LAW SOCIETY

GazetteGazette€3.75 Jan/Feb 2010

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INSIDE: RISK MANAGEMENT FOR YOUR PRACTICE • PROTECTING ESTATE ASSETS • DE FACTO FAMILIES

president’s message Law Society Gazette jan/feb 2010 Seeking stability his is my first message for the Gazette and, as I write this, the matters that concerned my predecessor, John Shaw, still remain. The recession hopefully shows some signs of bottoming out. Having said that, it is important that we don’t simply wait for a changeT in fortunes, generally, and that we take steps to play our own part in a return to economic stability within the profession. Two major policy issues are currently being considered by the Society’s Council, both of which have arisen from our difficulties with the recent professional indemnity insurance (PII) process. The first of these relates to commercial undertakings. During the course of 2009, some of the principal providers of insurance to the profession insisted that they would not provide cover for commercial undertakings as part of inform the Council’s consideration of the matter. the minimum terms and conditions and would consider exiting the The second matter relates to the broader issue of the future of insurance market unless commercial undertakings were excluded and PII for the profession. Notwithstanding the Society’s intensive unless the Assigned Risks Pool was suspended. As a consequence, and consultation process with the insurers and its moves to facilitate in order to ensure a viable market, the Council agreed to change the fundamental changes to the PII scheme, the insurance renewal minimum terms and conditions. Subsequently (and process for 2009/10 was prolonged, complex and deeply without any consultation or warning), the insurers stressful for many individual solicitors and for the decided to offer insurance cover for commercial “There is no profession as a whole. At the time of writing, it appears undertakings to the profession. Not surprisingly, that the fear that a large number of solicitors might many colleagues availed of this offer. However, it guarantee that be unable to secure insurance has not come to pass. is the view of the Council that this situation is not insurance cover Indeed, the number of firms that have failed to notify satisfactory. the Society of details of their insurers at this stage is on There is no guarantee that insurance cover for for commercial a par with the same time last year. Accurate figures will commercial undertakings will be offered by the undertakings not be available until the practising certificate renewal insurers again next year, or in succeeding years. As deadline of 1 February has expired, but there is a certain you will be aware, insurance must be in place at will be offered optimism that the numbers are not significant. the time that a claim is made, and insurance cover by the insurers However, the Society is determined that the delays, paid for in a year when the actual legal work is done uncertainty and stress that were features of the most will not cover a claim made in a subsequent year in again next recent renewal process will not be repeated in the respect of that work. year, or in future. Over the coming weeks, all aspects of the recent The difficulties are compounded by the fact that renewal process will be subjected to examination by there is no agreed system or documentation for succeeding the PII Task Force, under the chairmanship of Eamon commercial undertakings. The Society has already years.” Harrington, and a survey will be conducted to ascertain issued a warning to colleagues of the dangers the real experiences of colleagues. All available options of completing such undertakings. It is the view will be considered, with the benefit of expert legal of the Society that the need for stability and best practice in our and insurance advice; existing processes will be scrutinised; and the commercial banking sector cannot be served properly by reliance Society will engage with the insurers to identify systems, timelines on an ad hoc system of commercial undertakings designed and and documentation that will remove unnecessary stress and minimise underpinned by a juxtaposition of banking and insurance interests. cost. The task force welcomes your views at [email protected]. All of these issues are being considered on behalf of the Council It remains for me to inform you that the theme of this year’s by a task force being chaired by the immediate past-president, annual conference in Kilkenny on 9/10 April will focus on new and John D Shaw. The task force has had meetings with the Irish emerging business opportunities and ‘Building the solicitor’s practice Banking Federation and with some of the financial institutions of tomorrow’. I would urge colleagues to book for the conference and the process is ongoing. In due course, the task force will bring online at www.lawsociety.ie. considered proposals to the Council for discussion. This is a complex issue, and I would urge colleagues to share their views with the task Gerard Doherty force, at [email protected], in order to President

www.lawsocietygazette.ie 1 Law Society Gazette jan/feb 2010 contents

On the cover LAW SOCIETY The Defamation Act 2009 was a long time coming, with many of its provisions being recommended in 1991 by the Law Reform Commission. So Gazette what’s the story? And – more importantly – can we print it? Jan/Feb 2010 pic: cian redmond

Volume 104, number 1 Subscriptions: €57 Regulars 4 News Analysis 12 12 News feature: enforcing socio-economic rights 14 Human rights watch: lesbian sperm-donor case 14 One to watch: Circuit Court Rules (Case Progression (General)) 2009

Comment 17 17 Letters 18 Viewpoint: out-of-court cautions 12 38 People and places

43 Obituary 45 Student spotlight Book reviews 46 Taxlaw, Regulatory Law in Ireland and Judicial Review of Administrative Action

Briefing 49 49 Council reports – 6 November and 4 December 2009 51 Practice notes 40 53 Legislation update: 23 November 2009 – 15 January 2010 57 Solicitors Disciplinary Tribunal 60 Eurlegal: public procurement 64 Professional notices

Editor: Mark McDermott. Deputy editor: Dr Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 65. Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 01 837 5018, fax: 01 884 4626, mobile: 086 811 7116, email: [email protected]. Printing: Turner’s Printing Company Ltd, Longford. Editorial board: Michael Kealey (chairman), Mark McDermott (secretary), Paul Egan, Richard Hammond, Simon Hannigan, Mary Keane, Aisling Kelly, Patrick J McGonagle, 42 Aaron McKenna, Ken Murphy.

2 www.lawsocietygazette.ie contents Law Society Gazette jan/feb 2010

Get more at lawsociety.ie PROFESSIONAL notices: send small advert details, with payment, to: Gazette Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Gazette readers can access back issues of the All cheques should be made payable to: Law Society of Ireland. magazine as far back as Jan/Feb 1997, right up COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, to the current issue at lawsociety.ie. tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] You can also check out: • current news HAVE YOU MOVED? Members of the profession should send change-of-address • forthcoming events, including information details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] on the Law Society Annual Conference in HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. Kilkenny in April Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] • employment opportunities • the latest CPD courses FSC independently-certified wood and paper products used by the Law Society Gazette come from ecologically-managed forests. Visit: www.fsc.org

… as well as lots of other useful information PEFC certifies that wood and paper products used by the Law Society Gazette are sourced by suppliers from sustainable, managed forests. Visit: www.pefc.org features COVER STORY: 20 Defame and fortune The 2009 Defamation Act is not without its faults, but it introduces sensible and long overdue reform and will benefit plaintiffs and defendants alike. It is a major step forward, says Michael Kealey

Quality street 24 What are the benefits of having a risk management strategy? Will implementing quality control systems affect your professional indemnity insurance and help your bottom line? Noelle McDonald has the answers

Night of the living debt 28 Solicitors have a duty to protect estate assets – and to defend an estate from any apparently unfounded actions. Cian O’Sullivan looks at the intricacies of the administration of estates and statute-barred claims 24 Merger most foul 31 The recession has seen a fall in the volume of merger and acquisitions activity, but the rules still apply and merging parties must consider whether a notification to the Competition Authority is necessary, writes Cormac Little

On borrowed time 34 The Enforcement of Court Orders (Amendment) Act 2009 amended the previous regime to allow for a constitutionally acceptable method of enforcement of committal orders. Bill Holohan looks at the act from the debtors’ perspective

The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter. Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Email: [email protected] Website: www.lawsocietygazette.ie 28

www.lawsocietygazette.ie 3 Law Society Gazette jan/feb 2010 news nationwide

Send your news to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected]

wexford shared some of his many legal Bar association president Helen anecdotes in his after-dinner Doyle and secretary John duties. Garahy, accompanied by his wife, county registrar Marie donegal Garahy, attended the opening Alison Parke, bar association by President Mary McAleese CPD coordinator, has certainly of the Criminal Courts of hit the new year with a bang. Justice on Saturday 16 January First up was a seminar on at a large function attended managing risk and regulation in by the judiciary, practitioners the practice, held in Letterkenny. and Courts Service staff and Next was an offering on 4 representatives. The building February at Gallagher’s Hotel, is a sophisticated complex, Letterkenny, at which Michael completed at a cost equivalent Irvine offered his insight and to that for the construction The Longford Bar Association in conjunction with the Roscommon Bar expertise on mediation. of the Four Courts complex Association recently hosted a seminar on ‘Recognising and managing just over 200 years ago, and stress’. Mary Jackson from LawCare gave a presentation on the support longford and services that are available to practitioners suffering with health problems it provides superbly designed roscommon and emotional difficulties. Among those attending the seminar were facilities for all its users. (back, l to r): Owen Carty, Deirdre Gearty, Alan Mitchell, Bríd Mimnagh, The Longford Bar Association, Plans for the new Wexford Gerry Gannon, Brian O’Connor, Paul Wynne, Rebecca Finnerty and in conjunction with the Courthouse have been drawn Siobhan Byrne. (Front, l to r): Mary Rose McNally, Terry O’Keeffe, Mary Roscommon Bar Association, Jackson, Jonathan Wynne and Bríd Miller and were presented to the recently hosted a seminar on association in early December. recognising and managing The Courts Service indicates chair of the Law Society’s lunch and see how they are stress. Mary Jackson from that it is the next complex in Technology Committee, showed coping. Sometimes, then, more LawCare gave a fascinating line for development. As the colleagues how to get the most structured gatherings have been presentation on the support present accommodation (in out of their existing IT, and taking place among like-minded services that are available to Ardcavan and Wexford Town) Dan O’Connor, who chairs the colleagues. This has been one practitioners who are suffering is not merely inconvenient eConveyancing Task Force, positive outcome of the PII with health problems and but is unsuited to today’s as well as speakers from the difficulties, where a great pooling emotional difficulties. The Law requirements for the safe and Land Registry, gave practical of information and experiences Society’s Louise Campbell also efficient conduct of civil, family insights as to how our technical has been taking place, and the addressed the meeting and gave or criminal work, practitioners infrastructure can help us. bar association has been to the an update on the various services and other court users anxiously This seminar was followed fore in encouraging this type of that the society provides. await progress. up last week with the topic dialogue. of the moment – the Land and One gathering of a more limerick kildare Conveyancing Law Reform Act formal nature that took place The LBA is gearing up for Bar association president Frank and compulsory registration, – and now very much a hardy the year ahead, kicking off O’Brien, together with the able sponsored by DX. annual – was the Southside the annual CPD events with a assistance of secretary David Solicitors’ Annual Dinner (alias lecture on defamation followed Osborne and CPD officer dublin ‘Justin’s Dinner’), where many by one in February on costs. Andrew Cody, have been very One noticeable upside to the colleagues from the old borough In the meantime, we wish busy on the seminar front. difficulties being experienced hinterland gathered. Special Alex O’Neill and Jim O’Donnell They combined the serious by the profession both in guests were the president of the very best following their with the social last month with Dublin and outside has been the the Law Society and northside practice merger, where they the holding of a pre-Christmas pulling together of colleagues practitioner Gerard Doherty, will practise from 22 seminar on office technology. all around – perhaps no more together with local resident Barrington Street. G This was then followed by a than colleagues on a particular and DG Ken Murphy, DSBA festive dinner in the Kilashee street in the city making the president John P O’Malley, ‘Nationwide’ is compiled by Kevin House in Naas, which was also effort to round a few colleagues and local colleague and court O’Higgins, principal of the Dublin the seminar venue. Neil Butler, up and meet for a coffee or doyen Ronnie Lynam, who law firm Kevin O’Higgins.

4 www.lawsocietygazette.ie news Law Society Gazette jan/feb 2010 Irish firms top honours list in Europe rish law firms walked away government, Ó Ríordáin has Iwith some of the top honours been appointed to various key at The Lawyer magazine’s positions that have helped shape first European awards, held the Irish economy through its on 4 November 2009 in recession. These include being Barcelona. Managing partners instructed to advise the state from many of Europe’s top on its response to the banking firms congregated to hear if crisis, which saw the creation their firms would receive the of the first-ever bank guarantee plaudits. scheme, the nationalisation and A&L Goodbody was recapitalisation of Anglo Irish shortlisted for the ‘European Bank, and the establishment of Law Firm of the Year’ award, the National Asset Management which was won by Spanish law Agency. firm Garrigues. The Irish firm ‘It is unlikely that any had earlier taken the accolade lawyer has influenced a for ‘Law Firm of the Year: Arthur Cox’s managing partner Pádraig Ó Ríordáin made it a double when country’s economy during the Republic of Ireland’. he was named ‘European Managing Partner’ at the British Legal Awards economic crisis more than Ó Arthur Cox was ‘highly 2009 on 3 December. (From l to r): Jerome Raguin (DataCert), Rajitha Ríordáin,’ read the citation. ‘An Boer (DataCert), Pádraig Ó Ríordáin and Alexander Armstrong (British commended’ in this category, Legal Awards) unbelievable year.’ while Matheson Ormsby Ó Ríordáin consolidated his Prentice and William Fry were Pádraig Ó Ríordáin, took it had been a superb year for win when he was also named both shortlisted. the laurels in the ‘European Pádraig, both on a personal European Managing Partner at Arthur Cox had reason to Managing Partner of the Year’ level and for Arthur Cox. the British Legal Awards 2009, cheer very loudly, however, category. After winning the respect hosted by Legal Week magazine when its managing partner, The judges commented that of key figures in the Irish in London on 3 December. 8% of remand prisoners suffer major mental illness lmost 8% of remand ill individuals away from the – a law largely ill-prepared ECtHR – those of Orchowski Aprisoners in Ireland present courts and the prison system for dealing with the modern v Poland and Norbert Sikorski with major mental illness into mental-health care through approach to mental-health v Poland, in which the court (including schizophrenia) – assessment of remand prisoners. issues. found that overcrowding in almost ten times that of the While Ireland does not Sean Gillane SC outlined prisons amounted – of itself general population, according to have specific legislation that some recent cases decided in – to inhuman and degrading Dr Conor O’Neill, consultant deals with diversion to mental the High Court and in the treatment contrary to article forensic psychiatrist from the health services, current European Court of Human 3 of the European Convention Central Mental Hospital. regulations regarding bail, Rights (ECtHR) in relation on Human Rights. This lack of Dr O’Neill was speaking at for example, allow for such a to the treatment of prisoners space had been made worse the fourth Prison Law Seminar course of action. The PICLS and the impact on their mental by lack of exercise, lack of on the topic of ‘Mental Health has successfully facilitated the health. Mr Gillane spoke in privacy, unhygienic conditions in Prisons’ on 19 November transfer of almost 300 people detail about the case of Devoy v and frequent transfers between 2009, writes Agnieszka from remand prisons to more The Governor of Portlaoise Prison prisons. Mr Gillane argued that Martynowicz (Research & Policy appropriate therapeutic settings. (22 June 2009). Among other urgent attention is needed on Officer, Irish Penal Reform Trust). arguments relating to alleged the issue of overcrowding in The seminars are jointly hosted The need for reform breaches of Mr Devoy’s rights, Irish prisons and its impact on by the Irish Penal Reform Trust Dublin-based solicitor Dara his solicitors argued before the the mental health of prisoners. (IPRT), the Irish Criminal Bar Robinson outlined the need court their concern regarding Association and the Dublin for reform of the mental health the effects of being placed ‘Protection’ regime in prisons Solicitors’ Bar Association. legislation. In his assessment, in a segregation unit and the The seminar was attended by The forensic psychiatrist such legislation has only consequent restricted regime members of legal professions, outlined the work of the recently come to the attention on Mr Devoy’s mental health. staff of the Irish Prison Prison In-reach and Court of lawmakers as requiring In this case, the court disagreed Service, chaplains working in Liaison Service (PICLS), an significant change. Until 2006, with the applicant. places of detention and other initiative recently established the main piece of legislation The senior counsel professionals involved in the in Cloverhill Prison. The regulating this area was the then briefly outlined two delivery of education and care in PICLS aims to divert mentally- Lunatics (Ireland) Act 1921 recent cases decided by the prisons.

www.lawsocietygazette.ie 5 Law Society Gazette jan/feb 2010 news Reciprocal admissions under threat or the last 20 years, solicitors simply involves completing some European Union. Fqualified in this jurisdiction documentation and paying an However, the SRA has have been free to transfer to administration fee) has produced indicated that it will proceed with become solicitors in England no problems whatsoever on its proposal regardless of these & Wales without taking any either side of the Irish Sea. representations. examination, and vice versa. Nor have the training systems The potential changes Many hundreds of solicitors diverged over the last 20 years – affecting Irish qualified solicitors have availed of this facility to the if anything they have grown even are part of an SRA review of benefit of the professions and more similar. Nevertheless, the transfer arrangements between publics in both jurisdictions. Solicitors Regulation Authority jurisdictions all over the world More than 600 solicitors who in England & Wales is at an and England & Wales. Even initially qualified in England & advanced stage with proposals Northern Ireland is likely to be Wales have subsequently been likely to require examinations, affected. admitted in Ireland, although to be taken and passed by Ken Murphy remarked: by no means all of them have Irish qualified solicitors, as a “The general test that the practised here. It is thought pre-requisite for admission in European Court of Justice uses Ken Murphy ‘no objective that a much larger number of England & Wales. justification for exams for in free movement cases to assess Irish qualified solicitors have In 2007, the Solicitors transferring to England & Wales’ restrictions and possible breaches transferred to England & Regulation Authority (SRA) of treaty-based free movement Wales, where a great many have assumed responsibility from the current arrangements should rights is that of objective built very successful careers, the Law Society of England & continue. justification. It is difficult to see particularly in the enormous Wales for all matters relating They pointed out that the how treating an Irish solicitor legal services marketplace of to the regulation and admission proposed changes are at odds differently in 2010 to the manner London. of solicitors in England & with the liberal regime which has in which he or she was treated The decisions of the law Wales. The SRA is proposing operated for 20 years, based on in 2009, or indeed for 20 years societies of Ireland, on the one to replace current admission the recognition that there is no previously, could be objectively hand, and England & Wales, on arrangements between Ireland substantial difference between justified. The two training the other, in 1990 were based and England & Wales, with the content of training in the two systems have not changed in any on the absence of any significant effect from sometime later this jurisdictions. significant manner.” difference in the education year, although potentially from as A key representation “But given the current and training requirements for early as April 2010. they also made was that the uncertainty,” says Murphy, “the admission to the rolls in the two The then President of the changes proposed by the Society recommends that all jurisdictions. Both law societies Law Society, John D Shaw, SRA do not comply with the members who are interested gave recognition to this fact and director general Ken relevant European Directive on should give urgent consideration when implementing the Mutual Murphy travelled to the SRA the Recognition of Professional to making their application to be Recognition of Diplomas Directive headquarters in Leamington Spa Qualifications (Directive 2005/36/ admitted to the roll of solicitors of 1989 (89/48/EEC). in May 2009 to meet with their EC) and would constitute an in England & Wales, before any This automatic and counterparts in the SRA and to unjustifiable obstacle to the free potential new requirements are frictionless transfer system (it make strong representations that movement of persons in the introduced.” Back by popular demand – ‘Strategies for Career Success’ uch has been the popularity in practice, or currently not 5pm, and a second session from in advance. Sof the ‘Strategies for working. 6pm to 8pm. Career Support is a Society Career Success’ series of Subsequent seminars The seminars all qualify for initiative set up in early 2009 evening seminars that the will focus on specific job- CPD group study credits and to assist solicitors faced with Society’s Career Support seeking challenges – such are provided free of charge career challenges. Career service is to run them again in as how to draft an effective to solicitors registered with development advisor Keith Dublin and Cork in February. CV, the hidden market of the Career Support service as O’Malley and Sharon Hanson The series of five seminars unadvertised jobs and interview either out of work or facing provide a wide range of starts in Dublin on 3 February performance. All events will be job loss. A charge of €40 for supports and information. and continues every Wednesday interactive and will incorporate each event will apply for other For full details on these between 5.30pm and 7.30pm. an opportunity to network. attendees. training events and to The first seminar, ‘Succeeding In Cork, the series will Capacity will be limited. As a book your place, visit www. in the Current Job Market’, be run over two Thursday result, it will not be possible to lawsociety.ie/en/pages/ will be relevant to all solicitors, afternoons and evenings on 18 admit anyone to these seminars careersupport; or email: whether they are employed, and 25 February from 3pm to who has not booked their place [email protected].

