client that (s)he will have details in relation to the sale of a to refusing to cooperate with the If you would like more information on difficulty acting in a sale if the client’s property. God knows, implementation of same. how to leave a legacy to Make-A-Wish, vendor does not wish to pay water there are enough delays as it is please contact Susan O’Dwyer on 01 charges in regard to the property in trying to complete sales of Editor’s note: see the practice 2052012 or visit www.makeawish.ie being sold, whether as a matter properties without having note on p56. 18 COMMENT law society gazette www.gazette.ie March 2016

viewpoint WHERE THE WILD THINGS ARE PIC: iSTOCK/GAZETTE STUDIO

Can the concept of rights for humans be extended to rights for nature, so that the concept of a right is not confined to humans? Frank Armstrong makes the philosophical leap into ‘wild law’

e are accustomed to think dredging along the River Shannon, with important philosophical departure is to of a ‘right’ as an attribute farmers’ representatives claiming that EU accept that natural objects enjoy rights Wof humankind. There is new nature directives would prevent effective and that the concept of a right is not legal thinking that suggests that, in measures being carried out to protect confined to humans. We refer to this as the context of modern environmental their members. The European Commission ‘Earth jurisprudence’ or ‘wild law’. challenges, it’s time to extend that denied this, clarifying that the legislation concept. defers in its objectives to the protection of Should trees have standing? Frank Armstrong is This year, Ireland has been subjected persons and property. In a seminal 1972 work, “Should Trees a barrister and has to some of the worst flooding in living Have Standing”, Prof Christopher D written extensively memory, during one of our warmest Untrammelled right Stone explores how such an idea could on environmental winters ever. Climatic distortions such This scenario exhibits the limitation work in practice. He suggests natural and other issues. as these, which are predicted to become of a regime where the biodiversity that objects could have legal standing by He currently more pronounced, are the product of abounds on the banks of rivers is not analogy with companies, states, infants, teaches property a climate change attributed to human supported by any right to exist. An incompetents, municipalities or even law at Anglo- activities by the overwhelming majority individual property owner seems to enjoy universities. He says: “On a parity of American University of climate scientists. untrammelled rights to reasoning, we should have a system in Prague, where he The recent Paris take such measures as in which, when a friend of a natural is now based Agreement (COP21) An idea that are necessary merely to object perceives it to be endangered, commits the world’s law applies to protect his chattels from he can apply to a court for the creation governments to flooding. of a guardianship … The guardian holding average global all manifestations Yet this elevation would urge before the court injuries temperatures to below of nature may of individual property not presently cognisable – the death of 2°C of an increase on rights may also come eagles and inedible crabs, the suffering pre-industrial levels. ‘prove important for at the expense of the of sea lions, the loss from the face of This should entail a preserving human wider human community the earth of species of commercially significant reduction that enjoys tangible valueless birds, the disappearance of in emissions across beings too benefits from biodiversity, wilderness areas.” all sectors. But we including resilience Stone also draws an analogy with may also need fresh philosophical against extreme weather events. However, the law of patents and copyright: “I perspectives on the Earth to inform our if we envisage that plants and animals can am proposing that we do the same laws, as we awake to the realisation that have associated’ rights, then the problem with eagles and wilderness areas as we our actions exert powerful effects on the may be overcome. Individual landowners do with copyrighted works, patented natural world. can still be compensated as the wider inventions and privacy: make the Alongside and concomitant with community sees fit. violation of rights in them to be a cost climate change is what has been called This would entail shifting our by declaring the piracy of them to be the the ‘sixth extinction’. Thus, the World understanding of private property invasion of a property interest.” Wildlife Fund estimates that the number guaranteed under article 43 of the He even suggests that this of wild animals has halved in just Constitution. The “exigencies of the could involve modifications of our the last 40 years. A range of farming, common good” have been amplified representative assemblies: “I am logging, and mining activities continue considerably since 1937. Moreover, a suggesting that there is nothing to lay waste to remaining virgin habitats. person’s legal ownership of property unthinkable about, and there might on Protecting those remaining – and confers rights, but also gives rise to new balance even be a prevailing case to be even restoring others – is also of great duties, suggesting entitlement on the part made for, an electoral appointment that importance to human beings, especially of the objects of those duties. made some systematic effort to allow in terms of maintaining clean air and Lawyers in the future may be called for the representative ‘rights’ of non- water. But alongside human interests, is upon to negotiate the inevitable human life.” it time to start considering the rights of friction that will occur, especially as He envisages that a change in the multiple forms of life? we observe the incredible complexity law would inform wider social norms: The recent floods led to a debate over and interdependence of nature. But the “Such a manner of speaking by courts law society gazette www.gazette.ie March 2016 ???????????????COMMENT 19 PIC: iSTOCK/GAZETTE STUDIO

We should have a system in which, when a friend of a natural object ‘perceives it to be endangered, he can apply to a court for the creation of a guardianship ’

would contribute to popular notions, of geophysics, biology and the This was followed by a call from but the happiness of all his fellow and a society that spoke of the cosmos”, and considers that “we nine countries of the Bolivarian men”; then “his sympathies became ‘legal rights of the environment’ may come to regard the Earth, Alliance for the Peoples of Our more tender and widely diffused, would be inclined to legislate more as some have suggested, as one America on 17 October 2009 for extending to men of all races, to the environment-protecting rules by organism of which mankind is a a ‘Universal Declaration of Mother imbecile, maimed and other useless formal enactment.” functional part”. Earth Rights’. It includes the members of society, and finally to Finally he speculates that: “What statement that: “Just as World War II the lower animals”. is needed is a myth that can fit Andean goddess caused a serious humanitarian crisis Over time, albeit with significant our growing body of knowledge Such a myth now exists in the that in 1948 led to the adoption of interruptions, the evolution of the shape of Pachamama, a goddess the Universal Declaration of Human law has reflected this expansion revered by the indigenous people of Rights, today we are suffering the in our sympathies. It seems look it up the Andes that, in September 2008, enormous consequences of climate unthinkable that a father could entered the Ecuadorian constitution. change, making it essential to have have power of life or death over his Literature: The state and its citizens commit to a Universal Declaration of Mother family, as a Roman paterfamilias seeking well-being in a manner that Earth Rights.” did, or that racial segregation and n Stone, Christopher D (2010), Should Trees Have Standing is harmonious with nature. More apartheid could operate again. (3rd edition; Oxford University importantly nature, or Pachamama, Darwin awards Broadening this compassion to Press, USA). The original is granted a right “to exist, persist, In the Descent of Man, Charles encompass the rest of nature is 1972 version is available at and maintain and regenerate its Darwin argues that the history required in an age of impending http://isites.harvard.edu/fs/ vital cycles, structure, functions and of man’s moral development has dangers from climate change and docs/icb.topic498371.files/ its evolutionary processes”. A duty been a continual extension of the species loss. The great power Stone.Trees_Standing.pdf is also imposed on all Ecuadorian objects of his “social instincts” and we now hold imposes weighty men and women “to respect the “sympathies”. “Originally, each responsibilities, and an idea that n Cullinan, Cormac (2011), Wild Law: A Manifesto for rights of nature, preserve a healthy man had regard only for himself and law applies to all manifestations Earth Justice (2nd edition; environment, and use natural those of a very narrow circle about of nature may prove important for Chelsea Green Publishing Co) resources in a rational, viable and him”; later he came to regard more preserving human sustainable manner”. and more “not only the welfare, beings too. 20 COMMENT law society gazette www.gazette.ie March 2016

viewpoint THE CONSENT FORM: A MEANINGLESS DOCUMENT?

If a patient is simply presented with a consent form to sign, how can the legal and ethical objectives of consent be served, asks Doireann O’Mahony

onsent is the mechanism by which still, on the trolley – the morning of a therefore not fulfilled by bombarding the law aims to protect a patient’s planned operation. It is important that the patient with technical information Cright to self-determination. the patient is allowed time to reflect and, which she cannot be expected to grasp, Consent issues that arise in the medical if necessary, change her mind or ask let alone by routinely demanding her negligence context are about the failure for further information. The emphasis decision on a consent form.” to communicate adequately with the should be on providing the patient with Fifteen years earlier, Kearns J in patient. Evidently we need a radical the relevant information for her, so that Geoghegan v Harris ([2000] 3 IR 536) Doireann review of consent procedures. The she understands what is proposed, why reached that same conclusion: that full O’Mahony is a obsession with the idea of the consent it is proposed, and what her options disclosure of all material risks to the practising barrister, form and the need to have it signed are – rather than bombarding her with patient was required, so that it is the specialising in often provides a distraction from the real information and shoving a consent form patient thus informed – not the doctor – medical negligence. business of informing the patient and in front of her that, before she has even who makes the choice. She is the author of allowing her to make taken in the information Undoubtedly, the single most Medical Negligence the choice. contained on it, she is important obstacle to the proper and Childbirth, Unfortunately, Problems arise expected to sign. exercise of patient choice is the consent published by consent in current because we Earlier this year, the form. The emphasis is not on the Bloomsbury medical practice British Supreme Court in patient’s understanding of information, Professional simply equates to the have mixed up the Montgomery v Lanarkshire but rather on the doctor’s permission to doctor looking over issue of recording Health Board ([2015] operate. Making sure that the patient his shoulder at the UKSC 11) found in favour consents to the procedure is, of course, ‘the patient’s consent lawyer, pleading “don’t of a diabetic mother who important, but problems arise because sue me”. This stems to the procedure, alleged that she should we have mixed up the issue of recording from the fact that have been advised of the the patient’s consent to the procedure, treatment without legal with recording the risk of shoulder dystocia with recording the advice that they have justification is likely to advice that they in vaginal delivery and of been given and of the decision to treat be considered battery have been given and the alternative option of them in this fashion. in criminal law and Caesarean section and trespass to the person of the decision that, had she been so Too late to change your mind in civil law. to treat them informed, she would have Most people undergoing elective surgery The Irish Medical elected for a Caesarean. make their decision weeks before they Council advises that in this fashion It was agreed that, had sign the consent form on the morning doctors “should her son been delivered by of the operation. The trouble with not explain the process in such a way as Caesarean section, he would have been getting the patient to sign a consent to ensure that patients do not feel that spared all of the devastating injuries he form until she comes into hospital their consent is simply a formality or went’ on to suffer. is that the interval means that the a signature on a page”. If a patient is The seven judges unanimously counselling, particularly the description simply presented with a form to sign, held that “the doctor’s advisory role of risks that may become the subject- it loses all significance, as it becomes involves dialogue, the aim of which is matter of litigation, is recorded as an undemanding formality that must be to ensure that the patient understands having happened long after the decision complied with for legal purposes. the seriousness of her condition, and was really taken. When the patient is the anticipated benefits and risks in her theatre gown, anxious about her Patient choice of the proposed treatment and any impending procedure, it is too late Consent should always be about patient reasonable alternatives, so that she is realistically for her to change her mind. choice. That choice should be exercised then in a position to make an informed The consent form is also confined to and recorded at a time when the patient decision. This role will only be performed decisions to undergo surgical procedures has a real opportunity to decline a effectively if the information provided – but decisions not to undergo surgery, or procedure – not in the ward or, worse is comprehensible. The doctor’s duty is to choose non-surgical options, may have law society gazette www.gazette.ie March 2016 COMMENT 21

Full disclosure of all material risks to the patient is required, so that ‘it is the patient thus informed – not the doctor – who makes the choice’ PIC: iSTOCK

just as many implications. This was findings on examination that are recording the fact when there are Sometimes a patient will change the problem in Montgomery, where relevant to the decision. The second none. her mind as a result of the process, the pregnant mother complained section would record the expected The form would then be signed and the decision record could still about the failure to offer her a benefits. The third section would as a decision record, not of the usefully be added to the permanent Caesarean section. We have no describe the disadvantages of the self-evident fact that the patient record as an account of the path not organised means of recording such procedure. The fourth section would consented to treatment or that chosen. patients’ decisions – certainly discuss alternatives that the doctor the doctor mentioned a risk, but It is high time we reviewed nothing that they are asked to sign. advises the patient to consider. A that the autonomous patient has consent in the medical negligence In recognition of the similar copy of the decision record would gone through a decision-taking context. If a patient is simply difficulty posed by the consent be given to the patient, with a copy process, considering and recording presented with a form to sign, how form in Britain, as highlighted by for anyone else that they wish to the benefits and disadvantages can the legal and ethical objectives Montgomery, there has been a involve in the process. that have been described, and has of consent be served? Perhaps proposal that it be replaced with a At the next attendance, there decided to go ahead. it is time to replace the consent ‘decision record’, which is currently would be follow-up of what had There would also be a seventh form, not with another meaningless being piloted in certain areas. already been done in a fifth section. section, in which both parties document, but with a mechanism The decision record would When the patient comes into compare the outcome with their that would actually ensure that have various sections. The first hospital, the sixth section would be expectations at a post-operative patients who sign on a dotted would contain a description of the addressed, dealing with any further clinic, providing an audit of the line are not just complying with presenting problem, recording those questions that the patient wishes doctor’s outcomes and powers of formality, but are truly parts of the clinical history and to raise with the surgical team, and communication. giving consent. 22 ANALYSIS law society gazette www.gazette.ie March 2016 news in depth IN THE PUBLIC EYE

A recent survey of the public by the Law Society looked at attitudes of the Irish adult population towards solicitors and the Society. Teri Kelly reveals some interesting findings

efore Christmas, the Law Society with women. As one would expect, quality of advice offered by their solicitor, commissioned research company younger age groups are more likely to 77% indicated they were satisfied, BRED C to survey the attitudes have never used a solicitor. while only 12% indicated that they were of the Irish adult population towards Solicitor use appears to be least dissatisfied. solicitors and the Law Society. The frequent in Connaught and Ulster, with These figures are promising, but what research is the result of a telephone 23% reporting that they have never used is most heartening is that a full 80% survey of a nationally representative a solicitor. The most frequent users live of the public are satisfied with how Teri Kelly is director sample of Irish adults. in Leinster outside trustworthy their solicitor of representation The results have given us new insights Dublin, with 32% is. We know that people and member into a range of important issues, with of this group using The majority turn to solicitors for services at the Law lessons for both the profession – in a solicitor multiple of the public help at critical points Society terms of driving business to your own times a year. Those in – 57% – use a in their lives. They may firm – and the Law Society. Importantly, Munster also registered be having difficulties in we have uncovered some significant high levels of solicitor solicitor every few the workplace, buying or gaps in understanding among the public use, with 34% using a ‘years, while 9% use selling a home, arranging in relation to the various benefits and solicitor once a year. a will to protect their the protections when using a solicitor, a solicitor once a loved ones, dealing in relation to regulation, PII and the Client satisfaction year, and 6% use with family breakdown compensation fund. The research has or appearing in court. provided us with some a solicitor multiple These are matters that Frequency of use very positive results times in a year are highly confidential, According to the research, 72% of the relating to client personal and sensitive. adult population have used the services satisfaction. Chief among these is that the It’s essential that when facing these of a solicitor at some point in their lives. public reports high levels of satisfaction challenges, people have someone in their The majority of the public – 57% – use with their own solicitor. The research corner they’ can trust. a solicitor every few years, while 9% use shows that 78% of clients are satisfied a solicitor once a year, and 6% use a with the overall service delivered by their Choosing a solicitor solicitor multiple times in a year. Men solicitor, with just 13% stating that they Some of the most interesting results are more likely to use a solicitor multiple were dissatisfied. When asked specifically of the survey relate to the factors times a year or once a year compared about whether they were satisfied with the influencing the choice of solicitor. INFOGRAPHICS: MAEVEKELLY.COM SOLICITORS: FREQUENCY OF USE (Base: All adults 18+; n=1,007) Age Multiple times a year Once a year Every few years 18-24 8% 6% 3% 25-34 19% 24% 16% 35-44 22% 21% 23% 61% 61% 45-54 18% 19% 22% 55-64 15% 9% 18% 45% 55% 65+ 18% 21% 18% 39% 39% Multiple times a year 6% Once a year Multiple times a year Once a year Every few years Never used a solicitor 9% 28% Every few years While over seven in ten adults have ever used the services of a solicitor, 57% the majority do so infrequently (every few years). Males tend to use solicitors more often than females. law society gazette www.gazette.ie March 2016 ANALYSIS 23 PIC: ADOBE STOCK

Three factors mainly influence that home or work is important to 19% choice: of the public, while reasonable FACTORS INFLUENCING CHOICE OF SOLICITORS • Recommendation/word of mouth fees are important to just 10%. (43% of the public choose their That’s not to say these factors solicitor this way), are unimportant. Indeed, if many Know them personally 4% • Family solicitor (28%), and solicitors offer a convenient • Good reputation (24%). location and reasonable fees, it may be a recommendation Reasonable fees 10% Clearly, when and the reputation choosing a When of the solicitor that solicitor, the most choosing a becomes the most important factors important factor. Location 19% for the public are solicitor, the most More surprising what others have important factors is the apparent lack reported about of influence from ‘for the public are the quality of the marketing in relation to solicitor, or direct what others have the public choosing a knowledge of the solicitor. A very small Good reputation 24% solicitor through reported about proportion of the public family experience. the quality of identified advertising The importance (2%) or a website/online of providing the solicitor search (2%) as factors exceptional client influencing their choice Family solicitor 28% care for current clients – to both of solicitor. Again, that is not to say drive future business with them and marketing is unimportant; however, with that individual’s network of it’ is eclipsed by the three main friends and family – has never been factors related to recommendation, clearer. family and reputation. What is surprising about these Word of mouth 43% results is that other factors, which Lessons learned Four factors mainly influence the choice of solicitor: recommendation/ one would have previously thought The survey also contained questions word of mouth, family linkage, perceived reputation and convenience of to have more influence on the related to awareness of the Law location. One in ten clients makes a specific reference to choice being public’s choice of solicitor, are far Society and its role. While 79% influenced by reasonable fees. less important. A close location to of the total population are aware LAW SOCIETY ANNUAL CONFERENCE LAW IN SPORT SPORT IN LAW 15-16 April 2016 CONFERENCE RATES FULL DELEGATE PACKAGE, €325: • Access to full conference, Fota Island Resort • Black Tie Gala Dinner on Friday 15 April • B&B accommodation for one night sharing with ive star hotel in ork another delegate or registered accompanying F C person, and • A light lunch on Friday and Saturday, all in Fota Island Resort. • Single supplement: €80. SPEAKERS ACCOMPANYING PERSON PACKAGE, €225: One night’s B&B accommodation (Friday 15 Sonia O’Sullivan, Olympic, European and World Athletics Champion, April) sharing with a delegate, Black Tie Gala Dinner ‘The Olympics, business and sport – before, after and now!’ on Friday 15 April, light lunch on Friday 15 April and Saturday 16 April. David Walsh, award winning investigative journalist with the ADDITIONAL NIGHT: €140 per single room Sunday Times: ‘The Lance Armstrong case – how I uncovered the most B&B, €155 per double/twin room B&B. controversial doping case in sport’. Family services include complimentary crèche Valerie Mulcahy, Senior Cork GAA Football Champion 2015: facilities available on-site during CPD sessions.

‘Let’s level the playing field – challenges for equality in Irish sport’. Rooms in Fota Island Resort available on a first come, first served basis. Additional accommodation will be available at nearby MORE SPEAKERS WILL BE ANNOUNCED SOON. Castlemartyr Hotel.

Register online at: www.lawsociety.ie/AnnualConference Everyone welcome. Book early to avoid disappointment. law society gazette www.gazette.ie March 2016 ANALYSIS 25

72% of the Irish adult population has used a solicitor of the Law Society, awareness is highest among those who have SATISFACTION WITH SOLICITOR USED used a solicitor, at 86%. Awareness figures of the total population are highly skewed by age, however. Only 41% of 18 78% 80% 77% to 24-year-olds are aware of the Law Society, compared with 96% of 55 to 64-year-olds. Part of the 10% 8% 11% reason for this gap is that younger 13% 12% 12% members of the public are less likely to have used a solicitor. Satisfied Still, we now know that the Law Neither Society has a job to do to increase Dissatisfied awareness of the Society and our role among younger people. Our social media channels will be key here. Overall service Trustworthy Quality of advice One of the most significant revelations from the research Just under four in five state satisfaction with the overall service delivered by their solicitor, with the same is that a surprisingly small proportion registering satisfaction with trustworthiness and advice quality. Three in five record satisfaction with proportion of the public the cost of solicitor services, with room for improvement on this figure. understand the protection provided to them by the Law fund, professional indemnity Society’s compensation fund. insurance cover, legal professional AWARENESS OF THE LAW SOCIETY AMONG CLIENTS In fact, only 32% of the public privilege, high professional and understand that, in the highly educational standards of the unlikely event that they lose solicitors’ profession, and overall 86% money as a result of solicitor regulation by the Law Society. dishonesty, the Law Society will It is important that the public reimburse them through the understand these benefits and compensation fund. protections available every time Clients benefit from extra they use a solicitor, and the Law protections every time they use a Society will be focusing on efforts solicitor. These include cover by to increase that the Law Society’s compensation understanding.

LegaL eZine for MeMbers

The Law Society’s Legal eZine for solicitors is now produced monthly and comprises practice-related topics such as legislation changes, practice management and committee updates.

Make sure you keep up to date: subscribe on www.lawsociety.ie/enewsletters or email [email protected]. Dublin City University LLM (Masters in Law) School of Law and Government Our LLM goes beyond the ‘black-letter’ tradition of legal study. Postgraduate Programmes Students can choose to specialise in one area of law (e.g. international law, public law) or to engage with a more general portfolio of modules. Contact, Dr Tom Hickey: [email protected] DCU School of Law and Government has a range of postgraduate programmes designed to help you develop MSc in Public Policy the skills you need to enter and progress within your Policy involves weaving the future from a number of chosen career. Our teaching approach is based on active disciplines, such as law, economics, politics and learning in small group seminars, through engagement communications. The new generation of policy with real-world cases and policy challenges. We have an leaders will be comfortable in all of these. international reputation for excellence in research and Contact, Dr Eoin O’Malley: [email protected] teaching; ranked in the Top 50 under 50 in the QS World University Rankings. Further infomation: www.dcu.ie/law_and_government/masters.shtml MA in International Relations MA in International Security & Conflict Studies @LawGovDCU MA in International Development, Environment & Conflict Graduates of our masters programmes understand the global forces that structure the world we live in, and are leaders in government, development, journalism and international organisations. Contact, Dr Diarmuid Torney: [email protected]

Solicitors Panel for Home Mortgage Arrears Scheme A Scheme was announced on 22nd January 2016 by the Minister Copies of the application form and the terms and conditions for Justice and Equality to help people who are insolvent and in of the Panel are available on the Board’s website (www. mortgage arrears on their home, to access independent financial legalaidboard.ie). The terms and conditions include the fee and legal advice. This Scheme is co-ordinated by the Department structure that is being put in place by the Board. of Justice and Equality and the Department of Social Protection, The Board wishes to have a limited number of solicitors on the in co-operation with relevant agencies including the Money Advice Panel and selection for the Panel will be based on the applications and Budgeting Service (MABS) (which will act as the gateway received. The Board also reserves the right to interview solicitors for people to access advice under the Scheme), the Insolvency for the Panel and to further limit the number of solicitors who will Service of Ireland, the Citizens Information Board and the Legal participate in the Duty Solicitor Service and Personal Insolvency Aid Board. The Legal Aid Board is now establishing a panel of Arrangement Review elements of the Scheme. solicitors willing to provide the following services to persons Solicitors must participate in training provided by the eligible for the Scheme: Board before they can be placed on the Panel. l A Solicitor Consultation Service; Solicitors selected for the panel will be expected to comply l A Duty Solicitor Service; and with the Board’s Best Practice Guidelines. The Board would l A Personal Insolvency Arrangement Review be pleased to receive applications from solicitors with a real Legal Aid Service. commitment to the work.