6 www.lawsocietygazette.ie news Law Society Gazette jan/feb 2010 Supreme Court clarifies leases law he Supreme Court case of Section 20(1) of the 1990 In particular, the Supreme TRe Linen Supply Ireland act provides that: “Where Court held that the repudiation Limited, delivered on 10 proposals for a compromise of a lease “… which involves the December 2009, has clarified or scheme of arrangement are mutual release by both lessor the law in relation to to be formulated in relation and lessee from all rights and repudiation and variation of to a company, the company obligations under the lease is leases during an examinership, may, subject to the approval of an entirely different matter and write Andreas McConnell and the court, affirm or repudiate entirely different to that which Orlaith Daly. any contract [our emphasis] section 25B contemplates”. Prior to this case, there had under which some element of The law as it currently stands been uncertainty about the law, performance other than payment can be summarised as follows: resulting in divergent rulings remains to be rendered by both the 1) A lease may be repudiated on, and interpretations of, company and the other contracting pursuant to section 20 of the section 20 of the Companies party or parties.” 1990 act, subject to approval (Amendment) Act 1990 and In the Re Linen Supply Ireland of the court, section 25B of the same act Limited case, the Supreme Court 2) The rent payable pursuant (as inserted by section 26 of has confirmed that: to the provisions of a lease the Companies (Amendment) 1) A lease for the purpose of this of arrangement, subject to the may not be reduced as part (No2) Act 1999). This was section can be construed as approval of the court. of a proposal or scheme illustrated by the prolific “any contract”, and, In making this ruling, the of arrangement, save and O’Brien’s Sandwich Bar case, 2) By their very nature, leases Supreme Court specifically except where the lessor has where the High Court refused involve the performance of rejected the argument that consented in writing to such to allow the company to obligations by both lessor the wording of section 25B of reduction (section 25B(3) repudiate leases it held on and lessee and, as such, leases the 1990 act, which sets out 1990 act), franchised restaurants, which satisfy the limitation imposed various prohibitions on varying 3) Rights in favour of the in turn led to the subsequent by section 20 that the the terms of a lease (including landlord to recover liquidation of the company. In contract must include “some downward adjustment of rent possession, forfeiture rights contrast, in April of last year, element of performance other and variation of the rights to or right of re-entry etc in the case of Chartbusters, than payment [that] remains to recover possession, forfeiture may not be varied as part the court approved a scheme be rendered”. rights and right of re-entry etc), of a proposal or scheme that enabled the examiner ought to be interpreted so that of arrangement, save and to repudiate leases on six This ruling now firmly sets leases did not come with the except where the lessor has premises. (Chartbusters out the law that examiners term of “any contracts” for the consented in writing to such successfully exited examination may repudiate leases as part purposes of section 20 of the reduction (section 25B(3) in May of last year.) of a compromise or scheme 1990 act. 1990 act).

Stamping of court New Supreme Court judge documents – guidelines r Justice Donal O’Donnell M(51) has been appointed n order to ensure consistency will, however, be obliged a judge of the Supreme Court Iof document stamping and to initial and date such of Ireland, effective from 20 acceptance in all court offices, documentation. January 2010. Married to Mary the Courts Service asks that 3) All documents presented Rose Binchy, they have four practitioners adhere to the for stamping must include children. Mr Justice O’Donnell following guidelines: the title of the action, for is the son of Lord Justice 1) All documents must be example, names of the Turlough O’Donnell, retired stamped on the front page defendant/plaintiff. Blank judge of the Northern Ireland only. Documents must not be documents presented for High Court and Court of stamped on any other page. stamping will be returned. Appeal. 2) Any documentation which He was educated in the CBS has been stamped prior to This policy comes into effect Belfast, was awarded a BCL 1 January 2010 and lodged from 1 January 2010. All from UCD, studied as a barrister of Ireland in 1982, the Bar of after 1 January 2010 will Courts Service staff have in the Kings Inns, Dublin, and Northern Ireland in 1989, was be accepted by the Courts been informed of the new was awarded an LLM from the made a senior counsel in 1995 Service. The Courts Service procedures. University of Virginia. and a Bencher of Kings Inns in He was called to the Bar 2009.

www.lawsocietygazette.ie 7 Law Society Gazette jan/feb 2010 news Trading places proving popular n 2009, as part of the Law practical and dynamic than ISociety’s initiatives to support university lectures,” he said. and create opportunities Working for William Fry for solicitors, the EU and Solicitors was “an enriching International Affairs Committee experience. I was placed, introduced an exchange firstly, in competition and, programme for two young subsequently in the corporate solicitors. The programme was department. I worked mainly coordinated by the Society and with John Handoll and Shane the Ilustre Colegio de Abogados Kelleher, partners. They were de Madrid, and included courses fantastic mentors but, most and placements with legal firms of all, were very friendly and in Madrid and Dublin. The accessible to me. In William lucky participants were Jane Fry, I discovered other ways to Roberts and Luis Puentes- Jane Roberts travelled to the Luis Puentes-Gutiérrez got deal with clients, witnessed a Gutierrez. Spanish capital acquainted with Dublin more personable relationship Jane arrived in Madrid in between partners and the rest of early November to take part could be of real use to me in (Ilustre Colegio de Abogados the staff, as well as reasonable in the five-week programme. Ireland.” de Madrid) and the staff at working hours, which Spanish She stayed at the very friendly In her work placement in the Eversheds Lupicinio for their law firms often lack. However, Colegio Mayor Argentinom. firm’s labour law department, assistance and support during one of the things that amazed The programme consisted of she received valuable insights my time on the programme.” me most was the high level of classes in the Ilustre Colegio into Spanish employment Luis Puentes-Gutiérrez social consciousness in the Irish de Abogados and a work law, attended meetings and is a lawyer and member of legal sector, in terms of charity, placement in the international hearings, and assisted with the Madrid Bar Association benefaction and fundraising. law firm, Eversheds Lupicinio. translations to English. “My (Ilustre Colegio de Abogados This was one of the most “My college classes consisted days were quite busy, working de Madrid) with 18 months of unforgettable experiences of my of courses in company and weekdays from 10am-2pm, post-qualification experience, life.” insolvency law, due diligence, and either working or studying chiefly in business and He thanks Eva Massa (Law international contracts and from 4pm-8pm. Classes took corporate law. During the Society) for her hard work and commercial contracts. I learned place on most Saturdays from exchange lawyer programme, support during the programme. a great deal about the course 9.30am-1.30pm. Nevertheless, he attended PPC1 lectures The Society thanks William topics and, because of the I did find time to explore in Blackhall Place and did his Fry, Eversheds Lupicino and international application of the beautiful city of Madrid. work placement with William the Ilustre Colegio de Abogados much of the subject matter, feel Thanks to Eva Massa (Law Fry Solicitors. “The PPC1 de Madrid for supporting this that the knowledge I gained Society), Teresa Cabezas lectures were much more initiative. Education Centre pilots diploma webcasts he Education Centre’s to be streamed live via the workshop sessions, usually being offered by the Diploma Tdiploma programme is Education Centre’s secure comprising three sessions per Programme and the Faculty to offer webcasting for two server. Students can watch course. Workshops are held on of Law at University College of its diploma courses in the the broadcast without having Saturdays starting at 11.30am Cork. If you are a student spring, writes Freda Grealy. The to attend on-site lectures. to facilitate students travelling who is embarking on the Diploma in Employment Law In addition, lectures can be from outside of Dublin. LLM programme and have (starting on 17 April) and reviewed and played on demand successfully completed one the Commercial Litigation by students for the duration of Reduced fees or more Law Society diploma Diploma (beginning on 20 the course. Reductions of 20% are available courses, you will receive April) will take place on site This new way of learning for out-of-work solicitors credit for those awards (up in the Education Centre in forms part of the Education attending diploma courses. For to a maximum of two such Blackhall Place – but for those Centre’s ‘blended learning’ students who have completed diplomas). students unable to attend approach to its diploma two or more diploma courses, a For further information, visit Dublin on a weekly basis, programme, which comprises 10% reduction is available. the diploma programme pages lectures will also be broadcast a mixture of on-site and online Separately, a collaborative at www.lawsociety.ie; email: over the web. sessions. Students need to LLM (Practitioner) programme [email protected]; or Webcasting allows lectures attend Blackhall Place for all for solicitors and barristers is tel: 01 672 4802.

8 www.lawsocietygazette.ie news Law Society Gazette jan/feb 2010

Dublin District LawCare travelling roadshow Civil Office ecognising the professional Rand personal challenges relocation being faced by members of the rom 18 January 2010, the legal profession as a result of FDublin District Court Civil occupational stress, the Law Office, including the Small Society decided in January Claims Office, will be relocated 2008 to fund LawCare’s ‘Stress to a new Circuit and District recognition and management Court Office on the First Floor, training’ seminars for the Áras Úi Dhálaigh, Inns Quay, country’s bar associations. To Dublin 7. From that date, date, half of all bar associations renewing their enthusiasm for a and at weekends and British bank clients will be able to transact have taken advantage of the hobby or interest. holidays from 10am to 4pm. any civil business they have training, writes Mary B Jackson, While a genuine spirit of LawCare can also be contacted for both jurisdictions in one LawCare coordinator in Ireland. collegiality is noticeable, the by email at [email protected] (for location. These include bar associations in other side of the coin is evident, pastoral support) and admin@ The location of the courts Donegal, Drogheda, Limerick, too, with certain practitioners lawcare.ie (for administrative hearing District Court civil Waterford, Carlow, Dundalk, admitting that they would feel matters). The Law Society matters is also changing, as Navan, Sligo, Cork, Kilkenny, uncomfortable sharing their has extended the funding for is the arrangement of court Wexford, Tipperary, Clare, professional worries with a LawCare’s seminars for 2010 for business. Longford and Roscommon. colleague in their area. This is those bar associations that have Court lists currently heard What has been striking where LawCare has proved to be not yet taken up this offer. You in Court 40 will, in the main, has been the resilient, stoical a lifeline, since its help is 100% can arrange a seminar by emailing be heard in Court 23, Public attitude of the lawyers taking confidential, non-judgemental Mary Jackson at [email protected]. Records Building, Four Courts, part. In private conversations, and independent. The seminar covers, among other Dublin 7. what becomes evident are the At each seminar, the support matters: Lists currently heard in particular difficulties of sole services offered by the Society are • Stress and its effects, Court 49 will be heard in Court practitioners, smaller practices highlighted, with support services • The legal personality, 50, Richmond Courthouse, and the anxiety of many who executive Louise Campbell • Time management, and Brunswick Street, Dublin 7. are uncertain of their future providing input at certain events. • Tips on managing stress. In relation to matters prospects. Rather encouragingly, Lawyers are encouraged, also, to adjourned, the office is in the ‘ostrich mentality’ that sign up as LawCare volunteers Having attended a training event, contact with parties at present can arise when life takes an and to use their life experiences to one practitioner wrote: “Thank to advise them of the change of unexpected downward turn is help fellow lawyers. you. I gained a lot from the venue. largely absent. Many solicitors, it Not surprisingly, calls to the seminar personally. That evening The venue for the hearing seems, are finding time to retrain LawCare freephone helpline – was the start of a short but very of civil summonses issued from and acquire new skills. 1800 991 801 – have increased important journey for me in now on should be given as Lawyers, it would appear, are due to these visits. The helpline is recognising my own stress and Court 23, Public Records trying to make time during their available 365 days a year, Monday the stress, more importantly, I Building, Four Courts, busy day for some ‘me’ time or to Friday, from 9am to 7.30pm; carried for and because of others.” Dublin 7. Ahern extends small claims procedure to cover business claims he Minister for Justice has The consumer or business court-based proceedings. The economic and appropriate to its Tintroduced new court rules must have purchased goods minister has requested that this circumstances.” to extend the current remit of or services from someone precedent be reviewed by the The minister went on to the small claims procedure to selling them in the course Company Law Review Group. say: “By limiting the new include certain business claims. of business. Claims cannot Introducing the new procedure to consumer and The new rules, which came into be made in respect of debts, procedure, Minister Ahern business-to-business claims, effect on 11 January 2010, will personal injuries or breach said: “The extension of this the fundamental pro-consumer facilitate claims from a business of leasing or hire-purchase successful procedure will ethos of the small claims against another business for agreements. The procedure provide a choice of legal routes process will be maintained. It goods or services not exceeding provides an alternative and to pursue a small claim, as the is essential that consumers, €2,000. complementary mechanism to current civil bill system will also especially in vulnerable The new small claims the civil bill procedure. Irish remain available. This will allow economic circumstances, are procedure amends the District jurisprudence currently requires a business to choose whichever protected. The new procedure Court Rules (order 53A of the limited liability companies to route – small claims or civil bill provides the necessary District Court Rules 1997). engage legal representation for procedure – it considers most safeguards for consumers.”

www.lawsocietygazette.ie 9 La w So c i e t y An n u a l Co n f e r e n c e 9th/10th April 2010

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Sa t u r d a y 10 Ap r i l 2010 9.30am-12.30pm Conference business session, with keynote speakers

12.30pm Lunch Dermot Ahern, Minister for Mr Justice Nicholas Kearns, Justice, Equality and Law President of the High Court Reform

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Jardine Lloyd Thompson Ireland Limited news Law Society Gazette jan/feb 2010 New solicitors drop 10% in 2009 n the calendar year 2009, a increasingly, abroad. Itotal of 705 new names were Admissions Is the Law Society to entered on the roll of solicitors. 777 blame for qualifying too many 99 This was a 10% reduction in Transferring foreign lawyers 705 solicitors? Some think so. 79 the all-time record of 777 new 642 But since certain High Court Qualifying trainees and barristers solicitors of 2008. 100 decisions were handed down

But even 2009’s reduced 536 as far back as the 1980s, the 100 number of new solicitors, at 474 Society has known that it did not 65 443 705, was more than double 422 420 have the legal power to seek in 404 93 the 350 admitted in 2000, the 68 61 any way to control the numbers 350 80 first year of the decade just 66 entering the profession. ended. The underlying trend Public policy, as expressed throughout the decade, despite by successive governments and some occasional year-on-year by the Competition Authority, blips, has been relentlessly repeatedly made clear that there upwards. was absolutely no legitimate 284 409 324 354 350 357 436 542 678 624 In the decade from 1 January role for the Society to seek 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2000 to 31 December 2009, a – directly or indirectly – to total of 5,173 new names were limit the numbers of newly entered on the roll of solicitors there were 17 so-called faces – about two-thirds of them qualifying solicitors. Only the in this jurisdiction. ‘Section 52’ lawyers from female – of fresh new solicitors, attractiveness of the profession These statistics record jurisdictions with equivalent each holding a parchment in as a career and the market for total numbers and not just transfer arrangements for Irish their hand. legal services can determine solicitors who qualified by the solicitors, namely California, Yet, up to about two years the numbers entering the conventional route through a New York, New South Wales, ago, they were all getting profession. training contract in a solicitors New Zealand and Pennsylvania. jobs. Indeed at the peak of the It’s a long pipeline and market office and the Law Society’s Added to these were three EU economic boom, they were, in forces will take years to have professional practice courses lawyers under the Diplomas many cases, able to name their an effect. But there is clear (PPC). Needless to say, the Directive and four under the price to prospective employers evidence of a decline in interest overwhelming majority travelled Establishment Directive. and choose both the firm and in the solicitors’ profession as this route. But the numbers area of work they wanted. a career, with a drop of no less qualifying through other routes ‘Where will they all get jobs?’ So very sadly, dream- than one-third in the numbers were not insignificant. “Where will they all get jobs?” shatteringly different now. commencing the PPC1 in For example, the 705 who was a common question asked Today hundreds of the solicitors Blackhall Place in September came on the roll in 2009 throughout the decade by who qualified in recent years are 2009, compared with September comprised 615 qualifying those attending parchment without work. A great many are 2007. Co n f e r e n c e b u s i n e ss s e ss i o n trainees, nine transferring ceremonies. It might also have contemplating, if they have not It was quite a decade – mostly k e y n o t e s p e a k e r s barristers, 45 English been asked by anyone viewing already started, applying their boom – but with a crashing bust solicitors and ten Northern page after page of Gazette photos high-quality transferable skills at the end. An upturn in the Irish solicitors. In addition, with hundreds of smiling young to other careers in Ireland or, economy in 2010 would be nice.

Commission seeks experts Prize Bond draw results from 5 November he EC’s European Banking Market and Services, Unit 1 x €1,250: bond number 1776 (Kevin Smith, 59 Fitzwilliam Sq, TCommittee (EBC) is MARKT/H1 Secretariat, Dublin 2). seeking experts in the field of SPA2 4/13, B-1049 Brussels; 4 x €500: bond number 1602 (Charles F Bergin, Michale P re-organization, resolution and or by e-mail to: MARKT-H1@ Donnelly, Barrack St, Tullow, Co Carlow); bond number 1918 insolvency law in the banking ec.europa.eu. For further (George V Maloney, GV Maloney & Co, Solicitor, Cavan); bond and financial sector. Their role information, contact Silvia number 1219 (WB Somerville, A&L Goodbody, 31 Fitzwilliam will be to assist in the work and Scatizzi, tel: 02/296 08 81, email: Square, Dublin 2); bond number 1289 (Brian J Murphy, 89 Upper development of a so-called ‘EU [email protected]; George’s St, Dun Laoghaire, Co Dublin). crisis management regime’. and see web: http://ec.europa. 3 x €250: bond number 1778 (Kevin Smith, 59 Fitzwilliam Sq, Applications should be eu/internal_market/bank/ Dublin 2); bond number 2316 (Jacqueline Maloney, George V submitted no later than 15 crisis_management/index_ Maloney, 6 Farnan St, Cavan); bond number 2306 (Alan Donnelly, February 2010 to: European en.htm#Call_for_expression_ 39 Trimgate St, Navan, Co Meath). Commission, DG Internal of_interest

www.lawsocietygazette.ie 11 Law Society Gazette jan/feb 2010 analysis FLAC conference hears call for test cases on socio-economic rights Economic and social rights are better guaranteed through the political process rather than through the courts, argued Dr Maurice Hayes at the annual Dave Ellis Memorial Lecture All P i CS: De r e k S p irs

Dr Maurice Hayes was the main speaker at the Dave Ellis Memorial Lecture

conomic and social rights, the political process, rather than Memorial Lecture on covered by the provision of Ethough no less significant through the courts. So argued 1 December 2009. healthcare and education. He than other fundamental rights, Dr Maurice Hayes when he While social and economic also saw room for the courts are better guaranteed through delivered the annual Dave Ellis rights were not fundamental to hear test cases on socio- rights in the same way as rights economic rights. to liberty, life and freedom of Dr Hayes is a former senator conscience, he argued, civil and and previously held the posts of political rights required the Northern Ireland ombudsman courts to protect them – rather and boundary commissioner. than to enforce them, as is the He was also a permanent case for social and economic secretary of the Department rights. of Health and Social Services Dr Hayes noted, however, of Northern Ireland and is that whatever one’s views on currently a member of the the justiciability of socio- Royal Irish Academy. This economic rights, one surely third memorial lecture, held at had to admit that the right the Law Society of Ireland, was to life would include at least chaired by the director-general Dr Maurice Hayes with Peter Ward SC (FLAC chairperson) and Noeline a minimum standard of of FLAC Noeline Blackwell Blackwell (FLAC director general) enjoyment and satisfaction, and by chairperson of FLAC’s

12 www.lawsocietygazette.ie analysis Law Society Gazette jan/feb 2010 FLAC conference hears call for test cases on socio-economic rights

national council Peter Ward initially seen as pioneering and left to fester and emerge at a but not necessarily meaner”, he SC. cutting edge, quickly become later date, incurring a much stated. “Being efficient does not Speaking on the topic of the norm. As change was greater cost to the state. mean being uncaring. Indeed, access to justice, Dr Hayes’s implemented, expectations rose Current economic the essence of efficiency in lecture spanned a broad with improving standards, and developments had left many caring services is to provide the spectrum of ideas. The diversity the net effect was to engender people in serious debt. Dr support people need when they of questions that followed new problems and new areas Hayes stressed the importance need it.” Thus, he concluded, illustrated that he had touched requiring the energies and of implementing the kind one should be able to access on several thought-provoking enthusiasm of reformers. of reforms for which FLAC justice at a more local level and stimulating subjects for the has been campaigning. – while redress through the 125 guests who attended. Myopic cuts These include the abolition courts should be a measure of He began his talk with a With Budget 2010 merely days of imprisonment on foot of last resort. quote from Sir James Matthews, away, he went on to address the debt and a move away from a With FLAC celebrating a 19th century Irish judge who looming cuts to the public purse costly, cumbersome and often its 40th year in existence, Dr commented: “In England, and the possible impact on the confusing system of judicial Hayes praised the work of justice is open to all, just like justice system. While efficiency debt settlement. the organisation, noting how the Ritz Hotel.” was always to be encouraged, he volunteers gained a valuable Though much progress argued, certain services were a ‘Leaner, but not necessarily insight into a world that many had been made since the right and a necessity and were meaner’ were fortunate enough to 19th century, this maxim still not a luxury to be shed in times Focusing on general issues of be unfamiliar with prior to prevailed to some extent, in of difficulty. governance, Dr Hayes noted volunteering. So much so, that that one needs money and Dr Hayes highlighted how how the state now faced a Dr Hayes believed that every contacts in order to gain access cuts to organisations working period of reform in relation young lawyer should volunteer to justice. Dr Hayes argued with disadvantaged groups to its services and public with FLAC or a similar that much remained to be are so often myopic in nature. functions. The time might have organisation “in order to keep done to ensure an accessible While the exchequer might be arrived for restructuring the them plugged into reality”. G system of justice. The task saved some expenditure in the public service to make it less of reform was an endless current fiscal year, he argued remote and more accountable. Peter McKenna is a legal intern one, he said. Improvements, that social problems would be It should be “a leaner machine, with FLAC.

Attendees at the third annual Dave Ellis Memorial Lecture on 1 December 2009 at Blackhall Place

www.lawsocietygazette.ie 13 Law Society Gazette jan/feb 2010 analysis

Court rejects ‘de facto families’ in lesbian couple case The Supreme Court used surprisingly trenchant language recently when overturning a High Court decision in a case involving a lesbian couple and a sperm donor, writes Michael Farrell

he Supreme Court’s constituted a ‘de facto family’ decision in the case on the best Justice, Mr Justice Fennelly and Tjudgments in McD v L & that had rights as a ‘family unit’ interests of the child, but he Ms Justice Denham – strongly Another ([2009] IESC 81, 10 under article 8 of the ECHR. afforded some weight to the rejected the idea that ‘de facto December 2009) have important These rights, in his view, helped position of the ‘de facto family’ families’ had any legal status or implications for the position of to outweigh the claims of the consisting of the couple and the any rights in Irish law, referring unmarried couples, whether same biological father McD. child. to the well-known statement of sex or opposite sex, and for the Judge Hedigan acknowledged In its decision, the Supreme Henchy J in State (Nicolau) v An role of the European Convention that the Constitution only Court agreed that, based on Bord Uchtala ([1966] IR 567): on Human Rights in Irish law. recognised the family based the best interests of the child, “For the state to award equal The sperm donor (McD), who on marriage, but he noted that McD should not be appointed a constitutional protection to the had helped one of the women to the Irish courts had begun to guardian, but held that the High family founded on marriage and conceive, had originally agreed recognise the existence of ‘de facto Court had not given sufficient the ‘family’ founded on an extra- not to get involved in the child’s families’ made up of unmarried weight to his position as the marital union would in effect upbringing, but later applied to heterosexual couples in stable biological father of the child and be a disregard of the pledge … be made a guardian and to have relationships and had accorded that he should be given access in article 41.3.1 to guard with regular access to the child. The them certain rights. rights, the details to be decided special care the institution of couple, who had been together Looking to the ECHR, Judge by the High Court. marriage.” for 12 years and had entered into Hedigan – who is a former The Supreme Court reserved On the role of the ECHR, the a civil partnership in Britain, judge of the European Court its strongest criticism for Judge Chief Justice said that it was not objected. of Human Rights – said that he Hedigan’s views on the question directly applicable in Irish law Mr Justice Hedigan rejected could see no reason why same sex of ‘de facto families’ and his use of and had no direct effect other McD’s claims in the High Court. couples should not qualify as ‘de the ECHR. than through the ECHR Act He relied partly on a finding facto families’ as well. Three of the four Supreme 2003, which was quite limited. that the couple and the child Judge Hedigan based his Court judgments – by the Chief He said: “The learned trial judge one to watch: new legislation

Circuit Court Rules (Case can order the parties to engage Any proceedings pending on proceedings, or any other Progression (General)) 2009 (SI in alternative dispute resolution, that date shall be continued and proceedings having or involving no 539 of 2009) thus shortening proceedings and completed as if these rules had not any characteristics, designated From 1 January 2010, new Circuit costs associated with them. The been made. by the President of the Circuit Court Rules were signed into overall purpose of the new case Court as proceedings that may law that permit a Circuit Court progression rules is to maximise Proceedings covered be subject to case progression, judge or the county registrar at pre-trial preparations, thus minimis- The following proceedings such designation to be a case progression hearing to ing the cost of proceedings and are covered by the new Case published in such manner as the adjourn certain civil proceedings ensuring the time and resources of Progression Rules: President of the Circuit Court for a period not exceeding 28 the courts are used efficiently. a) Equity proceedings, shall direct. days in order to allow the parties The Minister for Justice stated: b) Proceedings on foot of a to use mediation, conciliation “Similar rules introduced last succession law civil bill, Proceedings exempt and arbitration or any alternative year in the area of family law are c) Any proceedings, not referred These rules shall not apply to the dispute resolution mechanism working well. The volume of such to at paragraph (a), which following proceedings: to settle or determine the issues pre-trial work is considerable, and include a claim for specific a) Proceedings in which relief is (order 19A, rule 7). this mechanism will free up the performance or for damages for being sought under any of the The new Circuit Court case time of Circuit Court judges to breach of contract in respect following acts: progression rules contain almost concentrate on conducting trials.” of the construction, extension, • Family Law (Divorce) Act identical provisions to those used These rules are to apply to alteration or repair of a building 1996 (no 33 of 1996), extensively and successfully in the such proceedings (as listed below) or other structure, • Family Law Act 1995 (no 26 Commercial Court, whereby a judge commenced after 1 January 2010. d) Any other category of of 1995),

14 www.lawsocietygazette.ie analysis Law Society Gazette jan/feb 2010 human rights watch Court rejects ‘de facto families’ in lesbian couple case had no jurisdiction to consider the convention at a time when the claims [of the parties] under there has been so little case law article 8 of the convention.” under the ECHR Act in our Judge Fennelly argued courts. And it seems unfortunate that the European Court of that they were so dismissive of Human Rights had not so far the concept of ‘de facto families’ accepted that same-sex couples at a time when the number of were protected by article 8 of people in such relationships has the convention. He said the increased so substantially. High Court judge had been At the end of his judgment interpreting the convention in the High Court, Judge directly, and he warned against Hedigan made a plea for urgent the domestic courts ‘outpacing’ consideration by the Oireachtas the Strasbourg court. the role of national courts under this issue going on in Britain of the position of same-sex Judge Hedigan had the ECHR to wait until the at the moment, but that is couples, especially where they acknowledged that the Strasbourg court has ruled on an against the background that the wish to have children, so as Strasbourg court had not yet issue and then apply that ruling? British courts have embraced to avoid the sort of emotional recognised that a lesbian couple Or can a national court be more the convention since it was trauma suffered by the parties could constitute a family unit proactive and seek to interpret incorporated through the Human in this case. It is perhaps a pity for the purposes of article 8. and apply the Strasbourg Rights Act 1998 and have been that the Supreme Court did not However, he said that national jurisprudence directly to the very active in applying and even at least endorse the urgency of courts were entitled to interpret issues it is dealing with, thus developing convention law. that plea, without expressing any and apply convention principles, engaging in a sort of dialogue It seems unnecessarily views on particular proposals and he believed that recognition with the Strasbourg court and defensive for the Supreme Court before the Oireachtas. G of such couples was a natural playing a part in the development here to come down so heavily development of those principles. of ECHR law? against what they seem to see as Michael Farrell is the senior solicitor This raises a bigger issue. Is it There is a lively debate about an over-enthusiastic approach to with Free Legal Advice Centres.

• Judicial Separation and Family When may a case progression the county registrar for case Alternative dispute resolution Law Reform Act 1989 (no 6 direction be given? progression. Rule 7 of order 19A permits the of 1989), A case progression direction may The county registrar will then judge or the county registrar at • Guardianship of Infants Act be given by the county registrar issue a summons to the parties a case progression hearing, on 1964 (no 7 of 1964), or by the judge at any listing for a case progression hearing, application of any of the parties, • Children Act 1997 (no 40 of or hearing before them in the giving at least 21 days notice to the to order that the proceedings 1997), proceedings, or on the application parties. be adjourned for a period not • Family Law (Maintenance of by motion of any party to the No later than seven days prior to exceeding 28 days so as to allow Spouses and Children) Act county registrar or the judge, the case progression hearing, the the parties to use mediation, 1976 (no 11 of 1976), and on notice to the other party or plaintiff or other party prosecuting conciliation, arbitration or other • Family Home Protection Act parties. shall file in the office an indexed dispute resolution process to settle 1976 (no 27 of 1976). The county registrar or the judge, book of pleadings, and shall also the proceedings. b) Proceedings in which the plaintiff in deciding whether to give a case furnish a copy of the index to the claims any of the following progression direction, will consider other party or parties. Costs reliefs: the complexity of the proceedings, The county registrar shall The county registrar may award • Recovery of possession of the number of issues or parties, maintain a record of all case costs incurred in connection with any land on foot of a legal the likely volume of evidence, or progression hearings before him. the case progression hearing as mortgage or charge, other special reasons. A copy of such record shall be put between party and party. G • An order declaring the amount Once a case progression on the court file and a further copy due on foot of a mortgage to direction has been given, the made available to parties involved Joyce Mortimer is the Law Society’s be well charged on land. proceedings shall be listed before on request. human rights executive

www.lawsocietygazette.ie 15 The National Asset Management Agency Act 2009: Annotations and Commentary By Hugh B. Byrne and Louis McEntagart

This publication will assist legal practitioners, academics and other professionals navigate their way through this complex piece of legislation.

The National Asset Management the nancial system in the State. • A section by section commentary Agency Act 2009, establishes The Act also provides for the which will inter alia cross the National Asset Management facilitation of the restructuring reference the section under Agency (NAMA) and is one of of credit institutions of systemic review to other relevant sections the most signi cant pieces of importance to the economy. within the Act and to other pieces legislation enacted in the history of relevant legislation of the State. Key Features • A section by section commentary • Detailed de nitions of both legal on the meaning or suggested One of the primary purposes of and nancial terminology intention of the section will NAMA is to address the serious • The opportunity to cross facilitate readers in determining threat to the economy and the reference nancial terms with the impact of the legislation need to maintain and stabilize academic nancial text books.

About the authors Louis McEntagart B.L. has practised almost exclusively ISBN: 978184766 5041 Hugh B. Byrne B.L. was called to the Bar in 2004. in commercial law and has a depth of experience Price: €95.00 He has lectured in nance with U.C.D. and is now a covering the areas of banking law, nance and Pub Date: February 2010 practicing barrister. company law.

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Send your letters to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected] Protecting the title of ‘architect’ From: John Graby, director of the the person is so registered, Royal Institute of the Architects or who practises or carries on of Ireland and Registrar for business under any name, title, Architects, 8 Merrion Square, not in accordance with relevant Dublin 2 Still celebrating?RIAI rules – legal action can p until recently, the title be pursued, though our focus U‘architect’ was without If you are concerned about how muchinitially you will are be ondrinking, supporting legal protection and, indeed, call LawCare for free and confidentialpeople advi to becomece. registered. anyone could claim to be an The RIAI is the designated architect. However, since registration body and competent the commencement of the Freephone 1800 991801 • www.lawcare.ieauthority for architects in Building Control Act 2007 and architects establishes an them in becoming registered Ireland. Independence and the launch of the register for internationally, EU-agreed and architects. government oversight is architects in November 2009, recognised professional standard Certainly, during the initial provided by the Admissions jointly launched by the Royal against which all persons stages of registration, there Board, the Technical Assessment Institute of the Architects of applying for registration will be will be people not86% on of the lawyers sayBoard, long thehours Appeals are damagingBoard Ireland (RIAI) and Minister measured. register who have qualificationstheir relationship and the Professional with their children.Conduct for the EnvironmentWill y Johnou be The register, therefore, listed in the Building Control Committee,Are you having one aof majority them?

Gormley, those misusing the improves and protects the Act 2007 or who are in Free andof Confidential non-architects Health nominatedSupport title h‘architect’om cane bet liableo t tou cqualityk of service to consumers the process of completing and Adviceby forthe Lawyers state and chairpersons a fine not exceeding €5,000 who can now see if an architect submissions for evaluation. with a legal background. The or imprisonmentus in fort oa termni ghtis ?registered by checking the There will also be those Freephone who registration 1800 of991801 architects is a not exceeding 12 months, or online register at www.riai. don’t have listed qualificationswww.lawcare.ie serious process and the statutory both, under section 18(1) of the ie. The system also provides but who are preparing for independent committee has Building Control Act 2007. consumers with an advice assessment under the technical the same legal powers, rights Established under the service and with dispute assessment process, which and privileges as a High Court Building Control Act 2007, the resolution mechanisms in the evaluates relevant experience judge, including the discovery register for architects lists case of poor service or suspected in architecture and can lead to of documents and enforcing architects whose qualifications malpractice. registration. In addition, there witnesses. meet the standardsC seto out inu ldAs Yof theo end uof November H elarep those? who are taking the Since 1893, the RIAI has the act.La NowwC aonlyre architectsneeds more2009, vo lthereunt areee overrs. P2,700eo ple whregistero cou admissionld care examination. been committed to upholding who are on the register architects on the register. However, for persons not the highest standards in may use ftheor title a l‘architect’.awyer i n neeFord bpeopleased who on are t hnote ir own eregistered,xperien norce .in the process architecture. The register for This developmentIf t ish ofis is you pfullylea qualified,se call but00 who 4 4have 12 68 7of7 registration,1333 and who use the architects is a major milestone critical importance for Irishw ww.lsubstantialawcare .experience,ie/volu therente eisr s title ‘architect’ – either alone or for the profession and will lead architecture, the construction now an established framework, in combination with any other to securing higher quality in our industry and the general set up under the terms of the words or letters, or name, or built environment for future public, as the register for Building Control Act, to support title, or description implying generations. G

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www.lawsociety.ie 17 Law Society Gazette jan/feb 2010 comment

Out-of-court cautions are killing justice Out-of-court cautioning is doing damage to the adversarial system of justice in Ireland and Britain. Darragh Connell and Conor O’Keeffe say the entire system needs urgent revision he recent BBC legal drama guilty or cautioned) for indictable judicial sanction route, since inherent in this regime is that TGarrow’s Law focused on offences for men aged 21 or over such innovative initiatives seek it denies the accused rights of the life of Sir William Garrow, was 19%; and for women aged 21 to balance the protection of due process. While the CPS a young, idealistic, British or over, 32% (Ministry of Justice, the public with the need to must agree with the police to barrister (1760-1840) who Criminal Statistics Annual Report address social problems that administer a conditional caution, revolutionised what it meant to 2002). By 2005, the cautioning hasten so many into a life of such oversight is often cursory be a criminal defence advocate rate for indictable offences had crime. Nevertheless, significant and will fail to properly substitute under a particularly brutal system increased to 25% for men over difficulties have been experienced the accountability mechanisms of justice then in operation 21 and an astonishing 41% for in Britain with the reforms made available in a court of law, such as: across the common law world. women over 21 (Ministry of to the criminal justice system • Extensive adversarial cross- Central to Garrow’s approach Justice, Criminal Statistics Annual over the last ten years. examination, to defending London’s poorest Report 2005). Specifically, two principal • Provision of independent legal citizens were the skills of rigorous concerns exist in relation to advice for an accused, cross-examination, sustained Admission of guilt cautioning in Britain. First, the • Extensive evidential disclosure, legal analysis, and the concept Under Britain’s Criminal Justice cautioning regime has been and of putting the prosecution to Act 2003, a new conditional extensively utilised in the context • The imposition of a high full proof on the charge before caution was introduced that of serious indictable offences. burden of proof on the the court. In essence, Garrow enabled Crown Prosecution In 2008, a total of 40,000 cases prosecution as regards all practised (and preached) the Service (CPS) lawyers, in the of assault were dealt with by the elements of the offence virtues of adversarial justice. absence of court involvement, to way of caution in England and alleged. Now, over 150 years after attach certain requirements, such Wales (BBC News, 9 November his death, the concept of as attendance at a drug clinic or 2009). Figures released under Given the scale of these dif- adversarial justice is something community reparation work, in the Freedom of Information Act ficulties, calls for extensive reform of an anachronism in the courts lieu of a formal court prosecution (BBC News, 11 July 2007) of the entire cautioning regime of England and Wales. The and conviction. An admission of showed that 1,291 cautions had have come from organisations demise of the right to silence, the guilt is a prerequisite for such a been issued for sexual offences such as the Magistrates’ widespread utilisation of police caution while non-compliance between 2001 and 2006. The Association and human rights powers by regulatory bodies and requires the CPS to make a information supplied by the groups. In the aftermath of a the expansion of out-of-court decision on whether to: Metropolitan Police revealed recent Panorama programme cautions have all combined to a) Prosecute the offender for the that 29 of the total cautions for exploring the pervasive nature render the once-revered English original offence, rape involved children under the of the cautioning regime, Justice adversarial system an endangered b) Take no further action, or age of 16. A further 50 cautions Secretary Jack Straw announced species. c) Vary the conditions. were issued between 2001 and a review of the entire system on 9 An organised system of out-of- 2006 for sexual assaults on November 2009. court cautioning – both formal Ultimately, the extension and children aged under 13. While The outcome of the and informal – has existed in development of out-of-court cautioning in a sexual assault review will not be announced England and Wales since the cautions became a central plank case will result in an individual until the end of 2010, but it mid-1980s. A number of Home of the British government’s being placed on the sex-offenders is obvious that substantial Office circulars, particularly those justice policy, which focused register, staggeringly no criminal reform, if not abolition, of of 1985 and 1990, encouraged on a statistical, results-driven record will exist. Notably the the police-cautioning regime greater use of cautioning, approach to crime detection court processes in existence will materialise. Ultimately, especially in relation to juveniles, and prevention, albeit within a for a formal prosecution are the difficulties experienced noting the possible harmful context of concerted diversion avoided in their entirety unless in Britain afford all who are effects of court appearances. By from the courts as regards the conditions of the caution are interested in crime prevention 2001, the cautioning rate (that punishment. breached and the CPS decide, and punishment a salutary is, the percentage of offenders There are laudable aims at that point, to pursue the case reminder of the dangers faced by formally cautioned out of the at the core of an attempt to through the courts. imbuing prosecutorial authorities total number of offenders found divert offenders from the A second significant difficulty with too much discretion in the

18 www.lawsocietygazette.ie comment Law Society Gazette jan/feb 2010 viewpoint Out-of-court cautions are killing justice

sanctioning of offenders. Ireland is further along the road In this jurisdiction, there of diversion from the criminal is also a long history of courts than is often popularly utilising out-of-court cautions, envisaged. Given the difficulties particularly when dealing with encountered in Britain with the road traffic offences. More expansive use of out-of-court recently, a worrying adherence to sanctions, this is representative the utilitarian ideals of Britain’s of a dystopian progression in legislation has been developing Irish criminal law away from the across Irish criminal law. Losing traditional adversarial system sight of the importance of once trumpeted by Sir William adversarial justice, our legislature Garrow. may be unable to resist the “Let me put it to you...” expansion of relatively cheap Ultimate burden of proof fixed-penalty notices. police intervention, but by of the Probation of Offenders A system of law and order in virtue of the unusual burden of Act 1907, namely a probation a modern democratic state Fixed-penalty notices proof required under section bond, the fixed-penalty notice should be predicated upon fair The increase in fixed-penalty 4, a summary prosecution may could further facilitate a lifetime procedures, the tempering of notices is evident from a ultimately fail. Thus, the Garda of criminal behaviour by the mob sentiment and the strict cursory analysis of the recent Síochána may be more willing offender. Therefore, despite allocation of the ultimate burden amendments made to the in certain circumstances to the administrative efficiencies of proof for criminal offences Criminal Justice (Public Order) utilise their power to impose solved by the issuance of an out- on the state prosecutorial Act 1994. Section 4 of the act a €50 fine as inserted by the of-court fine under section 4, authorities. concerns the offence of being 2006 act. The accused, who is the wider public interest in the Aside from the current intoxicated in a public place. Of unlikely to have knowledge of effective prosecution of offences economic climate, the realities importance is the change inserted the proofs necessary, is faced may not be adequately served. of a modern and developed by section 184 of the Criminal with a Hobson’s choice made all Section 4 of the Criminal society dictate a broader holistic Justice Act 2006, wherein fixed- the more palatable, by virtue of Justice (Public Order) Act 1994 approach to offender diversion in penalty notices, similar to the his own lack of legal knowledge. as amended is just one example regard to certain lesser offences ones in existence for certain road Notably, if the accused were to of the plethora of recent minor than is necessarily offered within traffic offences, are incorporated challenge the charge in court, offences on the statute book a judicial sentencing hearing. into the fabric of the public order with the aid of legal advice, he that allow for punishment by Nevertheless, the lesson to be sentencing regime in respect of may very well be acquitted of the way of fixed-penalty notice in gleaned from the experience section 4 and, indeed, section 5 section 4 offence as it currently lieu of court appearance. For of Britain is that there are (disorderly conduct in a public stands. example, section 5 of the Road significant dangers inherent in place) offences. Traffic Act 2006 provides that any widespread expansion of out- Of note is the fact that the Public interest not served a fixed disqualification (from of-court sanctions, particularly proofs required for a successful A further reason against the driving) notice may be issued if such expansion is justified on prosecution of section 4 diversion of section 4 charges where someone is found to have grounds of economic expediency. represent a higher threshold than away from the courts by way committed an offence under It was this very fixation on cost mere drunkenness. Rather, the of fixed-penalty notice is that section 42(2) or (3) of the Road efficiency, coupled with a culture individual must be “present in section 4 is an offence that Traffic Act 1961. of blind adherence to the merits any public place while intoxicated can be an early indicator of When one supplements of crime statistics, that provided to such an extent as would give criminogenic behavioural this list of offences with the impetus for the worrying rise to a reasonable apprehension patterns related to substance the utilisation of the Adult developments in Britain. G that he might endanger himself abuse. Thus, by depriving the Cautioning Scheme, the or any other person in his offender of an early opportunity penalty points system and the Darragh Connell BCL (NUI) is a vicinity.” to engage with the Probation considerable number of fixed- barrister and current candidate for There will undoubtedly be Service, through the medium penalty notices imposed by the LLM (Cantab). Conor O’Keeffe instances when an individual’s of, say, a typical District Court regulatory bodies, it is hard not BCL (NUI), LLM (Cantab) is drunken behaviour may mandate sentence under section 1(1)(b) to reach the conclusion that assistant lecturer at QUB.

www.lawsocietygazette.ie 19 Law Society Gazette jan/feb 2010 cover story Defame & fortune

The 2009 Defamation Act is not without its faults, but it introduces sensible and long overdue reform and will benefit plaintiffs and defendants alike. It is a major step forward, says Michael Kealey

he gestation of the Defamation Act 2009 must, however, now give directions to the jury on was long, even by Irish law reform damages, and the parties may make submissions on standards. Many of its provisions were the topic. In an effort to achieve consistency, the recommended in 1991 by the Law Reform Supreme Court is empowered to substitute its own Commission. damages figure on appeal, rather than – as has been TThe slowness of the change – allied, in some parts the practice to date – putting the parties to the cost of the act, to a somewhat rigid statutory approach and hazard of a retrial. – carries dangers. Thus, the defence of qualified privilege, enshrined in the act, has already been New reliefs overtaken by judicial developments in Britain. This While damages will undoubtedly remain the primary could leave Irish law open to challenge under the remedy sought by plaintiffs, the 2009 act introduces ECHR. a number of innovative alternative reliefs. Their The act does not apply retrospectively. It only purpose is to amend previous practice whereby the concerns causes of action arising after 1 January 2010. courts could not order a defendant to apologise or correct a false statement. These are: declaratory, Major changes correction and prohibition orders. The distinction between libel and slander is Declaratory orders are only available in the abolished; there is a new tort of defamation, which is Circuit Court, whose jurisdiction in defamation actionable per se. cases is increased to €50,000. An application can The limitation period has been standardised to be made at any stage during the proceedings for one year, although there is a discretion to extend an order declaring material false. No damages may this to two years in the interests of justice. This will be awarded, although costs can. If the application benefit defendants, particularly when allied to the fails, a plaintiff can continue with the substantive single publication rule introduced by section 11. proceedings. Relief will only be granted where Prior to the act, a new cause of action arose with material is clearly defamatory and where the every publication. Thus, each time an article was applicant sought a retraction or apology and the downloaded from the internet, the limitation period request was declined or the apology did not get main points would restart. Now a person has only one cause of suitable prominence. • Defamation, libel action over a multiple publication, although the court Correction orders can only be sought at trial, and slander can deviate from this where the interests of justice so where a statement is defamatory and there is no • Declaratory, require. Solicitors need to be very mindful of the new defence to the action. The court must also order “the correction and time limit. form, content, extent and manner of publication of prohibition The single most important change for defendants the correction”. orders is a procedural one. They will, like their counterparts A plaintiff can apply for an order prohibiting the in all other tort actions, be able to make a lodgement publication or further publication of a defamatory • Remedies pic : ci an r e dmo n d available from without an admission of liability. statement. The order may be made following an the Press Two other, largely unheralded, changes will likely interim or interlocutory application. It may also be Council of have a major impact on damages. Defamation cases made permanent. The order is discretionary where Ireland are decided in the High Court by juries, and it has the statement is defamatory and the defendant has no long been a complaint that awards are erratic. Judges defence that is reasonably likely to succeed.