To apply submit a completed application in the format provided by e-mail (typed applications only) to [email protected]. Solicitors should note a training event has been provisionally arranged for 8th April in Dublin and should submit their application by 31st March 2016 or earlier if they wish to reserve a place at this event. While applications may be made after this date, solicitors will not be entered onto the panel until they have participated in training. Further training will be arranged at the Board’s discretion. law society gazette www.gazette.ie March 2016 ANALYSIS 27

human rights watch IRISH COURTS RELY HEAVILY ON EU CHARTER AND ECHR ACT

Last year, a report on the impact of the European Convention on Human Rights Act 2003 and the EU Charter of Fundamental Rights on Irish case law was launched. Michelle Lynch reports

n 2015, the Law Society and the PIC: CIAN REDMOND PHOTOGRAPHY DSBA commissioned a report on the Iimpact of the European Convention on Human Rights Act 2003 and the EU Charter of Fundamental Rights on Irish case law. The report was published online in July 2015 and was formally launched Michelle Lynch is at the Annual Human Rights Conference policy development on 10 October at Blackhall Place. executive at the The opening chapter provides an Law Society and overview of the level of engagement with secretary to the the convention and charter by the Irish Human Rights court, relevant tribunals, and the Irish Committee Human Rights and Equality Commission between 2004 and 2014. It found that articles 6 and 8 of the ECHR are the most referenced rights protections before the Irish courts, and immigration and criminal law are the areas where European rights provisions are most frequently referenced by either counsel or the judiciary. Shane McCarthy (vice-chair of the Human Rights Committee), Grainne Brophy (chair), co-authors Dr Suzanne Kingston and Dr Liam Thornton (UCD), and Aaron McKenna (then DSBA president) Compulsory jurisdiction An overview of core provisions of the areas of mental health law, asylum together some key conclusions in relation convention and the 2003 act, the role of and immigration law, criminal law, to European rights as applied in the Irish the European Court of Human Rights (in family and child law, and social and courts and tribunals. One of the central developing standards of interpretation, employment rights. observations drawn was a significant and Ireland’s record before the court A background to the charter, its engagement with European rights in is provided in chapter 2. In chapter 3, scheme and content, and a comparison Irish courts, with increased reliance on horizontal issues relating to common of the status of the charter and the the charter, while convention arguments themes that cut across a number of convention in the Irish courts is given in have remained relatively stable over a significant areas of convention-related Chapter 5, while chapter 6 examines the ten-year period. jurisprudence are explored, including charter before the Irish courts, reviewing In addition, an annex provides an the relationship of the convention and the case law on a number of cross- extensive list of decided cases in which the act to the Constitution, interpretative cutting issues. In particular, the Irish either the convention, the ECHR Act obligations under the act, retrospectivity, courts’ consideration of the applicability 2003, or the charter have been pleaded. declarations of incompatibility, and of article 51 of the charter is examined. This enables a detailed and highly damages and other remedies under the Sectoral developments of charter accessible exploration of the potential of 2003 act. jurisprudence in the Irish courts, in both the act and the charter in litigation. Chapter 4 involves a sectoral review the fields of asylum and immigration of some key legal areas where the law, the European arrest warrant, data The report and annex are available to Irish courts and quasi-judicial bodies/ protection law, family law, companies’ view online under the ‘resources’ tab of tribunals have engaged with rights that rights and social and employment rights the Human Rights Committee’s page on are protected under the convention are reviewed in chapter 7. lawsociety.ie. Hard copies are available and the ECHR Act 2003, including the The final chapter seeks to draw to order for €28.25, including P&P. 28 COVER STORY law society gazette www.gazette.ie March 2016

Show me the

Helen Kehoe is policy development executive at the MONEY Law Society Eradicating money laundering and terrorist financing has become a priority for legislators and policymakers, and the focus on its prevention and detection looks set to intensify considerably, writes Helen Kehoe

he Financial Action Task Force (FATF) – the international body concerned with setting standards for anti-money- laundering (AML) and combatting terrorism financing T(CTF) – has recently renewed its focus upon terrorist financing. It issued a report in October 2015, Emerging Terrorist Financing Risks, and a report to G20 leaders entitled Actions Being Taken by the FATF in November 2015. Their report, Emerging Terrorist Financing Risks, notes that, while “the number and type of terrorist groups and related threats have changed over time, the basic need for terrorists to raise, move and use funds has remained the same”. It also observes that the methods or techniques used at a glance to accommodate this financial need have evolved. As a result, while traditional methods of raising n The Financial Action Task Force has identified significant moneys to fund terrorism continue to be used, vulnerabilities in countering the funding of terrorism there are also new “significant vulnerabilities” n EU member states have been asked to expedite identified by FATF. These new methods transposition of the fourth Anti-Money-Laundering Directive are “associated with social media, including n Ireland will be reviewing its efforts to counter the anonymity, access to a wider range and number financing of terrorism, in light of FATF’s upcoming ‘mutual of potential sponsors or sympathisers, and the evaluation’ in 2016/17 relative ease with which it integrates electronic n FATF will issue a mutual evaluation report containing payment mechanisms”. its observations and recommendations on how the Irish In relation to the traditional methods of raising system could be strengthened funds, the report states that “the adaptability of law society gazette www.gazette.ie March 2016 COVER STORY 29 PIC: iSTOCK

In combatting terrorist financing, the obligation on designated persons ‘is to report any suspicious activity of their clients to the authorities’ 30 COVER STORY law society gazette www.gazette.ie March 2016

these organisations, and new threats posed by most criminal activity, and is also used to raise of client due diligence and the making of foreign terrorist fighters and small-cell terror funds for the financing of terrorism. suspicious transaction reports. The broad networks, require authorities to monitor how The Law Society’s Guidance Notes for context is that the AML/CTF legislation these traditional methods continue to be used”. Solicitors on Anti-Money-Laundering Obligations aims to prevent money laundering being Traditional methods of raising funds highlight the connection between money used to fund criminal activities and encompass a spectrum of legitimate and laundering and terrorist financing in a similar terrorism. illegitimate sources. Legitimate sources manner to the FATF reports on terrorist • There is a category of EU regulations include, for example, charitable entities or financing; however, they also highlight the relating to terrorist financing that contain legitimate businesses and self-financing by the practical difficulties presented in identifying explicit restrictive measures to be directed terrorist(s). Illegitimate funds can, in turn, be such activity (paragraph 2.18): “There can against specific persons, groups, and entities. acquired through criminal activities, varying be considerable similarities between the The requirement to monitor various in both sophistication and scale (see FATF’s movement of terrorist property and the sanctions lists is not included in the AML/ Terrorist Financing Typologies Report 2008 for laundering of criminal property; some terrorist CTF legislation. more detail). groups are known to have well-established • There is an offence of terrorist financing The FATF report to G20 leaders strongly links with organised criminal activity. However, per se, defined in section 13 of the Criminal emphasised that urgent legislative action was there are two major differences Justice (Terrorist Offences) needed across all states to “address significant between terrorist property The methods Act 2005, as amended. The gaps and weaknesses in their systems – such and criminal property more act provides for a variety of as excessive delays in applying sanctions generally: and techniques criminal offences relating nationally”. • Often only small amounts are used by criminals to terrorism, such as required to commit individual hostage taking, bombing, After the terror terrorist acts, thus increasing to launder money recruitment, training, and so On 2 February 2016, the European the difficulty of tracking the ‘may also be used on. In essence, the offence of Commission called on member states to terrorist property, and terrorist financing requires a expedite transposition of the fourth EU Anti- • Terrorists can be funded by clients with level of intent or knowledge Money Laundering Directive, as part of its action from legitimately obtained legitimate means for that any provision, collection, plan to strengthen the fight against terrorist income, including charitable legitimate purposes. or receipt of funds will be financing – the commission’s “strong and donations, and it is extremely used in whole or part to swift response” to the issue. The action plan difficult to identify the stage Because of this, carry out acts of terrorism includes, among other things, proposals to at which legitimate funds red-flag indicators (the latter acts also defined introduce amendments to the fourth directive, become terrorist property. “ in section 13 – please see the making it likely that a fifth AML Directive will should always be entirety of section 13 for the follow during 2016. It is clear that the financing considered comprehensive and wide- It seems possible that such heightened of terrorism draws on both ranging definition). levels of supranational activities and concern legitimate and illegitimate in context regarding how best to combat terrorist sources of funds, which adds The guidance notes financing could lead to further obligations a layer of complexity to identifying such (paragraph 2.18) outline the potential role being imposed on designated professionals, behaviours. of lawyers in combatting terrorist financing: including the legal profession, or lead to ’“In combatting terrorist financing, the current statutory obligations being enhanced. Just and unjust wars obligation on designated persons is to report Finally, it is likely that Ireland will review its In Ireland, the Criminal Justice (Money any suspicious activity of their clients to the efforts to counter the financing of terrorism, in Laundering and Terrorist Financing) Acts 2010 authorities. This supports the aims of the light of its upcoming FATF mutual evaluation and 2013 (AML/CTF legislation) provide law enforcement agencies in relation to the in 2016/17. This will see Ireland examined the legislative framework for AML and CTF financing of terrorism by allowing the placing by FATF evaluators in relation to the AML obligations. This legislation is framed almost of a direction or court order not to carry and CTF systems in place (that is, the level entirely in terms of assessing the risk of money out any specified service or transaction for of compliance with FATF standards and the laundering or terrorist financing. clients where there are reasonable grounds efficacy of the systems in place). There are crucial distinctions between for suspecting that such property could be At the conclusion of the process, FATF will the references to ‘terrorist financing’ that used to finance terrorist activity and depriving issue a ‘mutual evaluation report’ containing its depend on the various contexts in which it is terrorists of this property as and when links are observations and recommendations regarding mentioned. References to ‘terrorist financing’ established between the property and terrorists how the Irish AML/CTF system could be in the AML/CTF legislation, for example, is in or terrorist activity.” strengthened. All members of FATF are the context of ‘money laundering and terrorist In managing the risk of becoming required to undergo this process at periodic financing’ and can be distinguished – to a unwittingly involved in money laundering or intervals. degree – from terrorist financing as contained terrorist financing, solicitors are reminded to in the criminal justice (terrorist offences) be aware of the following (broadly outlined Money talks legislation. Examples of these distinctions are below): Money laundering is a process whereby the provided in the Law Society’s guidance notes • The risk of committing the substantive proceeds of crime are changed (‘washed’), (see paragraphs 2.16-2.18 in particular): offence of money laundering, so that the money appears to come from a • Terrorist financing as addressed in the AML/ • Indicators of suspicion/red flags, and legitimate source. It forms a crucial part of CTF legislation involves the obligations • The risk-based approach. law society gazette www.gazette.ie March 2016 COVER STORY 31

For a detailed consideration of these issues, • Be able to demonstrate that they undertook solicitors should review the Law Society’s due diligence and took reasonable steps to guidance notes. protect the firm.”

Family resemblance Solicitors may also find it beneficial to review The offence of money laundering is broadly the following international documents defined in the AML/CTF legislation – in about risk and red flags particular to fact, the definition encompasses more than the legal profession: the FATF Report on the traditional concept of money laundering. Money Laundering and Terrorist Financing: This is primarily because it includes the mere Vulnerabilities of Legal Professionals (June 2013), possession, acquisition, or use of property, A Lawyer’s Guide to Detecting and Preventing while knowing that such property is derived Money Laundering, a collaborative publication from the “proceeds of criminal conduct”, but of the IBA, ABA, and CCBE (October 2014). without requiring any objective or intent to Back in the day, terrorist financing was based on the Solicitors can find all of the above ‘cleanse’ the asset. ‘proletarian expropriation’ model. Or robbing banks documents, as well as further best practice Additionally, tax offences are not in a special guidance and information regarding solicitors’ category: the proceeds of a tax offence are flag indicators should always be considered statutory anti-money-laundering obligations, treated as proceeds of crime and may be the in context. The mere presence of a red- on the Law Society’s dedicated anti-money- subject of money-laundering offences under flag indicator is not necessarily a basis for laundering resource webpage. the AML/CTF legislation. a suspicion of ML or TF, as a client may Solicitors should also bear in mind that, As regards the ‘knowledge’ element of the be able to provide a legitimate explanation. while the Law Society can provide best offence, it includes actual knowledge as well as These red-flag indicators should assist practice guidance in relation to a solicitor’s what the person ought to have known – that is, legal professionals in applying a risk-based statutory AML and CTF obligations, it “the person knows or believes (or is reckless as approach to their CDD requirements of cannot provide legal advice in to whether or not) the property is the proceeds knowing who their client and the beneficial relation to these obligations. of criminal conduct”. owners are, understanding the nature and Chapter 2 of the guidance notes is the purpose of the business relationship, and particularly relevant, as it describes the understanding the source of funds being used look it up substantive offence, knowledge elements, and in a retainer. Where there are a number of the risks for solicitors transferring assets that red flag indicators, it is more likely that a legal Legislation: might be tainted. professional should have a suspicion that ML n Anti-Money-Laundering Directive (Directive It must be borne in mind that “penalties or TF is occurring.” (EU) 2015/849) for money-laundering offences include n Criminal Justice (Money Laundering and imprisonment for up to 14 years”. Urban guerrilla Terrorist Financing) Acts 2010 As stated previously, the AML/CTF legislation n Criminal Justice (Terrorist Offences) War of the flea is framed almost entirely in terms of risk – that (Amendment) Act 2015 Solicitors should familiarise themselves with is, what is termed the ‘risk-based approach’ to n Criminal Justice (Terrorist Offences) Act the non-exhaustive list of red flags provided in AML/CTF. 2005 chapter 9 of the guidance notes. Regarding the risk-based approach, the n Criminal Justice Act 2013 By way of example, this chapter lists red flags guidance notes provide the following best regarding: practice guidance (paragraphs 1.24-1.25): Literature: • Transactions involving unusual levels of “These risks must be identified, assessed and n FATF (2008), Terrorist Financing funds, mitigated, just as a solicitor would do for all Typologies Report 2008 • Transactions involving areas outside Ireland, business risks facing their firm. If a solicitor n FATF (2013), Report on Money Laundering • Transactions related to offshore business knows his/her client well and understands their and Terrorist Financing: Vulnerabilities of activity, instructions thoroughly, the solicitor will be Legal Professionals • Property transactions, better placed to assess risks and spot suspicious n FATF (October 2015), Emerging Terrorist • The use of client accounts, activities. Applying the risk-based approach will Financing Risks • The need for a cash handling policy, vary between firms. While a solicitor can, and n FATF (November 2015), Action Being • The importance of monitoring the source of should, start from the premise that most clients Taken by the FATF funds, and are not launderers or terrorist financers, the n IBA, ABA, and CCBE (October 2014), • The need to exercise care when disclosing solicitor should assess the risk level particular A Lawyer’s Guide to Detecting and account details, and so on. to his firm and implement reasonable and Preventing Money Laundering, considered controls to minimise those risks. n Law Society of Ireland (2010), Guidance Regarding red flags, the FATF Report on “Solicitors are not expected to be detectives Notes for Solicitors on Anti-Money- Money Laundering and Terrorist Financing: and should: Laundering Obligations Vulnerabilities of Legal Professionals states as • Make a reasoned assessment of the risks, n Law Society’s dedicated anti-money- follows (p77): “The methods and techniques • Take reasonable steps to conduct CDD, laundering resource webpage: www. used by criminals to launder money may also • Use their judgement and discuss issues with lawsociety.ie/Solicitors/Regulations/Anti- be used by clients with legitimate means for colleagues, Money-Laundering legitimate purposes. Because of this, red- • Document what they find, 32 PENSIONS law society gazette www.gazette.ie March 2016 WAKE ME UP before you go-go

In 1996, the Family Law (Divorce) Act was passed here – that was the same year that Di divorced Charles. With divorce and pensions in mind, Jim Connolly asks: ‘Does my ARF look big in this?’

Jim Connolly is head of pensions espite the fact that we top the EU charts with the at Goodbody lowest divorce rate (0.6%), we’ve still granted Stockbrokers. A divorces to over 100,000 people since 1996. That’s well-known and a whole lot of Wham! albums to be fought over. outspoken figure But the record collection isn’t where the money on Irish pensions, lies in a divorce. There is enough evidence to show he was voted ‘Irish that,D after the family home, the next most valuable asset that most Pension Personality people own is their pension. But there is also enough evidence to of the Year’ at suggest that people would rather tidy their sock drawer than take the the Irish Pension time to understand more about pensions – and, as such, they don’t Awards always get top billing in people’s minds. In divorce scenarios, they are absolutely prioritised, but once the pension adjustment order (PAO) has been secured, attention turns back to the vinyl. Unfortunately for all of us, this casual mentality also seems to have permeated the minds of our legislators, as they seem to have approached the issue of pensions and divorce with a similar degree of ‘couldn’t-care-lessness’. We’re now in a situation where the square peg of pensions legislation has been rammed into the round hole of family law, with the inevitable result of serious problems for those caught on the edges. Do not adjust your set – the following tax treatment is actually the way it is.

Careless whisper at a glance The initial legal framework dealt with the distribution of pension assets in divorce quite effectively. n After the family home, the next In 1996, the pensions landscape was relatively straightforward – no most valuable asset that most personal retirement savings accounts (PRSAs), approved retirement people own is their pension funds (ARFs), no maximums on lump sums, no standard fund n In divorce scenarios, pensions thresholds (SFTs) and certainly no chargeable excess tax (CET) issues are prioritised to deal with. Even back then, we thought pensions were complicated – n However, our legislators seem we didn’t realise how lucky we were. to have approached the issue The original legislation allowed pension benefits to be divided of pensions and divorce with a between the member spouse who owned the benefit and their non- laissez-faire attitude member spouse through a pension adjustment order. This instrument law society gazette www.gazette.ie March 2016 PENSIONS 33 WAKE ME UP PIC: iSTOCK/GAZETTE STUDIO

Divorces have been granted to over 100,000 people since 1996. That’s a ‘whole lot of Wham! albums to be fought over ’ 34 PENSIONS law society gazette www.gazette.ie March 2016

and appeared out of the blue in the budget measures. It was always felt that the initial ARF legislation was premature. Rumour T’PAO at the time was that it was rushed through to facilitate some high-profile divorce settlements, and this rumour seems to be substantiated by the fact that the tax legislation surrounding it had to be totally revamped in the Finance Act 2000. The ARF didn’t really affect the whole divorce arena other than to add a bit of confusion as to whether it fell within the definition of a pension under section 2(1) of the Family Law Act. And the answer to that issue is that it doesn’t – and as such, a property adjustment order is a more appropriate Here’s a PAO, but instrument to capture ARF assets. don’t go spending The unintended it all at once because consequence of the ARF was that it created a mechanism you might have a tax to extract funds from a ‘bill of an unknown company, pocket 25% tax- amount payable at an free, and park the balance in a gross roll-up investment Now there’s a pension adjustment order you could live with... unknown date in the – and boy, did the big players future, and it’s your ex take advantage. In one case apportions the pension according to a relevant and run. Leaving it where it I know of, an ARF of €100 percentage of the benefits accrued during the is simply leaves it within the that will determine this million was created. And this period of the marriage. control of an ex, where they because it’s the future was after the tax-free cash. If Once a PAO has been awarded, it is the decide how it is invested you work the maths out, that recipient of the order who controls what and control when the value of their fund means that this individual happens next. They can: benefit is made available. that matters extracted €133 million from • Simply leave the benefit where it is and, Since 1996, the position the family business, pocketed when their ex retires or dies, they will hasn’t actually changed – which is part of €33 million in a tax-free lump sum, and held receive their share, or the problem, because pension rules have, the balance in a tax-exempt investment. Nice. • They can carve out the benefit and move it and these changes have a considerable and As you’ can imagine, this activity had to to a product in their own name. potentially negative impact on how the non- be curtailed and, in 2005, the concept of member spouse might be taxed. pension-fund thresholds were introduced. As a pension provider and trustee, it is Now, if your fund delivered over €5 million, abundantly clear to me when a PAO client Where did your heart go? you would suffer chargeable excess tax (CET). has taken advice and when they haven’t. The story starts to get complicated in 1999, Brilliant: problem solved. It’s difficult to give broad-brush advice but, with the birth of the approved retirement Well sort of – because, as one problematic generally, if the PAO relates to a defined- fund (ARF). One of the most significant door slammed shut, another flew open. contribution arrangement, the best thing to pension changes in decades didn’t even Our new CET regime didn’t thoroughly do is to carve the benefit out – take the money make Charlie McCreevy’s budget speech provide for how one should deal with divorce

Problems start here

Standard fund SFT reduced to Family Law Approved retirement New tax regime thresholds (SFT) €2 million and new (Divorce) Act funds are born for lump sums introduced regime to share CET

1996 1999 2005 2011 2014 law society gazette www.gazette.ie March 2016 PENSIONS 35

situations. The issue didn’t get much billing (or sympathy) for the few high rollers that would have been affected by a €5 million We get divorced I retire threshold but, in 2010 and again in 2014, the standard fund threshold was reduced and now stands at €2 million – a level that brings a far Today 2026 higher percentage of the population into the equation. It is only at this point will you know if you You get a PAO Credit-card baby have a chargeable Up until 31 December 2014, all chargeable excess tax fell on the member spouse. excess tax bill or not So, in simple terms, say I have a pension fund of €2 million today, we get divorced, you get half, and you take the money into your own product and run. When I eventually to establish how much of this you owe! And If I had given you 100%, then nothing retire, a calculation must be carried out to because you got €1 million of my €3 million would happen, as I can never trigger part of it. ‘guess’ what the value of my fund would have notional fund, you are now the proud owner This presents an anomaly. Instead of me been had you not taken your of one-third of the tax bill. giving you half of my fund, I could split my half. Say this calculation results No, I’m not joking. fund into two separate contracts first, and in me having a total notional We’re now in a A full ten years after we then give you 100% of one of them. In this pension fund of €3 million. I situation where split, you get presented case, the entire issue is avoided. would then incur CET of 40% with a whopping tax bill of of the €1 million excess. Ouch. the square peg of €133,333 (being one-third Last Christmas In an attempt to address this pensions legislation x 40% x €1m). The solution is to convince the policy and inequity, the Finance Act 2014 And all of the measures legislation division of the Department of ‘has been rammed introduced a regime that seems are in place for this to be Finance to recognise that PAOs and standard nothing short of bizarre. into the round hole of deducted straight from fund thresholds have never worked properly Consider the same situation. your ARF. and that we need a drawing board to go We split up today (in 2016) family law, with the Maybe it’s just me, but back to. and you take €1 million into inevitable result of this seems to be grossly This should culminate in the obvious product in your own name. Say unfair on the non-member solution of recognising that each of the I am age 50, which allows you serious problems for spouse, as we are essentially parties to a divorce are entitled to their own to actually retire the portion those caught saying: “Here’s a PAO, €2 million threshold and should be taxed of the fund you have taken. So on the edges but don’t go spending it accordingly – if I give you €1 million, then you sail off into the sunset with all at once because you you should be limited to accumulating a a lump sum and an ARF. might have a tax bill of further €1 million. As it stands today, if I In 2026, when I retire at age 60, the an unknown amount payable at an unknown give you €1 million of my €2 million fund, administrators of my pension must carry out date in the future, and it’s your ex that will you can still accumulate another €2 million a calculation to establish what the value of my determine’ this, because it’s the future value of and I have no scope to make any further fund might have been had you not taken half their fund that matters.” contributions (without incurring a CET tax of it ten years earlier. So let’s say it works out The interesting thing about this new bill for you and me!) atddcr-thelawSocietyGazette.qxp_Layout the same €3 million above. 1 25/02/2016regime 16:30 is that Page the 1test is only carried out when Bottom line … no, your ARF Now a second calculation is carried out I trigger my half of the benefit. doesn’t look that big now!

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Contact us for more information: Tel +353 1 817 5277 [email protected] www.dublinarbitration.ie 36 ???????????????REGULATORY AFFAIRS law society gazette www.gazette.ie March 2016 Keeping it REGULAR The Legal Services Regulation Act will come into operation on days decided by the Minister for Justice – none of it is yet in force. Director of regulation John Elliot provides an introductory overview of key aspects of the act as they apply to solicitors

he Legal Services Regulation Act 2015 accountants’ reports, take disciplinary and court cases John Elliot makes sweeping changes to how against solicitors in relation to financial regulatory matters, is director of solicitors and barristers are regulated, deal with abandoned solicitors’ practices, and continue regulation at the creates new legal practice structures, to handle complaints received before the new complaints Law Society of and reforms the law on legal costs. The system becomes operational. Ireland act establishes the new independent TLegal Services Regulatory Authority to regulate all legal practitioners, and the Legal Practitioners Disciplinary at a glance Tribunal to hear disciplinary cases against barristers and solicitors. Other significant changes cover the n The Legal Services Regulation Act makes sweeping appointment of solicitors as senior counsel and a pre- changes to how solicitors and barristers are regulated action protocol for clinical negligence actions. n The act continues the prohibition on percentage The new authority will regulate both solicitors charging in contentious business, prohibits setting and barristers. The primary function of the authority junior counsel costs as a specified proportion of is to regulate the provision of legal services by legal senior counsel costs, and provides that client consent practitioners and to ensure the maintenance and to deduct costs from damages must be prior written improvement of standards in the provision of such consent services. There will be a new complaints and disciplinary n The Law Society will continue to issue practising system. The authority will have extensive powers in certificates, regulate professional indemnity relation to professional codes, inspections of legal insurance, maintain the compensation fund, inspect practices, and the advertising of legal services. The solicitors’ firms for compliance with the Solicitors authority will be required to prepare reports on many Accounts Regulations and anti-money-laundering aspects of legal services. The legal professions will be obligations, receive reporting accountants’ reports, levied to pay for the new system. take disciplinary and court cases against solicitors The Law Society will continue to issue practising in relation to financial regulatory matters, deal with certificates, regulate professional indemnity insurance, abandoned solicitors’ practices, and continue to handle maintain the compensation fund, inspect solicitors’ firms complaints received before the new complaints system for compliance with the Solicitors Accounts Regulations and becomes operational anti-money-laundering obligations, receive reporting law society gazette www.gazette.ie March 2016 REGULATORY??????????????? AFFAIRS 37 PIC: iSTOCK/GAZETTE STUDIO

New practice structures will include Human Rights and Equality Commission, integrity, the best interests of clients, proper limited liability partnerships, partnerships the Institute of Legal Costs Accountants, standards of work, duties to the court, and of barristers, partnerships of solicitors and the Consumers’ Association of Ireland, the confidentiality. barristers, and possibly, in due course, multi- Bar Council, the Legal Aid Board, the King’s disciplinary practices. Inns, and the Law Society. Two Codes of practice The new legal costs system members are nominated by the The authority may issue codes of practice in will see an Office of the The regulation- Law Society. The Government relation to legal services. If a code issued by Legal Costs Adjudicators and will appoint one of the lay the authority and a professional code issued replacement of ‘section 68’. making powers members to be chairperson of the by the Law Society conflict, the authority’s of the Law Society authority. The authority appoints code will prevail. Professional codes include Legal Services Regulatory will be subject to its own chief executive. regulations and practice notes. The authority Authority The authority is to have regard has powers to direct the Society to amend its The authority will consist ‘the approval of to objectives related to the public professional codes. of 11 members, with a lay the authority interest, the administration of majority, appointed from justice, the interests of consumers, Reports persons nominated by the competition, an independent, The authority is to issue various reports, Citizens’ Information Board, the Higher strong and effective legal profession, and including reports on the following: Education Authority, the Competition and specified professional principles, which • Admission policies of the legal professions Consumer Protection Commission, the Irish include’ principles related to independence and (annually), Meet your new partner.

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• Education and training for legal practitioners the act sets out principles relating to legal costs. (within two years of establishment day), A legal practitioner and a client may enter • Unification of the solicitors’ and an agreement about legal costs that can replace barristers’ professions (within four years of the section 150 notice. Bills of costs are to establishment day), be regulated. Solicitors will have to attempt • Creation of a new profession of conveyancer resolution of bill disputes by informal means. (within a period specified by the minister), KEEP The act contains detailed provisions relating to and adjudication of legal costs. • Such other matters as the minister may CALM Part 11 makes statutory provision for the request. AND award of legal costs in civil proceedings. And now the science bit… Silk purse Part 3 of the act allows inspections of legal REGULATE Part 12 is about patents of precedence or practitioners’ places of business. The authority entitlement to use the title of ‘senior counsel’. may appoint inspectors who have extensive For the first time, solicitors will be eligible to powers. non-legal services. The provisions of the act in apply. Part 4 deals with the holding of clients’ relation to MDPs will not be commenced until Part 13 makes amendments to the Solicitors moneys by legal practitioners. Only solicitors after a report by the authority regarding MDPs Acts and many are merely consequential. The (and not barristers) may hold clients’ moneys, is issued. Solicitors Acts 1954-2011 and part 13 of the but the minister may restrict the holding of Limited liability partnerships will be Legal Services Regulation Act 2015 are cited clients’ moneys by solicitors. permitted. A partner in an LLP will have a together as the Solicitors Acts 1954-2015. Part 5 deals with professional indemnity degree of limited liability in connection with The regulation-making powers of the Law insurance. Solicitors must continue to maintain the LLP, subject to exceptions in relation to Society will be subject to the approval of the insurance under the Law Society’s regulations. fraud or dishonesty and criminal offences, authority. The existing right of solicitors to seek to tax and liabilities incurred before the date of The power to backdate practising certificates limit liability to clients by contract to not less authorisation as an LLP. Authorisation by where there has been a late application will than the minimum level of cover for PII is the authority is required to be transferred from the High maintained. operate as an LLP, and the Court to the authority. Part 6 creates a new complaints and authority will maintain a The authority will When the Law Society disciplinary system, which will be covered in register of LLPs. have extensive considers that a solicitor more detail in the April issue of the Gazette. Direct access to barristers may not be fit to carry on There will be an expanded definition of in non-contentious matters powers in relation to practice for health reasons, misconduct. The authority will deal with will be allowed. There is to professional codes, it may require the solicitor complaints and will have limited powers of be a report on the holding of ‘inspections of legal to be examined by a medical sanction. Informal resolution of complaints clients’ moneys by barristers practitioner nominated by the about inadequate services and excessive costs and direct access to barristers practices, and the Law Society. will be encouraged. The authority will have in contentious matters. advertising of Applications by solicitors for a Complaints Committee, which will have removal of their name from the power to make referrals to the new disciplinary New costs system legal services Roll of Solicitors will be dealt tribunal. The tribunal will refer serious cases to Part 10 is about the new legal with by the Law Society rather the High Court for decision on sanction. costs system, which will be covered in more than the Solicitors Disciplinary Tribunal. Part 7 deals with a levy to cover the expenses detail in a future issue of the Gazette. An authority-appointed monitor may attend of the authority and the new disciplinary The Taxing Masters’ Office becomes the and’ observe certain regulatory committee tribunal. The Law Society will pay an annual Office of the Legal Costs Adjudicators, and an meetings of the Law Society. levy. Expenses will be divided between the Law office of Chief Legal Costs Adjudicator with Regulation of advertising of legal services Society and the barristers’ profession according management responsibilities is created. There will be vested in the authority. The act to a formula that takes account of the relative will be a register of legal costs adjudication recognises that restrictions on advertising are sizes of the two professions and the extent to determinations. The jurisdiction of county legitimate, including restricting advertising that which each profession generates work for the registrars in relation to taxation of costs encourages personal injury claims, and so the new system. continues. act does not indicate any intention to change The act continues the prohibition on the underlying public policy on advertising by Part 8 – new practice structures percentage charging in contentious business, solicitors. A ‘legal partnership’ – effectively a partnership prohibits setting junior counsel costs as a Part 15 is about a pre-action protocol of barristers or a partnership of a solicitor or specified proportion of senior counsel costs, for clinical negligence actions designed to solicitors with at least one barrister – will be and provides that client consent to deduct costs encourage early resolution of allegations of permitted on notification to the authority, from damages must be prior written consent. clinical negligence and reduce the incidence which will maintain a register of legal Section 150 is about provision of of clinical negligence actions. An apology partnerships. information to clients in relation to legal costs made in connection with an allegation of A ‘multi-disciplinary practice’ (MDP) is and is the new ‘section 68’. It is more detailed clinical negligence will not constitute an a partnership including at least one legal and more extensive than section 68 of the admission of liability or practitioner formed to provide both legal and Solicitors (Amendment) Act 1994. Schedule 1 of invalidate insurance cover. 40 ???????????????CHARITIES LAW law society gazette www.gazette.ie March 2016 Faith, hope and CHARITY This is an important and challenging time for charities operating in Ireland. Kevin Hoy and Alice Murphy examine some practical implications of the new regulatory regime for charities

he Charities Regulatory Authority • Confirm that none of the property of the trust is (CRA) was established on 16 October payable to the trustees (other than in accordance with Kevin Hoy is head 2014, more than five-and-a-half years section 89). of real estate at after the passing of the Charities Act Mason Hayes & 2009. In the case of a religious organisation or community, it Curran and is a The 2009 act (in conjunction with may apply funds for the accommodation and care of its partner in the firm’s Tthose provisions of the earlier Charities Acts of 1961 members. charities and not- and 1973, which were not repealed) now provides for-profit team a legislative framework for the establishment and Charitable purposes operation of charities in Ireland. The legislation ‘Charitable purposes’ include the prevention or relief confirms that there is no one set structure for charities. of poverty or economic hardship, the advancement A ‘charitable organisation’ may be a charitable trust, a of education, the advancement of religion, and other body corporate, or an unincorporated body of persons. purposes of benefit to the community. Section 3(11) In order to come within the definition of a ‘charitable gives 12 categories that now, by statute, come within the organisation’, a charitable trust must: community benefit test. The list includes the protection • Be established for one of the charitable purposes listed of the natural environment, the advancement of the arts, in section 3, the promotion of health, and the promotion of civic Alice Murphy is • Be established by a deed of trust requiring its trustees responsibility. an associate in the to apply all its property in furtherance of that purpose firm’s charities (except for moneys expended in the management of and not-for-profit the trust), and at a glance team, specialising • Confirm that none of the property of the trust will in corporate be payable to the trustees, other than in accordance n A ‘charitable organisation’ may be a charitable trust, a charities and charity with section 89 (which has not yet been commenced). body corporate or an unincorporated body of persons regulation Section 89 will permit a charity to enter into certain n The CRA establishes and maintains a register of agreements with charity trustees and connected charitable organisations, ensuring and monitoring persons. compliance by charitable organisations with the provisions of the act, promoting the effective use of the In order to come within the definition of a ‘charitable property of charitable organisations, and increasing organisation’, a body corporate or an unincorporated public trust and confidence in the management and body of persons must: administration of charitable organisations • Promote a charitable purpose only, n A charitable organisation that intends to operate or • Contain a requirement in its constitution requiring carry on activities in the State must register with it to apply all of its property in furtherance of that the CRA. This applies regardless of the place of purpose (except for moneys expended in the operation incorporation or the legal structure of the charitable and maintenance of the body, including remuneration organisation and superannuation of its staff) and, law society gazette www.gazette.ie March 2016 ???????????????CHARITIES LAW 41

Any charitable organisations that have a 31 December financial ‘year-end and have not yet completed registration and/or annual reporting with the CRA for year-end 31 December 2014 CHARITY should now do so without delay

Each purpose must be of’ public benefit in order to be a charitable purpose. There is a statutory presumption that a gift for the advancement of religion is of public benefit. All other charitable purposes must be shown to be intended to benefit the public or a section of the public. The rules of the religion govern the construction of a gift for the advancement of that religion. This may be the first statutory recognition of the status of the internal rules of religions (for example, the Canon Law of the Roman Catholic Church).

New regulatory regime The establishment of the CRA (by part 2) paved the way for Ireland’s first bespoke regulatory regime for charitable organisations. Previously, the Commissioners of Charitable Donations and Bequests for Ireland and the Revenue Commissioners dealt with charitable organisations, but the former’s role was more one of prudent facilitation rather than oversight, and the scope of the latter was (and is) limited to tax. The CRA establishes and maintains a register of charitable organisations, ensuring and monitoring compliance by charitable organisations with the provisions of the act, promoting the effective use of the property of charitable organisations, and increasing public trust and confidence

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IfLEGACY you want to request a copyBE? of our Leaving a Legacy guide ‘Your questions answered’ or wish to speak directly with our Legacy Team at our Sanctuary in Liscarroll, please contact: (022) 48398 [email protected]

RETURN FORM TO: Name: Mr/Mrs/Miss THE DONKEY SANCTUARY Legacy Department (LSG), Address Liscarroll, Mallow, Co. Cork Postcode Email Charity Reg. No. 20032289 www.thedonkeysanctuary.ie 0014_14_DS law society gazette www.gazette.ie March 2016 CHARITIES LAW 43

Commissioners of Charitable Donations and FOCAL POINT Bequests for Ireland, a body dissolved by part 6.

Registration size matters Section 39 requires that a charitable The CRA’s online annual reporting questionnaire account (or income and expenditure account organisation that intends to operate or carry classes charitable organisations by size – ‘small’ and statement of assets and liabilities) for the on activities in the State must register with if gross annual income is less than €10,000, reporting period. the CRA. This applies regardless of the place ‘medium’ if gross annual income is between Medium-sized organisations must provide of incorporation or the legal structure of the €10,001 and €100,000, and ‘large’ if gross a profit-and-loss account (or income and charitable organisation. annual income is more than €100,000. All expenditure account and statement of assets and When establishing the CRA, the Minister charitable organisations, regardless of size, must liabilities) for the reporting period. for Justice made it clear that the first task of detail the activities they carried out during the Large charitable organisations must provide the new authority was to be the registration reporting period in furtherance of their charitable audited accounts, including directors’ and of charitable organisations operating in objectives. They must disclose the groups auditors’ reports. Education bodies are exempt Ireland. As the only public list of charitable that directly benefit from the activities of the from the accounts requirements, as these are organisations maintained was the Revenue organisation during the reporting period, as well already subject to Department of Education Commissioners’ ‘CHY list’, the act enabled as information such as number of employees and and Skills oversight. Charities established as the CRA to place all CHY holders on the new volunteers and key financial data. companies are also exempt, as these are already CRA register. These are described at section Small charitable organisations may, but subject to the accounts requirements of the 40 as ‘deemed registered’. are not required, to submit a profit-and-loss Companies Act 2014. The CRA has written to these charities requesting further details, such as names and addresses of trustees, a copy of the governing If a charitable organisation is not registered that are not established as companies (such as documents, and a summary of the charitable or is not deemed registered, then, under trusts or unincorporated associations), as CRA objective. The CRA wishes to have the same section 41, it is an offence for that charitable registration and annual reporting represented information about those ‘deemed registered’ organisation or a person to advertise, seek their first ever statutory or public filing. charities as it will have for charities that apply donations, or accept gifts. Any charitable organisations that have a for registration. 31 December financial year-end and have All other charities must register by 16 April Annual reporting not yet completed registration and/or annual 2016. Under section 39(5), the applicant All charities must also comply with their reporting with the CRA for year-end 31 must include its address, place of operation, obligations under section 52 to prepare and December 2014 should now do so without particulars of the kinds of activity carried submit to the CRA a report in respect of its delay. Charitable organisations with other out, the manner in which the charitable activities in each financial year. Financial financial year-ends need to count forward ten organisation has raised or proposes to raise transparency is one of the key ways to months from their year-end date to ascertain money, particulars of all professional fund- reassure donors that their contributions are their reporting deadline. All charitable raising agents, risk-assessment procedures, being used as intended. organisations need to keep in mind that this is safeguards employed, income of the charitable The charitable organisation must file its now an annual compliance requirement. organisation, and a copy of its constitutional annual report within ten months after the end The regulator has emphasised that the documentation. of each financial year. As the relevant sections primary focus for the moment is on helping No doubt with the detailed requirements of of the Charities Act 2009 were commenced on charities to comply. The CRA has been section 39 in mind, the CRA initially produced 16 October 2014, the first applicable financial touring the country to reach out to smaller a very detailed online questionnaire. It asked year-end for most charitable organisations charities in particular. In the coming months, all CHY charities to create an online account was 31 December 2014, and the first annual the accounting standards will be set by the and to respond to the online questionnaire. report date was 31 October 2015. The CRA Minister for Justice and the method by In September 2015, the CRA simplified online questionnaire is structured so that a which schools will register will be clarified. its process for registration by reducing the charitable organisation cannot complete its After hundreds of years without any volume and scope of the questionnaire, which annual report until it has completed its online regulation, it is not surprising that now deals solely with factual details about registration. After a charitable organisation implementation has challenges for all. the charitable organisation, an overview of its completes its registration online, the CRA charitable purpose and objects, address and will email the charity with its annual report The register is now available at www. contact details, trustee and officer details and date. charitiesregulatoryauthority.ie. the organisation’s constitutional or governing The processes of registration and annual document(s). reporting for charitable organisations are After a charitable organisation has important developments for the sector and look it up completed and submitted its registration, its are to be welcomed. There is no public online CRA account will show a ‘maintain data available on the level of compliance to n Charities Act 1961 charity details’ screen. Charities must update date, but we are aware that this has been a n Charities Act 1973 key details such as trustees and addresses by very important issue for the sector during n Charities Act 2009 including the changes in the ‘maintain charity 2015 and into 2016. This has particularly n Companies Act 2014 details’ section of its online CRA account. been the case for charitable organisations 44 CAPACITY law society gazette www.gazette.ie March 2016 In what CAPACITY? Kate Butler is a practising barrister The Assisted Decision-Making (Capacity) Act 2015 governs the law in relation to adults and a board member who are experiencing difficulties with decision making – and it changes the definition of of Inclusion Ireland, a representative ‘capacity’. Kate Butler holds your hand group for people with intellectual disabilities. She is ast December, the president signed a definition of capacity: while previously it was assessed on a available to give new piece of legislation into law that has ‘status’ basis – you either had it or you didn’t – now it can talks on this topic the potential to affect every adult in the be assessed on a ‘functional’ basis. State: the Assisted Decision- Section 3 provides: “A person’s capacity Making (Capacity) Act shall be assessed on the basis of his or 2015. The act governs the It is a progressive her ability to understand the nature and Llaw in relation to vulnerable adults who and reforming consequences of a decision to be made by are experiencing difficulties with decision piece of legislation: him or her in the context of the available making, whether because of intellectual choices at the time the decision is made.” disabilities, acquired head injuries or old it repeals the Lunacy Rather than a fixed idea that a person age, and applies to any relevant person ‘Regulations (Ireland) can or cannot make any decisions, (RP) whose capacity is in question, or may capacity is therefore to be understood as shortly be in question, in respect of one or Act 1871, which a fluid, changeable concept, depending more matters (section 2(1)). heretofore governed on the circumstances of the person at the Commencement dates have yet to time and the nature of the decision to be be published, but it is hoped that it the law in this area made. will be commenced within 2016. It is An assessment of capacity will also a progressive and reforming piece of legislation: it take into account that a person may be able to understand repeals the Lunacy Regulations (Ireland) Act 1871, which matters if they are presented to the person in a particular heretofore governed the law in this area. It changes the way (for example,’ through pictures or plain language). Crucially, the act defines capacity in relation to decision- making and explicitly sets out that it does not apply to at a glance capacity or consent required in relation to marriage, civil partnership, judicial separation, divorce, the placing of n The Assisted Decision-Making (Capacity) Act 2015 governs the law in relation to a child for adoption, the making of an adoption order, adults who are experiencing difficulties with decision making, whether because guardianship, sexual relations, serving as a member of a of intellectual disabilities, acquired head injuries, or old age jury, or making a will. n It changes the definition of capacity: while previously it was assessed on a At present, decisions to exercise fundamental rights ‘status’ basis, now it can be assessed on a ‘functional’ basis. do not have legal force when a person is a ward of court, n The act defines capacity in relation to decision-making and explicitly sets out because he or she isn’t considered to have the capacity that it does not apply to capacity or consent required in relation to marriage, civil to make any important decisions. Indeed, the power or partnership, judicial separation, divorce, the placing of a child for adoption, the capacity to make these decisions, self-determination, is making of an adoption order, guardianship, sexual relations, serving as a member removed from these persons altogether. of a jury, or making a will The act does away with – as much as is possible – a paternalistic, ‘best-interests’ system of substitute decision- law society gazette www.gazette.ie March 2016 CAPACITY 45

Capacity is therefore to be understood as a fluid, changeable concept, ‘depending on the circumstances of the person at the time and the nature of the decision to PIC: iSTOCK be made ’ making. Where a person is assisting an RP with a huge range of issues, including the High Court or Circuit Court (whichever court to make a decision, and even if the assistant Convention on International Protection of Adults, made the original order) within three years of believes that the RP is making an unwise which is not dealt with here. commencement. If they are deemed not to be decision, the assistant must assist the RP in lacking in capacity, they will be discharged and making the decision of the RP’s choice (as Wards of court their property returned to them. long as no harm would come to the RP or The ward of court system is to be eliminated If they are deemed to be lacking in capacity another person). through a process of review: each ward of in relation to a particular decision, then The act is 147 sections long and deals court aged 18 or over must be reviewed by the they will be discharged and will come under

REFERENCE POINT main actors in assisted decision-making 1) Relevant person (RP): an RP is someone they have assistance, they effectively have trust. The agreement must be registered with whose capacity is in question, or may shortly capacity), the director, and the CDM must file a report be in question, in respect of one or more • That a person lacks capacity to make a every 12 months, which must be approved by matters (section 2(1)), and a person who lacks decision even with assistance. the RP. The director must conduct a review capacity. 4) Decision-making assistant (DMA): an RP may every three years. 2) Director: the office of Director of Decision appoint a person to be their decision-making 6) Decision-making representative (DMR): the Support Service replaces the Office of Wards assistant. The functions of the DMA are limited Circuit Court may appoint a DMR or make a of Court, but with much extended functions. to advising the RP, ascertaining the will of the decision-making order on behalf of the RP. 3) Circuit Court: apart from specified issues RP and, once the decision is made, ensuring A DMR has whatever powers the court directs where the High Court has jurisdiction, the that the decisions are implemented. and so there are specific restrictions – for Circuit Court has jurisdiction to deal with 5) Co-decision maker (CDM): an RP may appoint example, a DMR cannot prohibit a person applications under the act. The court may a suitable person to be their co-decision from having contact with the RP and cannot make two declarations in relation to maker, so that they can make decisions restrain the RP unless there are exceptional capacity: jointly in relation to personal welfare or circumstances. The director must keep a • That a person lacks capacity to make a property, or both. This person must be a register of DMRs, and the DMR must file a decision without assistance (that is, once relative or friend who has a relationship of report every 12 months. 46 CAPACITY law society gazette www.gazette.ie March 2016

the purview of the new regime – that is, the relate to property and affairs, the attorney must consult with the HR or friends and former ward may appoint a co-decision maker must submit a schedule of assets and liabilities, family. Where it is not resolved, it must be (CDM) or the court may appoint a decision- as well as projected statement of the donor’s resolved in favour of the preservation of the making representative (DMR). income and expenditure within three months directive-maker’s life. There are interim orders provided for, of registration. so that the court can make orders where an Safeguards and offences application has been brought before the court Advance healthcare directives Safeguards such as eligibility, disqualification, but not yet determined. While the Lunacy Anyone aged over 18, and who has capacity, facility for complaints, and so on, are fairly Regulation (Ireland) Act 1871 is repealed, the may make an advance healthcare directive uniform across the spectrum. There is oversight jurisdiction in lunacy and minor matters is an (AHD). This will enable the directive-maker by the director in relation to a CDM, a DMR, inherent one, so it is likely that the wardship to be treated, if they lack capacity in the a HR and powers of attorney, but not in relation jurisdiction in relation to minors will survive future, according to their will and preferences. to the appointment of a decision-making enactment. AHDs are not applicable to general and assistant by an RP, except via complaint. mental health, and are not applicable where There are criminal offences in relation to Enduring powers of attorney a person is suffering from a mental disorder fraud provided for, but only in respect of a The act will ultimately replace the Powers of and involuntarily detained under part 4 of the co-decision-making agreement and powers of Attorney Act 1996. The scope of authority of Mental Health Act 2005. attorney. enduring power has been extended, in that it While a refusal of treatment must A decision-making assistant, co-decision may confer authority on an attorney to make be complied with (if the treatment and maker, decision-making representative, or decisions about the donor’s personal welfare. circumstances are clearly identified in the attorney who ill-treats or wilfully neglects the Previously, an attorney could make personal AHD), a request for a specific treatment is RP will be guilty of an offence and liable care decisions that did not include the giving or not legally binding. An RP, if he or she has for summary conviction or refusing of medical treatment. Personal welfare capacity and is over 18 when making the AHD, conviction on indictment. is now defined to include accommodation; is entitled to refuse treatment for any reason, participation by the donor in employment, including a reason based on religious beliefs. education or training, and in social activities; An AHD is not applicable to life-sustaining look it up decisions on any social services; healthcare; and treatment, unless this is substantiated by a other matters relating to the donor’s well-being. statement by the directive-maker to the effect Legislation: However, a donor is restricted from including that the AHD is to apply even if his or her life n Assisted Decision-Making (Capacity) Act the following matters in powers relating to is at risk. 2015 personal welfare: the refusal of life-sustaining A directive-maker may designate a named n Powers of Attorney Act 1996 treatment or anything that is the subject of an individual to exercise relevant powers, that advance healthcare directive made by the donor. is, to be their healthcare representative (HR). Literature: Procedures in relation to the instrument The HR has the power to ensure that the n Butler, Kate, ‘Moving capacity out of the include the requirement for statements by the terms of the AHD are complied with, and the Victorian age: the new Assisted Decision- donor, by a registered medical practitioner and directive maker may confer powers that allow Making Bill’, 18(5) 2013 Bar Review 102 a healthcare professional, and by the attorney. the HR to advise and interpret the directive- n Duggan, Diane, ‘Capacity law in Ireland: The procedures for revoking – which were maker’s will and preferences, and to consent Assisted Decision-Making Bill 2013’ not set out explicitly in the 1996 act – are also or refuse treatment, up to and including life- [2014 (1) Irish Family Law Journal 28] particularised. Once the instrument has been sustaining treatment, based on the known n Healy, Kevin, ‘The Assisted Decision- registered, revocation may only occur following will and preferences of the directive-maker by Making (Capacity) Bill 2013: a step in the an application to the court. reference to the AHD. right direction, but does it go far enough?’ The attorney must file a report to the Where there is an ambiguity in how the 2015 Cork Online Law Review 101 director every 12 months. Where the powers AHD is to apply, the healthcare professional