20 www.lawsocietygazette.ie cover story Law Society Gazette jan/feb 2010 Defame & fortune pic : ci an r e dmo n d

www.lawsocietygazette.ie 21 Law Society Gazette jan/feb 2010 cover story

‘gentlemen of the press’ – code of practice Solicitors should keep an eye on the remedies or costs, he can force a newspaper or magazine to available from the Press Council of Ireland, which the publish his determination. Minister for Justice is empowered to recognise under While the Press Ombudsman cannot act on a the act. The PCI has prepared a code of practice, complaint if legal proceedings are threatened or in covering accuracy, fairness and privacy. It has a being, the converse is not the case. Solicitors should complaints procedure that is promised to be “fast, at least explore whether it would be worthwhile free and fair”. The Press Ombudsman will make a spending the relatively short time in bringing binding determination, usually within eight weeks a complaint, and thereby obtaining a possible from the making of the complaint, based on written vindication and an outline of the newspaper’s case, submissions. While he cannot award compensation before taking proceedings.

The act codifies interlocutory applications for both statutory footing and the act expands on the common parties to proceedings, which were previously rarely law by listing an extensive, but not exhaustive, set of used. Section 34 allows for the summary disposal of statements to which the privilege applies. The act claims, while section 14 allows the court to rule whether also brings clarity to the absolute privilege attaching statements are reasonably capable of bearing a pleaded to statements made in courts of local and limited meaning and whether that meaning is defamatory. jurisdiction, the coroner’s courts and tribunals of Other examples of the act restating existing law inquiry. are the provisions that corporate bodies can sue for The common law on qualified privilege, where defamation without having to prove financial loss, and a person had a duty to communicate information the rules on whether a member of a class of persons can to a person with a reciprocal interest in receiving show that a defamatory statement could it, is retained. So too is the privilege be understood to refer to him/her. attaching to reports of certain bodies “While listed in schedule 1; for example, courts Changes to defences outside the island of Ireland. Malice A major challenge for practitioners is criticised as continues to defeat the immunity. the requirement that affidavits must unworkable, be sworn by both parties, verifying any ‘Right to be wrong’? assertions or allegations of fact in a there has The most significant change to the pleading. There are criminal penalties if only been defences available to the media is that the affidavits are false or misleading, and of fair and reasonable publication on a the parties may be cross-examined on one reported matter of public interest, enshrined in their affidavits. attempted section 26. This is closely akin to, but Section 15 abolishes all pre-existing not the same as, the defence of qualified common law defences, leaving part 3 of blasphemy privilege established by the House of the act as the consolidated source of the prosecution Lords in Reynolds v Times Newspapers. options open to defence lawyers. Most (This was adopted into Irish law in the defences have been re-enacted with fairly in Ireland in decisions of O’Caoimh and Charleton modest amendment. the last 80 or JJs in Hunter v Duckworth and Leech v Thus, while justification has been re- Independent Newspapers.) cast as ‘the defence of the truth’, there so years, and The House of Lords recognised that, is little practical change; thus, the onus that figure in certain instances, the duty of the of proof remains on the defendant. That press to inform the public on matters said, the requirements to swear affidavits is unlikely to of public interest outweighed the rights verifying any assertion in a pleading, change greatly” of individuals about whom defamatory including an allegation that a statement statements were made. Unsurprisingly, is true or false, will likely introduce but somewhat inaccurately, this became greater caution on both sides. known as the ‘right to be wrong’. Similarly, the newly titled defence of ‘honest opinion’ To establish whether the media had acted will be familiar to practitioners as the somewhat reasonably, Lord Nicholls laid down ten factors to inaccurately named ‘fair comment’. However, the be taken into account by the court. These are now requirement in section 20(2) that a defendant prove that largely, but not identically, established on a statutory (s)he believed in the truth of the opinion at the time of basis. They include the seriousness of the allegations, publication is both arguably more restrictive than the the steps taken to verify facts, the context and content common law and will mean that the author will most (including the language used), whether the publication likely have to be called if the plea is to succeed. contained the gist of the wronged person’s story, and Absolute privilege is placed on a comprehensive adherence to the standards of the PCI.

22 www.lawsocietygazette.ie cover story Law Society Gazette jan/feb 2010

Hot pursuit – Oscar-winning The defence does not give the press carte blanche. actress Nicole Kidman Its actions will be closely scrutinised to see if they arrives to give evidence at look it up a defamation hearing at the meet the stringent criteria. • Hunter v Duckworth [2003] IEHC 81 Sydney Supreme Court on 19 November 2007 • Leech v Independent Newspapers [2007] IEHC223 Fluid and fast moving • Reynolds v Times Newspapers [1994] 4 AER 609 The common law in this area is heavily influenced by the European Convention on Human Rights and is both fluid and fast moving. The Reynolds defence has been somewhat liberalised in Britain through subsequent compensation and costs. In Britain, making such an decisions bringing the law there closer to the freedom offer leads to a discount in any damages that may enjoyed by the US media when publishing allegations be awarded at trial – as much as 50%. However, if a about public figures. There is a real danger that the defendant makes such an offer, no other defence may codification of this defence will strangle the flexibility be pleaded. necessary to keep the defence in line with the Overall, the 2009 act is a major step forward. requirements of the ECHR. While not without its faults, it introduces sensible but While not a defence, section 22 establishes a long overdue reform and will benefit plaintiffs and potentially useful weapon in a defendant’s armoury defendants alike. G – the offer to make amends. Where a defendant has published an allegedly defamatory statement, it can Michael Kealey is in-house counsel at Associated offer to publish a correction and apology and pay Newspapers.

APOLOGies AND utterance of blasphemous matter Two provisions that generated much comment before view an apology as an admission of some form of the bill became law may have less of an impact in (compensational) wrongdoing. practice. The second is criminal liability for the publication or The first is that an apology does not amount to utterance of blasphemous matter. While criticised as an admission of liability and is not relevant to the unworkable, there has only been one reported attempted determination of liability. Despite this statutory blasphemy prosecution in Ireland in the last 80 or so disclaimer, it will remain difficult for a jury not to years, and that figure is unlikely to change greatly.

www.lawsocietygazette.ie 23 Law Society Gazette jan/feb 2010 practice management quality street What are the benefits of having a risk management strategy? Will implementing quality-control systems affect your professional indemnity insurance and help your bottom line? Noelle McDonald has the answers

ystems for quality control are 1) Client care/terms of engagement. A comprehensive documented processes that will help ‘terms of engagement’ letter can cover all compliance manage and, in particular, minimise the issues required by law – for instance, money risk exposure to potential claims and/or laundering and data protection. This letter may also complaints from clients or third parties. set out a limitation on liability in accordance with ToS be effective, systems have to be communicated section 44 of the Civil Law (Miscellaneous Provisions) and understood – but must be also utilised – by Act 2008. As solicitors will be aware, they are entitled staff. They should be reviewed and updated on a to limit their level of cover, the minimum now being continuous basis. Some of the more obvious benefits €1.5 million as per the 2009 Professional Indemnity from implementing quality-control systems are that Insurance Regulations. Client care policies and your professional indemnity insurance premium will procedures can also be incorporated into the terms be kept low and that your practice will become more of engagement, for example, complaints procedures, efficient in delivering a consistent high quality of billing and invoicing, scope of work, applicable service. You will also improve your marketability and law, contact, termination clauses, email policy, competitive advantage – for instance, you will increase and requirements under section 68 of the Solicitors your success in tendering processes and panel reviews. Act to provide an estimate of expected costs. The Quality controls applied across the board will result Law Society also has available a template ‘terms of in increased uniformity, consistency and transparency engagement’ that can be tailored to each law firm’s between departments. needs (see ‘Precedents for practice’ in the ‘Best practice and guidance’ section of the Law Society One size may not fit all website – www.lawsociety.ie/Documents/committees/ How should you go about implementing new quality guidance/Precedent%20Letter.pdf). controls and how do you convert the non-believers? 2) Complaints policy and complaints register. A formal How do you incorporate systems to meet your firm’s complaints system will ensure that complaints are dealt needs? with in an efficient manner. A complaints register will It is important that you don’t set standards that staff record centrally all types of complaints made and how can’t meet. You should try to build in procedures that long each complaint took to be resolved. The register are easy to carry out and that create little interruption can be reviewed annually to assess trends, which in to daily work routines. turn will enable you to take preventative action to Initially, you may find some resistance from staff – eliminate similar complaints occurring in the future. for instance, many will argue that have more important In the North, it is legal requirement under the Client things to do, like looking after clients. The general Communication Practice Regulations 2008 to have a perception will be that all this ‘compliance stuff’ is just complaints policy and maintain a central complaints main points another box-ticking exercise that leads to less time fee- register to record the history of all written complaints • Risk earning. New roles will have to be filled, for instance, by clients, including details of how those complaints management compliance officer and money-laundering officer. were resolved. Britain has similar guidelines under rule and quality- Staff should be reminded of the importance of having 2 of the Solicitors Code of Conduct 2007. control systems compliance systems and the consequences or penalties 3) Undertakings register. This is an area that has • Recognised that can be imposed by the Law Society if a client or become a high priority for professional indemnity professional third party makes a compliant or a claim. insurers and is a risk management system that most standard insurers may require in the future. Where no such accreditations Six of the best register exists, this may be considered when calculating • Six simple The following are some risk-management and quality premiums. It is important that you can show that strategies control systems that can be easily implemented as part a central register exists and that it is reviewed on a of an overall risk-management strategy. regular basis.

24 www.lawsocietygazette.ie practice management Law Society Gazette jan/feb 2010 quality street

4) File audits. All staff, both junior and senior, turnover. File audits should focus on danger spots should be subject to file audits. This is another way to ascertain if a file is being managed adequately or of picking up whether there are any staff who are whether there are missed limitation dates or service/ experiencing difficulties with their files and whether registration dates. Is there a good record being taken more supervision and support is necessary. Problems of attendances with clients and legal advice given? Has can be resolved quickly through file audits. Junior a terms of engagement letter been sent to the client? solicitors need more supervision, as they are more Have all money-laundering documents been obtained likely to pick up bad habits or make mistakes. Giving and undertakings discharged? structural support in a systematic way will result in 5) Account checks. Regular account and costs reviews better file management, which will lead to a higher are a good way of monitoring accounting controls.

www.lawsocietygazette.ie 25 Important Notice EBS Building Society

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WHEN LOSING DATA IS NOT AN OPTION. Law Society Gazette jan/feb 2010 probate Night of the living debt

Solicitors have a duty to protect estate assets – and to defend an estate from any apparently unfounded actions. Cian O’Sullivan looks at the intricacies of the administration of estates and statute-barred claims

t common law, a personal representative years from the date of demand after death to sue for has a duty to protect estate assets breach of contract (section 11). and, by extension, a duty to defend an b) Mortgages – generally, standard form mortgages estate from any apparently unfounded provide that non-payment of any instalment due, actions. Section 8 of the Civil Liability coupled with a demand, shall constitute a breach. ActA 1961 states that all causes of action subsisting Some mortgages provide that mere non-payment against a deceased person at the date of death shall for a period constitutes a breach. In any case, the survive against his estate. Section 9 provides that no wording of any special and general conditions proceedings shall be maintainable against an estate attached to a loan offer will have to be considered, unless they were validly issued and were pending at as these will be incorporated into the mortgage and the date of death, or proceedings are issued within any inconsistency may operate against the bank the period of two years after death or during the contra proferentum. remainder of the statutory period, whichever period expires first. Section 11 of the Statute of Limitations If mere non-payment per se by an individual during 1957 prescribes a limitation period of six years for his/her life is a breach and that person dies, the bank breach of contract claims (sections 8, 9 and 11 are has the lesser period of six years from the date of non- collectively referred to as the ‘statute’). Section 27 payment (default) or two years from date of death to of the Succession Act 1965 empowers the High Court issue proceedings against the estate; similarly where to grant administration to such person as it thinks non-payment and demand constitute default and both fit. This section is frequently used by persons who occur during the individual’s life. intend suing an estate where the statute is in danger If there is no default during the individual’s life, of expiring and where a grant of representation has then section 11 will apply in the normal way. not issued. An independent individual consents to In Bank of Ireland v O’Keeffe, MO’K guaranteed being nominated by the applicant and, if acceptable to on 18 November 1980 to pay, on demand, the debts the court, is duly appointed an administrator ad litem, of B Ltd. MO’K died on 11 February 1982. A first whose function is generally limited to accepting and demand for payment was made on 6 May 1982 and defending a particular set of proceedings. proceedings issued on 19 February 1985. Barron J held that no cause of action was subsisting against Difficulties MO’K at the date of death. He stated that: “The claim There are two areas in practice that may cause which is brought is one which was not maintainable difficulties for practitioners and banks: until after demand was made and no cause of action a) Guarantees – if an individual personally could have arisen until such demand was made … main points guaranteed the debts of a connected company Since this demand was not made until after the death • Administration and a bank demanded payment and the individual of the deceased, it follows that there was no cause of of estates and subsequently died without making any payment, action subsisting against him at the date of death.” statute-barred this liability would constitute a cause of action The result was that the relevant period under claims surviving against the deceased at the date of death, section 11 (six years from 6 May 1982) applied, and • Solicitor’s and section 9 would operate. The bank would have the bank had issued in time. duty to protect the lesser of six years from the date of demand or estate assets two years from date of death to issue proceedings Promissory note • Challenging against the estate, otherwise the bank’s claim would In First Southern Bank Limited v Eileen Maher, DM third-party be statute barred. If no demand was made during executed a promissory note on 14 November 1980, claims an individual’s life, section 8 and, consequently, repayable by monthly instalments. No money was section 9 do not operate. The bank would have six ever paid on foot of the promissory note. DM

28 www.lawsocietygazette.ie probate Law Society Gazette jan/feb 2010 Night of the living debt

died on 21 July 1983. The plaintiff demanded never sought to enforce the guarantee while the repayment of the total amount due from DM’s deceased was alive. The deceased died on 18 February estate, and proceedings issued on 27 February 1989. 1987. Proceedings issued on 28 September 1989. The defendant argued that the claim was statute While the decision turned largely on the fact that the barred and the plaintiff argued that demand was a bank had not advised the elderly deceased to obtain prerequisite to enforcement of its security. independent legal advice at the time the guarantee Having reviewed the security documentation, was executed, Sheridan J did say obiter that the present Barron J dismissed the plaintiff’s claim on the case was distinguishable from the Bank of Ireland basis that, as soon as default was made on the first case, as the demand in the present case was made instalment (30 June 1981), the monies became due during the lifetime of the deceased and therefore a and owing. It was at this time that the statute began to cause of action was subsisting as at the date of death. run against the plaintiff. As the plaintiff had a cause of Consequently, sections 8 and 9 would have applied action subsisting against DM at the date of his death, and, as the bank did not issue within two years of and since no proceedings were brought within two death (being the lesser period), its claim would have years of death (being the lesser of the two relevant been statute barred. periods), the plaintiff’s claim was statute barred by virtue of section 9(2). Inadvertent acknowledgement In Allied Irish Banks plc v Philip English, the Practitioners need to take care that a statute-barred deceased guaranteed any sums due or to become debt is not inadvertently acknowledged during due and owing by his son to the limit of £3,000. A the administration, thereby running the risk of a demand was made on 12 April 1985, but the bank negligence action. Sections 56 and 65 of the 1957 act

www.lawsocietygazette.ie 29 Law Society Gazette jan/feb 2010 probate

look it up Cases: Legislation: • Bank of Ireland v O’Keeffe [1987] 1 IR 47 • Succession Act 1965, sections 3, 10, 13, 27, 46, • Allied Irish Banks plc v Philip English (unreported, 50, 115, 117(6) and 126 Circuit Court, 14 March 1992, Sheridan J) • Statute of Limitation 1957, sections 11, 13, 43 • First Southern Bank Limited v Eileen Maher [1990] and 45 2 IR 477 • Civil Liability Act 1961, sections 7, 8 and 9 • Finnegan v Richards and Madigan [2007] 3 IR • Family Law (Divorce) Act 1996, section 46 671 • Prendergast v McLoughlin (unreported, High Court, Literature: 20 May 2009, O’Keeffe J) • James Brady and Anthony Kerr, The Limitation of • Flack v President of the High Court (unreported, Actions (second edition) High Court, 29 November 1983, Costello J) • Anthony Kerr, Civil Liability Acts (third edition)

provide that, where any right of action has representation … as duly authorised agents, which accrued to recover any debt and the person liable was intended to and in fact did influence the plaintiff therefor acknowledges the debt, or makes part to his detriment in refraining from applying for the payment in respect thereof, the right of action appointment of an administrator ad litem”. is deemed to have accrued at the date of the It is submitted that, where there is doubt that acknowledgement or part payment. In addition, the estate has bound itself in equity and is estopped the common law doctrines of mistake and legal from pleading the statute, it would be prudent disability have not been displaced by section 9 and, for a plaintiff/creditor to make a section 27 in particular, the use of the words ‘any cause of application and obtain the blessing of the court. action whatsoever’. McKechnie J stated that: “In fact, the Depending on the circumstances, only risk of instituting proceedings an administrator may be estopped “Practitioners prior to the grant rests with the from pleading the statute. In Finnegan plaintiff in that he can never execute v Richards, the deceased died intestate need to take any award unless the named defendant on 13 May 2004. At that date, the care that a had by that date obtained letters plaintiff had vested in him a cause of of administration … Likewise, if a action against the deceased’s estate statute-barred person unconnected with the estate is within the meaning of sections 8 and debt is not wrongfully named, he can immediately 9; that is, proceedings had to issue so indicate and the court would surely by 12 May 2006. On 5 May 2006, inadvertently make the required consequential and prior to the issuance of letters of acknowledged order, including costs, virtually for the administration, the plaintiff’s solicitors asking.” wrote to the defendants’ solicitors during the Generally, the definition of seeking confirmation that they would administration, default is crucial and determines accept service of proceedings and that, what provisions apply. It is the duty in default, application pursuant to thereby running of a personal representative, where section 27 would be made. On 8 May the risk of a appropriate, to challenge third-party 2006, the defendants’ solicitors replied claims, especially where they might and confirmed authority to accept negligence be statute barred. Acknowledging a service of proceedings. Proceedings action” statute-barred debt or part payment issued against the defendants on 9 thereof will cause the period May 2006 and the defendants entered of limitation to recommence. an unconditional appearance. A grant Practitioners may find themselves subsequently issued. Upon delivery of the statement open to an action in negligence on the part of of claim, the defendants issued a motion seeking to disappointed beneficiaries or legitimate creditors (for have the proceedings struck out on the basis that example, where an estate is insolvent) who may find they were statute barred, in that, when proceedings that the amount of their recoverable entitlement/ issued, a grant had not issued and the defendants debt is reduced or wiped out as a consequence of the did not act in their capacity as administrators of the acknowledgement/part deceased’s estate. payment. G McKechnie J dismissed the application. He held that the defendants were estopped from pleading Cian O’Sullivan is a solicitor and registered tax consultant the statute. McKechnie J treated the defendants’ in the private client department of Mason Hayes & solicitors’ letter, dated 8 May 2006, as a “material Curran.

30 www.lawsocietygazette.ie company law Law Society Gazette jan/feb 2010 Merger most foul

The recession has seen a fall in the volume of merger and acquisitions activity, but the rules still apply and merging parties must consider whether a notification to the Competition Authority is

necessary, Cheese and chocolate rarely meet – writes Cormac except when it comes to fondue Little he current economic downturn has such as Ireland’s – very high, and comparatively few witnessed a significant fall in the volume transactions involving Irish companies are notified to of merger and acquisitions activity. Many the commission. transactions that are occurring involve We will, therefore, focus on Irish merger-control distressed businesses where the parties rules and consider when a notification is necessary Tusually wish to close the deal quickly. However, EC to the Competition Authority under part 3 of the and Irish merger control rules continue to apply, Competition Act 2002. main points and the parties must continue to consider whether In addition, we will examine ways of accelerating • Irish merger merger-control filings are necessary and, if so, the the timetable, where early completion is crucial to the control rules prospects for early clearance. viability of the target’s business. • Minimising If a transaction satisfies the financial thresholds Finally, we will consider the circumstances where delays in merger under the EC Merger Regulation, it must be notified to the authority may approve transactions giving rise to approval the European Commission and not the Competition potential competition concerns. • Approval of Authority. In such cases, EC member states may transactions intervene to protect legitimate interests such as Turkish delight that give rise public security, plurality of the media, and prudential In general, a merger or acquisition must be notified to competition rules in the financial sector, even if the merger does to the Competition Authority if the following three concerns not give rise to competition concerns. The EC conditions are satisfied: thresholds are – in the context of a small economy • In their respective most recent financial years,

www.lawsocietygazette.ie 31 Law Society Gazette jan/feb 2010 company law

HMV/Zavvi and accelerated review Before Christmas 2008, the British-based Zavvi Group comments and moved quickly to examine the relevant entered administration following the collapse of its competition issues, focusing on the overlaps between main supplier. As a result, its wholly-owned subsidiary, HMV and Zavvi stores in both greater Dublin and Zavvi Ireland, became insolvent and went into Limerick. The authority concluded that, given the provisional liquidation. Zavvi Ireland operated 11 stores limited geographical overlaps between the parties’ selling CDs, DVDs, electronic games, MP3 players and respective shops in these cities and the strength of music-related books. On 15 January this year, HMV rivalry from other retailers, HMV’s proposal did not give Ireland, which operates a retail chain selling a similar rise to competition concerns. The authority granted its mix of products, notified its proposed purchase of the approval on 23 January. This eight-day review period by assets of five Zavvi-branded stores to the authority. The the authority is the shortest since the entry into force provisional liquidator agreed to operate these shops of the current Irish merger-control regime over six years pending merger approval, but made it clear to the ago. authority that, if the shops were not sold as quickly as The HMV/Zavvi case shows that the authority is possible, they would close with a consequent loss of willing to accelerate its review timetable but will, around 100 jobs. nevertheless, continue to look into the likely market The authority responded by halving its usual impact of a transaction to ensure that its competition ten-day notice period for the receipt of third-party analysis is robust.

the global turnover of each of two or more of the not possible to get a waiver to complete in advance of parties involved, respectively, is not less than €40 approval from the authority. This delay may not be million, good news for a target company that urgently requires • Each of two or more of the parties involved carries a capital injection or for a liquidator that is looking on business in any part of the island of Ireland, and to rescue a failing business by selling it as a going • Any one of the parties involved has turnover in the concern. There is an exemption from the requirement state of at least €40 million. to notify for transactions where the acquirer is a liquidator or receiver, but subsequent sales by these Special rules apply to media mergers and certain practitioners are subject to review by the authority in transactions involving credit institutions. Mergers or the normal way, provided the relevant jurisdictional acquisitions that involve two or more media businesses tests are satisfied. (such as radio or TV stations and newspapers) must be notified to the authority, provided at least one party is Fruit and nut active in the state. Moreover, under recent emergency As discussed, a crucial jurisdictional question is legislation, proposed transactions involving credit the level of the parties’ respective most recent institutions may, in certain circumstances, be notifiable turnover. Normally, figures contained in the to the Minister for Finance. relevant, most recent audited accounts are used. If a transaction must be notified to the authority, However, the authority, relying on the European the merging parties should not close the transaction Commission’s Consolidated Jurisdictional Notice, until they receive regulatory approval, because it is will recognise that the relevant turnover figures should reflect permanent changes in the economic reality of the parties to the transaction, such as look it up closures or divestitures since their respective most Cases: recent financial year-ends. This may be helpful to a • Competition Authority Determination – M/09/002 – company that has shut or sold loss-making parts of HMV Ireland/Zavvi its business and is anxious to avoid the delay caused • Competition Authority Determination – M/07/046 – by a filing. A slowdown in orders after the last year- Smart Telecom/E-nvi end is not, however, seen as a permanent change. In addition, any closure or sale of a business should Legislation: take place in advance of, or as a precondition to, the • Competition Act 2002, part 3 conclusion of the transaction agreement in order to • Credit Institutions (Financial Support) Act 2008 trigger a readjustment of the relevant party’s most • EC Merger Regulation recent audited turnover figures.

Literature: Glass-and-a-half • Competition Authority, Guidelines for Merger After the transaction is notified, the authority Analysis – N/02/004 will consider whether the proposal gives rise to • European Commission, Consolidated Jurisdictional competition concerns. As discussed, the deal cannot Notice, OJEU 2008 C 95/01 be closed until the authority grants its approval. Save for transactions involving credit institutions,

32 www.lawsocietygazette.ie company law Law Society Gazette jan/feb 2010

the substantive test under Irish merger-control rules basis of the ‘failing firm’ defence, although it was is whether the proposal gives rise to a substantial raised regarding Smart Telecom’s acquisition of lessening of competition. If so, the transaction will an insolvent competitor a couple of years ago (see be blocked or cleared, subject to steps designed to panel). remedy its anti-competitive impact, such as the sale of a business. Nuts, whole hazelnuts In cases that do not give rise to competition Until recently, Irish merger-control rules did not concerns, the authority normally takes around one contain any provisions superseding the competition month to issue its approval. If the authority feels that test where a merger is necessary to preserve the it requires further information, it may extend this stability of the financial system. This meant that timetable. On the other hand, if the parties quickly banking mergers designed to avert financial crises satisfy the authority that a notification does not might be subject to a lengthy timeframe for review give rise to competition difficulties, it may issue its and definitively blocked on competition grounds. clearance decision within a matter of weeks. Mirroring a similar initiative in Britain, this situation changed with the adoption of the Credit Institutions Finger of fudge (Financial Support) Act 2008 last October. Under Irish merger-control rules, a transaction may This emergency legislation allows the Minister for not be notified to the authority until the agreement Finance to approve a merger that would otherwise is concluded. Put another way, a notification may be blocked, where he believes that it is necessary to not be made on the basis of a non-binding letter of maintain the state’s economic stability, including its intent. This means that the parties are likely to have financial systems and credit institutions, and that the opportunity, prior to notification, of engaging there will be a serious threat to the stability of this the authority in order to discuss the information to system if the merger does not proceed. (Clearly, be provided in the actual filing. These discussions mergers that satisfy the thresholds under the EC may serve to reduce the possibility of delays after the Merger Regulation will continue to be notifiable to notification is submitted. As the recent HMW/Zavvi the European Commission.) The new legislation case shows (see panel above), the authority will do does not contain any references to timing; this its best to facilitate parties that are anxious to move means that, in theory, the minister may issue his ahead quickly, provided the relevant transaction does approval within a matter of days. not give rise to competition concerns. Whether the economic seas are calm or choppy, merging parties must consider whether a notification Careless Wispa to the authority is necessary. The parties are allowed The ‘failing firm’ defence allows the authority to to make adjustments to their audited turnover figures approve mergers that may otherwise be prohibited. where parts of their respective businesses have been In order to avail of this defence, the proposed shut or sold. Moreover, acquisitions by a receiver or transaction must satisfy four strict criteria set out in liquidator are not notifiable. Notwithstanding the the authority’s Guidelines for Merger Analysis. economic rationale for the planned transaction, the First, the alleged failing firm must be unable to authority will consider whether the relevant proposal meet its financial obligations in the near future. gives rise to competition concerns. Second, there is no possibility that an examiner could Moreover, any delay may also be minimised by rescue this business. Thirdly, there is no less anti- engaging with the authority, which has shown a competitive sale available (for example, where other willingness to work with companies anxious to potential purchasers have refused the opportunity). complete transactions speedily. Finally, in certain Finally, in the absence of the proposed sale, the limited circumstances, transactions that give rise to target’s assets would definitely exit the market. competition concerns may be approved. G The authority has recognised that these conditions will rarely be met in practice. Indeed, Cormac Little is a partner in the competition and to date, no merger has been approved on the regulation unit of William Fry.

Smart Telecom and the ‘failing firm’ argument In September 2007, Smart Telecom notified its that the transaction did not give rise to competition proposed acquisition of E-nvi Communications difficulties because the extent of the overlap to the Competition Authority. At the time of between the parties was minimal and, furthermore, the notification, E-nvi Communications was in there was strong competition in ‘triple play’ and its provisional liquidation. Smart Telecom and E-nvi individual services sectors. Communications overlapped in the provision of The parties put forward a ‘failing firm’ argument electronic communications, including packages but, given the lack of competition concerns arising comprising broadband, telephony and TV services, from this transaction, the authority did not need to often referred to as ‘triple play’. The authority found consider whether this defence was required.

www.lawsocietygazette.ie 33 Law Society Gazette jan/feb 2010 litigation On borrow ed time The Enforcement of Court Orders (Amendment) Act 2009 amended the previous regime to allow for a constitutionally-acceptable method of enforcement of committal orders. Bill Holohan looks at the act from the debtors’ perspective

he legislature moved swiftly to respond satisfied that the debtor has failed to comply with the to the issues raised in the judgment of instalment order”: Laffoy J in the High Court decision in a) Treat the proceedings as an application to vary McCann v Judge of the Monaghan District under section 5, Court. An article in the July 2009 Gazette b) Request the creditor and the debtor to seek T(‘Till debt do us part’, p29) set out in detail the bases resolution by mediation, or for the court decision, and it is not proposed to c) Make an order fixing a term of imprisonment for rehearse them here. (See also ‘One to watch’, August/ any period not exceeding three months, and stay September 2009 Gazette, p12.) the execution of the order on conditions. The act was passed on 14 July 2009. It replaces section 6 and amends section 8 of the 1940 act so as In particular, under subsection 8, a judge must not to ensure that there are certain safeguards introduced make an order for immediate arrest or imprisonment, on an application for a committal order to ensure that or a postponed order for arrest and imprisonment, the debtor is given adequate means and opportunity unless they are satisfied “beyond reasonable doubt, for representation in court, before the court grants an on the evidence presented, that the creditor has imprisonment order. established that ... the failure to pay the sum in Under section 6, a summons issued to a debtor respect of which the debtor has made default is not must “contain details of the consequences of the due to his or her mere inability to pay, but is due to failure to comply with an instalment order and in his or her wilful refusal or culpable neglect and … particular the possibility of imprisonment” and “state the debtor has no goods which could be taken in that the debtor may be arrested if he or she fails to execution under any process of the court by which the appear before the District Court as directed”. The judgement, order or decree for the debt was given”. debtor must be served “by personal service” unless the The criminal standard of proof therefore applies. judge of the District Court directs otherwise. If the debtor fails to appear “without reasonable Imprisonment orders excuse” to answer to the summons (subsection 3) Assuming that the debtor’s circumstances change then, on the creditor’s application, the judge may after the making of the order, to the point where they issue a warrant for the arrest of the debtor or fix a are no longer able to pay – as distinct from being new date for hearing and direct that the debtor be unwilling to pay – then subsection 9 provides that, notified. in the case of a postponed order with a condition as to payment of the debt and costs by the debtor, Debtor’s court appearance then (s)he may, if his/her ability to comply with the Once arrested, a debtor must be brought before the terms of the order has changed, apply to the District court as soon as possible (subsection 4) and a date will Court clerk concerned to re-enter the matter and the then be fixed for hearing (subsection 5). The judge District Court judge, on notice of the creditor, must must then make clear to the debtor: then deal with the matter as if it was an application main points a) Their entitlement to apply for legal aid, under section 5 for a variation of the instalment • Debtor’s court b) The consequences, including imprisonment, of order. appearance failing to comply with the instalment order, and Subsection 10 provides that, where a debtor • Setting aside c) That he or she must attend for the hearing on the is imprisoned on foot of an order made under imprisonment date specified for hearing. subsection 7, the debtor may, if their circumstances orders have changed, apply to the District Court clerk • Entitlement to Under subsection 7, “on hearing the creditor and to re-enter the matter and the judge, on notice to legal aid the debtor and such evidence, if any, as they may the creditor, must then deal with the matter as if respectively adduce, a judge may, if he or she is it was a re-hearing of the summons as referred to

34 www.lawsocietygazette.ie litigation Law Society Gazette jan/feb 2010 On borrow ed time

Not such a practical pig now, eh?

in subsection 1. Subsection 10(b) provides that the section 10, subsection (a) for a “re-hearing of the debtor is entitled to be released immediately upon summons referred to in subsection 1”, they will payment by him or her, or on his or her behalf, to the remain in prison unless “all instalments of the District Court clerk concerned, or to the governor debt and costs which have accrued before and are of the prison for the District Court clerk, of the sum unpaid” are paid to the District Court clerk or to the of money consisting of the amount of all instalments governor for the District Court clerk. Presumably, of the debt and costs that have accrued before, and therefore, a belatedly impecunious debtor will are unpaid at the date of such order. Subsection 11 languish in jail pending the hearing of the re-entry provides that all monies paid under the section to the application. District Court clerk, whether directly or through the governor of the prison by or on behalf of the debtor, Entitlement to legal aid are to be paid by the clerk to the creditor on request. Perhaps one of the most interesting developments What, then, of a situation where someone has (necessitated by the judgment of Laffoy J in the been adjudged to be unwilling to pay and has been McCann case) was the requirement to provide imprisoned, and where the circumstances change legal aid. Section 6A now makes provision for an to the point where they are unable to pay, perhaps entitlement to apply to the court for a debtor’s legal simply because of their incarceration? aid certificate and sets out the circumstances in which It would appear that, while they can apply under it can be granted.

www.lawsocietygazette.ie 35 Mediation Training & Mediation Case Management Services in Ireland CIVIL & COMMERCIAL MEDIATION TRAINING & PROFESSIONAL ACCREDITATION PROGRAMME Wednesday 10th - Saturday 13th February 2010 Venue: DUBLIN, Friarylaw Chambers, The Friary, Bow Street, Dublin 7

FAMILY MEDIATION TRAINING & PROFESSIONAL ACCREDITATION PROGRAMME Tuesday 23rd - Saturday 27th February 2010 Venue: DUBLIN, Friarylaw Chambers, The Friary, Bow Street, Dublin 7

A NATIONAL MEDIATION CONFERENCE SYMPOSIUM Trinity College Dublin Edmund Burke Theatre

Friday 5th March 2010 Organised and Sponsored by Friarylaw “Irish Dispute Resolution – Where we are now, where we are going and a practical framework”

Senior members of the Judiciary, leading politicians from across the political spectrum, experienced professionals from many sectors of Irish Society (including academia, construction, finance, insurance, law, public sector, sport and other sectors) will contribute as speakers, panelists or moderators.

For Programme details of the National Mediation Conference Symposium, including details of Contributors and for further information on the Mediation Training Programmes please contact Friarylaw Chambers, The Friary, Bow Street, Dublin 7. Tel: 01 8728405. Fax: 01 8728409, Email: [email protected], Web: www.friarylaw-mediation.ie

Eligible for CPD Points litigation Law Society Gazette jan/feb 2010

In the explanatory memorandum to the act, it is noted that: “Entitlement is limited to debtors at risk look it up of imprisonment under section 6 whose means, in the Cases: view of the judge, are insufficient to enable him or • McCann v Judge of the Monaghan District Court her to pay for their own representation. Regulations (unreported, High Court, 18 June 2009) to set the relevant fee will be made by the Minister for Justice, Equality and Law Reform with the Legislation: consent from the Minister for Finance.” • Criminal Justice (Legal Aid) Act 1962 It raises the interesting prospect of lawyers who • Enforcement of Court Orders (Amendment) Act have signed up for the criminal legal aid panel 2009 now dealing with the defence of debtors under • Enforcement of Court Orders (Amendment) Bill the Enforcement of Court Orders Act. Given that 2009 (Seanad) as initiated and explanatory the judge will have to be satisfied that the debtor’s memorandum means “are insufficient to enable him or her to pay for their own representation” before granting legal subsection 1 and to such legal aid. Under subsection aid, one presumes that thereafter there will be little 4, the minister is entitled to make regulations difficulty in proving that the failure to pay the debt in relation to the form of certificates, the rate of was also due to insufficiency of funds, unless it was payment of any fees, costs or other expenses payable, considered to be taken as read by the legislature that the manner in which legal representatives may be the threshold of proof that the debtor’s means “are signed pursuant to such certificates, and so on. insufficient to enable him or her to pay for their There is an interesting provision under section own representation” was higher than the threshold 6A(2)(B), which provides that, where a debtor in of proof that the debtor’s means are insufficient to respect of whom an order for imprisonment is made enable him or her to pay the debt. is refused a debtor’s legal aid (appeal) certificate, he or Section 6A subsection 1 provides that, if it appears she may apply for the certificate to the court to which to the judge that the debtor’s means are “insufficient an appeal for imprisonment lies either by: to enable him or her to obtain legal aid”, then, on • Letter addressed to the registrar of that court, application by the debtor, the judge can grant a setting out the facts of the case and the grounds of certificate for free legal aid, referred to as a “debtor’s the application, or legal aid certificate”. Under subsection 1(D), in the • To the court itself. event of an appeal, the certificate so granted will be referred to as a “debtor’s legal aid (appeal) certificate” A new informality is thus provided for in terms of the or, under subsection 1(C), in the event of a case format of the appeal. stated to the High Court, any certificate granted will The provisions of section 8 of the 1940 act (which be referred to as a “debtor’s legal aid (case stated) deals with maintenance orders) are also amended in certificate”. similar fashion to the general provisions outlined Under section 6A(2), on the grant of the above. certificate, the debtor is entitled to have legal How the legislation will work in practice remains representation assigned to him or her for that to be seen. G purpose and, under subsection 3, it is provided that the Criminal Justice (Legal Aid) Act 1962 and the Bill Holohan is the senior partner of Holohan Solicitors, regulations made under section 10 of that act are, Cork and Dublin. The second edition of his book, where appropriate and with such modifications as Bankruptcy Law and Practice in Ireland, will be are necessary, to apply for a certificate granted under published in early 2010.