www.pmvtrust.ie law society gazette www.gazette.ie March 2016 OBITUARY 47

JOHN PC GOFF – AN APPRECIATION

n 30 March 2015, John particular reason to be grateful.” PC Goff (retired solicitor In short, John PC Goff was the Oand coroner) passed away. gold standard for the solicitors’ He did so having left an indelible profession. Essentially a quiet mark on the Irish legal landscape. family man, he nonetheless As a solicitor practising in was great company, a master of Waterford for over 55 years, John wit, and available to assist his was active on many fronts. Having colleagues whether within his own secured the silver medal at the firm or outside. John’s rock and Law Society final exams, John soulmate was his wife Rosemary, began his professional career at who steadfastly supported John George A Nolan’s office in 1957. in all his endeavours throughout He was known to “work hard and the years. The other joys in keep long hours”. his life were his five children, John made his name in the (twins Viva and Frances, John, District Court and was never Hubert and Rosemary) and his afraid to speak his mind in court 13 grandchildren. or outside. As time went by, he Adjectives such as professional, became involved with many gentleman-like, honest and hard- organisations. He was treasurer working could all be applied, of the National Council for the equally, to John. A deeply Blind for 13 years, receiver to religious man, he would be first the trustees of the Holy Ghost into the office at Newtown after Hospital, Waterford, as well as early Mass each morning, and last Waterford City coroner for several to leave. It was John’s practice to decades. He was a past-president go home for his ‘tea’ and return and extremely active member of to the office each evening for the Waterford Law Society and a number of hours. For him, was always associated with the Saturday was also a day of work affairs of Waterpark College. He but, thankfully, he still found time was a successful sportsman in a sense, John was all things to all never known him to be wrong. somehow to immerse himself fully many codes during his youth. In people. He would put each and In all cities, there is always one in family affairs at his home in more recent years, he took up golf every client at ease, irrespective of lawyer that everyone in the legal ‘Marlfield’, Newtown, as well as with his great pal Paddy Lowe, their background, and invariably world knows on first-name terms engage with his many friends. and spoke with pride of his hole- know that person’s parents or and to whom they turn for advice Retired since 2013, John in-one at Dunmore East Golf relatives. He had an innate and guidance. That person is nonetheless remained interested Club. capacity to empathise with every undoubtedly John in the case of in his firm and available to listen In 1974, he teamed up with his client and instil confidence in Waterford City.” and advise his former colleagues, friend and colleague Iain Farrell their intended course of action. To quote Judge Tom Teehan: if required. He remained active (Farrell & Farrell) to form the John also energised and “More than all his other qualities, around Waterford City and could amalgamated firm of Nolan, commanded respect from each what I most admire about John is be seen daily at the People’s Park Farrell & Goff, which opened its and every person he worked with that he simply does things right. or Ardkeen Shopping Centre, offices at Newtown, Waterford, at Nolan, Farrell & Goff. He There are no flourishes; there where he continued to engage and in 1975 and continues there to was a mentor for many. To quote is no bombast; he never seeks banter with many. His passing is this day. John had extremely high from Mr Justice Frederick Morris to push himself forward. Yet the an enormous loss to Rosemary, standards for himself, which he when John celebrated 50 years in preparation for a case is invariably his family, the legal profession, his expected others to at least try to the profession: “John was always painstakingly thorough, firm, many colleagues and friends. match. He was not slow to express polite, always wise, always good something for which innumer- Ar dheis Dé go raibh a anam. Ní a view on how something should company, and always the essence able clients and a considerable bheidh a leitéad arís ann. be done properly, but always in a of whatever it is that goes to make number of barristers briefed by fair and encouraging fashion. In up a brilliant lawyer … I have him over the years have GO’H 48 BOOKS law society gazette www.gazette.ie March 2016

Consumer Law: Trade Marks Law SecondTrade Marks Edition Law Rights and Regulation SecondbyTrade Glen Gibbons Marks Edition Law Secondby Glen Gibbons Edition Mary Donnelly and Fidelma White. Round Hall (2015), by Glen GibbonsFully updated, www.roundhall.ie. ISBN: 978-0-4140-39-001. Fully updated, by Glen Gibbonsproviding a Price: €285 (+€65.55 VAT). providingFully updated, a comprehensive comprehensiveprovidingFully updated, a That the consumer is entitled to certain examination of examinationcomprehensiveproviding a of protections is now an accepted part of our law. Irish trade marks Irishexaminationcomprehensive trade marks of However, the diverse and frequently incoherent law lawIrishexamination trade marks of patchwork of legislative intervention is a cause of lawIrish trade marks confusion and cost. lawAvailable Now The great merit of this book is that the Available Now policy context of consumer law generally and of Available Now particular provisions is set out in a very accessible Available Now way, helping to identify overarching themes. Succession Law All practitioners would associate consumer law Successionin Ireland Principles, Law with the sale of goods and supply of services, and Successionin Ireland Principles, Law the book deals with these comprehensively. inCases Ireland and Principles,Commentary However, the authors go much further. They required to generate the confidence that inCases Ireland and Principles,Commentary byCases Dr Albert and Keating Commentary recognise that there are many sectors where the underpins the growth in the consumer market. Cases and Commentary consumer is given specific consideration. The The application of these techniques in Irish Essentialby Dr Albert to Keating book concentrates on two of these – financial law is lucidly laid before us. byEssential Dr Albert to Keating services and consumer credit – and provides Rights are meaningless without means of Essentialpractitioners to practitioners an invaluable guide to topics of fearsome redress. Consumers face practical difficulties Essentialand students to andpractitioners students complexity. Their analysis of jurisprudence on in relying on civil proceedings. The authors in the field of inandpractitioners the students field of the status of ‘soft’ regulation, such as codes, is set out the criminal, administrative, collective succession law successioninand the students field lawof especially useful. online and alternative remedies available at successionin the field lawof The primary protective technique of national and EU level. succession law consumer law is the requirement of the provision This book is the first comprehensive Available Now Available Now of adequate information to allow the consumer analysis of consumer law in the Irish context. Available Now to make an informed decision, frequently linked Any practitioner called to advise on an issue Available Now to a right to withdraw. This can lead to counter- potentially affecting a consumer would be wise productive information overload. It is clear to consult it. Children and Family that the prohibition of certain practices and the RelationshipsChildren and Family Law in imposition of mandatory obligations (especially Paul Keane is managing partner of Reddy Children and Family in relation to vulnerable consumers) are also Charlton, Solicitors. IrelandRelationships Practice Law and in IrelandProcedureRelationships Practice Law and in IrelandProcedure Practice and byProcedure Dr Geoffrey Shannon (Solicitor) byProcedure Dr Geoffrey ShannonThe new (Solicitor) The new by Dr Geoffrey Shannonlegal regime (Solicitor) legalThe new regime of children oflegalThe children new regime and family andoflegal children family regime law examined, lawandof children examined,family analysed analysedlawand examined,family and explained andanalysedlaw examined,explained andPublishinganalysed explained 2016 andPublishing explained 2016 LAW SOCIETY LIBRARY AND Publishing 2016 INFORMATION SERVICES – WE DELIVER! Publishing 2016 Clarus Press Ltd, Griffith Campus, Clarus Press Ltd, Griffith Campus, South Circular Road, Dublin 8 Judgments database – extensive collection of unreported ClarusSouth Press Circular Ltd, Road,Griffith Dublin Campus, 8 judgments from 1952 to date, available in PDF format to For more information visit print or download. Self-service access for members and ClarusSouthFor Press more Circular Ltd,information Road,Griffith Dublin Campus,visit 8 www.claruspress.ieSouth Circular Road, Dublin 8 trainees via the online catalogue. www.claruspress.ieFor more information visit E-mail: [email protected] www.claruspress.ieE-mail:For more [email protected] information visit Contact the library: tel: 01 672 4843/4; email: [email protected] Telephone: 01 415 0439 www.claruspress.ieE-mail:Telephone: [email protected] 01 415 0439 E-mail:Telephone: [email protected] 01 415 0439 Telephone: 01 415 0439 Library ad Gazette Oct 2015 chosen.indd 1 17/09/2015 13:04 law society gazette www.gazette.ie March 2016 BOOKS 49

Murdoch and The Law of Advertising Hunt’s Dictionary in Ireland of Irish Law Patrick Ambrose. Bloomsbury Professional (2015), 6th Edition www.bloomsburyprofessional.com. 6th Edition ISBN: 978-1-7804-384-36. Price: €195. Edited by Dr Brian Hunt The Law of Advertising in Ireland is the first COMING SOON work on the subject in this jurisdiction. Patrick COMING SOON Ambrose is to be congratulated, as it is a Murdoch and Hunt’s Dictionary of valuable addition both for lawyers acting as Irish Law defines the principal words, advisers and as business owners in their own concepts and phrases, their legal right. source, whether statutory or judicial, The book deals comprehensively with and gives a brief introduction to the what is an extremely broad subject. It brings law. Now in its sixth edition and with together a wide range of diverse areas of law. law. Now in its sixth edition and with its definitions having been cited in It is divided into three sections: part 1 deals its definitions having been cited in the Supreme Court, this book remains with general law and regulation; part 2 deals the Supreme Court, this book remains essential to the understanding and with special advertising rules; and part 3 deals essential to the understanding and practice of the law. The dictionary with regulatory authorities. given to the relevant voluntary codes in each practice of the law. The dictionary can also be used as a subject-index of Part 1 ranges across the types of specific area. can also be used as a subject-index of Irish law which reflects the up-to-date areas that one would naturally associate This book makes the life of the practitioner Irish law which reflects the up-to-date with advertising. But it then also addresses faced with advising in this area immeasurably legislative and judicial developments individually many more general areas of law easier, bringing this wide and varied body in each area whilst also encompassing that have an impact on the field. of law together in one place with practical references to academic commentaries Part 2 brings together all of the advertising contextual analysis and guidance. The writing Murdoch and Hunt’s Dictionary rules regulating particular areas of business. style is clear and concise and enables the of Irish Law is edited by Dr Brian Hunt, The provisions applying to all of the regulated of Irish Law is edited by Dr Brian Hunt, reader to get to the point required quickly and Solicitor and contains over 10,300 services are well covered here, as are the Solicitor and contains over 10,300 easily. legal definitions. specific regulations and codes relating to many This book will be a boon to lawyers working legal definitions. disparate areas of commercial life. with clients who advertise, in-house counsel, ISBN: 9781780438955 Finally, part 3 reviews the scope and those advising consumers, and lawyers engaged Price: €150 + €5.50 P&P structure of each of the regulatory authorities. in the marketing and advertising Format: Hardback Within each subject category, we are of their own businesses. Pub date: May 2016 provided with a comprehensive review of that area of law from an advertising and marketing Flor McCarthy is managing partner of McCarthy perspective. Detailed consideration is also & Co, Solicitors.

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4 December 2015 and 29 January 2016 council reports

Report of Council meeting on be undertaken by the Repre- lished that would gather together Specialist accreditation 4 December 2015 sentation and Member Services all relevant materials in relation to Valerie Peart reported that a sub- Legal Services Regulation Bill Department. the act, and work had commenced committee of the Education Com- The Council noted that, once the on an updated eCompendium of the mittee, established to examine the bill had completed report stage in New working groups relevant acts. In addition, articles issue of specialist accreditation, the Seanad, it would move back The Council approved the ap- would be published in the Gazette had concluded that, while there to the Dáil. It seemed clear that pointment of two working groups, and eZine and a meeting of presi- was a great deal of merit to the the bill would be enacted before as required by motions passed dents and secretaries of bar asso- concept of specialist accreditation Christmas. The timeline in rela- at the AGM: a working group to ciations would be held in March to and good reasons for the recom- tion to the commencement of its investigate insurance to cover de- discuss the coordination and dis- mendation from the Future of the different parts after that date re- fence costs, and a working group semination of information via the Law Society Task Force, this was mained uncertain. to investigate a graphic to be used bar associations. not the time to introduce special- It was expected that all nomi- by member practitioners. In terms of useful materials for ist accreditation. It was the view nating bodies, including the Law the profession, the Society would of the subcommittee that, if intro- Society, would be asked to inform Group Life Scheme need to consider different forms duced, accreditation was likely to the department of the names of The Council noted, with regret, of guidance in relation to vari- fail due to insufficient uptake by their nominees to the board of that the amount of cover under the ous aspects of the act, including a practitioners. The subcommittee the Legal Services Regulatory Group Life Scheme for a premium guide to becoming an LLP, a guide had also gained a clearer under- Authority, which would comprise amount of €50 had been reduced to the new legal costs system, and standing of the statutory provi- 11 members, each serving a term from €58,000 to €47,500 due to perhaps also a guide to the new sions under which a solicitor could of three years. The Society was a bad claims experience over the provisions on clinical negligence claim a specialism, although not required to provide the names of previous two years. actions. superiority above other solicitors. two nominees, one male and one The task force had taken the female. The Government would Report of Council meeting on view that the guide on legal costs LawCare choose from among the nomi- 29 January 2016 should be regarded as a priority In her capacity as a trustee of Law- nated lay members of the board Legal Services Regulation Act and, as a consequence, a special Care, Valerie Peart briefed the in order to appoint its chair. The chairman of the Legal Servic- working group had been estab- Council on its activities. She noted The Council unanimously es Regulation Act Task Force, Paul lished to draft documentation and that LawCare had received 25 calls approved the nomination of Keane, reported on the task force’s precedent forms. from Irish solicitors in 2015, an Geraldine Clarke and James Mac- work programme for the coming 8.5% increase compared to 2014. Guill as the Society’s nominees. months. He noted that the task eConveyancing Project Calls related to stress (43%), bully- Both were eminent past-presi- force had identified the principal Patrick Dorgan noted that the ing or harassment (19%), depres- dents and had represented the topics of the act, as follows: system being developed by the sion (14%), and alcohol (14%). Society nationally and interna- • Authority – establishment and Law Society of England and The remaining 10% included tionally at CCBE and IBA level. responsibilities, Wales had collapsed. He reas- disciplinary, ethical and financial Both had a keen understanding of • Complaints and discipline, sured the Council that there were issues. LawCare attended six the essence of the core values of • Levy to cover expenses of the no parallels between that project LSPT cluster events during 2015 the profession and were also in- authority, and the Society’s eConveyancing in order to raise awareness about dependent-minded and fearless. • Practice organisation – LLPs, Project. The English project had it and the importance of valuing MDPs, LPs, sought to design a case-manage- well-being within the legal com- Practising Certificate Regula- • Legal costs, ment system to bolt onto other munity. tions • Senior counsel, case-management systems, which The Council approved the Prac- • Amendments to the Solicitors were already overlaying existing Retirement wishes tising Certificate Regulations and Acts, and processes. The Irish project in- The Council conveyed its very best fees for 2016, with no change to • Clinical negligence actions. volved a complete re-engineering wishes to the former head librarian the fees applying for 2015. The of the conveyancing process and Margaret Byrne, who retired after Council noted that the number A summary of the principal provi- bore no similarities to the English 42 years of dedicated service. of practising certificates expected sions of the act was being prepared project. at 31 December 2015 was 9,700 – and would issue to the profession IF LIFE GIVES an increase of 465 (or 4%) on the in due course. Setanta case YOU LEMONS, previous year. Communication with the pro- Stuart Gilhooly reported that the WE’RE HERE fession would be a core function of Setanta case had been heard by the IF IF LIFELIFE LIFE GIVES GIVES GIVES YOUTO YOUYOU HELP LEMONS LEMONS LEMONS IF LIFE GIVES YOU LEMONS WE’REWE’REWE’REWE’RE HERE TOHERE HELP HEREHERE TO TO TO HELP HELP HELP Member Services Directory the task force and would involve an Court of Appeal two weeks previ- Consult aConsult Colleague now in total confidence a Colleague ConsultCall us on 01a Colleague284 8484 now in total confidence ConsultConsult a Colleaguea Colleague now now in total in confidencetotal confidence initial phase of information at clus- ously for two-and-a-half days. The All calls to the Consult A Colleague helpline are treated in the The president noted that the strictest confidencein - there is totalno need to give a name or number. confidence A confidential free service from the DSBA. www.consultacolleague.ie

Member Services Directory 2016 ter events, followed by a process of Society had been represented in an A4 Consult a collegue.indd 1 Call us on26/08/2015 15:5001 284 8484 CallCall us us on on 01 01284 284 8484 8484 would issue to all members of in-depth CPD programmes and exemplary fashion by Brian Mur- All calls to the Consult AIF Colleague LIFE GIVES helpline YOU are treated LEMONS in the All calls to the Consult A ColleagueWE’RE helpline HERE are treated TO in HELP the stricteststrictest confidence confidence - there - thereis no isneed no toneed give to a givename a nameor number. or number. All calls to the Consult A Colleague helpline are treated in the the Society during the coming coordination and liaison with the ray SC. Hopefully, the judgment Consult a Colleague now in total confidence strictestA confidentialA confidence confidential free service- freethere service fromis no fromthe need DSBA.the to DSBA.give a name or number. months. In addition, a campaign bar associations. would be handed down within a www.consultacolleague.iewww.consultacolleague.ieCall us on 01 284 8484 A confidential free serviceAll calls tofrom the Consult theA Colleague DSBA. helpline are treated in the strictest confidence - there is no need to give a name or number. A4 Consult a collegue.indd 1 26/08/2015 15:50 A4 Consult a collegue.indd 1 www.consultacolleague.ieA confidential free service from the DSBA. 26/08/2015 15:50 to encourage membership would A web page had been estab- week or two. www.consultacolleague.ie

A4 Consult a collegue.indd 1 26/08/2015 15:50 A4 Consult a collegue.indd 1 26/08/2015 15:50 52 BRIEFING law society gazette www.gazette.ie March 2016 practice notes

BUSINESS LAW COMMITTEE Amendments to the Companies Act 2014 The attention of practitioners is tuting a new subsection for subsec- cerned with the authorisation of in- ited’, or any abbreviation of that drawn to the fact that, since the tion 7 of section 1373. The effect surance and reinsurance undertak- word, shall not apply to a limited entry into force of the bulk of the of the amendment is to alter the ings and related matters, were made liability partnership (within the Companies Act 2014 on 1 June 2015, obligations of the statutory auditors on 4 November 2015 and came into meaning of the Legal Services Regu- the act has been amended by several of a traded company (as defined by force on 1 January 2016. They affect lation Act 2015)’.” pieces of legislation and that further chapter 3 of part 23 of the act) in the act as follows: As at 1 February 2016, this act amendments are anticipated. respect of the report of the statu- 1) They restrict the application of: had not yet been commenced. As of 1 February 2016, the key tory auditors under section 391 of • Section 453(2)(c) of the act amendments that have been made the act, where a traded company (regulation 71), Further anticipated amendments to the act are, as follows. prepares a corporate governance • Section 621 of the act (regula- The Companies (Accounting) Bill statement. tion 277(1)), and is expected to be published later European Union (Bank Recovery 2) Regulation 316 amends the act as in 2016 in order to transpose the and Resolution) Regulations Companies Act 2014 (Section follows: “Section 275(1) of the act EU Accounting Directive (2013/34/ 2015 (SI 289/2015) 1313) Regulations 2015 (SI of 2014 is amended, in the defini- EU) (see also the practice note The bulk of these regulations, which 223/2015) tion of ‘insurance undertaking’, published in the Gazette in July transpose the Bank Recovery Resolu- These regulations were made on by substituting the following for 2014 (p54), for more information tion Directive, came into force on 29 May 2015 and came into force paragraphs (d) and (e): on the implications of this direc- 15 July 2015. Regulation 189 of the on 1 June 2015. ‘(d) Regulation 2 of the European tive). It is currently expected that regulations amends 14 sections of Regulation 4 applies particular Communities (Life Assurance) the existing non-filing exemption the Companies Act 2014. The prin- provisions of the act to unregistered Framework Regulations 1994 for unlimited companies will be cipal purpose of the amendments is companies traded on a regulated (SI no 360 of 1994), removed in this bill, possibly for to provide that the relevant sections market: “The following provisions (e) European Communities (Rein- financial statements from 2016 of the act shall not have effect in of the act of 2014 are added, but surance) Regulations 2006 (SI onwards. This will necessitate an respect of a company to which the only in respect of a body referred to no 380 of 2006), or amendment to the act. resolution tools, powers or mecha- in section 1312 of that act that is a (f) Regulation 3 of the European It is also believed that this bill nisms provided for in part 4 of the traded body within the meaning of Union (Insurance and Reinsur- may also include a number of ad- regulations are applied or exercised. subsections 5 and 6 of that section, ance) Regulations 2015 (SI no ditional amendments to the act. A Certain other technical amend- to the list of the provisions specified 485 of 2015)’.” further update will be published in ments are made to the act in order in schedule 14 to the act of 2014: due course. to give effect to the regulations. a) Section 1114, Legal Services Regulation Act The affected sections are 2(1), b) Sections 1085, 1086, 1087, 1094, This act was signed by the Presi- Explanatory memorandum 93, 191, 621, 622, 1023, 1029, 1035, 1095, 1096 and 1123, and dent of Ireland on 29 December On 4 November 2015, the Depart- 1036, 1099, 1102, 1111, 1128, and c) Chapter 5 of part 17.” 2015. ment of Jobs, Enterprise and In- 1167. Section 132 provides as follows: novation published the explana- Companies Act 2014 (Section “Section 27 of the Companies Act tory memorandum to the 2014 act. Workplace Relations Act 2015 1313) Regulations 2016 (SI 2014 is amended by the insertion of This explanatory memorandum is Section 49(1) of the Workplace Re- 43/2016) the following subsection after sub- an important resource that gives lations Act 2015 operates to include These regulations were made on section (3): ‘(3A) Subsection (1) as it an overview and brief background all compensation payable by virtue 1 February 2016 and came into relates to the use of the word ‘lim- into every section of the 2014 act. of part 4 of the act to an employee force on that day. among the debts that, under section Regulation 3 applies section 1120 621 of the act, are in the distribu- of the act to unregistered compa- CONVEYANCING COMMITTEE and TAXATION COMMITTEE tion of the assets of a company be- nies traded on a regulated market ing wound up, to be paid in priority by adding that section (but only in to all other debts. respect of a body referred to in sec- Increase in CGT threshold Section 49 was commenced on tion 1312 of that act that is a traded The committees would like to bring defined as “including any building or 1 October 2015 by SI 410/2015. body within the meaning of subsec- the following to the attention of part of a building used or suitable for tions 5 and6 of that section) to the the profession: an increase in the use as a dwelling and any out office, European Union (Traded Com- list of the provisions specified in CGT threshold to €1million was in- yard, garden or other land appurte- panies – Corporate Governance schedule 14 to the act. troduced under section 42 of the nant to or usually enjoyed with that Statements) Regulations 2015 Finance Act 2015 and came into building or part of a building”. (SI 423/2015) European Union (Insurance and effect on 1 January 2016. The €500,000 threshold remains Regulation 4 of these regulations, Reinsurance) Regulations 2015 This increased threshold applies in place as before for disposals of which were made on 2 October (SI 485/2015) solely in respect of disposals of all other Irish land and buildings (in- 2015, also amends the act by substi- These regulations, which are con- residential houses/apartments, being cluding commercial property). law society gazette www.gazette.ie March 2016 BRIEFING 53 practice notes

CONVEYANCING COMMITTEE Commercial rates update In the practice note published in in the property outside of the applica- even if the arrears are subsequently fer’ of the property has occurred or the August/September 2014 Gazette tion of section 32(4). Consequently, paid. as to the date on which a transfer (p46) concerning section 32 of the while landlords should be advised as Practitioners should note that the has occurred (whether on assign- Local Government Reform Act 2014, a matter of good practice to make it a legislation does not clarify what is ment or the property being vacated) the committee had indicated that, condition of consent to assignment or meant by ‘transferred’. Again, the and consequently by what date the having regard to the provisions of subletting that there is a discharge of committee is not in a position to notice needed to be served. There- section 32(4), the key consideration arrears, landlords can protect them- comment on matters of law, so it is fore, where there are unpaid arrears, for a landlord in avoiding a potential selves in any event by ensuring that suggested that, until there is clarity there may be the potential in some charge of up to two years arrears of the requisite notice is served. on this matter, it would be preferable cases for dispute with the local au- rates on an assignment or subletting The committee has also received to take a conservative view and apply thority as to whether or not a charge by the tenant was ensuring that the a number of queries from practi- a wider interpretation to ‘transferred’ has arisen. The committee will keep tenant was not in arrears. This re- tioners on the issue of the liability as including all circumstances (and these matters under review. mains the position. of landlords for the unpaid rates of not just surrenders) in which the The committee also notes that var- However, having considered vari- their tenants where the tenant has landlord obtains possession of the ious local authorities are requiring ous submissions from practitioners, surrendered the property. While property, including on lease expiry, that notifications under section 32 the committee also agrees that the the committee is not in a position the exercise of a break option, or be made in a specified form. Some charge under section 32(4) can be to comment on matters of law (and forfeiture. of these forms look for certain com- avoided so long as notice of the therefore practitioners should con- The foregoing is a change to the mitments and contain certain warran- assignment or subletting has been sider this matter themselves), it previous position at law that land- ties. Given that there does not appear given within the two-week period would appear that under the 2014 lords were automatically liable for up to be any basis under the legislation following the assignment or sublet- act, the landlord, as subsequent to two years’ arrears as subsequent for these requirements, the commit- ting. This is because section 32(4) occupier, no longer has liability for occupiers. The relevant statutory tee intends to take the matter up with provides that the charge will apply any arrears following a surrender. provisions that governed this have the Local Government Management where the landlord has not given However, notwithstanding this, it now been repealed by the 2014 act. Agency. In the meantime, the commit- notice of the assignment or sublet- would also appear to be the position This change now enables a landlord tee is of the view that notification by ting and where there are unpaid under section 32(4) that, unless no- to avoid liability for the unpaid rates letter is equally permissible, and rec- arrears of rates. Accordingly, there tice is given by the landlord within of its tenants, providing that the land- ommends that the client’s notification must be an issue under both limbs two weeks of the transfer to the land- lord has served the requisite notice. by letter under section 32 should not if the charge is to apply. Therefore, lord of the property, then up to two The committee recognises that be delayed in circumstances where service of the requisite notice would years of any unpaid rates will be a there may be circumstances in which clients are unable to complete the appear to take the landlord’s interest charge on the landlord’s interest, it is not clear as to whether a ‘trans- detail in the required form.