DOYLE COURT REPORTERS LTD

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

www.lawsocietygazette.ie 37 Law Society Gazette jan/feb 2010 people and places Tipperary Bar Association celebrates 100 years he Tipperary Solicitors’ TBar Association (TSBA) celebrated the centenary of its founding on 13 November 2009. The association was originally founded in Roscrea (north Tipperary) on 15 November 1909, but being fair minded in all matters, the TSBA decided to hold its centenary celebrations in south Tipperary in the Hotel Minella, Clonmel. On hand to assist with the celebrations was a large gathering of solicitors, their spouses and partners from North Tipperary and South Tipperary, together with TSBA guests from the judiciary, county Members of the TSBA committee (front, l to r): John Joy, Suzanna Manton, Maura Derivan, Ken Murphy (Law registrar and the Law Society. Society director general), Patrick Derivan (TSBA president), Gerard Doherty (Law Society president), Brendan President of the association, Hyland, Marcella Sheehy and Pat McDermott. (Back, l to r): Ronan Kennedy, Billy Gleeson, Paul Kingston, Joe Patrick Derivan of Carrick- Kelly, David Hodgins, Dermot O’Dwyer, Mark Hassett, James Meagher and Donal Smyth on-Suir, made the welcoming speech, highlighting the work of bar association anywhere in legislation by addressing programme of courthouses in the association during its long the world to be invited to be a various steering committees Tipperary, which has resulted history. Past-president of the Law member of the International of Dáil Éireann, lobbying and in the refurbishment and Society, Philip Joyce (Killenaule), Bar Association on its own making submissions to amend renovation of courthouses was MC for the night. merits. The association has legislation that affects the to the highest standards in survived two world wars, rights of Irish citizens. Clonmel, Nenagh and Thurles. Member of the IBA depressions, recessions and The association has scored The TSBA claims that its The TSBA is one of the ‘tiger’ times. other successes during its county is unique in having so oldest bar associations in the In more recent years, history, among them the drive many upgraded and modern country and is the only rural the TSBA has influenced to support the modernising courthouses, due chiefly, it says,

Receiving their new past-president medallions were (front, l to r): John Joy (South Tipperary), Paul Malone President of the Law Society (North Tipperary), Niall Quirke (South Tipperary), TSBA president Patrick Derivan (South Tipperary), Jim Kelly Gerard Doherty (right), (North Tipperary), Nicky Shee (South Tipperary), Paul Morris (South Tipperary) and Matt Hassett (North congratulates president of the Tipperary). (Back, l to r): Billy Gleeson (North Tipperary), Brendan Looby (South Tipperary), Philip Joyce (South TSBA, Patrick Derivan, seen here Tipperary), Peter Reilly (South Tipperary), Pat McDermott (North Tipperary), Eugene Tormey (North Tipperary), wearing the new chain of office John O’Connor (North Tipperary), John Spencer (North Tipperary), David Morris (South Tipperary) and Brendan at the association’s centenary Hyland (North Tipperary) celebrations

38 www.lawsocietygazette.ie people and places Law Society Gazette jan/feb 2010 Tipperary Bar Association celebrates 100 years A LL PICS: d en is ba rry photogr a phy

Celebrating at the centenary celebration of the Tipperary Solicitors’ Bar Association were (front, l to r): Judge Mary Martin, Judge Elizabeth McGrath, Yvonne Chapman, Bernadette Cahill (president, Waterford Solicitors’ Bar Association), Patrick Derivan (president of TSBA), Mary Delahanty (county registrar), Helen Teehan, Judge Alice Doyle and Jean O’Donnell. (Back, l to r): Judge Tom Teehan, Charles Stanley Smith, Gerard Doherty (president of the Law Society), Judge Michael Reilly (Inspector of Prisons), Ken Murphy (director general of the Law Society) and Judge Tom O’Donnell

to the dedication and support Tipperary and South Tipperary (including financial support) of and separate crests were the solicitors of Tipperary. In created for both areas. the past, they have undertaken The original crest was litigation on behalf of the adapted by the association to people of Tipperary to save include the insertion of the the courthouses in Clonmel traditional Irish harp at the and Nenagh, which were top of the crest, and a figure threatened with closure due denoting justice at the bottom, to long-standing neglect and while traditional Celtic script disrepair. was also incorporated. At the centenary Eye on the past celebrations, a past-president One interesting facet of the medallion was presented to celebrations was the mounting all living past-presidents. The of an exhibition of artefacts silver medallion carries the from the past, including dress At the centenary celebrations were (l to r): Law Society director general legal insignia of the Tipperary worn by the legal profession Ken Murphy, TSBA president Patrick Derivan and Law Society president Solicitors’ Bar Association and in 1909, legal documents, Gerard Doherty the name of the past-president books, old-fashioned quills and and year of service. pens, and newer technology was indeed very different for presented to the president by Guest speakers on the night comprising of ‘ye olde’ solicitors 100 years ago, and a Tipperary’s longest-practising included President of the Law typewriters! A photographic short sketch was performed that solicitor, Niall Quirke, a Society Gerard Doherty and exhibition displayed events from transported members and guests native of Carrick-on-Suir. Judge Michael Reilly, who is the past, as well as records of back to 1909. The new chain comprises the Inspector of Prisons, and a the association. original crest for the county of proud Tipperary man. Wining, A competition for the New chain of office Tipperary, which dates back to dining and dancing completed most interesting signature To mark the centenary 1665 and which was not used the celebrations. The TSBA using a quill was held and celebrations, a new chain of after 1838, when the county looks forward to the next 100 enthusiastically supported. Life office was commissioned and was divided between North years!

www.lawsocietygazette.ie 39 Law Society Gazette jan/feb 2010 people and places Young eagles brave elements for ‘Waterworld’ weekend he exceptionally heavy Train in the third week in November resulted in some of the worst flooding County Cork had ever experienced, writes Alina Prendergast. The following weekend was to be the very one that the Society of Young Solicitors’ Autumn Conference 2009 would convene in (you’ve guessed it) Cork. While there were inevitably some last-minute drop-outs, the majority of young legal eagles braved the forecasts and headed to ‘Waterworld’. The relief was evident in the faces of the attendees in the bar of the Clarion Hotel on Friday night: SYS committee members attending the autumn conference included (l to r): Donogh O’Donovan (McCann FitzGerald), Daniel Mueller (Eversheds O’Donnell Sweeney), Alina Prendergast (McCann FitzGerald), Micheál not a puddle was to be seen in Grace (Mason Hayes & Curran), Jane Beattie (William Fry) and William McAuliffe (Matheson Ormsby Prentice) the environs of the hotel. The intention of this year’s conference was to provide young solicitors with ideas and information on opportunities that are available when faced with redundancy or potential job loss, which was reflected in the speakers and topics chosen. The first guest speaker on Saturday morning was Gráinne Gleeson of Mason Hayes & Curran, who gave an informative talk on varying Getting together at the autumn conference were (l to r): Maighread Britton Claire Molloy (A&L Goodbody) contracts of employment and (Matheson Ormsby Prentice), William McAuliffe (Matheson Ormsby and Daniel Mueller (Eversheds redundancy matters. Max Prentice) and John Bermingham (Garrett Sheehan & Partners) O’Donnell Sweeney) at the SYS conference in Cork

Abrahamson, consultant with McCann FitzGerald, shared some interesting experiences from his career in law, which has spanned more than five decades and a recession or two. He provided real insight and perspective on the current situation being faced by the profession for the young solicitors in attendance. The Law Society’s career development advisor, Keith O’Malley, emphasised the Conference speakers included Max Abrahamson (McCann FitzGerald), Alina Prendergast (SYS), David Byrnes importance of solicitors’ (Brightwater Recruitment), Rosemary O’Loughlin (ComReg) and Gráinne Gleeson (Mason Hayes & Curran) own career management

40 www.lawsocietygazette.ie people and places Law Society Gazette jan/feb 2010 Young eagles brave elements for ‘Waterworld’ weekend All pics : M ich eá l G r a c e an d Dan B rry

At the SYS autumn conference were (l to r): Micheál Grace (Mason Hayes & Curran), Killian Kehoe (Institute of International and European Affairs), Padraic Roche (A&L Goodbody), Larry Doyle (A&L Goodbody), Daniel Mueller (Eversheds O’Donnell Sweeney) and David Collins (A&L Goodbody)

and taking charge of one’s career path. Rosemary O’Loughlin, who previously worked as a stagiaire in DG Comp in Brussels, shared her experiences of working in the EU institutions, and also talked about other potential opportunities outside Ireland, such as employment in the European Court of Justice. David Byrnes of Brightwater Recruitment (a long-standing sponsor of the SYS conferences) summarised the areas where he saw Attending the SYS conference reception were (l to r): Claire McLoughlin potential future employment SYS chairperson Alina Prendergast was welcomed to the southern (Matheson Ormsby Prentice), Donogh O’Donovan (McCann FitzGerald), opportunities within the legal capital by Council member of the and Dan Barry (Mason Hayes & Curran) sector and gave some tips on Law Society Patrick Dorgan interviewing techniques to the audience. headline sponsors of this year’s Following the hard work, SYS conference – raffled off a Saturday evening was reserved number of tickets for a clinch for a drinks reception and rugby match, kindly donated by gala dinner, at which Patrick Bank of Ireland. Dancing to the Dorgan (Coakley Moloney tunes of ’90s group Smash Hits, Solicitors) spoke on behalf followed by DJ Glen, the fun of the Law Society. This continued late into the night. opportunity for socialising with A big thanks to the sponsors colleagues from different firms of the event, without whom around the country constitutes we would not have been able an essential part of the weekend to proceed. We look forward to seeing many more of our – and socialise they did! After At the SYS autumn conference in Cork were (l to r): Deirdre the meal, two representatives colleagues at SYS events in Sheehan (Arthur Cox), Julie O’Neill (McDowell Purcell) and Michael from Bank of Ireland – the 2010. Keaveney (Arthur Cox)

www.lawsocietygazette.ie 41 Law Society Gazette jan/feb 2010 people and places

This photo of those who qualified just over 50 years ago (the class of 1959) was sent to us by Niall Farrell, solicitor. Among those we have been able to identify are (front): Margaret Casey (third from left), John R Halpin (president), and Con Clancy (far right). (Middle, l to r): Gerard Gannon (far left), Thomas Gannon (third from left) and Thomas Ballagh (fourth from left). (Back, l to r): Edward M Masterson, Patrick J Farrell, Francis Fitzgerald, Thomas D Shaw (fifth from left), Richard Black (seventh from left) and Laurence Branigan ON THE MOVE P ic : R o bb i e Re y n olds /CPR P ic : na th an i e ldoyl e@ gm a il . com

Four new partners at McCann Fitzgerald Fishburns strengthens Dublin office McCann FitzGerald has announced the appointment of four new Fishburns Solicitors has added new blood to its Dublin office. partners across its corporate finance, dispute resolution/litigation, Providing legal services to the insurance industry for over 30 years, information technology and financial services practice areas in Dublin. and operating from offices in the IFSC, the firm represents insurers The new partners are (from l to r): Darragh Murphy (banking and and professionals, including solicitors, accountants, architects, financial services group), Aidan Lawlor (corporate finance group), John surveyors, financial advisors and brokers in the defence of claims. Cronin (chairman), Brian Quigley (dispute resolution and litigation (From l to r): Sinéad Ryan, Keira-Eva Mooney, Donal Twomey, Aoife group) and Annette Orange (IT and e-commerce group) Gaughan (partner), Denise O’Connor (partner)

42 www.lawsocietygazette.ie obituary Law Society Gazette jan/feb 2010

Laurence Sweeney 1930 – 2009

rofessor Laurence (Larry) to ‘do’. This was achieved through PSweeney, who died on 19 a planned programme of objectives- December last, was director of based training. This meant that each training at the Law Society from session had to be identifiable by the 1977 to 1992. range of activities participants would Born in Belfast, Larry’s early be able to carry out at its close. years were spent in the civil service A significant novel feature was in England. During this time, he that the later, or ‘advanced’, course took his primary degree in law, would focus on practice skills not following it with a thesis-based MSc rooted in academic law. Thus was that analysed emerging techniques born advocacy and negotiations in vocational and professional training, characterised by live-action training. role-play that was video-recorded In the early 1970s, Larry and his and later replayed for group wife Catherine moved to Ireland, discussion and critique. where his credentials well equipped From this, it was a short step to him to take on the role of training devise variants as half-day or day- manager with CERT. It was at this long refresher courses for solicitors: time that Larry bought his beautiful continuing legal education, or CLE home, ‘Inglewood’, on Hillside – now CPD. Larry proved both Road in Greystones. By the mid 1970s, the Law Society had fearless and effective in introducing to a conservative profession completed the move to Blackhall Place and was ready to launch the techniques that helped ‘to do’ rather than just ‘to know’. its first-ever centrally located training school for solicitors’ Skills-based CLE became immensely popular. For many years, apprentices. Prior to then, would-be solicitors took various the weekend residential advocacy course at Bellinter House in courses in various places from various approved teachers, then Co Meath was an annual high point. sat closed-book law exams. The ‘new system’ (as for long it was Larry stayed with the Law Society for 15 years. A man of called) was intended to be quite different. many talents, he played the violin at staff parties and was a The Law Society advertised for a director of education, frequent lunchtime enthusiast on the tennis court, most often stipulating – true to form – that the role required a solicitor. with his friend PJ Connolly, registrar of solicitors. Conscientious For Larry, this was the job he was born for. Only, he wasn’t to a scruple, he was a sage counsellor to younger colleagues and a solicitor. Not daunted (which was ever the manner of the students. man), Larry applied – and was appointed. But not as director A man of deep religious convictions who regularly attended of education. Instantly recognising Larry’s unique blend of early morning Mass at the Franciscan church on Merchant’s experience, qualifications and skills, the Law Society decided it Quay, Larry was also a consummate gardener and took pride in must have a director of training as well. Not long afterwards, his luscious tomatoes and ‘balls of flour’ potatoes. And his hens Richard (Dick) Woulfe, then law agent with Limerick laid lovely eggs. Corporation, came on board as director of education. Both were In his retirement years, he qualified as a practitioner in the appointed professors. holistic muscle-and-tendon-relaxing system called ‘Bowen Between them, and a small core of staff, the new law school Technique’ and was in frequent demand for his services. was made to happen. Its anchor was a cadre of committed Larry passed away on Saturday 19 December 2009. The grief practising lawyers who, on a day-to-day basis, instructed and of his family is shared by many Law Society friends, who fondly tutored the trainees. The principal training ground was the remember Larry’s unrelenting energy, integrity, commitment, lecture hall, now the library. If Dick was the law school’s chief humour and great personal kindness. executive and finance officer, Larry was its architect. Together, Professor Laurence Sweeney will ever hold the unique they developed the still-extant concept of the ‘sandwich system’ distinction of having laid the first firm foundation for the – a longish foundation course, followed by intensive in-office training of solicitors in Ireland, which endures as a testament to or ‘on-the-job’ training, culminating in a shorter completion his vision and drive to this day. course. The emphasis was on equipping apprentices to be able AP

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www.turnersprinting.com | www.swift2print.ie Turners Printing, Earl Street, Longford, Co. Longford Telephone: + 353 (0)43 3350500 Email: [email protected] students’ page Law Society Gazette jan/feb 2010 student spotlight Queuing for a living t is a Wednesday morning on pic : Da mi en E a g e rs IBow Street. Just minutes from the Law Library, hundreds of people are queuing outside the Capuchin Day Centre, writes Nikki Walsh. They are waiting for food parcels. Inside, young men and women, students of the Law Society, are placing baked beans, Barry’s tea bags and tins of biscuits into bags. “We give out anything from 900 to 1,000 parcels,” says head chef Ann Kearney. Her kitchen produces up to 3,000 hot meals a week. In the dining hall, volunteers wipe down tables and take away plates. Last year, the centre fed 150 people at lunchtime – now it is feeding 400. On the menu for today there is baked gammon, potatoes, carrots and parsnips. For dessert, there is Pear Belle Helene. they ask you what you are doing there are much more worthwhile the rest ourselves. There are just At a row of tables, young and where you are from. They things you could be doing with seven paid members of staff.” Chinese men eat porridge are from all walks of life. It’s it.” The arrival of the Law beside Dubliners in their 60s. hard to believe some of them are The Capuchin Day Centre Society volunteers has brought Some wear anoraks, others sit homeless.” was founded by Brother Kevin new spirit to the centre. “They straight-backed, in worn suits. “I had never met a homeless in the early ’70s. “We couldn’t set a great example,” Brother At one table, a woman eats person before,” says Nichola do it without the volunteers,” Kevin says. “They work hard toast in a dress coat, a scarf O’Reilly, 25, from Blackrock. says Brother Kevin. “The centre and are pleasant and good- tied around her head. She is “They are just like us. It really costs €1.1 million a year and, humoured. There is a great not homeless, she tells one makes you think about how you while we receive €450,000 from atmosphere as a result.” volunteer, but she cannot afford spend your time – generally the government, we have to raise Helping at the centre is part to buy her groceries. Another is of a larger volunteer programme from down the road. She comes organised by the Law Society’s here, she says, to get out of the student development service. house. “The Law Society holds a strong presence in north inner All walks of life city Dublin,” says TP Kennedy, For trainee solicitor Kate director of education. “It is Murray, 24, from Malahide, important to us that we volunteering at the centre has develop a sense of engagement been humbling experience. “I’ve with our community and that seen people queuing outside for we do not work in isolation. something as basic as a glass of The volunteers are drawn milk. It really makes you realise from a wide pool of firms, what you take for granted.” She bringing together a disparate loves the banter. “Some people group of people and helping keep their heads down, but them to see beyond the money- others are full of chat. They say, making nature of vocational you are great to come here, and Serving lunch in the Capuchin Day Centre, Bow Street practice.” G

www.lawsocietygazette.ie 45 Law Society Gazette jan/feb 2010 book reviews books Taxlaw 2009 Alan Moore. Taxworld Ltd (2009), www.taxworld.ie. ISBN: 978-1-902065-33-5. Price: €135 (hardback, 995pp) he events of the past year or complexity of the subject make reference book is, of course, Tso have had long-reaching it difficult to have it accessible the internet, which contains effects, not least on the area to the reader, but having used an inexhaustible supply of of tax law. For the first time the text for reference over a reference information. Whether that I can recall, the Taxation number of weeks, I have found younger generations will, Committee of the Law Society it to be an excellent way to however, be able to get to the had to issue two tax summaries access core legislation. While stage of dispensing with the to members to keep up with textbooks are very useful for printed word, for the rest of us the budgetary changes. Indeed, discussing the legislation, it is I have always felt that the time there was a time when we only often not until we drill down saved and convenience afforded seemed to be a month away into the legislation that we in having a text readily available from a budget. get an answer to a particular in a format that is easy to access For those among us who try problem in practice, and means that the printed word to make sense of the changes books such as Mr Moore’s are Equally the area of VAT on will continue to be the most and provide it to us in a cogent, invaluable in doing this. property, which has in the past effective means of access. G readable and accessible form, For most practitioners, two years undergone enormous the task is really formidable. certain areas of the book will be change, is dealt with very nicely Tom Martyn is chairman of the Law Alan Moore has done an more relevant than others and, in this book and provides an Society’s Taxation Committee, vice- excellent job in coping with the certainly, the stamp duty section excellent reference point to the chair of the Probate, Administration change in his 2009 edition of stands out for me as an excellent area. and Trusts Committee, and Taxlaw: the Irish Tax Code. reference point for areas of The greatest competition is a member of the Taxation The wide remit and everyday practice. these days to a desktop Administration Liaison Committee.

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46 www.lawsocietygazette.ie book reviews Law Society Gazette jan/feb 2010 Regulatory Law in Ireland Niamh Connery and David Hodnett. Tottel (now Bloomsbury Professional) (2009), www.tottelpublishing.com. ISBN: 978-1-84766-254-5. Price: €150. Judicial Review of Administrative Action (2nd edition) Hilary Delany. Round Hall (2009), www.roundhall.ie. ISBN: 978-1-85800-533-1. Price: €140.

egulatory Law in Ireland and focused descriptions of Ris a welcome addition to the roles of the regulators and an area in which there is (in their respective enforcement this jurisdiction) a dearth of powers. This approach is also textbooks. To date, the main reflected in the chapters on textbook has been the Law broadcasting, competition and Society’s own Regulatory Law energy regulation. There is Professional Practice Guide, also a chapter on regulatory published in 2004. However, criminal law enforcement, with while a very welcome the authors pointing out that publication at the time, the it is a feature of regulatory law area of regulatory law moves so in Ireland that many breaches quickly that the Connery and are criminal offences. The Hodnett book could not have common investigative powers of come soon enough. authorised officers (which can Mr Hodnett is a legal be appointed by most regulatory advisor to the Commission bodies) are described, together for Aviation Regulation with a discussion of the issues and Ms Connery is a legal will want to focus on the The legislation in this area is that arise in relation to such advisor to the Commission for earlier chapters of this book. very complex, based as it is on criminal offences. Communications Regulation. After giving the background various EU directives. Given Finally, we return to The authors’ special expertise information as described above, the likelihood that practitioners litigation. The authors devote and familiarity with the the authors have selected six will be inundated with queries two excellent chapters to the practice area of regulatory law regulated areas to consider in from clients who are upset issues of appeals and judicial shines through this publication. greater detail – namely, aviation, about advice given to them by review. The authors note that The book has a very interesting financial services, broadcasting, banks, insurance brokers and the emergence of regulators introductory section, communications, competition other financial advisors, this has given rise to the emergence explaining the background to and energy. book will be of great assistance of appeal panels, pointing regulation, its constitutional Given the current climate, in coming to grips with a out that appeal panels are not position and the reasons for I turned immediately to the difficult area in a very short courts but are more akin to regulation. As someone who chapter on financial services space of time. Sections of the tribunals where, in many cases, works on a daily basis with regulation. The introduction to chapter are also dedicated to the regulated entities and, in some regulatory law in all its guises, this section reflects on recent role of the Financial Services cases, consumers can attempt it was very helpful to take a times in the financial services Ombudsman, who will be the to settle their differences with step back and have regulation sector, pointing out that, for first port of call for many such a their respective regulators. I put in context. Particularly as example, merger control rules disgruntled client. would agree with the authors’ a litigator, it was beneficial, as have been all but abandoned Turning then to other statement that the use of it is not uncommon for judges, in the crisis, citing the sale sectors, the authors deal in great appeal panels in Ireland is in its coming from perhaps very of Merrill Lynch to Bank of detail, as can be expected, with infancy and only time will tell diverse backgrounds in law, to America and the Lloyds TSB their own areas of aviation and if they will prevail against the seek to be given, or to adopt, bid for HBOS as examples. communications regulation – traditional Irish bias towards this kind of perspective when However, in the (unexpressed) again, two areas (particularly court hearings. To date, that dealing with complex questions hope that we have returned to the latter) in which there is a does not look to be the case. of statutory interpretation in more certain financial times, great deal of legislation and However, the chapter on the area of regulation. the authors review the relevant very little guidance to help appeals is extremely useful, as, However, let us leave legislative framework and the the uninitiated through the while most practitioners will be litigation for the moment, as Central Bank and Financial morass. The authors have familiar with the concept and hopefully most practitioners Services Authority of Ireland. resolved this by giving clear practice of judicial review, the

www.lawsocietygazette.ie 47 Law Society Gazette jan/feb 2010 book reviews

same cannot be said of appeal ex parte but rather on notice issued on an almost daily basis. does not want to have to explain panels, even for practitioners and within two months of For this reason, no litigator to a client that leave to bring working in the area of the date on which notice of can afford to be without Dr proceedings has been refused on regulatory law. The chapter the determination was first Delany’s book, in order at the grounds of delay. Equally, details the appeals process in published). least to attempt to stay on one does not want to have to each of the sectors discussed in In summary, then, this is a top of current practice and explain that leave has been the previous chapters, which most welcome textbook, and judges’ thinking in the area refused because the bringing of will be an invaluable resource one can well imagine the section (for example, the final chapter the proceedings was considered for pressurised practitioners on financial services regulation considers significant themes to be premature. Dr Delaney trying to establish quickly in particular will be well in the development of judicial considers these issues in detail whether to advise his or her thumbed in the coming months. review of administrative action). in Chapter 6. client to appeal against a Staying with the area of Chapters 2 to 5 deal with Chapter 7 has also an decision of a regulator or to litigation in general, and the substance of judicial extremely practical focus on issue judicial review proceedings judicial review in particular, review proceedings, namely judicial review procedure itself, post-haste. Hilary Delany’s second jurisdictional error, the control the application for leave and the Finally, the chapter on edition of her book Judicial of discretionary powers, application for judicial review. judicial review gives an excellent Review of Administrative Action legitimate expectations (always In summary, Dr Delaney’s summary of the issues arising requires no introduction. a controversial topic) and book is one that any litigator specifically in the area of Clients’ appetite for judicial fair procedures, all chapters cannot be without, and which regulatory judicial review, review proceedings seems containing a superb review of any legal advisor to a body which more general judicial undiminished, if one is to judge case law, both from home and susceptible to judicial review review textbooks would gloss by the length of the judicial abroad. would do well to add to their over (such as the fact that an review list, and judges’ appetite One of the issues that bookshelf. G application for leave to bring for exploring the issues raised most frequently arises for judicial review proceedings in such proceedings appears practitioners in advising clients Catherine Allen is a senior associate regarding a determination of equally undiminished, if one on judicial review proceedings in the administrative litigation the Commission for Aviation can judge by the number and is the issue of the timing of department of Mason Hayes & Regulation may not be made length of judgments now bringing such proceedings. One Curran.