CONVEYANCING COMMITTEE and TAXATION COMMITTEE LPT – changes to Revenue guidelines CONSULT A COLLEAGUE The Conveyancing and Taxation ance condition: where a prop- margins are carried through to Committees are pleased to ad- erty is sold for €300,000 or the general clearance condition The Consult a Colleague vise practitioners that Revenue, less, general clearance applies, relating to expenditure on en- helpline is available to following a meeting with repre- regardless of what charge- hancements to a property, sentatives of the two committees able value was declared for the • In the general clearance condi- assist every member in October, has recently revised property, tion relating to sales of compa- of the profession with its LPT guidelines on the sale and • The allowable valuation mar- rable properties, the time pe- any problem, whether transfer of residential property. gins by which the sale price/ riod prior to 1 May 2013 within personal or professional. You can access the revised guide- value exceeds the valuation which there must be evidence lines on www.revenue.ie/en/tax/ band/chargeable value declared of a sale of comparable prop- Call the helpline lpt/sale-transfer-property.html. have been increased: erty has been increased from These changes will increase the - In relation to properties out- six months to nine months. 01 284 8484 number of cases where general side Dublin city and county, clearance applies without having from 15% to 25%, The committees will continue to consultacolleague.ie to refer the matter to Revenue. - In relation to properties in monitor these changes and would This service is completely confidential The main changes, effective as of Dublin city and county, from welcome any feedback from prac- and totally independent of the 1 November 2015, are: 25% to 50%, titioners on any difficulties they Law Society • There is a new general clear- • The above increased allowable encounter. 54 BRIEFING law society gazette www.gazette.ie March 2016 practice notes

EDUCATION COMMITTEE New year – new CPD Regulations New CPD regulations (Solicitors tant to invest time in considering Minimum 2016 CPD Group study (Continuing Professional Develop- your CPD needs, and it is best, requirement? Group study means an organ- ment) Regulations 2015, SI 480 of therefore, to take a planned ap- Solicitors to whom the regula- ised session of CPD undertaken 2015) came into effect on 1 Janu- proach to it. Planning training tions apply are required to com- by three or more persons, for a ary 2016. Solicitors are advised to also enables solicitors to reflect plete a minimum of 18 hours’ period of not less than 30 min- familiarise themselves with these and take account of their chang- CPD during 2016, which must utes. Physical attendance by the new regulations and the new ing requirements and needs, and comprise the minimum require- solicitor is required. Therefore, scheme, which are both available to identify where there are gaps in ments in both management and the watching of a ‘live feed’ of a in the CPD scheme section of the their knowledge and skill-set and professional development skills conference/seminar/training ses- solicitors’ area on the Law Society how these may be overcome and and regulatory matters. sion may not be claimed as group website. addressed by attending and com- The 2015 regulations intro- study (but may be claimed as elec- With the introduction of the pleting relevant CPD training. duce a new requirement for a so- tronic learning). new regulations, it is a good op- The Society is mindful of the licitor (including a senior practi- portunity to remind solicitors to constant time pressures solicitors tioner) who is a ‘sole practitioner’ E-learning be cognisant of CPD obligations are under, which may result in or a ‘compliance partner’ and/or E-learning is the provision of and of the importance of complet- constraints on solicitors spending an ‘anti-money-laundering com- education or training (or both) ing relevant and quality CPD. time outside of the office to attend pliance partner’ to undertake, as that is generated, communicated, training courses or seminars. With part of their minimum CPD re- processed, sent, received, record- Importance and benefits the popularity of mobile and por- quirement, a minimum of three ed, stored and/or displayed by It is often asked why CPD is table devices, there is an increas- hours of regulatory matters, of electronic means or in electronic important and why it matters. ing appetite to use such platforms which at least two hours shall form provided through: Simply put, CPD assists in more and more frequently. With be accounting and anti-money- • The internet or other comput- ensuring solicitors remain com- this in mind, the new scheme has laundering compliance. Such er network connections, sound petent in providing a professional increased the e-learning limit per solicitors must also complete a only, sound and vision formats, service by ensuring their knowl- CPD cycle. Online learning per- minimum of three hours’ man- or a combination of both, edge and skills are relevant and mits solicitors to decide when and agement and professional devel- • By the provision of an elec- up-to-date. It is an indicator of where is convenient for them to opment skills per CPD cycle. tronic file, a CD-ROM and/or professionalism and opens up new complete CPD, and it offers the All other solicitors (those who DVD, and knowledge and skills areas, which requisite flexibility to solicitors to are not a ‘sole practitioner’ or a • Other technologies and for- may assist in career and practice find a way of putting disposable ‘compliance partner’ and/or an mats that may be advised from advancement. time to good use. ‘anti-money-laundering compli- time to time. CPD also aids in develop- Solicitors are also reminded and ance partner’) must undertake a ing personal qualities that are encouraged to attend and com- minimum of two hours of regu- A maximum of 50% of a required – but sometimes over- plete CPD training throughout latory matters and a minimum solicitor’s minimum CPD re- looked – to effectively perform the CPD cycle and avoid a rush to of three hours’ management and quirement (modified or other- a job or function at a higher fulfil their CPD obligations in the professional development skills. wise) may be claimed for time standard with enhanced profes- last few weeks of the year, which is There is a maximum limit of spent in relevant e-learning. sionalism, capability and skill. often the busiest time for a legal seven hours’ CPD that may be Accordingly, a solicitor who Undertaking CPD supplements firm or practice. completed within a single day, and practises on a full-time basis may and complements the continuous a maximum of 50% of a solici- claim a maximum of 50% of the ‘on-the-job’ experience gained CPD regulations 2016 tor’s minimum CPD requirement minimum annual CPD require- through day-to-day practice, The new regulations introduce a (modified or otherwise) may be ment (that is, a maximum of nine thereby ensuring a valuable and number of changes to the CPD claimed for time spent in relevant hours’ CPD during the 2016 quality service is provided to cli- scheme, all of which are detailed e-learning and/or writing relevant cycle). ents and colleagues alike. in the new scheme booklet. material that is published in any If a solicitor has a modified one CPD cycle. CPD requirement, (s)he may Plan and prepare 2016 CPD cycle? complete up to a maximum of Solicitors are reminded to give The 2016 cycle will run from Ways of completing CPD 50% of his/her modified CPD thought to planning CPD that is 1 January 2016 to 31 December There are three different ways of requirement via electronic learn- relevant to their practice, as train- 2016. There is no carry over of undertaking the minimum 2016 ing. For example, a solicitor with ing is shown to be of greater ben- hours from one cycle to the next. CPD requirement – that is, by a modified 2016 CPD require- efit to solicitors when planned. Verification of compliance with way of group study format and/ ment of nine hours’ CPD may There is always a need to broaden the CPD regulations and scheme or by electronic learning and/or complete a maximum of 4.5 existing knowledge and to learn continues to be tied to your annual writing relevant material that is hours CPD via e-learning during and develop further. It is impor- practising certificate application. published. the 2016 cycle. law society gazette www.gazette.ie March 2016 BRIEFING 55 practice notes

SUMMARY OF CHANGES INTRODUCED BY 2016 CPD REGULATIONS

2015 CYCLE 2016 CYCLE 2017 CYCLE

Minimum overall 16 hours (which must comprise the 18 hours (which must comprise the 20 hours (which must comprise the CPD requirement minimum requirements in both manage- minimum requirements in both manage- minimum requirements in both manage- ment and professional development ment and professional development ment and professional development skills and regulatory matters) skills and regulatory matters) skills and regulatory matters)

Minimum management and Three hours Three hours Three hours professional development skills requirement

Minimum regulatory One hour A solicitor (including a senior practitioner) who is a ‘sole practitioner’ or a matters requirement ‘compliance partner’ and/or an ‘anti-money-laundering compliance partner’ is required to undertake a minimum of three hours of regulatory matters, of which at least two hours shall be accounting and anti-money-laundering compliance. All other solicitors (who are not a ‘sole practitioner’ or a ‘compliance partner’ and/or an ‘anti-money-laundering compliance partner’ are required to undertake a minimum of two hours of regulatory matters

Maximum daily CPD limit Seven hours Seven hours Seven hours

Group study requirement Three or more people (includes a Physical attendance is required, in a group of three or more people (does not ‘live feed’ of a conference/seminar) include a ‘live feed’ of a conference/seminar)

Maximum e-learning limit Five hours Nine hours Ten hours

Maximum ‘writing relevant Three hours Nine hours Ten hours material that is published’ limit

Modification of the Permitted in certain specified Permitted in specified circumstances. minimum 2016 CPD circumstances. A solicitor (including a senior practitioner) who is a ‘sole practitioner’ or a requirement The minimum one hour’s regulatory ‘compliance partner’ and/or an ‘anti-money-laundering compliance partner’ is matters requirement may not be required to undertake as part of his/her modified CPD requirement at least three reduced proportionately and must hours of regulatory matters, of which at least two hours shall be accounting and always be complied with anti-money-laundering compliance. All other solicitors (who are not a ‘sole practitioner’ or a ‘compliance partner’ and/or an ‘anti-money-laundering compliance partner’) are required to undertake a minimum of two hours of regulatory matters.

Attendance at meetings Maximum of seven hours (general Maximum of seven hours (any category) may be claimed per cycle of committees and/or CPD only) may be claimed per cycle working groups of the Society or other law-related professional bodies

Performing adjudicative Maximum of seven hours (general Maximum of seven hours (any category) may be claimed per cycle functions CPD only) may be claimed per cycle

A senior practitioner may com- Publishing cludes those published in printed a relevant article or section of a plete a maximum of 1.5 hours Written relevant material that is from and/or online. legal periodical or textbook. CPD (being 50% of the modified published in a legal periodical or A maximum of 50% of a solici- Therefore, if a solicitor prac- CPD requirement for a senior textbook may count for CPD. So- tor’s minimum CPD requirement tises on a full-time basis, (s)he practitioner) by e-learning during licitors should also note that ref- (modified or otherwise) may be may claim a maximum of 50% 2016. erence to legal periodical also in- claimed for time spent writing of the minimum annual CPD 56 BRIEFING law society gazette www.gazette.ie March 2016 practice notes

requirement (that is, a maximum Solicitors should note that the the Society to require payment of a of nine hours’ CPD during the minimum CPD requirement may sum not exceeding €300 by way of 2016 cycle). not be modified to less than two contribution towards costs in situ- CONVEYANCING If a solicitor has a modified hours of regulatory matters in each ations where a solicitor has refused, COMMITTEE CPD requirement, (s)he may CPD cycle. However, if a solicitor neglected, or otherwise failed to complete up to a maximum of (including a senior practitioner) is respond appropriately in a timely 50% of his/her modified CPD a sole practitioner or a compliance manner, or at all, to the Society’s Unfair terms requirement for time spent writ- partner and/or an anti-money- correspondence in the course of an ing relevant material. For ex- laundering compliance partner, investigation as to compliance with in building ample, a solicitor with a modi- (s)he will be required to under- the CPD regulations. contracts – fied 2016 CPD requirement of take, as all or part of his/her modi- Clarification on all aspects of nine hours’ CPD may complete a fied CPD obligations during each the scheme and detailed explana- reminder maximum of 4.5 hours CPD for CPD cycle, at least three hours tions of the available modifications time spent writing relevant mate- of regulatory matters, of which at are provided in the current scheme There has been an increase rial during the 2016 cycle. least two hours shall be accounting booklet. in the number of queries to A senior practitioner may claim and anti-money-laundering com- Solicitors should also note that the Conveyancing Committee a maximum of 1.5 hours CPD pliance. the CPD record card is available as about unfair terms in build- (being 50% of the modified CPD a PDF to download from the Soci- ing contracts for new housing. requirement for a senior practi- Automatic audit ety’s website. Solicitors can down- The committee would like to tioner) for time spent writing rel- Solicitors should note that, in the load and save the record card, and remind the profession of the evant material during 2016. event of a failure to comply with an- make changes to it electronically provisions of the European nual CPD requirements, they will as required, in order that they may Communities (Unfair Terms in Modification of minimum be automatically required to pro- record all of their CPD hours in Consumer Contracts) Regula- requirement vide proof of compliance with their one convenient and central place. tions 1995, which apply to The scheme continues to allow CPD obligations for a period of The idea is to assist solicitors keep building contracts, and to for modifications of the minimum two years, in addition to the cycle track of their CPD hours on an the content of the High Court CPD requirement, and the cur- in which they failed to comply. ongoing basis, thus saving valuable order obtained by the Director rent scheme booklet details the time and energy at the end of the of Consumer Affairs, with the particular circumstances in which Other changes CPD cycle. Alternatively, solici- support of the Law Society, in the minimum CPD requirement Solicitors attending meetings tors can print out the record card December 2001. The text of 15 may be reduced, such as: of committees and/or working as usual and fill it in by hand. conditions that were declared • A senior practitioner, groups of the Society, or other Further details may also be by the court to be in breach • Maternity/parental/carers/ law-related professional bodies, obtained by contacting the CPD of the regulations can be adoptive leave, or performing adjudicative func- Scheme Unit on tel: 01 672 4802, accessed on the ‘Resources’ • Illness/retirement/unemploy- tions, are permitted to claim up to email: [email protected]. subpage of the committee’s ment/substantive reasons cases, a maximum of seven hours’ CPD page on the Society’s website. • Part-time practice, and (in any category). Valerie Peart, chair, Education The High Court order also • Part-year practice. The CPD regulations enable Committee provides that conditions that have like effect as the 15 pro- hibited conditions are also in breach of the regulations. CONVEYANCING COMMITTEE Practitioners are also directed to the practice note Water charges update published jointly by the Regis- trar of Solicitors and the com- The email address for vendors’ so- for correspondence relating to notifi- Practitioners are also reminded mittee in the December 2005 licitors contacting Irish Water has cation of no net proceeds of sale and that section 47 of the above act issue of the Gazette (www. been changed to section48 receipt of payment. obliges an owner of a dwelling lawsociety.ie/PN-unfairterms), [email protected]. Solicitors acting for purchas- to register with Irish Water or, if which confirms that alleged The committee has been notified ers are reminded that they need not in occupation, notify Irish Wa- breaches of the regulations by the Department of the Environ- not enquire with vendors’ solicitors ter that he/she is not the occupier will be considered as a com- ment, Community and Local Govern- as to whether vendors of dwellings and provide details (the date of plaint by the Society’s Com- ment that vendors’ solicitors and have discharged water charges, commencement of any agreement for plaints and Client Relations vendors may use this new email as water charges are not a charge the occupation of the dwelling, and Committee and, if any such address for correspondence relating on dwellings. Only solicitors acting the name of each person with whom complaint is upheld, it may be to statements of amounts due, certif- for vendors of dwellings have the owner has such an agreement deeded to be misconduct and, icates of discharge, and statements obligations under section 48 of the for occupation) within 20 working if so found, will be dealt with that the owner is not liable for water Environment (Miscellaneous Provi- days of any change in occupation of accordingly. charges, and by vendors’ solicitors sions) Act 2015. the dwelling. law society gazette www.gazette.ie March 2016 BRIEFING 57 regulation

Solicitors Disciplinary Tribunal 11) Failed to comply expeditiously, 31 May 2014 within six months within a reasonable time, or of that date, in breach of regu- Reports of the outcomes of Solicitors Disciplinary Tribunal at all with two undertakings lation 21(1) of the Solicitors inquiries are published by the Law Society of Ireland as provided dated 14 November 2005 and Accounts Regulations 2001 (SI for in section 23 (as amended by section 17 of the Solicitors 20 November 2006 respectively, 421 of 2001), given by him to the complainant 2) Through her conduct, showed (Amendment) Act 2002) of the Solicitors (Amendment) Act 1994 in respect of named clients over disregard for her statutory ob- In the matter of John R Lynch, all with an undertaking dated property situate at Dublin, ligation to comply with the a solicitor formerly practising in 1 November 2005, given by 12) Failed to reply adequately or Solicitors Accounts Regulations the firm of Greg Ryan, Solicitor, given by him to the complain- at all to the correspondence and showed disregard for the at 9 Upper Mount Street, Dub- ant in respect of named clients of the complainant in respect Society’s statutory obligation to lin 2, and in the matter of the over property situate at Dublin, of his undertakings given on monitor compliance with the Solicitors Acts 1954-2011 [3013/ 6) Failed to reply adequately or behalf of named clients dated regulations for the protection DT90/14] at all to the complainant’s cor- 14 November 2005 and 20 of clients and the public. Law Society of Ireland (applicant) respondence in respect of his November 2006 over property John R Lynch (respondent undertaking given on behalf of situate at Clontarf, Dublin 3, The tribunal ordered that the re- solicitor) named clients dated 27 April and, in particular, letters dated 22 spondent solicitor: On 28 October 2015, the Solicitors 2006 over property situate at November 2006, 28 November 1) Do stand censured, Disciplinary Tribunal found the Dublin and, in particular, let- 2007, 19 December 2007, 23 2) Pay a sum of €3,000 to the respondent solicitor guilty of mis- ters dated 5 October 2009, 22 June 2009, 10 September 2009, compensation fund, conduct in his practice as a solicitor March 2011, 18 October 2011, 27 October 2009, 16 June 2010, 3) Pay the whole of the costs of in that he: and 9 November 2011 respec- 23 June 2010, 14 July 2010, 15 the Law Society or in default of 1) Failed to comply expeditiously, tively, December 2010, 7 November agreement to be taxed by a tax- within a reasonable time, or at 7) Failed to comply expeditiously, 2011, 12 March 2012, 23 July ing master of the High Court. all with an undertaking dated within a reasonable time, or at 2012, 20 August 2012, 21 6 May 2003, given by him to all with an undertaking dated September 2012, 6 March 2013, In the matter of Michael Kieran the complainant in respect of 27 April 2006, given by given 4 April 2013, 24 May 2013, 8 Griffin, solicitor, Kilkerrin named clients over property by him to the complainant in August 2013, and 14 August House, Currabeg, Ovens, Co situate at Dublin, respect of named clients over 2013 respectively. Cork, and in the matter of the 2) Failed to reply adequately or property situate at Co Dublin, Solicitors Acts 1954-2011 [10174/ at all to the complainant’s cor- 8) Failed to reply adequately or The tribunal ordered that the re- DT158/14; 10174/DT159/14; respondence in relation to his at all to the complainant’s cor- spondent solicitor: 10174/DT160/14; High Court undertaking given on behalf of respondence in respect of his 1) Do stand censured, record 2015 no143 SA] named clients dated 6 May 2003 undertaking given on behalf 2) Pay a sum of €3,000 to the com- Law Society of Ireland (applicant) over property situate at Dublin of named clients over prop- pensation fund, Michael Kieran Griffin and, in particular, letters dated erty situate at Co Dublin and, 3) Pay a contribution of €5,000 to- (respondent solicitor) 14 June 2011, 5 July 2011, 18 in particular, letters dated wards the whole of the costs of On 16 July 2015, the Solicitors October 2011, and 9 November 12 March 2009, 28 January the Society. Disciplinary Tribunal found the 2011 respectively, 2010, 18 October 2011, and 9 respondent solicitor guilty of mis- 3) Failed to comply expeditiously, November 2011 respectively, In the matter of Michelle Cro- conduct in his practice as a solici- within a reasonable time, or at 9) Failed to comply expeditiously, nin, a solicitor practising as tor in that he: all with an undertaking dated 5 within a reasonable time, or at Michelle Cronin & Company, November 2003, given by him all with an undertaking dated Solicitors, Kennedy Buildings, 10174/DT158/14 to the complainant in respect 17 May 2005, given by given 24 Main Street, Tallaght, Dub- 1) Failed to comply with an un- of named clients over property by him to the complainant in lin 24, and in the matter of the dertaking dated 25 June 2003, situate at Dublin, respect of a named client over Solicitors Acts 1954-2011 [15089/ furnished to Bank of Ireland 4) Failed to reply adequately or property situate at Co Dublin, DT58/15] in respect of his named clients at all to the complainant’s cor- 10) Failed to reply adequately or Law Society of Ireland (applicant) and property in Co Cork, in a respondence in respect of at all to the correspondence Michelle Cronin (respondent timely manner or at all, his undertaking given on be- of the complainant in respect solicitor) 2) Failed to respond to the half of named clients dated 5 of an undertaking given on The Solicitors Disciplinary Tribu- Society’s letters of 21 November 2003 over property behalf of a named client over nal considered a complaint against November 2012 and 30 July situate at Dublin and, in particu- property situate at Co Dublin the respondent solicitor on 29 Oc- 2014 within the time provided, lar, letters dated 23 June 2008, 5 and, in particular, letters dated tober 2015 and found her guilty in a timely manner, or at all, April 2011, 18 October 2011, 9 2 June 2006, 27 October 2009, of professional misconduct in that 3) Failed to attend a meeting of November 2011, and 28 March 10 December 2011, 3 March she: the Complaints and Client 2012 respectively, 2011, 24 May 2013, 8 August 1) Failed to ensure there was fur- Relations Committee on 30 5) Failed to comply expeditiously, 2013, and 14 August 2013 re- nished to the Society an accoun- September 2014, despite being within a reasonable time, or at spectively, tant’s report for the year ended required to attend. 58 BRIEFING law society gazette www.gazette.ie March 2016 regulation