Diploma Programme Spring 2010

The Law Society’s Diploma Team is pleased to announce their programme for Spring 2010. There are four courses to choose from:

UÊ Diploma in Employment Law – webcast 17 April 2010 U Diploma in Commercial Litigation – webcast 20 April 2010 U Certificate in Taxation Law (NEW) 21 April 2010 2010 Law Society of Ireland of Society Law DIPLOMA PROGRAMME PROGRAMME U Certificate in District Court Advocacy (NEW) 24 April 2010

Both the Diploma courses will be delivered using blended learning via webcasting resource. All lectures will take place in the Education Centre in Blackhall Place. However to facilitate those students unable to attend Dublin on a weekly basis, lectures will also be webcast ‘live’ on our secure internet site. This means that students can decide to attend the onsite lecture or, alternatively, to access the lecture online via the course website. In addition, lectures will be archived within the course website for the duration of the course and can be viewed at a later date on demand by all students.

The fee for Diploma courses is `2,160 and for Certificate courses is `1,180. For further information on these courses, webcast information and application forms, visit the Diploma Programme pages of our website: www.lawsociety.ie; contact us by email: [email protected] or telephone: 01 672 4802.

48 www.lawsocietygazette.ie briefing 49

-   Advice for Lawyers Health Support and Support Health www.lawsocietygazette.ie The senior vice-president, unique and significant, and he expressed his sincere congratu- lations to John D Shaw on his achievements in the course of his year as president. He paid tribute also to Moya Quinlan, who had been elected first as woman the Council member 40 years previously in Novem- ber 1969 and had made an ex- traordinary contribution to the then.solicitors’ profession since John Costello, and the junior vice-president, John P then Shaw, took office and expressed their support for the Council and the president for the - com ing year. Outcome of 2009 AGM The Council noted with proval that, at ap- the annual gen- eral meeting held on the previ- ous evening, the members had passed the following resolution: “It is proposed that solicitors and legal practices be permitted to in- limited as businesses their corporate liability entities.” Professional indemnity insurance The director general outlined to the Council received in relation to legal the pro- advice posed guarantee of the SMDF’s liabilities, which confirmed that the furnishing of such a guar antee was within the statutory powers and functions Law Society of and did not offend the competition law. -     jan/feb 2010 jan/feb Gazette Society Law  reports council          He predicted a need for He urged that the Soci- Mr Doherty said the contri- 700,000. Additional demands       been reduced, and operational cost-saving measures across the Society had yielded savings of € for resources would have to be met by internal synergies, and the Society would have to imaginative be to ensure efficien- cies in all of its functions. continuing deliberations of the Council on the issue of - profes sional indemnity insurance and have would Society the that said to look very critically at and why the how current difficulties had arisen and explore ways to ensure that they did not recur. ety would be actively positive on behalf of the profession in these difficult times and would be resourceful in finding ways to progress the case for solici- tors at every opportunity. He paraphrased the President Ireland of earlier that that “a Council of despair” morning was no good for the members. He expressed confidence that the Society was well equipped meet the challenge of providing to meaningful support and direc- tion for its members, who were hard working and talented, and he believed that the profession would emerge from the a as environment economic rent cur stronger and more vital profes- sion. family Shaw the by made bution to the solicitors’ profession was               hard decisions to be made He noted that his successor, Mr Shaw said that to have then was Doherty Gerard Mr    Gerard Doherty, had and a distinguished long career as Council member. He had a great wisdom, was popular across the profession, and he had the most essential attribute for any - presi dent – a great love for the solici- be would There profession. tors’ more in the coming unqualified year, his committed Shaw and Mr support to the new officer team in that task. worn the same chain of office as his grandfather and his father was obviously a matter of great personal honour, made all the more special because his father had been at his side during the year. president. as appointed formally He said that the solicitors’ pro- fession mirrored the difficulties being faced at a national level and he urged that the Society would not allow itself overcome by to the be enormity the face ofwould but situation, the and commitment with challenge courage. He noted that, for the past year, the Society had been critically examining all of items expenditure, and significant savings had been put in place. em- effective an been had There bargo on recruitment for more than a year. Regrettably, there Sal- redundancies. been also had ary increases had been frozen, fees paid to third parties had   

   

 

       

         aking of office of president

ovember 2009 6 November Law Society Council meeting, meeting, Council Society Law T and vice-presidents DJohn president, outgoing The Shaw, expressed his thanks and appreciation for the support and encouragement provided to him officers, Council, Society’s the by director general and staff during the course of the year. He said that it was a feature of the role of president that it could not be performed without and assistance advice from many involved and this had been in the Society, provided with generosity without and question. He said that it had been the most challeng- ing period of his time Council. on He the acknowledged the conscientious application by the Council of their skills to provide a solution to the indemnity insurance professional issues that had arisen in recent months. He said that the bringing to of bear all the collective knowledge and wisdom of the Council had demonstrated for him its the in comfort took He strength. real fact that the decisions Council’s were made after careful consid- eration of all the issues and with the best interests of the profes- sion in mind. New Council members The Council new members welcomed – Conall Bergin, its Hilary Coveney, Fergus Long, Aaron McKenna, Michael Mul- Valerie and Murray Eamon lane, for well them wished and – Peart their term of office. - G Criminal Justice between between Ireland and England and particularly Wales, if such illegal be to likely was process a to agreed was It law. EU under write further to the Solicitors’ Regulation Authority and to also raise the matter directly Commission. with the EU E-conveyancing Dan O’Connor briefed Council on the a report entitled The Implementation of veyancing: a Practical eCon- Approach, which acknowledged the fact that the current economic cli- that unlikely was it meant mate there would be sponsorship and funding avail- government able to implement the previ- ously envisaged all-embracing solution to The e-conveyancing. report represented a re- think of the situation and con- cluded that there was in merit continuing to progress e- the in not albeit conveyancing, broad manner that had been initially proposed. The report outlined three could phases be pursued, and that it was intended to develop a business case in the New Year to sup- port the recommendations in the report. Criminal Justice (Money Laundering and Terrorist Financing) Bill - Coun the briefed Keane Mary cil on a submission to govern- ment on the (Money Laundering and Terror ist Financing) Bill 2009. noted that most of She the recom- mendations made by the Soci- submis- and meetings its in ety sions to government had been incorporated in the published bill. However, there were number of additional points in a relation to which it had been suggested that further amend- ments should be introduced at committee stage. -

The Council agreed that the the that agreed Council The tablish a small subgroup, to be chaired by John D Shaw, to li- Fed- Banking Irish the with aise financial various the and eration institutions. It was also agreed that the president should issue an e-bulletin warning practi- tioners about the dangers giving of undertakings in mercial loan transactions. com- Guarantee to be provided to the SMDF It was agreed that, once professional the indemnity insur ance market had its completed activity for the insurance year commencing 1 December 2009, the Society should in- form the profession about the Council’s decision to provide a guarantee to the SMDF in order to ensure a competitive market and to avoid the chaos It failure. market potential a of was agreed that the profession e-bulle- by informed be should tin from the president. Solicitors’ Regulation Authority The director general briefed the Council in relation to proposal a by Regulation the Authority in Eng- Solicitors’ land and that Wales would af- fect the automatic recognition of Irish solicitors’ tions qualifica- in England and and Wales could result in the intro- duction of examinations or as- sessments for Irish solicitors intending to practice in that jurisdiction. The Society had met with the Solicitors’ Regu- urged had and Authority lation that the current system of au- tomatic recognition not be should changed. The Society had also obtained legal advice on the EU law implications of the proposal. Society should resist the erec- tion of any barriers to transfer - The Council noted that The Council agreed to es- planned to issue quotes to all existing members first, before applicants. quoting new the majority of insurers declined had to confirm that, if a new policy of insurance put was in place by 15 December, the cover would be effective from 1 December, although some had said they would deal with the matter on a case-by- agreed Council The basis. case that the president should issue an e-bulletin to the profession updating them on the current situation. Commercial undertakings The Council discussed fact that, notwithstanding the the exclusion of commercial un- dertakings from the minimum terms and conditions of demnity cover, some in- financial institutions were still request- ing undertakings in relation to commercial loans. While the Society was aware that some practitioners had separate insurance obtained cover for commercial undertakings, the Council agreed that the - pro fession should be advised strong in terms not to give such undertakings, particularly as there was no agreed form of undertaking or certificate of title for commercial proper ties. It was acknowledged that the inappropriate of provision undertakings in respect of commercial property current was the of cause substantial a insurance difficulties. It was noted that, even where prac- titioners had secured separate insurance cover, the terms of the from vary could cover such minimum terms and, as cover was provided on made’ basis, a additional cover ‘claims would have to be renewed for subsequent insurance periods.

- - - ales lawyers 120 per full practising cer Law Society Council meeting, meeting, Council Society Law 2009 4 December Solicitors Acts 1954 to 2008 (Section 2009.’ 44) Proposed: John O’Connor Regulations Seconded: Martin Lawlor The Council approved regulations, the which dated - consoli existing statutory ders governing applications by or solicitors and attorneys from a number of jurisdictions, in- cluding New California, York, Pennsylvania, New and Zealand New South Wales, to be- come solicitors in Ireland. certifipractising of Approval- cate form and fees for 2010 The Council approved a new shorter practising certificate declaration form, with the practising together certificate fees for 2010, which had been reduced by 5% from the fees This 2009. for applied had that amounted to a reduction € of tificate. PII renewal process The Council received an up- date in relation to the current that noted and process renewal the market was While still the majority active. of solici- tors’ firms had secured insur ance, a minority of firms had which quote, a received yet not was deeply regrettable and in- tolerably stressful. It appeared delay administrative was it that situa- the to rise given had that tion. The president and direc- tor general had met with the chairman of the SMDF, who had expressed regret about the was it that indicated and delays hoped to complete the process within the next few days. The SMDF had indicated that it otion: applications fromMotion: applications New US, New Zealand and South W ‘That this Council approve the www.lawsocietygazette.ie jan/feb 2010 jan/feb Gazette Society Law briefing 50 briefing 51 Land Registra- Land Litigation Committee An application also re- notes Conveyancing Committee

Conveyancing Committee www.lawsocietygazette.ie title and the should, special therefore, condition confirm the vendor’s solicitor will, prior to that completion, demonstrate that he will, on completion, be in a posi- tion to clear all charges property. on Where the a feasible solu- tion is not forthcoming and this would make it impossible for the vendor’s solicitor to comply with his/her undertaking to the lend- ing institution, the vendor should un- is solicitor the that advised be able to act in the proposed trans- action. a borrower’s solicitor certify the to bank that all services property to a are in order. The a is this that view com- the of is mittee matter that solicitors should not certify, as ‘services’ to a erty prop- could include matters to do with sewage, etc, and that solici- tors are not qualified or compe- tent to certify such matters. The committee took the matter departmentlegal bank’s the with up confirmedbeen has it the and by be will requirement this that bank discontinued. The property and the estate or in- terest of the judgment debtor in same must also be identified as the of rule119 per tion Rules. quires Form 17 and €125 fees. jan/feb 2010 jan/feb Gazette Society Law practice In drafting the special condi- Solicitors previously reported ank of Scotland (Ireland) Ltd, (Ireland) Scotland of Bank tively, tively, the vendor may be able to reacharrangementsome thewith lending institution. The vendor’s solicitor must ensure such that proposals or arrangements any with comply to him/her enable will undertakingany lend- the to given ing institution. Once the solicitor is satisfied in this regard, a spe- cial condition, outlining the - posi tion, should be inserted into the contract for sale. tion, the vendor’s solicitor should be cognisant that it is dor’s responsibility the to make good ven- department and has asked that the bank discontinue this require- breaches it that basis the on ment the agreement reached with the lenders under the new certificate of title system. In the meantime, the committee recommends that solicitors should delete the evant relcertificate- from the bank’s form before lodging the request for funds. to the committee a requirement by set out by way of special condi- tion in some letters of offer, that include the amount of the judg- ment or costs, but must include thereon a certificate that the par- described judgment the of ticulars therein are correct, the proper officer signed of the court by in obtained. was judgment the which Land Alterna- ve equity negati Form 122 of the Where the vendor’s The prescribed form does not 116 of that act must be prescribed in the Registration Rules. This form re- places the affidavit to register a judgment mortgage and is avail- able at www.landregistry.ie. that there has been compliance with the special conditions of the loan approval. The certificate of title agreement with the lenders is that the solicitor is responsible only for special conditions relate to that title. Special conditions in a loan approval might include conditions regarding life propertymattersance, insurance, assur- so and security, the of valuation of on – all of which are not matters of title and do not form any part of the certificate of title system. The committee has matter up taken with the the bank’s legal that, as soon as is practicable af- ter the receipt of instructions but, in any case, prior to the cominginto being of a binding for contract sale, the would vendor’s obtain redemption solicitor figures from the lending institution(s) in question. solicitor discovers that the mon- ies required to redeem the loan exceed the anticipated proceeds of sale, the vendor should be ad- vised of the position immediately and instructions sought regarding the payment of the the shortfall redemption in monies. OF JUDGMENT MORTGAGES REGISTRATION ’ REQUIREMENTS – NOT AGREED LENDERS CERTAIN Conveyancing Law Re-

embers should note that, from 1 December 2009 Act 2009), an application s part of its ongoing role in monitoring the operation of

cting for vendors for acting ractitioners of property are reminded that

AIB set out in its ‘request for These include a requirement The committee recommends to register a judgment mortgage as a burden pursuant to section (the commencement date of the Land and form

M A funds’ form that for the request the signing by borrower’s solicitor, funds form, certifies to the bank by the new certificate of title tem (2009 sys- edition), it has come committee the of attention the to that certain lenders are raising certain requirements with rowers’arethat solicitors vari- at bor- ance with what was agreed with the lenders as part of the system. new

they must not allow the vendor to enter into a contract for the sale of the property, where the vendor only has negative equity property, in without first making the ap- with either arrangements propriate the vendor’s lending institution or that imperative is It purchaser. the the vendor’s solicitor as ascertainearly as possible whether the sufficientbe to will price purchase redeem all charges affecting the property for sale. P Conveyancing Committee Conveyancing Committee In the solicitor’s own opinion, is the particular matter in or- der and in accordance good conveyancing practice? with Will it be acceptable under the rules or guidelines of the bank or building society from whom the client is ing? borrow- Will it be acceptable to most propertythe if solicitors other were to be put up again in the near future? for sale Lastly, for the avoidance of able in the precedent documen- precedent the in able tation section of the members’ area of the Law Society’s web- site. a certificate of compliance rela- tive to a building or extension is given is formor acceptable an in by a person with an acceptable qualification, solicitors usually a threefoldapply test: 1) 2) 3) If the answer to any questions is in the negative, the of these solicitor will normally advise his or her client not to accept point in question and the advise the client not to proceed transaction with unless the the difficulty is resolved. doubt, these practice notes are for the assistance of the profes - sion and are not mandatory.

The committee is in the The committee has consis- When advising a client in the process of revising precedent its transfer own for ing estates, build- and the precedent will revised shortly be avail- locality locality and whose certificates may be generally acceptable in that locality, even though their qualifications or experience fail crite- the of some or one meet to said Having above. mentioned ria that, solicitors are that, on a resale of the property cautioned in question, it may be difficult to persuade potential purchasers departurethe any from accept to foregoing guidelines. tently advised solicitors to ercise caution ex- in relation to the qualifications of persons whom from they will to advise accept certificates of clients compli- ance. The reason for this is ob- vious. The committee takes the view that, if a solicitor advises a client to accept a certificate of - devel a to relation in compliance opment (such as a house or a house extension) from a person who is not adequately qualified, the client will have in a that the problemproperty may not be readily saleable. purchase of any property with a building thereon regarding any material point, such as whether Each solici- Regulated by the Solicitors Regulation Authority of England and Wales

The committee recognises NEW LEASES TO BE IN FORM 111

Registration Rules. This will re - quire considerable adaptation of any precedent leases practitioners that have been using up to now.

tificate of title for a lender, the solicitor will have to and issue the on mind her or his make up advise the client of the implica- tions of that advice because, in that event, the purchaser would have to have clearance from the lender. Most purchasers, partic- ularly those borrowing, will tend to be cautious and accept their solicitor’s advice, but some will take a commercial and judgement proceed despite what solicitor the perceives as a poten- tial problem. Obviously, if a cli- ent decides to proceed despite the solicitor’s concerns, best practice for it the solicitor to is confirmSo- writing. in advice the licitors should also bear in mind as- will committee the while that, sist and advise its members in regard to best practice, none of this can absolve the individual solicitor from his or her respon - sibility to the client. tor must look at each individual case on its own merits. that there may be practis- persons cases, involving exceptional ing as architects whose compe- tence is recognised in their own

Land Land

CERTIFWHO SHOULD 2010? IN Y COMPLIANCE

European Union orm 111 of the of Form111 ractitioners should that, note from 1 December ublication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland. Publication of advertisements in this section is on a fee basis and does not represent an endorsement Persons who are on the regis- the on are who Persons diction in the entitled is qualification whose under Ireland in recognition to the Architects’ Directive. practice as architects or en- gineers on their own account for ten years, practising engineers Qualified in the construction industry, Qualified building surveyors practising in the construction industry, Persons from another juris- ter of architects, Persons who have been in n future, Committee the feels that it is rea- Conveyancing 2009, all leases of registered land should be in in out set the format P sonable for solicitors to accept cer- or certificates compliance of tificates of opinion from: • • • • • I If a query arises over the quali- fication of a person giving a cer- tificate, the solicitor should take care to make it clear that he or she is not making the decision but is advising the and purchaser, that the final to decision whether or as not to accept the certificate proffered is the ent’s cli- responsibility. Of course, if the solicitor is signing a cer- www.lawsocietygazette.ie jan/feb 2010 jan/feb Gazette Society Law

briefing 52 briefing 53

- Forestry Act 1988 - Oireach the of Houses inter alia, for the commis- www.lawsocietygazette.ie and provides for related matters. and provides for related Date enacted: 20/12/2009 Commencement date: 20/12/ 2009 Houses of the Oireachtas Commission (Amendment) Act 2009 Number: 44/2009 Contents note: Amends andthe extends tas Commission Act 2003 to pro- vide, sion’s funding for the 2010-2012. Provides for the re- period naming of the Houses Office of the Oireachtas as the of the Service Oireachtas the of Houses and provides for related matters. Date enacted: 21/12/2009 Commencement date: 2010 (per s 15(3) of the act) 1/1/ Labour Services (Amendment) Act 2009 Number: 38/2009 Contents note: Amends Labour Services the Act 1987 to im- prove the effectiveness and gov- and FÁS of board the of ernance strengthen the accountability of the director general of FÁS to the Oireachtas. Date enacted: 9/12/2009 Commencement date: - Com mencement order(s) to be made (per s 13(3) of the act) Public Transport Regulation Act 2009 Number: 37/2009 the for Provides note: Contents rowing limit of Coillte Teoranta. Teoranta. Coillte of limit rowing Amends the 15/2/2010 for part 3 (ss 28-38, ‘Dumping at sea’) and schedule of the act) 2 (per s 1(5) Forestry(Amendment) Act 2009 Number: 40/2009 Contents note: Provides for an increase in the aggregate bor

jan/feb 2010 jan/feb Gazette Society Law

Foreshore Foreshore Acts Dumping at Sea Acts Treaty Treaty on European Union, also be subject to such approval, and related matters. provides for Date enacted: 24/11/2009 Commencement date: 24/11/ 2009 Financial Emergency Measures the Public in Interest 2) Act 2009 (No Number: 41/2009 re- the Reduces note: Contents muneration of public servants as a financial emergency measure in the public interest. Date enacted: 20/12/2009 Commencement date: Com- mencement order(s) to be made (per s 10(2) of the act) Sea at Dumping Foreshoreand (Amendment) Act 2009 Number: 39/2009 the for Provides note: Contents transfer of certain functions re- lating to the foreshore from the Minister for Agriculture, Fish- eries and Food to the Minister for the Environment, Heritage and Local Government and for that and other purposes amends and extends the 1933-2005 and the provides transfer of for other functions relating to the foreshore to the Minister for the Environment, Heritage and Local ment. Provides Govern- for the transfer of certain functions relating to dumping at sea from the Min- ister for Agriculture, Fisheries and Food to the Environmental Protection Agency and for that and other purposes amends and extends the 1996-2006, and provides for re- lated matters. Date enacted: 15/12/2009 Commencement date: 15/12/ ‘Preliminary1, (s 1 part for 2009 and general’); 15/1/2010 part 2 (ss 2-27, ‘Foreshore’) and for schedule 1 (per s 1(4) of the act); - - - Petty Sessions - (Ire Courts Service Act Criminal Procedure Act legislation update legislation munities (Undertakings for Col- lective Investment in Transferable Securities) Regulations 2003 (SI 211/2003) (UCITS ), Regulations matters. and provides for related Date enacted: 23/12/2009 Commencement date: 23/12/ 2009 for ss 1, 2, 3(a) to (h) and beto order(s) commencement 4; made for other provisions (per s 6(2) of the act) Courts and Court Officers Act 2009 Number: 36/2009 the for Provides note: Contents placement in temporary custody of certain detained persons inorder to facilitate their appear ance before a court. Provides for the establishment of court of- fices supporting more than one jurisdictional area (‘combined court offices’) and extends the categories of persons who may take bail recognisances where bail is granted pending trial or sentence or pending an appeal. Amends the 1998, the 1967 and the land) Act 1851, and provides for related matters. Date enacted: 24/11/2009 Commencement date: 4/12/ 2009 (per SI 477/2009) Defence (Miscellaneous Provisions) Act 2009 Number: 35/2009 Contents note: Requires that proj- in state the by participation ects and programmes under ar ticles 20 and 21 of the Council Joint Action of 2004/551/CFSP 21/7/2004 on the establish- ment of the European Defence Agency be subject to the prior approval of and the Dáil Éireann; requires that government participation by the state in per manent structured cooperation, referred to in article 42 of the