10174/DT159/14 despite being required to at- plaints and Client Relations 12313/DT44/14 1) Failed to comply with an un- tend. Committee on 7 February On 21 July 2015, the Solicitors dertaking furnished to Bank of 2013, despite being required to Disciplinary Tribunal found the re- Ireland on 8 July 2008 in re- The tribunal recommended that do so. spondent solicitor guilty of profes- spect of his named clients and the matter be sent forward to the sional misconduct in her practice as borrowers and property in Co High Court and, on 2 November The tribunal recommended that a solicitor in that she: Limerick in a timely manner or 2015, the High Court ordered the matter be sent forward to the 1) Failed to comply with an un- at all, that: High Court and, on the 2 Novem- dertaking furnished to Bank of 2) Failed to respond to the 1) The respondent solicitor not ber 2015, in proceedings 2014 no Ireland Mortgages in respect Society’s correspondence and, be entitled to practise as a sole 83 SA, the High Court ordered of her named clients and their in particular, the Society’s let- practitioner or in partnership; that: customers and property at Co ters of 21 November 2012, that he be permitted only to 1) The name of the respondent Cork, furnished on 15 July 20 June 2013, 2 August practise as an assistant solicitor solicitor be struck from the 2009, in a timely manner or at 2013, 5 September 2013, and in the employment and under Roll of Solicitors, all, 1 October 2013 within the time the direct control and super- 2) The respondent solicitor pay 2) Failed to respond to the provided, in a timely manner, vision of another solicitor of to the Law Society the costs of Society’s correspondence and, or at all, at least ten years’ standing, to the proceedings before the dis- in particular, the Society’s letters 3) Failed to comply with the di- be approved in advance by the ciplinary tribunal and the costs of 14 May 2013, 4 June 2013, 20 rections of the Complaints and Law Society of Ireland, of the High Court proceedings, June 2013, 11 July 2013, 30 July Client Relations Committee 2) He pay a sum of €15,000 to the to be taxed in default of agree- 2013, 26 September 2013, and made at its meeting of 3 compensation fund, ment. 3 October 2013 within the time September 2013 and commu- 3) He pay the whole of the costs prescribed, in a timely manner, nicated in detail to the solici- of the Law Society, to be taxed In the matter of Cindy Mc- or at all, tor by letter dated 5 September by a taxing master of the High Carthy Yates, a solicitor previ- 3) Failed to comply with the direc- 2013, Court in default of agreement. ously practising as McCarthy tion made by the Complaints 4) Failed to attend the Com- Solicitors at 4 The Gully, Ban- and Client Relations Com- plaints and Client Relations In the matter of Cindy McCar- don, Co Cork, and in the mat- mittee on 25 July 2013 that (a) Committee meetings of thy Yates, a solicitor previously ter of the Solicitors Acts 1954- she pay a €500 contribution 3 September 2013 and 15 practising as McCarthy Solici- 2011 [12313/DT24/14; 12313/ towards the costs of the Society, October 2013, despite being tors at 5 The Old Market, Mar- DT44/14; 12313/DT79/14; and that (b) she furnish an up- required to so attend. ket Square, Bandon, Co Cork, 12313/DT86/14; High Court date to the Society no later than and in the matter of the So- record 2015 no 116 SA] 1 September 2013 in respect of 10174/DT160/14 licitors Acts 1954-2011 [12313/ Law Society of Ireland (applicant) the complaint. 1) Failed to comply with two un- DT86/13 and High Court 2014 Cindy McCarthy Yates dertakings furnished with his no 83 SA] (respondent solicitor) 12313/DT79/14 authority on 1 April 2008 in Law Society of Ireland (applicant) On 21 July 2015, the Solicitors respect of a named client and Cindy McCarthy Yates 12313/DT24/14 Disciplinary Tribunal found the re- property at Ballincollig, Co (respondent solicitor) On 21 July 2015, the Solicitors spondent solicitor guilty of profes- Cork, being part of a named fo- On 25 March 2014, the Solicitors Disciplinary Tribunal found the sional misconduct in her practice as lio, Co Cork, in a timely man- Disciplinary Tribunal found the respondent solicitor guilty of pro- a solicitor in that she failed to en- ner or at all, respondent solicitor guilty of mis- fessional misconduct in her prac- sure there was furnished to the So- 2) Failed to respond to the conduct in her practice as a solici- tice as a solicitor in that she: ciety a closing accountant’s report, Society’s correspondence of 21 tor in that she: 1) Failed to ensure there was fur- as required by regulation 26(2) of November 2012, 24 June 2013, 1) Failed to comply with an nished to the Society an ac- the Solicitors Accounts Regulations, in and 2 August 2013 within the undertaking dated 2 February countant’s report for the year a timely manner or at all. time provided, in a timely man- 2011 furnished to Bank of ended 31 August 2012 within ner, or at all, Ireland Mortgage Bank in six months of that date, in 12313/DT86/14 3) Failed to comply with a direc- relation to property at Co Cork breach of regulation 21(1) of On 21 July 2015, the Solicitors tion made by the Complaints and her named clients and bor- the Solicitors Accounts Regulations Disciplinary Tribunal found the re- and Client Relations Com- rowers in a timely manner or 2001 (SI 421 of 2001), spondent solicitor guilty of profes- mittee at its meeting of 3 at all, 2) Through her conduct, showed sional misconduct in her practice as September 2013 and commu- 2) Failed to respond to the disregard for her statutory ob- a solicitor in that she: nicated to him by letter dated Society’s correspondence and, ligation to comply with the 1) Failed to comply with an un- 5 September 2013 in a timely in particular, to the Society’s Solicitors Accounts Regulations dertaking dated 10 November manner or at all, emails of 1 November 2012, and showed disregard for the 2011, furnished to Bank of 4) Failed to attend the Complaints 2 January 2013, and 29 January Society’s statutory obligation to Ireland Mortgages in respect of and Client Relations Com- 2013 in a timely manner or at monitor compliance with the her named clients and their bor- mittee meetings of 3 September all, regulations for the protection rowers and property at Co Cork 2013 and 15 October 2013, 3) Failed to attend the Com- of clients and the public. in a timely manner or at all, law society gazette www.gazette.ie March 2016 BRIEFING 59 regulation

2) Failed to attend the meeting solicitor’s personal AIB bank to the complainant in respect of property at Blackrock, Co of the Complaints and Client account on 12 November 2012, of a property at Clondalkin, Dublin, in respect of his named Relations Committee on 24 5) Misled the Regulation of Dublin 22, owned by a named client (complaint five); under- September 2013, despite being Practice Committee at its meet- client, taking of 2 March 2011 in rela- required to do so by letter dated ing on 22 January 2014 by in- 2) Failed to comply in a timely tion to property at Sallynoggin, 17 September 2013. dicating that the proceeds of a manner or at all with an under- Co Dublin, in respect of his sale were in the solicitor’s client taking dated 21 December 2010 named client (complaint six); The tribunal, in the four matters, account, when it subsequently to the complainant in respect of undertaking of 29 October recommended that the matters be transpired that part of the sale a property at Loughlinstown, 2010 in relation to property at sent forward to the High Court moneys, namely a deposit of Co Dublin, owned by named the Tenters, Dublin 8, in re- and, on 2 November 2015, in pro- €43,000 ,had been lodged to the clients, spect of his named clients (com- ceedings 2015 no 116 SA, the High solicitor’s personal AIB bank ac- 3) Failed to respond adequately or plaint seven); undertaking of Court ordered that the name of the count on 11 October 2013, at all to correspondence from 23 March 2011 in relation to respondent solicitor be struck from 6) In five different instances, the complainant in respect of property at Trim, Co Meath, the Roll of Solicitors. lodged €129,200 of clients’ one or more of the above un- in respect of his named client moneys to the solicitor’s per- dertakings, (complaint eight); undertaking In the matter of Robert Swee- sonal bank account. in breach 4) Failed to respond adequately or of 23 August 2010 in relation to ney, a solicitor previously of regulation 4, at all to correspondence from property at Dublin 7 in respect practising as Robert Sweeney, 7) Failed to stamp 38 deeds, as set the Society in respect of one of his named clients (complaint First Floor, Crossview House, out in appendix 2 of the inves- or more of the above undertak- nine), High Road, Letterkenny, Co tigation report of 19 December ings. 2) Failed to respond adequately or Donegal, and in the matter of the 2013, at all to correspondence with Solicitors Acts 1954-2011 [10658/ 8) Submitted deeds for stamping 10658/DT32/15 the Society in respect of one DT130/14; 10658/DT27/15; with an updated deed, notwith- 1) Failed to comply in a timely or more of the above undertak- 10658/DT32/15; 10658/DT39/ standing the fact that he was manner or at all with an under- ings. 15; High Court record 2015 no in funds to stamp the deed on taking dated 24 June 2010 to 117 SA] closing, as set out in paragraph the complainant in respect of The tribunal ordered that the four Law Society of Ireland (applicant) 5.7 of the investigation report his named client, matters should go forward to the Robert Sweeney (respondent of 19 December 2013, 2) Failed to respond adequately or High Court and, on 2 November solicitor) 9) Used client funds to pay stamp at all to correspondence from 2015, in proceedings entitled 2015 On 30 June 2015, the Solicitors duty penalties, as set out in the complainant in respect of no 117 SA, the President of the Disciplinary Tribunal found the paragraph 4.4 of the investiga- the above, High Court ordered on consent respondent solicitor guilty of mis- tion report of 19 December 3) Failed to respond adequately or that: conduct in his practice as a solicitor 2013, at all to correspondence from 1) The name of the respondent so- in four separate referrals from the 10) Failed to provide vouching doc- the Society in respect of the licitor be struck from the Roll of Society to the disciplinary tribunal umentation for a payment of above. Solicitors, and as follows: €15,000, as set out in paragraph 2) The respondent solicitor pay 4.10 of the investigation report, 10658/DT39/15 the whole of the costs of the 10658/DT130/14 and subsequently gave an incor- 1) Failed to comply in a timely Society, including witnesses’ ex- 1) Allowed a deficit of client funds rect explanation as to the source manner or at all with the fol- penses, to be taxed in default of in the practice of €27,190 as of of such funds to the Regulation lowing undertakings: undertak- agreement. 31 October 2013, of Practice Committee at its ing dated 21 June 2010 in rela- 2) Allowed a deficit of at least meeting on 22 January 2014, tion to property in Menlough, In the matter of Robert Swee- €107,700 of clients’ funds in the 11) Requisitioned client account Co Galway, and his named cli- ney, a solicitor previously prac- practice as of 30 January 2014, cheques for registration fees, ents (complaint one); undertak- tising as Robert Sweeney, First 3) Failed to account to his client but never forwarded the ing dated 21 October 2009 in Floor, Crossview House, High for the sum of €25,000 received said cheques to the Property respect of property in Bray, Co Road, Letterkenny, Co Done- as a deposit, as set out at para- Registration Authority and Wicklow, in respect of named gal, and in the matter of the So- graph 4.3 and paragraph 5.3 of never registered the documen- clients (complaint two); under- licitors Acts 1954-2011 [10658/ the investigation report of 19 tation, taking dated 11 June 2010 in DT189/13 and High Court re- December 2013, 12) Transferred professional fees relation to property at Kells, cord 2014 no 131 SA] 4) Misled the Regulation of twice, causing a shortfall in re- Co Meath, and in respect of Law Society of Ireland (applicant) Practice Committee at its meet- lation to a client purchase file of his named clients (complaint Robert Sweeney (respondent ing on 22 January 2014 by in- €785. three); undertaking of 1 March solicitor) dicating that the bank draft in 2011 in respect of property in On 24 July 2014, the Solicitors relation to the sale deposit had 10658/DT27/15 Kinsealy, Co Dublin, and in re- Disciplinary Tribunal found the either been lost or mislaid, when 1) Failed to comply in a timely spect of his named client (com- respondent solicitor guilty of mis- it subsequently transpired that manner or at all with an under- plaint four); undertaking dated conduct in his practice as a solicitor same had been lodged to the taking dated 31 October 2012 21 September 2010 in respect in that he had: 60 BRIEFING law society gazette www.gazette.ie March 2016 regulation

1) Allowed a shortfall of cli- as Joseph A Chambers, Solici- was furnished to the Society a the High Court ordered that: ent funds in his practice of tor, Frances Street, Kilrush, Co closing accountant’s report, as 1) The name of the respondent €168,816, as of 31 May 2012, Clare, and in the matter of the required by regulation 26(2) solicitor shall be struck from 2) Allowed around 90 client led- Solicitors Acts 1954-2011 [3889/ of the regulations, in a timely the Roll of Solicitors, ger debit balances totalling DT13/15] manner or at all, 2) The respondent solicitor pay €143,996, as of 31 May 2012, Law Society of Ireland (applicant) 2) Through his conduct, showed the whole of the Society’s costs 3) Allowed undischarged stamp Joseph A Chambers (respondent disregard for his statutory ob- and witness expenses in the duty to remain in the office ac- solicitor) ligation to comply with the Solicitors Disciplinary Tribunal count, totalling €1,120, On 19 November 2015, the Solici- Solicitors Accounts Regulations proceedings, with taxation in 4) Allowed further shortfalls on tors Disciplinary Tribunal found and showed disregard for the default of agreement, the client ledger client caused the respondent solicitor guilty of Society’s statutory obligation to 3) The respondent solicitor pay by the transfer of excess misconduct in his practice as a so- monitor compliance with the to the Society the costs of the amounts for fees of €23,700, licitor in that he, up to the referral regulations for the protection High Court proceedings, to be 5) Failed to keep books of account of this matter to the tribunal, had of clients and the public. taxed in default of agreement. in accordance with the require- failed to: ments of the Solicitors Accounts 1) Comply with part or all of the The tribunal ordered that the mat- In the matter of Thomas G Regulations, undertaking dated 23 April ter go forward to the High Court Myles, a solicitor formerly prac- 6) For purchases completed prior 2001 in a timely manner or at and, on 23 November 2015, the tising as Myles & Co, Solici- to 31 May 2012, allowed a all, High Court ordered that: tors, 21 Hillside, Monaghan, Co minimum of 151 cases of un- 2) Comply with part or all of the 1) The name of the respondent Monaghan, and in the matter stamped deeds with a minimum undertaking dated 1 February solicitor shall be struck from of the Solicitors Acts 1954-2011 of €371,949 of unpaid stamp 2005 in a timely manner or at the Roll of Solicitors, [4961/DT110/14 and High duty, all, 2) The respondent solicitor pay Court record 2015 no 80 SA] 7) Misled the committee at its 3) Respond adequately to some or the whole of the Society’s costs Law Society of Ireland (applicant) meeting on 17 October 2012 all of the correspondence dated and witness expenses in the Thomas G Myles (respondent with regard to the progress that 21 February 2012, 1 November Solicitors Disciplinary Tribunal solicitor) was being made in respect to 2013, 21 November 2013, and proceedings, with taxation in On 18 June 2015, the Solicitors stamping the 151 unstamped 7 January 2014 sent to him by default of agreement, Disciplinary Tribunal found the deeds, the Law Society. 3) The respondent solicitor pay respondent solicitor guilty of mis- 8) Lodged sales deposits to the of- to the Society the costs of the conduct in his practice as a solici- fice account in respect of two The tribunal ordered that: High Court proceedings, to be tor in that he: sales totalling €19,350, as set 1) The respondent solicitor stand taxed in default of agreement. 1) Failed to comply expeditiously, out in paragraph 3.4 of the re- censured, within a reasonable time, or at port of 22 November 2012, 2) The respondent solicitor pay a In the matter of Thomas G all with an undertaking dated 9) Lodged clients’ moneys in the sum of €3,000 to the compen- Myles, a solicitor formerly prac- 6 January 2004, given by him office account, in breach of the sation fund, and tising as Myles & Co, Solici- on behalf of named clients to regulations, as set out in the in- 3) The respondent solicitor pay tors, 21 Hillside, Monaghan, Co the complainant financial in- vestigating accountant’s report the sum of €4,000 plus VAT Monaghan, and in the matter stitution for a property at Co of 14 June 2012. as a contribution towards the of the Solicitors Acts 1954-2011 Monaghan, whole of the costs of the Law [4961/DT106/14 and High 2) Failed to reply adequately or The tribunal ordered that the Society Court record 2015 no 81 SA] at all to the complainant’s cor- matter should go forward to the Law Society of Ireland (applicant) respondence and, in particu- High Court and, on 2 November In the matter of Thomas G Thomas G Myles (respondent lar, letters dated 4 April 2006, 2015, in proceedings entitled 2014 Myles, a solicitor formerly prac- solicitor) 3 July 2006, 2 July 2008, 11 no 131 SA, the President of the tising as Myles & Co, Solici- On 18 June 2015, the Solicitors January 2010, 2 February 2010, High Court ordered on consent tors, 21 Hillside, Monaghan, Co Disciplinary Tribunal found the 4 May 2010, 16 June 2010, 4 that: Monaghan, and in the matter respondent solicitor guilty of mis- March 2011, 24 March 2011, 8 1) The name of the respondent of the Solicitors Acts 1954-2011 conduct in his practice as a solici- April 2011, and 17 April 2012 solicitor shall be struck from [4961/DT192/13 and High tor in that he failed to honour an respectively, the Roll of Solicitors, Court record 2015 no 62 SA] undertaking, dated 30 November 3) Failed to reply adequately or 2) The respondent solicitor pay Law Society of Ireland (applicant) 2009, given by him to the com- at all to the Society’s corre- the costs of the Society before Thomas G Myles (respondent plainant to discharge his fees of spondence, in particular, let- the disciplinary tribunal and solicitor) €5,992.21 for the proceeds of costs ters dated 12 November 2013, the costs of the High Court On 14 April 2015, the Solicitors to be received in a named case ex- 17 December 2013, 13 January proceedings, such costs to be Disciplinary Tribunal found the peditiously, within a reasonable 2014, and 5 August 2014 re- taxed in default of agreement. respondent solicitor guilty of mis- time, or at all. spectively, conduct in his practice as a solici- The tribunal ordered that the 4) Failed to comply expeditiously, In the matter of Joseph A tor in that he: matter go forward to the High within a reasonable time, or at Chambers, a solicitor practising 1) Failed to ensure that there Court and, on 23 November 2015, all with an undertaking dated law society gazette www.gazette.ie March 2016 BRIEFING 61 regulation

21 December 2005, given by In the matter of Richard Grogan, itor in McDarby & Company, Solicitors Acts 1954-2011 [8243/ him to the complainant on solicitor, of Richard Grogan & Solicitors, Glebe Street, Ballin- DT05/15 and High Court re- behalf of a named client over Associates, 16-17 College Green, robe, Co Mayo, and in the mat- cord 2015 no 214 SA] property at Co Cavan, Dublin 2, and in the matter of the ter of the Solicitors Acts 1954- Law Society of Ireland (applicant) 5) Failed to reply adequately or Solicitors Acts 1954-2011 [4501/ 2011 [4200/DT22/15] Eoin M Dee (respondent solicitor) at all to the complainant’s let- DT32/14] Law Society of Ireland (applicant) On 29 October 2015, the Solici- ters dated 9 January 2006, 18 Named clients (applicants) Michael McDarby (respondent tors Disciplinary Tribunal found April 2006, 23 May 2007, 20 Richard Grogan (respondent solicitor) the respondent solicitor guilty of June 2008, 19 May 2009, 2 solicitor) On 26 November 2015, the Solici- professional misconduct in his February 2010, 24 May 2010, On 24 November 2015, the Solici- tors Disciplinary Tribunal found practice as a solicitor in that he 16 June 2010, 25 June 2010, tors Disciplinary Tribunal found the the respondent solicitor guilty of failed to ensure there was fur- 13 October 2010, 8 April 2011, respondent solicitor guilty of mis- misconduct in his practice as a so- nished to the Society a closing 20 September 2011, 17 April conduct in his practice as a solicitor licitor in that he failed to comply accountant’s report, as required 2012, and 29 November 2012 in respect of the following com- with part or all of the undertaking by regulation 26(2) of the Solici- respectively. plaint, as set out in the applicant’s dated 25 April 2007 to the com- tors Accounts Regulations 2001, in formal letter of complaint dated 1 plainant in a timely manner or at a timely manner or at all, having The tribunal ordered that the mat- December 2013: the respondent all. ceased practice on 31 January ter go forward to the High Court solicitor failed to provide the ap- The tribunal ordered that: 2014. and, on 23 November 2015, the plicants with a satisfactory service 1) The respondent solicitor do The tribunal ordered that the High Court ordered that: when dealing with a named case. stand censured, matter go forward to the High 1) The name of the respondent The tribunal ordered that the re- 2) The respondent solicitor pay a Court and, on 18 January 2016, solicitor shall be struck from spondent solicitor: sum of €2,500 to the compen- the High Court ordered that: the Roll of Solicitors, 1) Do stand censured, sation fund, and 1) The respondent solicitor be 2) The respondent solicitor pay 2) Pay a sum of €5,000 as restitu- 3) The respondent solicitor pay suspended from practising as a the whole of the Society’s costs tion to the applicants, without the sum of €2,000 towards the solicitor until such time as he and witness expenses in the prejudice to any legal right of whole of the costs of the Law files his closing accountant’s re- Solicitors Disciplinary Tribunal such party, Society. port with the Society, proceedings, with taxation in 3) Pay the measured sum of €500 of 2) The respondent solicitor pay default of agreement, the costs and expenses of the ap- In the matter of Eoin M Dee, a the whole of the costs of the 3) The respondent solicitor pay plicants. solicitor previously practising as Society before the Solicitors to the Society the costs of the Eoin Dee, Solicitors, Thomas Disciplinary Tribunal and the High Court proceedings, to be In the matter of Michael McDar- House, 47 Thomas Street, Wa- High Court, to be taxed taxed in default of agreement. by, solicitor, practising as a solic- terford, and in the matter of the in default of agreement.

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eurlegal News from the EU and International Affairs Committee Edited by TP Kennedy, Director of Education, Law Society of Ireland THE REGULATION OF AIRCRAFT LEASES

he regulation of air car- an air-carrier licence. By virtue of nity or national law, as applicable. separately in articles 5 and 8 of the riers in Ireland and other article 8, air carriers must be able In Ireland, this is granted by the regulation, dealing with financing Tmember states of the to demonstrate continued compli- Irish Aviation Authority (IAA). Air and maintenance in force of the European Union requires that ance with the criteria set out in carriers require both an air-carrier operating licence. The require- carriers must have aircraft at their article 4 on an ongoing basis in operating licence (ACOL) and an ments apply to both head leases disposal either through ownership order to maintain their licence in AOC to trade. and subleases. Furthermore, there or dry lease, at all times, in order to force. Article 4(c) sets out the cri- The requirements in relation is a parallel reporting obligation be granted or to maintain in force teria in relation to the possession to each type of lease are set out in on AOC holders to the IAA in an air-carrier operating licence. An of aircraft. Articles 5, 8 and 13 article 13 of the regulation, which respect of leases, pursuant to ‘operating licence’ is the authori- include provisions requiring leases states that a community air car- Regulation (EU) no 965/2012 lay- sation permitting an air carrier to to be notified to the competent rier may have one or more aircraft ing down technical requirements provide air services, which means licensing authority. Article 13 sets at its disposal through dry or wet and administrative procedures re- carrying passengers, cargo and/ out requirements in relation to the lease agreement. They may freely lated to air operations. As matter or mail for remuneration and/or prior approval of certain leases. operate wet leased aircraft regis- of practice, notifications of article hire. Thus, possession of aircraft The provisions of tered within the com- 13(2) leases are made initially to is fundamental to the authorisa- the regulation apply Possession munity, except where the IAA within the context of that tion of air carriers to trade. So how to all aircraft leased this would lead to parallel procedure, with notifica- are aircraft leases regulated in the to air carriers, in- of aircraft is endangering safety. In tions under the other provisions of context of air-carrier operating cluding helicopters, fundamental to addition, a dry lease article 13 and articles 5 and 8 made licences in Ireland? executive jets, small- agreement to which to the CAR. er propeller driven the authorisation a community air car- Come fly with me aircraft and cargo of‘ air carriers rier is a party or a 747 Pursuant to the Aviation Regula- airplanes, as well as to trade wet lease agreement Aviation regulators closely moni- tion Act 2001 and the European turboprops, narrow under which the com- tor possession of aircraft. Prior Communities (Common Rules for and wide-body jet aircraft. Cur- munity air carrier is the lessee of notification provides regulators the Operation of Air Services in the rent air-carrier activity in Ireland the wet-leased aircraft is subject to with an opportunity to discuss Community) Regulations (SI 426 involves 15 air carriers operating prior approval, in accordance with with an air carrier the potential ef- of 2008), the competent licensing 27 different types of aircraft, in all applicable’ community or national fects of a lease on the maintenance authority for air carriers in Ireland the categories mentioned above. law on aviation safety. Further- in force of the operating licence. is the Commission for Aviation more, a community air carrier wet There is overlap in the issues that Regulation (CAR). It is responsi- Fly me to the moon leasing aircraft registered in a third regulators take into consideration ble for implementing and enforc- The regulation defines two types country from another undertak- when notified of a lease pursuant ing Regulation (EC) 1008/2008 on of lease: ‘wet lease’ and ‘dry lease’. ing must obtain prior approval for to the licence and those that air- the licensing of air carriers within Finance leases where ownership of the operation from the competent craft lessors address in the terms of the community. For the purposes the plane is intended to ultimately licensing authority and must show the lease. of the regulation, a carrier licenced pass are considered ownership that equivalent safety standards are Topics considered include the by an EU member state is a ‘com- arrangements. A dry lease means met and (a) exceptional needs, or following: munity air carrier’. The overarch- an agreement between undertak- (b) leasing is necessary to satisfy • Air operator certificate: change of ing objective of aviation regulation ings pursuant to which the aircraft seasonal demands, or (c) leasing aircraft type, pilot ratings, crew is safety. Chapter II of the regula- is operated under the air operator is necessary to overcome opera- training, operational capability tion sets out the requirements in certificate (AOC) of the lessee. tional difficulties. The competent and timing. relation to air-carrier operating A wet lease means an agreement authority may refuse to grant an • Finance: details of financing of licences, including in relation to between air carriers pursuant to approval if there is no reciprocity aircraft purchase/leasing, in- leases. Article 3(2) states that the which the aircraft is operated as regards wet leasing between the cluding the cost of leasing, the competent licensing authority under the AOC of the lessor. An member state concerned or the terms and conditions of con- shall not grant operating licences AOC is a certificate delivered to community and the third country tracts including payment cur- or maintain them in force where an undertaking confirming that where the wet-leased aircraft is rency, security deposits, mainte- any of the requirements of chapter the operator has the professional registered. nance and maintenance reserves, II of the regulation are not com- ability and organisation to ensure The provisions mentioned terms of lease and delivery. plied with. the safety of operations specified above are in addition to the re- • Maintenance: maintenance pro- Article 4 of the regulation sets in the certificate, as provided in quirements to notify leases pursu- gramme, deposits, reserves and out the criteria for the grant of the relevant provisions of commu- ant to reporting obligations set out airworthiness. law society gazette www.gazette.ie March 2016 BRIEFING 63 eurlegal PIC: iSTOCK

The provisions of the regulation apply to all aircraft leased to air carriers, including helicopters,‘ executive jets, smaller propeller driven aircraft and cargo airplanes, as well as turboprops, narrow and wide-body jet aircraft ’

Watch out for them chemtrails

• Insurance: Regulation (EC) A number of these issues speak to being paid. For example, fail- From a regulators perspective, the 785/2004 sets out require- the safe operation of the aircraft, ure to pay air navigation service outcome is the same: the aircraft ments for air carriers and air- which is the main priority of avia- charges entitles the IAA to exer- is not in operation. From the per- craft operators and sets out tion regulators. cise a lien over aircraft pursuant spective of the parties to a lease, details of levels of insurance Occasionally, possession may to section 67 of the Irish Avia- that outcome may be very det- by aircraft maximum take-off be lost by non-payment of fees tion Authority Act 1993. Similarly, rimental to the value of the lease weight, which relates to avia- to third parties, such as airport failure to pay airport charges at agreement between them. The tion specific liability in respect authorities or air navigation ser- Dublin Airport allows the rel- relative brevity of the provisions of passengers, baggage, cargo vice providers. From a regulatory evant airport authority to exer- in Regulation (EC) 1008/2008 and third parties. Separate to perspective, this raises the ques- cise a lien over aircraft in order expressly mentioning the approval insurance for damage/loss of tions of suspension or revocation to force the discharge of the debt of leases should not be read in iso- aircraft. of the licence on the grounds of owed to it, pursuant to section 40 lation. They must be considered in • Reporting and inspections: corpo- (a) lack of possession or (b) in- of the Air Navigation and Trans- the wider context of the grant or rate and transaction documents, ability to meet financial commit- port (Amendment) Act 1998. maintenance in force of an air car- business plans, insurance, key ments over a 12-month horizon. rier operating licence, as it is the personnel change notification In these circumstances, lessors Paper plane impact of the possession of aircraft and passports. may also want to move quickly to In summary, aviation regulators on continued, safe, operations that • Registration on national register: repossess aircraft at the time of may notify an air carrier that it is the key issue of concern generally required; facilitates lessee default. This is especially may not operate a plane due to to aviation regulators. airworthiness inspections. the case when such third par- non-compliance with one or more • Counter party: reciprocity of ties have the power to exercise a requirements related the licensing David Hodnett, solicitor, is the deputy leasing in third country, trade lien over the aircraft and prevent issues identified above, as opposed commissioner for Aviation Regula- sanctions, consents for sublease. repossession prior to their fees to disapproving a lease of itself. tion. LAW SOCIETY PROFESSIONAL TRAINING

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DATE EVENT DISCOUNTED FULL FEE CPD HOURS FEE* 9 March Workplace Relations Act, 2014 – the Practical Implications €150 €176 3 General (by Group Study) for Employment Litigation 11 March Law Society Skillnet – Masterclass in €1,105 €1,300 Full General and Management & Construction Adjudication Professional Development Skills This course is in response to the Construction Contracts Act, 2013 and CPD requirement for 2016 (provided it will be very relevant for those who act for parties in construction relevant sessions attended) disputes – it will run over three weekends. (Friday & Saturday) Start date Law Society Finuas Network €2,950 €3,500 Full CPD requirement for 2016 (provided 12 March Executive Leadership Management Programme relevant sessions attended) Leadership in Perspective - Sat 12 March (9.30-5.00pm) Leading Self - Fri 8 April (2.00-6.00pm) & Sat 9 April (9.30-5.00pm) Leading People - Fri 22 April (2.00-5.30pm) & Sat 23 April (9.30-5.00pm) Leading Practice - Fri 13 May (9.30-5.00pm) and Sat 14 May (9.30- 5.00pm) – for the full programme contact [email protected] 15 March The European Convention on Human Rights and states of Complimentary 1 General (by Group Study) emergency Joint Honorary Lecture in honour of Michael O’Boyle – presented in partnership with Human Rights committee & the Department of Foreign Affairs & Trade 12 May The Secret to a Successful Practice: Wellness for Success: €150 €176 5 Management & Professional Stress, burnout and unprofitable work practices need not hold you back Development Skills (by Group Study) any longer. This one-day event will change the way you work so you are calmer, more energised and more in control. 12 May Essential Solicitor Update 2016 Part I €75 1 General, 2 M & PD Skills & 1 Regulatory In partnership with Leitrim, Longford, Roscommon, Sligo and Midlands (Parts I and II €160 - full 2016 Matters - Financial Compliance (by Bar Associations Landmark Hotel, Carrick-on-Shannon, Co Leitrim Regulatory Matters and M & PD Group Study) - Practice Regulation - Financial Compliance Skills CPD requirement) - Assisted Decision Making (Capacity) Act 2015 - Criminal Litigation - Bail, custody, advising clients in Garda stations, unconstitutional evidence 13 May Essential Solicitor Update 2016 Part II €105 2 General, 2 M & PD Skills & 2 Regulatory Landmark Hotel, Carrick-on-Shannon, Co Leitrim (Parts I and II €160 - full 2016 Matters (including anti-money - Workplace Relations Act 2015 Regulatory Matters and M & PD laundering compliance) (by Group - Conveyancing update Skills CPD requirement) Study) - Technology update for the small practice - Legal Services Regulation Act 2015: general overview and impact Hot lunch and networking drinks - Probate Practice: drafting, taxation and will trusts included in price - Regulation Compliance - anti-money laundering - Legal costs: the current and future regimes 19 May In-house and Public Sector Committee Panel Discussion €25 2.5 M & PD Skills (by Group Study) Challenges and opportunities facing the in-house sector ONLINE COURSES: To Register for any of our online courses OR for further information email: [email protected] Social Media Online Suite of Programmes – Buy ONE Course – Receive SIX for FREE – Just €195 Online LinkedIn for Lawyers the “How to” Guide Approx. 5 hours Management & Professional Development Skills (by eLearning) Online Advanced LinkedIn Approx. 5 hours Management & Professional Development Skills (by eLearning) Online Search Engine Optimisation (SEO) Approx. 5 hours Management & Professional Development Skills (by eLearning) Online Twitter for Lawyers the “How to” Guide Approx. 5 hours Management & Professional Development Skills (by eLearning) Online Facebook for Professionals: the “How to” Guide Approx. 5 hours Management & Professional Development Skills (by eLearning) Online How to use an iPad for business and lifestyle Approx. 5 hours Management & Professional Development Skills (by eLearning) Online How to use a Samsung Tablet for business and lifestyle Approx. 5 hours Management & Professional Development Skills (by eLearning)

For full details on all of these events visit webpage www.lawsociety.ie/Lspt or contact a member of the Law Society Professional Training team on p: 01 881 5727 e: [email protected] f: 01 672 4890 *Applicable to Law Society Skillnet members

LSPT Gazette ad March 2016.indd 1 23/02/2016 14:37 LAW SOCIETY law society gazette www.gazette.ie March 2016 NOTICES 65 PROFESSIONAL TRAINING professional notices

WILLS RATES Centre of Excellence for Carolan, James Enda (other- Professional Education and Training wise Enda) (deceased), late of 55 Mountain View Road, Ranelagh, Dublin 6, who died on 13 Decem- professional notice rates ber 2015. Would any person hav- RATES IN THE PROFESSIONAL NOTICES SECTION ARE AS FOLLOWS: To view our full programme visit www.lawsociety.ie/Lspt ing knowledge of the whereabouts of any will made by the above- • Wills – €147 (incl VAT at 23%) named deceased please contact • Title deeds – €294 per deed (incl VAT at 23%) DATE EVENT DISCOUNTED FULL FEE CPD HOURS Gráinne Butler, Orpen Franks, So- • Employment/miscellaneous – €147 (incl VAT at 23%) FEE* licitors, 28 & 30 Burlington Road, 9 March Workplace Relations Act, 2014 – the Practical Implications €150 €176 3 General (by Group Study) Dublin 4; tel: 01 637 6200, fax: 01 HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €33 EXTRA for Employment Litigation 637 6262, email: grainne.butler@ 11 March Law Society Skillnet – Masterclass in €1,105 €1,300 Full General and Management & orpenfranks.ie Construction Adjudication Professional Development Skills ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. CHEQUES SHOULD BE MADE This course is in response to the Construction Contracts Act, 2013 and CPD requirement for 2016 (provided PAYABLE TO LAW SOCIETY OF IRELAND. Deadline for April 2016 Gazette: 16 March. Gately, Elizabeth (deceased), it will be very relevant for those who act for parties in construction relevant sessions attended) For further information, contact the Gazette office on tel: 01 672 4828. disputes – it will run over three weekends. (Friday & Saturday) formerly of 14 Kinahan Street, Start date Law Society Finuas Network €2,950 €3,500 Full CPD requirement for 2016 (provided off Infirmary Road, Dublin 7, No recruitment advertisements will be published that include references to years of post-qualification experi- 12 March Executive Leadership Management Programme relevant sessions attended) who died on 16 April 2014 and ence (PQE). The Gazette Editorial Board has taken this decision based on legal advice, which indicates that Leadership in Perspective - Sat 12 March (9.30-5.00pm) who resided at Kilbrew Recupera- such references may be in breach of the Employment Equality Acts 1998 and 2004. Leading Self - Fri 8 April (2.00-6.00pm) & Sat 9 April (9.30-5.00pm) tion and Nursing Care, Curragha, Leading People - Fri 22 April (2.00-5.30pm) & Sat 23 April (9.30-5.00pm) Leading Practice - Fri 13 May (9.30-5.00pm) and Sat 14 May (9.30- Ashbourne, Co Meath, at the date 5.00pm) – for the full programme contact [email protected] of her death. Would any person Kerfoot Matthews, Elsie (de- by the above-named deceased email: elitechauffeurservices3@ 15 March The European Convention on Human Rights and states of Complimentary 1 General (by Group Study) holding or having any knowledge ceased), late of 54 Golden Lane, please contact Mary McKeever, hotmail.com emergency of a will made by the above-named Dublin 8, formerly of 14 Werberg Eugene F Collins, Solicitors, Tem- Joint Honorary Lecture in honour of Michael O’Boyle – presented deceased please contact Tom Street, Dublin 8, who died on 12 ple Chambers, 3 Burlington Road, Milner, Mary (née McGrath) in partnership with Human Rights committee & the Department of O’Hare, O’Hare O’Dwyer, So- January 2016. Would any per- Dublin 4; tel: 01 202 6400, fax: (deceased), who died on 9 Janu- Foreign Affairs & Trade licitors, Greenfield Road, Sutton, son having any knowledge of the 01 667 5200, email: mmckeever@ ary 2016, late of 6 Laverna Avenue, 12 May The Secret to a Successful Practice: Wellness for Success: €150 €176 5 Management & Professional Dublin 13; tel: 01 839 6455, email: whereabouts of any will executed efc.ie Castleknock, Dublin 15, and for- Stress, burnout and unprofitable work practices need not hold you back Development Skills (by Group Study) any longer. This one-day event will change the way you work so you are [email protected] by the above-named deceased, or merly of 46 Castleknock Avenue, calmer, more energised and more in control. if any firm is holding same, please Millington, John (deceased), late Castleknock, Dublin 15. Would 12 May Essential Solicitor Update 2016 Part I €75 1 General, 2 M & PD Skills & 1 Regulatory Gray, Michael (deceased), late of contact Richard McGuinness & of 2 Swords Manor Court, Swords, any person having knowledge of In partnership with Leitrim, Longford, Roscommon, Sligo and Midlands (Parts I and II €160 - full 2016 Matters - Financial Compliance (by 174 Balrothery Estate, who died Co, Solicitors, 24 Sundrive Road, Co Dublin, and formerly of 16 the whereabouts of any will made Bar Associations Landmark Hotel, Carrick-on-Shannon, Co Leitrim Regulatory Matters and M & PD Group Study) on 5 September 2014. Would any Dublin 12; tel: 01 492 1544, email: Limewood Road, Raheny, Dublin by the above-named deceased - Practice Regulation - Financial Compliance Skills CPD requirement) person holding or having knowl- [email protected] 5, who died on 14 December 2015. please contact Rochford Gibbons, - Assisted Decision Making (Capacity) Act 2015 - Criminal Litigation - Bail, custody, advising clients in Garda edge of the whereabouts of any Would any person having knowl- Solicitors, 16/17 Upper Ormond stations, unconstitutional evidence will executed by the above-named Maguire, Patricia (deceased), edge of the whereabouts of any Quay, Dublin 7; tel: 01 872 1499, 13 May Essential Solicitor Update 2016 Part II €105 2 General, 2 M & PD Skills & 2 Regulatory deceased please contact Regan So- late of Wheatfield, Straffan, Co will of the above-named deceased email: [email protected] Landmark Hotel, Carrick-on-Shannon, Co Leitrim (Parts I and II €160 - full 2016 Matters (including anti-money licitors, 38/39 Fitzwilliam Square, Kildare, who died on 26 Novem- please contact Lorraine Milling- - Workplace Relations Act 2015 Regulatory Matters and M & PD laundering compliance) (by Group Dublin 2; tel 01 687 4100, email: ber 2014. Would any person hav- ton, 14 Limewood Road, Ra- O’Donnell, Mary (deceased), - Conveyancing update Skills CPD requirement) Study) [email protected] ing knowledge of any will executed heny, Dublin 5; tel: 087 247 3898, late of No 5 Johnstown House, - Technology update for the small practice - Legal Services Regulation Act 2015: general overview and impact Hot lunch and networking drinks - Probate Practice: drafting, taxation and will trusts included in price - Regulation Compliance - anti-money laundering - Legal costs: the current and future regimes 19 May In-house and Public Sector Committee Panel Discussion €25 2.5 M & PD Skills (by Group Study) Challenges and opportunities facing the in-house sector ONLINE COURSES: To Register for any of our online courses OR for further information email: [email protected] Social Media Online Suite of Programmes – Buy ONE Course – Receive SIX for FREE – Just €195 Online LinkedIn for Lawyers the “How to” Guide Approx. 5 hours Management & Professional Development Skills (by eLearning) Online Advanced LinkedIn Approx. 5 hours Management & Professional Development Skills (by eLearning) Online Search Engine Optimisation (SEO) Approx. 5 hours Management & Professional Development Skills (by eLearning) Online Twitter for Lawyers the “How to” Guide Approx. 5 hours Management & Professional Development Skills (by eLearning) Online Facebook for Professionals: the “How to” Guide Approx. 5 hours Management & Professional Development Skills (by eLearning) Online How to use an iPad for business and lifestyle Approx. 5 hours Management & Professional Development Skills (by eLearning) Online How to use a Samsung Tablet for business and lifestyle Approx. 5 hours Management & Professional Development Skills (by eLearning)

For full details on all of these events visit webpage www.lawsociety.ie/Lspt or contact a member of the Law Society Professional Training team on p: 01 881 5727 e: [email protected] f: 01 672 4890 *Applicable to Law Society Skillnet members

LSPT Gazette ad March 2016.indd 1 23/02/2016 14:37 66 NOTICES law society gazette www.gazette.ie March 2016 professional notices

Ballygall Road East, Glasnevin, above-named deceased, who died In default of any such notice sentative of Anna Marie Murphy, Dublin 11. Would any person on 17 July 2013, where letters of being received, the said KW Real deceased, who died on 3 Decem- having knowledge of any will administration were granted to Estate plc intends to proceed with ber 2012, and being the person by made by the above-named de- the personal representative on 20 an application before the Dublin virtue of a grant of administration ceased, who died on 24 May November 2015, should be sent county registrar at the end of 21 intestate currently entitled to the 2014, please contact Padraig to the undersigned solicitors for days from the date of this notice lessee’s interest under the said lease Duffy, Tully & Duffy, Solicitors, the personal representatives on or and will apply for such directions and sublease, intends to apply to 49 Laurence Street, Drogheda, before 16 March 2016, after which as may be appropriate on the ba- the county registrar for the county Co Louth; tel: 041 983 3833, date the assets will be distributed sis that the persons beneficially of Donegal for the acquisition of email: [email protected] having regard only to the claims entitled to the superior interest, the freehold interest, together with received. Please contact Berna- including the freehold reversion all intermediate interests in the Shanahan, Michael Francis dette Barry & Co, Solicitors, 1 in the aforesaid premises, are un- aforesaid property, and any party (otherwise Frank) (deceased), Castle Crescent, Monastery Road, known and unascertained. asserting that they hold a superior who died on 4 January 2016, and Clondalkin, Dublin 22; tel: 01 Date: 4 March 2016 interest or an intermediate interest Carmel Shanahan (deceased), 244 4410, fax: 01 244 7267, email: Signed: Arthur Cox (solicitors for in the aforesaid property (or any who died on 1 January 2016, both [email protected] the applicants), Earlsfort Centre, part of same) is called upon to fur- late of Rossoulty, Upperchurch, Earlsfort Terrace, Dublin 2; ref: nish evidence of title to same to the Co Tipperary. Would any person TITLE DEEDS KE299/036 below named within 21 days from having knowledge of the where- In the matter of the Landlord the date of this notice. abouts of any will executed by and Tenant (Ground Rents) Act In the matter of the Landlord In default of any such notice the above-named deceased please 1967-2005 and in the mat- and Tenant Act 1967-2005 and being received, Michael Murphy contact David Doyle, Butler Cun- ter of the Landlord and Tenant in the matter of the Landlord intends to proceed with the appli- ningham & Molony, Solicitors, (Ground Rents) (No 2) Act 1978: and Tenant (Ground Rents) (No cation before the county registrar Slievenamon Road, Thurles, Co notice of intention to acquire 2) Act 1978 as amended and in at the end of 21 days from the date Tipperary; tel: 0504 21857, email: fee simple (section 4) – an ap- the matter of an application by of this notice and will apply to the [email protected] plication by KW Real Estate Michael Murphy, 14 Killucan county registrar for the county of plc Manor Green, Rathware, Mull- Donegal for such direction as may Taylor, Margaret (deceased), Notice to any person having any ingar, Co Westmeath, as the be appropriate on the basis that late of 4C Bride Street, Dublin 8. interest in the freehold interest legal personal representative of the person or persons beneficially Would any person having knowl- of the following property: all that Anna Marie Murphy, deceased entitled to the superior interest, edge of a will made by the above- and those the premises at the rear Take notice that any person hav- including the freehold reversion- named deceased, who died on 17 of the house and premises known ing a freehold interest or any in- ary interest in the property are un- July 2013, please contact Berna- as no 23 St Stephen’s Green in termediate interest in all that the known or unascertained. dette Barry & Co, Solicitors, 1 the city of Dublin, held under a premises situate on Conlan Road Date: 4 March 2016 Castle Crescent, Monastery Road, lease dated 12 May 1934 between in the town of Killybegs, barony Signed: Dermot G McDermott & Co Clondalkin, Dublin 22; tel: 01 (1) Mary Agnes Macaura and (2) of Banagh, parish of Killybegs and (solicitors for the applicant), 1 Union 244 4410, fax: 01 244 7267, email: Thomas Robert McCullough for county of Donegal, and contain- Street, Sligo [email protected] a term of 99 years from 1 Novem- ing 0.006 hectares, held by way ber 1933 (the 1934 lease), subject of indenture of assignment dated In the matter of the of the Land- Tuohy, Mary Bridget (de- to the payment of the yearly rent 8 October 1981 between William lord and Tenant Acts 1967-2005 ceased), late of Kilregane, Lorrha, of £70 thereby reserved and to Hegarty of the one part and Anna and in the matter of the Land- Nenagh, Co Tipperary, who died the covenants and conditions on Marie Murphy of the other part lord and Tenant (Ground Rents) on 23 December 2015. Would the part of the lessee therein con- for all unexpired residue of the (No 2) Act 1978: an application any person having knowledge of a tained. term of years granted by inden- by Paul O’Brien will made by the above-named de- Take notice that KW Real Es- ture of sublease dated 16 January ceased please contact Anne Drury, tate plc, being the person cur- 1926 between Sarah Brady of the 1 The Withey, Whimple, Exeter, rently entitled to the lessee’s in- one part and Mary Catherine Gal- Devon EX5 2QD, United King- terest in the 1934 lease, intends lagher of the other part for the un- Is your client dom; tel: +44 1404 822978, email: to apply to the county registrar expired residue of the term of 99 interested in selling [email protected] of the county of Dublin for the years from 1 May 1908, subject to or buying a acquisition of the freehold inter- the yearly rent of ten shillings, in 7-day liquor licence? MISCELLANEOUS est and all intermediate interest accordance with the indenture of Notice to creditors in the estate in the aforesaid property, and any lease dated 12 October 1908 be- If so, contact Liquor of Margaret Taylor (deceased), party asserting that they hold a tween Robert Tyler Bustard and Licence Transfers late of 4C Bride Street, Dublin superior interest in the aforesaid Robert David Cecil Bustard of the 8: notice is hereby given pursuant property is called upon to furnish one part and Sarah Brady of the Contact to section 49 of the Succession Act evidence of their title to same to other part. 0404 42832 1965 that particulars in writing of the below named within 21 days Take notice that Michael Mur- all claims against the estate of the from the date of this notice. phy, as the legal personal repre- law society gazette www.gazette.ie March 2016 NOTICES 67 professional notices

Take notice that any person having city of Dublin for directions as may Trustees Company Limited in- in the matter of the Landlord interest in the freehold estate of be appropriate on the basis that the tends to submit an application to and Tenant (Ground Rents) (No the following property: 77 Swords person or persons beneficially enti- the county registrar for the county 2) Act 1978 and in the matter Road, Whitehall, Dublin 9, more tled to the superior interest includ- of Galway for acquisition of the of an application by Dolores particularly described in an in- ing the freehold reversion in the freehold interest in the aforesaid O’Donoghue of 107 Tem- denture of lease dated 27 August property aforesaid are unknown or properties and any party asserting pleogue Road, Terenure, Dub- 1935 and made between Michael unascertained. that they hold a superior interest lin 6W, and in the matter of Murphy of the first part, Matthew Date: 4 March 2016 in the aforesaid premise (or any properties known respectively Carroll of the second part, and the Signed: Lawlor Partners (solicitors for of them) is called upon to furnish as 28 Leinster Square, Rath- Right Honourable Lord Mayor, the applicants), 4 Arran Square, Ar- evidence of the title to the afore- mines, Dublin 6, and that plot Aldermen and Burgesses of the ran Quay, Dublin 7 mentioned premises to the below of ground at the rear of the city of Dublin of the third part, named within 21 days from the property known as 28 Leinster for the term of 148 years from 25 In the matter of the Landlord date of this notice. Square, Rathmines, Dublin 6 March 1934, subject to the cov- and Tenant Acts 1967-2005 and In default of any such notice be- Take notice that any person having enants on the lessee’s part and con- in the matter of the Landlord ing received the applicant intends any interest in the freehold estate ditions therein contained. and Tenant (Ground Rents) (No to proceed with the application of the following properties, name- Take notice that Paul O’Brien 2) Act 1978 and in the matter of before the county registrar at the ly, 28 Leinster Square, Rathmines, intends to submit an application to an application by Independent end of 21 days from the date of this Dublin 6, held under indenture of the county registrar for the coun- Trustees Company Limited notice and will apply to the county lease dated 4 September 1928 and ty/city of Dublin for the acquisi- Take notice that any person having registrar for the county of Galway made between Godfrey Robert tion of the freehold interest in the any interest in the freehold estate for directions as may be appropri- Wills Sanford and Howard Run- aforesaid property, and any party of the following property: known ate on the basis that the persons dell Guinness of the first part, Amy asserting that they hold a superior as 10 Bride Street, Loughrea, Co beneficially entitled to the supe- Henrietta Wills Sanford Wills of interest in the aforesaid property is Galway, held under indenture of rior interest including the freehold the second part, and Charles Jo- called upon to furnish evidence of conveyance dated 26 August 1943 reversion in each of the aforesaid seph Priest, Fredrick James Priest, title to the aforementioned prop- by Jane Daly of Moore Street, premises are unknown or unascer- Edward Percy Maybury Butler and erty to the below named within 21 Loughrea in the county of Galway, tained. Herbert Wood of the third part, days of the date of this notice. to Bernard Lally of Bride Street, Date: 4 March 2016 for the term of 153 years from 25 In default of any such notice be- Loughrea in the county of Gal- Signed: Sheehan & Co Solicitors (so- March 1928, subject to the yearly ing received, the said Paul O’Brien way, whereas Michael Keogh, late licitor for the applicants), Augustine rent of £38 sterling, and that plot intends to proceed with the appli- of Bride Street, Loughrea, was in Court, St Augustine Street, Co Gal- of ground at the rear of the prop- cation before the county registrar his lifetime a tenant from year to way erty known as 28 Leinster Square, at the end of 21 days from the date year to the Earl of Harewood at Rathmines, Dublin 6, held under of this notice and will apply to the the yearly rent of £2. In the matter of the Landlord indenture of lease dated 9 March county registrar for the county/ Take notice that Independent and Tenant Acts 1967-2005 and 1827 and made between Daniel

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Erck and Jane Martha Erck of the and Tenant (Ground Rents) (No to proceed with the application 97 feet, together with out-houses one part and Samuel Oldham of 2) Act 1978 before the county registrar at the and offices, held under lease dated the other part for a term of 200 Take notice that any person hav- end of 21 days from the date of this 21 October 1831 between Wil- years from 25 March 1827 and ing any superior interest (whether notice and will apply to the county liam Connelly of the one part and subject to the yearly rent of £100. by way of freehold estate or oth- registrar for the city of Dublin for Patrick Lowe of the other part for Take notice that the applicant, erwise) in the following property: directions as may be appropriate a term of 199 years from 1 May Dolores O’Donoghue, intends all that and those the dwelling- on the basis that the persons ben- 1831 at a rent of £63 sterling. to submit an application to the house situate in Henry Street, then eficially entitled to the superior in- Take notice that Arnott and county registrar for the county of known as no 6 Henry Street but terest including the freehold rever- Company Dublin Limited (now Dublin for acquisition of the free- now known as no 7 Henry Street, sion in each of the aforesaid prem- Arnotts Limited) and Fitzwilliam hold interest in the aforesaid prop- aforesaid containing in breadth in ises are unknown or unascertained. Real Estate Developments Limited, erties, and any party asserting that the front to Henry Street aforesaid Date: 4 March 2016 as tenant under the lease, intend to they hold a superior interest in the 18 feet, 4 inches or thereabouts, in Signed: Eversheds (solicitors for the submit an application to the county aforesaid premises (or any of them) breadth to the rear, 32 feet, 4 inch- applicant), 1 Earlsfort Centre, Earls- registrar for the city of Dublin for is called upon to furnish evidence es, and in depth from front to rear, fort Terrace, Dublin 2 acquisition of the freehold inter- of the title to the aforementioned 100 feet or thereabouts, held under est in the aforesaid property, and premises to the below named with- lease dated 5 April 1819 between In the matter of the Landlord any party asserting that they hold in 21 days from the date of this William Connelly of the one part and Tenant Acts 1967-2005 and a superior interest in the aforesaid notice. and Samuel Thompson of the oth- in the matter of the Landlord premises (or any of them) is called In default of any such notice be- er part for a term of 999 years from and Tenant (Ground Rents) (No upon to furnish evidence of the title ing received, the applicant intends 25 January 1819 at a yearly rent of 2) Act 1978 to the aforementioned premises to to proceed with the application £76 sterling. Take notice that any person hav- the below named within 21 days before the county registrar at the Take notice that Arnott and ing any superior interest (whether from the date of this notice. end of 21 days from the date of this Company Dublin Limited (now by way of freehold estate or oth- In default of any such notice notice and will apply to the county Arnotts Limited) and Fitzwilliam erwise) in the following prop- being received, the applicants in- registrar for Co Dublin for direc- Real Estate Developments Lim- erty: all that and those the house tend to proceed with the applica- tions as may be appropriate on the ited, as tenant under the said lease, situate on the south side of Henry tion before the county registrar at basis that the persons beneficially intend to submit an application to Street, in the parish of Saint the end of 21 days from the date entitled to the superior interest the county registrar for the city Mary’s in the city of Dublin, now of this notice and will apply to including the freehold reversion in of Dublin for acquisition of the in the possession of the said Pat- the county registrar for the city each of the aforesaid premises are freehold interest in the aforesaid rick Lowe, known as the house of Dublin for directions as may unknown or unascertained. property, and any party asserting no 6-and-a-half in the said Henry be appropriate on the basis that Date: 4 March 2016 that they hold a superior interest Street, bounded on the north by the persons beneficially entitled to Signed: Paul Ferris & Co (solicitors in the aforesaid premises (or any Henry Street, on the east by Mr the superior interest including the for the applicant), Suite 227, The of them) is called upon to furnish Thomas’s holdings, on the West freehold reversion in each of the Capel Building, St Mary’s Abbey, evidence of their title to the afore- by Mr Thompson’s holding, and aforesaid premises are unknown Dublin 7 mentioned premises to the below on the south by Mr Ennis’s con- or unascertained. named within 21 days from the cerns adjoining the rear of said Date: 4 March 2016 In the matter of the Landlord date of this notice. street, containing in front to Signed: Eversheds (solicitors for the ap- and Tenant Acts 1967-2005 and In default of any such notice be- Henry Street aforesaid 19 feet, plicant), 1 Earlsfort Centre, Earlsfort in the matter of the Landlord ing received, the applicants intend 6 inches and, from front to rear, Terrace, Dublin 2 We love to swear...... and stamp, and scan. 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PRINT Tel: 01 8044509. Email: [email protected]. 3 Inns Quay, Chancery Place, Dublin 7. ORCA Opening hours: 9-5 Monday to Friday, or by special arrangement. law society gazette www.gazette.ie March 2016 NOTICES 69 professional notices

In the matter of the Landlord the concerns of the said George Date: 4 March 2016 Company, having its branch and Tenant Acts 1967-2005 and O’Neill and partly by the com- Signed: Eversheds (solicitors for the office in Ireland and address in the matter of the Landlord mon lock-up yard 19 feet, 6 inch- applicant), 1 Earlsfort Centre, Earls- for service of notices at 1-5 and Tenant (Ground Rents) (No es in depth and 18 feet, 8 inches fort Terrace, Dublin 2 Carysfort Avenue, Blackrock, 2) Act 1978 in width, within said common Co Dublin Take notice that any person hav- gateway, the property of said In the matter of the Landlord Any person having any interest in ing any superior interest (whether Gerald Aylmer, on the south by and Tenant Acts 1967-2005 and the fee simple estate or any inter- by way of freehold estate or oth- Proby’s Lane, on the east by the in the matter of the Landlord mediate interest in the premises erwise) in the following property: holdings in possession of Messrs and Tenant (Ground Rents) (No known as no 50 Lower Camden all that and those the back house Talty Murphy and Company, and 2) Act, 1978 and in the matter Street, in the parish of St Peter or warehouse out-offices and on the west partly by said com- of Michael Carty and 40 Lower and city of Dublin, originally held stable at the rear of the dwelling- mon gateway or passage and door Leeson Street, Dublin 2 under a lease dated 26 September house, offices and premises situ- thereat common to all said prem- Notice to any person having any 1808 from Joseph Mason to Ol- ate in Henry Street in the city of ises, partly by George O’Neill’s interest in the freehold estate of ivia Hutton for a term of 11 years Dublin, late in the possession and concerns, and partly by holdings the property known as 40 Lower from 25 December 1807, subject occupation of Patrick Lowe, now now or lately in possession of Mr Leeson Street, Dublin 2. to the yearly rent of £45.10.0 in the occupation of Benjamin Byrne, which said premises here- Take notice that Michael Carty (€57.77), with a covenant for re- Pemberton and Sons, shoemak- by demised are situate, lying, and intends to submit an application newal every seven years for 300 ers, and adjoining to the rear of being in the parish of St Mary to the county registrar for the years from 25 March 1805 that the said dwellinghouse and offices and county of the city of Dublin, county and city of Dublin for was never implemented and, situate also at Henry Street in the held under lease dated 7 Novem- the acquisition of the freehold since the expiry of the said lease said city of Dublin, late in the ber 1877 between Gerald Aylmer interest in the aforesaid proper- to date, held under a yearly ten- tenancy and occupation of Sam- of the one part and Arnott & ties, and any party asserting that ancy at the said yearly rent. uel Thompson, now in the ten- Company (Limited) of the other they hold a superior interest in Take notice that JD Wether- ancy and occupation of George part for a term of 152 years from the aforesaid premises (or any of spoon, Public Limited Company, O’Neill, containing in depth to 29 September 1877 at a rent of them) are called upon to furnish being the body now holding the Proby’s Lane, 45 feet, 6 inches, £25 sterling. evidence of the title to the afore- said yearly tenancy in the said and in width to the common gate- Take notice that Arnott & mentioned premises to the below premises, intends to apply to way or passage and door thereat, Company (Limited) (now Ar- named within 21 days from the the county registrar for the city communicating as well to the out- notts Limited) and Fitzwilliam date of this notice. of Dublin for the acquisition of offices of said George O’Neill and Real Estate Developments Lim- In default of any such notice the fee simple estate and all in- the said Benjamin Pemberton and ited, as tenant under the said being received, the applicant in- termediate interests in the said Sons as to the said back house of lease, intend to submit an ap- tends to proceed with the applica- premises, and any party claiming warehouse, out-offices and sta- plication to the county registrar tion before the county registrar at that they hold the fee simple or bles, late in the tenancy of John for the city of Dublin for acqui- the end of 21 days from the date any intermediate interest in the Ennis, now in the occupation of sition of the freehold interest in of this notice and will apply to the aforesaid premises is called upon the said Arnott & Company (Lim- the aforesaid property, and any county registrar for the county to furnish evidence of their title ited), partly 25 feet, 6 inches and party asserting that they hold a and city of Dublin for directions thereto to the undermentioned partly 10 feet, together with the superior interest in the afore- as may be appropriate on the basis solicitors within 21 days from the warehouse or loft over that part said premises (or any of them) is that the persons beneficially en- date of this notice. of the out-offices of said George called upon to furnish evidence titled to the superior interest in- In default of any such notice O’Neill used as a stable, contain- of the title to the aforementioned cluding the freehold reversion in being received, the said JD Weth- ing in depth to Proby’s Lane 22 premises to the below named each of the aforesaid premises are erspoon, Public Limited Com- feet and in width to said common within 21 days from the date of unknown or unascertained. pany, intends to proceed with the gateway or passage 23 feet, said this notice. Date: 4 March 2016 application before the said coun- passage communicating to the In default of any such notice Signed: Anthony Hanahoe (solici- try registrar at the end of 21 days several premises aforesaid, said being received, the applicants tors for the applicant), ME Hanahoe, from the date of this notice and premises hereby demised namely intend to proceed with the ap- Solicitors, 21 Parliament Street, will apply to the said registrar for the back house or warehouse out- plication before the county reg- Dublin 2 such directions as may be appro- offices and stable together with istrar at the end of 21 days from priate on the basis that the person the warehouse or loft, being the the date of this notice and will In the matter of the Landlord or persons beneficially entitled to warehouse and concerns formerly apply to the county registrar for and Tenant Acts 1967-2005 and all superior interests up to and in- in the tenancy or occupation of the city of Dublin for directions in the matter of the Landlord cluding the fee simple in the said Edward Allen, the father-in-law of as may be appropriate on the ba- and Tenant (Ground Rents) (No premises are unknown and unas- John Ennis, but now in the tenan- sis that the persons beneficially 2) Act 1978 and in the mat- certained. cy and possession of the said Ar- entitled to the superior interest ter of no 50 Lower Camden Date: 4 March 2016 nott and Company (Limited), said including the freehold reversion Street, Dublin 2, and in the Signed: William Fry (solicitors premises hereby demised being in each of the aforesaid premises matter of an application by JD for the applicant), 2 Grand Canal bounded on the north partly by are unknown or unascertained. Wetherspoon. Public Limited Square, Dublin 2 70 FINAL VERDICT law society gazette www.gazette.ie March 2016 credidi me felem vidisse Close shave Djovid Akramov, from Tajikistan, says he was stopped by police outside his house and taken to the police station in Dushanbe, where he was forcibly shaved, the BBC reports. “They called me a Salafist, a radical, a public enemy. And then two of them held my arms while another one shaved half of my beard.” He is just one of hundreds of thousands of men in Tajikistan arrested in recent years for wearing a beard. Shaving beards is part of a government campaign against trends that are deemed “alien and inconsistent with Tajik culture”. Calfskin cutbacks to save £80k a year Police in the Khatlon region The centuries-old practice £80,000 a year would be saved and, because of this, have lasted have admitted to shaving off of printing laws on vellum in by printing the laws on high- through the ages so that future the beards of nearly 13,000 Britain is set to end from April, quality archival paper instead. generations can appreciate and men. The action is part of the according to The Guardian. Vellum lasts for thousands of understand our shared history. government’s ‘anti-radicalisation Labour MP Sharon Hodgson years compared with the 500- “That is why it was campaign’ against the adoption raised a point of order in the year lifespan of high-quality disappointing that such an of Islamic cultural practices in House of Commons after paper. important decision, with Tajik society. It appears to be a a supplier of vellum was Hodgson said: “All of our ramifications on the future of lost battle, however, with official given 30 days’ notice by the most important historical the craft and the conservation of data stating that 99% of the parliamentary authorities that it documents, from Magna Carta our history, was pushed through Tajik population are Muslim. would no longer be needed. to the Lindisfarne Gospels, have without any prior consent of the Under the plans, an expected been made by using vellum House of Commons.” Paranoid visions for ‘dumbass’ high-rolling smugglers Two men who were driving high of your cops driving around us out and just end it.” in Idaho phoned 911 to turn in a bunch of civilian cars not Officers found 20 pounds themselves in and call off a police wanting to pick us up. I don’t of marijuana inside a dog cage pursuit, The Independent reports. know what’s the deal. I was just placed outside the car, along with Except there was no police wondering if you could help $567 in cash inside the car. pursuit. The two men were travelling from Las Vegas to Montana on Drone slayer sued by hobbyist 23 January 2015, having carried A hobbyist whose drone was shot owner or anyone else on his property. 20 pounds of marijuana over down by a Kentucky property owner The self-described ‘drone slayer’ several state borders. Audio was is asking a court for $1,500 in and defendant William Merideth released of a call to police by damages and a decision on who said: “In my mind, it wouldn’t have Leland Ayala-Doliente (22) and had rights to the airspace. The issue been any different had he been Holland Sward (23) who had is whether John Boggs’ drone was standing in my backyard with a video pulled into a petrol station to call you guys to end it. If you could trespassing or flying in airspace camera.” off the ‘undercover police’ they help me out with that, we would within the jurisdiction of the federal The height of Boggs’ drone is one believed were chasing them like to just get on with it.” government, the Washington Post issue in the case. Witnesses said Ayala-Dolitente: “Hi, uh, we’re 911 operator: “You got caught reports. the drone was flying below the trees, the two dumbasses that got caught doing what?” The suit filed in a federal court leading a judge to dismiss criminal trying to bring some stuff through Ayala-Dolitente: “Okay, um, we in Louisville says that Boggs’ drone charges against Merideth in October. your border. All your cops are just kind of got spooked here trying was recording video of the horizon, Boggs says images captured from his driving around us like a bunch of to bring some stuff across your woods and rooftops, and was not drone show it was flying about jack-wagons and I’d just like for Idaho border … and a bunch recording images of the property 200 feet above the ground. FundraisingTHE CATHOLIC PRIMARY Manager SCHOOLS The Asthma Society of Ireland’s mission is to optimise asthma control through support, education, effecting change and research. Their visionMANAGEMENT is for Ireland to take a leading ASSOCIATION role in Europe by developing an integrated

publicThe CPSMAhealth approachwas established to asthma in order management, to ensure the deliveringadvancement evidence and support based of care; education enabling in Catholic patients Primary to enjoy Schools in the optimalRepublic asthma of Ireland. control The and CPSMA quality provides of life. advice, guidance and information support to Ordinary Members and Patrons, with the Theobjective Asthma of Society assisting of them Ireland in the is fulfiseeking lment anof theirexperienced responsibilities high performing to Catholic Primaryfundraiser Schools. to lead the organisation’sThe CPSMA offers renewed advice fundraising and support strategy. for Chairpersons and Principals of Boards of Management in circa 2,900 schools. The CPSMA also collaborates with other management bodies and negotiates on behalf of schools with education partners, including Thethe Fundraising Department Managerof Education will and work Skills. to increaseRepresenting individual those servinggiving, onfocusing Boards onof Managementinnovation in of developing Catholic Primary the Schools at donora national base level,of the the society CPSMA and provides cultivating additional strong services and positive such as: donor advice relations. on queries They regarding will work general to engage and employment issues, Board training in collaboration with other education partners, the Board of Management Handbook and CPSMA newsletter. corporate support and support from trusts and foundations. They will engage with the community at large and run events to increase broad public support of the society. General requirements: GENERAL SECRETARY • To High performance in working as part of a fundraising team assist the organisation to deliver on its mission, the CPSMA is seeking a suitable candidate for the position of General • Secretary. Strong communication and direct marketing skills • Reporting Proven track record initiating and delivering fundraising projects and utilising databases to the Board of Directors, the General Secretary is responsible for the successful leadership and management of the • CPSMA, Experience in drafting fundraising proposals, grant writing and in accessing funding according to the strategic direction set by the Board of Directors. The focus of the role is the responsibility for strategic • leadership Ability to work on their own initiative combined with excellent team skills of the CPSMA, proper management of staff, resources and services, implementation of good governance and effective fi nancial management. The General Secretary is also responsible for handling all media enquiries. • Ability to travel for work and work occasional evenings and weekends We are seeking an experienced leader with strong management and infl uential skills, strategic level HR expertise, and Thisorganisational role presents development an opportunity and change for a dedicatedmanagement and experience. successful The fundraiser suitable candidate to exhibit must their have skill a at deep understanding managementof Catholic Education level in a and strategically a personal revisedcommitment function. to the Somebody Catholic faith. with management aspirations and proven capabilityIf you are and a leader strong looking ambition to make in fundraising a meaningful will contribution thrive in tothis Irish role. education, contact Dennis O’Connor in strictest confi dence at [email protected] or call +353-1-640-1825. the not-for-profit For further information, or to apply for this exciting opportunity, please contact Neil Pope on 01 640 1891 specialists or Closingby email date to [email protected] applications is 18th March.. Closing date for applications: Tuesday 12th February. For more information on the work of the CPSMA, please see www.cpsma.ie

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Contact Seán Ó hÓisín Tel: 01 8375018 Mobile: 086 8117116

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Our priority is understanding the best fit for your career. We have provided Ireland’s top legal talent with a bespoke and results driven service for more than 20 years.

For an exploratory conversation about career opportunities, please submit your CV to [email protected] or contact me by phone on +353 1 632 1852. All discussions and applications are strictly confidential.

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SENIOR ENVIRONMENT & PLANNING LAWYER

Our client, one of Ireland’s premier A newly created position, as the Senior Environment & Planning Lawyer you will collaborate with partners across the construction, energy and commercial corporate law firms, seeks to recruit real estate teams and will be responsible for shaping the growth of the a talented leader to its environment environment and planning law group. The practice currently acts on contentious as well as non-contentious matters for major public and private and planning law group in Dublin. sector organisations across the energy , construction, utility, infrastructure, real With offices in Ireland, the UK and estate development, pharmaceutical, private equity and financial services industries in Ireland. the US, this progressive top tier firm has crafted a brand synonymous Suitable candidates will be technically expert in environment and planning law and will ideally be operating at senior level in Dublin, Cork or in the UK. In with business oriented legal advice. addition, the successful candidate will be ambitious, commercially minded and will have excellent interpers onal and leadership qualities. The appointee will have a clear track to partnership within an agreed timeframe.

For an exploratory conversation, please submit your CV to our advising consultant at HRM, via [email protected] or contact by phone on + 353 1 632 1852. All discussions and applications are strictly confidential.

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A SELECTION OF POSITIONS FOR NOVEMBER 2008 We have significant new opportunities for practitionersTalk across to the many Irish practice Legal Recruitmentareas from Recently Specialists Qualified to PartnerPRIVATE level. PRACTICE The followingA SELECTION are examples OFof the POSITIONS roles our clients FOR are NOVEMBER seeking to fill. 2008 Please make sure to visit € ourAsset website Finance - Associatefor other to Seniorpositions. Associate to €100k J00351 Pensions – Senior Associate to Partner level Neg J00183 PRIVATEA first rate solicitor PRACTICE is being sought for the large and successful Asset Finance Our client, one of Ireland’s leading law firms, is seeking an experienced Group of this Big 5 firm. The Group has unrivalled expertise in asset finance, Pensions Solicitor to join an expanding team. 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You will haveYou will solid be litigationadvising experience,on significant ideally energy with projects exposure in the to demergers, acquisitions, joint ventures, MBOs, floatations, securities€ issues € IrishtaxSenior marketplanning, Tax and Practitioner compliance in legal regulatory and advisory issues relevant services to thefor energyIrish and sector. Neginternational J00291 insurance,EnergyIrish market –Associate construction and in legal to Seniorand regulatoryADR. Associate You issueswill also relevant have good to the communication energyNeg sector. 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You will A leading Dublin law firm is seeking to recruit a lawyer to join a first rate demergers,Department acquisitions,at this highly joint successful ventures, Dublin-based MBOs, floatations, law firm. securities You will adviseissues supervision.Energydevelopment Department. andCompetitive production, You will remuneration, bethrough advising to refining on commensurate significant and sales. energy Previouswith projects experience. exposure in the also be responsible for recruitment and management of a team to develop ConstructionIrish market andgroup. in legal You andwill haveregulatory an excellent issues relevantacademic to recordthe energy having sector. You Projectsandclients equity on– Associate a offerings, broad rangeto Seniorrevenue of issues, Associate litigation including and settlementstamp duty negotiations planning, corporate and tax to projects work will be an advantage. First rate salary and benefits€ package. the taxation function. 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You will have excellent communication and interpersonal skills as well advertisingexpanding department.agencies and You website will dealowners. with Thean interestingsuccessful candidatemix of work, will haveboth asThis a proventop flight track Dublin record law offirm business seeks andevelopment. experienced Highly Trust andcompetitive Estate Planning salary previouscontentious exposure and non-contentious to IP and general including commercial copyright, worktrademarks, from a passingrecognised off, andsolicitor. benefits You will package. deal mainly with high net worth individuals, providing advice on practicepatent disputes together and with domainsound academics. name disputes. Clients include manufacturers, tax planning, trusts administration as well as standard wills and probate retailers,For more designers, information publishers on theseof books, and othermagazines vacancies, and newspapers, please visitmatters. You will have excellent communication and interpersonal skills as well advertisingour website agencies or contact and website Michael owners. Benson The successful bcl solr. candidate in strict will have as a proven track record of business development. Highly competitive salary previousconfidence exposure at: Bensonto IP and &general Associates, commercial Suite work 113, from a recognised and benefits package. practiceFor more together information with sound academics.on these and other vacancies, please visit ourThe websiteCapel Building, or contact St. Michael Mary’s Abbey,Benson Dublin bcl solr. 7. in strict confidenceT +353 (0) at: 1 670Benson 3997 & Associates, E [email protected] Suite 113, Legal Recruitment Specialists ForThewww.benasso.com moreCapel information Building, St. on Mary’s these andAbbey, other Dublin vacancies, 7. please visit ourT +353 website (0) or1 670contact 3997 Michael E [email protected] Benson bcl solr. in strict Legal Recruitment Specialists confidence at: Benson & Associates, Suite 113, The2503 Capel Publication: Building, Law St. SocietyMary’s GazetteAbbey, DublinInside Back 7. Page Insertion date: November 08 Size: Full Page Colour Draft 6 T +353 (0) 1 670 3997 E [email protected] Legal Recruitment Specialists 2503 Publication: Law Society Gazette Inside Back Page Insertion date: November 08 Size: Full Page Colour Draft 6

2503 Publication: Law Society Gazette Inside Back Page Insertion date: November 08 Size: Full Page Colour Draft 6