Com-

European Com-

ovember 2009 – 15 January 15 – 2009 2010 November

, the 1990, Act Companies 23 ED ACTS PASS Appropriation Act 2009 Number: 42/2009 toAppropriates note: Contents the proper supply services and purposes sums granted by the Central Fund (Permanent Provi- sions) Act 1965; makes provision in relation to deferred surrender to the central fund undischarged of appropriations certain by reference to the capital supply services and purposes as vided pro- for by section 91 of pro- makes and 2004 Act Finance the vision in relation to the financial resolutions passed by Dáil Éire- ann on 9/12/2009. Date enacted: 20/12/2009 Commencement date: 20/12/ 2009 Companies (Miscellaneous Provisions) Act 2009 Number: 45/2009 Contents note: Provides, limited in circumstances, for theparent certain by use transitional undertakings of internationally recognised accounting standards other than those generally acc- Details of all bills, acts statutory and instruments since 1997 are on the library cata- logue – area) students’ and (members’ www.lawsociety.ie – with updated information on the current stage a bill has reached and the commence- ment date(s) of each act. All recent bills and acts (full text in PDF) are - on www.oireach tas.ie and recent instruments are on statutory a link to electronic statutory - ments from www.irishstatute instru- book.ie. epted accounting principles and Amends state. the in used policies the panies (Auditing and Accounting) Act 2003 and the

- - District District Court Rules

Dublin Transport Author Transport Dublin District District Court (Small Claims) 2009Rules 519/2009 SI Number: Contents note: Substitute new a order 53A, ‘Small claims procedure’, and forms in the associated to include provision for a - busi ness small claim by a business purchaser against a vendor in relation to a contract business in respect of any goods or ser vices purchased in the ordinary business. course of a Commencement date: 11/1/ 2010 Dublin Transport Authority ofAct 2008 (Dissolution Dublin Transportation Office) Order 2009 Number: SI 474/2009 Contents note: Appoints 1/12/ 2009 as the date for the dissolu- tion of the Dublin - Transporta tion Office. Dublin Transport Authority Act 2008 (Part 2) (Establish- ment Day) Order 2009 Number: SI 459/2009 Contents note: Appoints 1/12/ 2009 as the establishment day for the Dublin Transport Au- for thority, the purposes of part the of 2 ity Act 2008. Dublin Transport Authority Act 2008 (Parts 3, 4, 5 and Section 115(2)) (Commence- ment) Order 2009 Number: SI 458/2009 Contents note: Appoints 1/12/ date commencement the as 2009 for the following provisions of the act: - part 3 (ss 44-76, ‘Trans port matters’ ) (other than ss 58 and 61), part 4 (ss 77-80, ‘En- forcement), part 5 (ss 81-101, ‘Land use provisions’) than chapter 1 (ss (other 81-101)), and section 115(2). European Communities (Capital Adequacy of Credit Institutions) (Amendment) Regulations 2009 Number: SI 514/2009 Contents note: Amend the

- - - Cir Courts

Defamation Act Courts and Court and Courts Circuit Court Rules Circuit Court Rules (Combined Court Offices) 2009 583/2009 SI Number: Contents note: Amend the cuit Court Rules to facilitate the transaction of business in a com- bined court office under established section 14 of the Act 2009. and Court Officers Commencement date: 11/1/ 2010 Circuit Court Rules (Defamation) 2009 Number: SI 486/2009 or new a Insert note: Contents der 5C in the to prescribe procedures for the operation of the 2009. Commencement date: 2010 1/1/ Circuit Court Rules (Statutory Applications and Appeals) 2009 Number: SI 470/2009 15 order Amend note: Contents by the insertion of a new rule 7A and order 27 by the insertion of a new rule 6, and insert new or associatedand 64C and 64B ders procedurethe prescribe to forms ap- and applications statutory for peals to the Circuit Court. Commencement date: 25/12/ 2009 Defamation Act 2009 (Com- mencement) Order 2009 Number: SI 517/2009 Contents note: Appoints 1/1/ datecommencement the as 2010 for all sections of the act. District Court (Combined Court Offices) Rules 2009 Number: SI 581/2009 Contents note: Amends District the Court Rules 93/1997) by the 1997 substitution, in (SI the interpretation of terms pro- visions, of a new definition ‘clerk’ of to facilitate the transac- tion of business in a combined court office established the of 14 section under Officers Act 2009. Commencement date: 11/1/ 2009 - Social Y Pensions Act 1990’) (per in the rates of child benefit and activation measures for recipi - ents of jobseeker’s and allowance supplementary welfare - al lowance aged 20 to 24. Provides to changes other of number a for code. the social welfare 21/12/2009 Date enacted: Commencement date: 21/12/ 2009 for part 1 (ss liminary 1-3, and ‘Pre- general’). Various commencement dates for part 2 (ss 3-20, ‘Amendments to s 1(4) of the act) ActStatute Law Revision 2009 Number: 46/2009 Contents note: Repeals private and 1751 to prior enacted statutes local and personal acts enacted to ceased have that 1851 to prior have effect or have become un- the 1 schedule in Lists necessary. unrepealed acts that are being retained and assigns short titles to certain acts to facilitate their citation. Lists in schedule 2 the acts that are being specifically repealed. In effect, publishes for the first time a complete list of the and acts private pre-1751 the pre-1851 local and personal acts still are that Ireland to applicable all or partly in force. Date enacted: 23/12/2009 Commencement date: 23/12/ 2009 R SELECTED STATUTO ’) – see act for details. for act see – Acts’) Welfare Commencement order(s) to be made for part 3 (s 21, ‘Amend- ment to INSTRUMENTS Circuit Court Rules (Case Progression (General)) 2009 Number: SI 539/2009 or new a Insert note: Contents (gen- progression ‘Case 19A, der the in forms associated and eral)’, Circuit Court Rules to facilitate the supervision by the county registrar, through case progres- sion hearings, of the preparation for trial of various categories of Circuit Court proceedings listed in rule 1(2) of the SI. as Commencement date: 2010 1/1/ Taxi Taxi Plan- www.lawsocietygazette.ie licensing of public bus passenger bus public of licensing services; changes the name the of Dublin Authority Transport to the National Transport Au- thority; provides for the dissolu- tion of the Commission for Taxi Regulation; amends the Regulation Act 2003, the Dublin Transport Authority Act 2008 and certain other enactments, matters. and provides for related Date enacted: 27/11/2009 Commencement date: 27/11/ 2009, apart from the provisions of the act for which the - follow ing orders are required to made: commencement be order(s) to be made for part 2 (ss 5-28, ‘Licensing of public bus senger services’) (per pas- s 5 of the name to ‘Amendments 29, s act); and functions of - Dublin Trans port Authority’ (per s s 29(2)); 44, ‘Amendment ning and Development of Act ’ 2000 (per s 44(2)); s 46, ‘Measures to enhance public bus services traffic-calming – measures’ (per s 46(9)); 1/12/2009 appointed for the purposes of s 30, date on which the name of the Dublin Transport Authority is changed Auth- to the National Transport ority (per SI 467/2009). solution day Dis- order to be made for the dissolution of the Com- Regulation (per mission for Taxi s 31 of the act). The following commencement orders been made have to date: 1/12/2009 for ss 5, 23, 29(1)(b), (c) (other than paragraphs (e) and (f) the amendment effected of by that (k) (j), (i), (h), (g), (e), paragraph), and 29(2) (per SI 466/2009) and PensionsSocial Welfare (No 2) Act 2009 Number: 43/2009 the for Provides note: Contents implementation of certain social welfare measures in announced Budget 2010. Provides changes in for the personal, quali- fied adult and qualified weekly child rates of social payments. welfare Provides for an in- crease in the supplement family income weekly thresholds. Provides for changes earnings jan/feb 2010 jan/feb Gazette Society Law

briefing 54 briefing 55 Finance Finance (No Finance (No Finance (No 2) Stamp Duties Con- Stamp Duties Consolidation Stamp Duties Consolidation www.lawsocietygazette.ie Act 1999 in connection with the e-stamping system to be - com menced by the Revenue Com- missioners. Finance (No 2) Act 2008 (Commencement of Section 31) Order 2009 Number: SI 516/2009 15/12/ Appoints note: Contents date commencement the as 2009 for section 31 of the act. Section for exemption tax for provides 31 new start-up companies in the first three years of operation. Finance (No 2) Act 2008 (Commencement of Section 79(1)) Order 2009 Number: SI 484/2009 Contents note: Appoints 26/ 11/2009 as the commencement date for section 79(1) of the act. Section 79(1) makes ments to the amend- solidation Act 1999 in connection with the e-stamping system to be commenced by the Revenue Commissioners. Finance (No 2) Act 2008 (Schedule 5) (Commence- ment of Certain Provisions) Order 2009 Number: SI 483/2009 26/11/ Appoints note: Contents date commencement the as 2009 for subsections (2)(c) and (4)(c) of section 134A (inserted into the Act 1999 by paragraph 5(d) of schedule 5 to the 2) Act 2008) together with any references in section 134A the to said subsections (2)(c) and (4)(c). These are the remaining provisions of paragraph 5(d) of schedule 5 to the Finance Act 2008Finance Section of (Commencement Order111) 2009 485/2009 SI Number: Contents 26/11/2009 note: as the - commence ment date for section Appoints111 of the act. Section 111 of the Act 2008, as amended by tion 79(2) sec- of the Act 2008, makes amendments to the Iris jan/feb 2010 jan/feb Gazette Society Law Finance Act 20,000 per annum for qualify- provide provide for the implementation of Directive 2006/48/EC on the - busi the of pursuit and up taking ness of credit institutions (Recast ). Directive Institutions Credit Leg-implemented: Dir 2006/ 48 Commencement date: 19/12/ 2009 – day after which the date the on publication regulations of was notified the in Oifigiúil (per reg 1(2) of the SI) European (Value- Communities Regulations 2009 Added Tax) Number: SI 520/2009 Leg-implemented: Dir 2008/8 dealing with the place of supply (taxation) of services; dir 2008/9 replacing dir 79/1072 and deal- ing with refunds to foreign trad- ers; dir 2008/117 dealing with anti-fraud measures. Commencement date: 2010 1/1/ of Grouping European Cooperation Territorial Regulations 2008 Number: SI 513/2009 Contents note: Provide for the application in Ireland of Regu- lation (EC) no 1082/2006 on a European grouping of territorial cooperation (EGTC). Provide for the establishment, registra- tion and administration of EGTC. an Commencement date: 16/12/ 2009 European Union Act 2009 (Commencement) Order 2009 Number: SI 451/2009 Contents note: Appoints 1/12/ datecommencement the as 2009 for sections 1 to 7 and section 9 of the act. 16) (Section 2007 Act Finance (Commencement) Order 2009 Number: SI 447/2009 Contents note: Appoints 1/1/ datecommencement the as 2007 for section 16 of the 2007. Section 16 introduces an additional threshold of relief of € ing leases exceeding ten years’ duration.

- Iris Eu- Cen- Central Bank Act 1989 Act Bank Central tral Bank Act 1971 to revise cer- tain definitions in line with Dir- ective 2006/48/EC on the taking up and pursuit of the business of credit institutions (Recast Credit Institutions ) Directive and to - re Fin- the which by criteria the vise ancial Regulator may decide to grant an application for a licence to carry on a banking business. the Amend to provide that, during the per- aud- an functions, his of formance Finan- the to report also must itor cial Regulator where the matters covered by art 53(1) of Directive 2006/48/EC involve an under taking that has close links with the institution being audited. Leg-implemented: Dir 2006/ 48 Commencement date: 19/12/ 2009 – day after which the date the on publication regulations of was notified the in Oifigiúil (per reg 1(2) of the SI) European Communities of Supervision and (Licensing Credit Institutions) (Amend- ment) Regulations 2009 Number: SI 513/2009 Contents note: Amend the and (Licensing Communities ropean Supervision of Credit Institutions) to 395/1992) (SI 1992 Regulations European Communities (Directive 2006/46/EC) 2009Regulations Number: SI 450/2009 Leg-implemented: Dir 2006/ 46, amending dir 78/660 on the annual accounts of certain types con- on 83/349 dir companies, of on 86/635 dir accounts, solidated the annual accounts and consoli- oth- and banks of accounts dated er financial institutions, and dir 91/674 on the annual accounts and consolidated accounts of - in surance undertakings. Commencement date: 18/11/ 2009 European Communities (Directive (Cen- 2006/48/EC) tral Bank Acts) (Amendment) Regulations 2009 Number: SI 512/2009 the Amend note: Contents Euro- Iris Oifigiúil (per Iris Oifigiúil (per Iris Oifigiúil (per reg 3 of the SI) European Communities (Credit Institutions) (Consolidated Supervision) Regulations 2009 Number: SI 475/2009 Contents note: Implement - Di taking the on 2006/48/EC rective up and pursuit of the business of credit institutions (Recast Credit Institutions ). Directive the Central Require Bank and Financial Services Authority of Ireland to supervise credit institutions and their subsidiary and associated companies on a consolidated ba- sis, taking account of the entire group activity and relationships, rather than on a single company basis. Leg-implemented: Dir 2006/ 48 Commencement date: 19/12/ which on date the after day – 2009 the publication of the regulations was notified in pean Communities (Capital Adequa- cy of Investment Firms) Regulations 2006 (SI 660/2006) to for provide further implementation Directive 2006/49 on of the capital adequacy of investment firms and credit institutions (recast). Leg-implemented: Dir 2006/ 49 Commencement date: 19/12/ which on date the after day – 2009 the publication of the regulations was notified in reg 3 of the SI) European Communities (Capital Ad- (Capital Communities European equacy of Credit Institutions) Regu- lations 2006 (SI 661/2006) to pro- of implementation further for vide tak- the on 2006/48/EC Directive ing up and pursuit of the business of credit institutions (Recast Credit ). Institutions Directive Leg-implemented: Dir 2006/ 48 Commencement date: 19/12/ which on date the after day – 2009 the publication of the regulations was notified in European Communities Invest- (Capital Adequacy of ment Firms) (Amendment) Regulations 2009 Number: SI 515/2009 the Amend note: Contents reg 2 of the SI) COURT HIGH : THE NOTICE

- Pensions Prepared by the by Prepared Solicitors (Con- Law Society Library Rules of the Superior Courts G Act 1990 in relation to trusteetraining. Solicitors (Continuing Profes- sional Development) Regula- tions 2009 Number: SI 452/2009 reg- the Update note: Contents ulations governing the require- ment for a solicitor to undertake develop- professional continuing ment in the specified time cycles granted being to prerequisite a as a practising certificate. Revoke and replace the tinuing Professional Development) Regulations 2007 (SI 807/2007), subject to exceptions in particu- lar circumstances. Commencement date: 2010 1/1/ Stamp Duty (E-Stamping of In- struments) Regulations 2009 Number: SI 476/2009 Contents note: Make provision Revenue the by operation the for Commissioners of the e-stamp- ing system to stamp instruments through the Revenue Service. Online Commencement date: 30/12/ 2009 ficers Act 2009. ficers Act Commencement date: 2010 11/1/ Courts Superior the of Rules 2009(Defamation) SI 511/2009Number: a new or note: Insert Contents der 1B in and amend order 22, order 36 and appendix B, part II of the to provide for the operation of Act 2009. the Defamation Commencement date: 2010 1/1/ and PensionsSocial Welfare (Com- Act 2008 (Section 28) mencement) Order 2009 Number: SI 506/2009 Contents 1/2/2010 as the note: commencement date Appoints for section 28 of Section the 28 act. amends the

Regis- Registration of Deeds Courts and Court Of- National Asset Management Asset National (Determina2009 Act Agency - Economic of Long-Term tion Bank and Property of Value 2009 Regulations Assets) SI 546/2009 Number: Commencement date: 21/12/ 2009 ManagementNational Asset 2009 (Designa- Agency Act Bank Assets)tion of Eligible Regulations 2009 Number: SI 568/2009 Commencement date: 23/12/ 2009 National Asset Management - Agency Act 2009 (Establish ment Day) Order 2009 Number: SI 547/2009 21/12/ Appoints note: Contents for day establishment the as 2009 the National Asset Management Agency. Registration of Deeds (No 2) Rules 2009 Number: SI 457/2009 Contents note: Provide for the registration of a judgment mort- gage under section 116 of Land the and Conveyancing Law Re- form new a for and 2009 Act form 16 for this purpose. Provide for the registration of a order charging under section 17 of Nursing the Homes Support Scheme Act 2009. Substitute new rules receipt and release (discharge, 12 of mortgage) and 13 (discharge, release and satisfaction of judg- ment mortgage) in the tration of Deeds Rules 2008 52/2008) (SI and substitute a new rule 4 in the Rules 2009 (SI 350/2009). Commencement date: 1/12/ 2009 Rules of the Superior Courts (Combined Court Offices) 2009 Number: SI 582/2009 Contents note: Amend Rules of the the Superior Courts to facilitate the business transaction in a of combined court office established under section 14 of the

Housing (Miscellaneous Provi- of chapter 1 (ss 10-13, ‘Housing services’) of part 2, and section 35 strategy’). behaviour (‘Anti-social ProviHousing (Miscellaneous - 2009 (Commence - sions) Act Orderment)(No 2) 2009 Number: SI 540/2009 Contents note: Appoints 2010 1/1/ as the commencement date for part 3 (ss 43-49, ‘Incremental Appoints arrangements). purchase 1/2/2010 as the commencement date for chapter ‘Homelessness 6 action (ss plans’) of part 36-42, 2 and for the amendments to the sions) Act 1992 as set out at item 5 in part 4 of schedule 2. Land and Conveyancing Law Reform Act 2009 (Commencement) (Section 132) Order 2009 Number: SI 471/2009 Contents note: Appoints 28/2/ 2010 as the commencement date for section 132 (review of rent in certain cases) of the act. Land Registration (No 2) Rules 2009 Number: SI 456/2009 Contents note: Land Registration Amend Rules 1972 (SI the 230/1972) as follows: provide for new forms 109, 110, 111 and 112; substitute new rules 3, 6, 19, 24, 122, to 117 100, 82, 79, 67, 59, 57, 128, 153, 188, 225 and substitute new forms 1, 2, 7, 9, 10 to 13, 16, 17, 19, 23, 30, 34, 36, 37, 41, 43, 45 to 48, 53, 55, 61, 63 to 65, 68, 74 to 77; rescind rules 29, 58, 75, 106, 109, 110, 116, 124, 152, 158 and 170 to 168 165, to 162 160, to delete forms 6, 24, 32, 39, 49, 51, 56, 58, 60, 62, 73, 94 to 96, and provide for related matters. Commencement date: 2009 or 1/1/2010 – see SI 1/12/for de- tails National Asset Management Agency Act 2009 (Commencement) Order 2009 Number: SI 545/2009 Contents commencement the as 21/12/2009 note: date for all sections of the act. Appoints in Stamp

Credit Credit Institutions - (Fi www.lawsocietygazette.ie 2) Act 2008 that had not previ- ously been commenced. are They amendments to the Duties Consolidation Act 1999 connection with the e-stamping system to be commenced by the Revenue Commissioners. (Sec- Finance (No 2) Act 2008 tion 18) (Commencement) Order 2009 Number: SI 448/2009 Contents note: Appoints 1/1/ 2009 as the commencement date for section 18 of the tion 18 provides for act. an extension - Sec from 1/1/2009 to 31/12/2010 of the general 25% stock relief for farmers and the 100% scheme of stock relief for certain young trained farmers. Financial Measures (Miscel- laneous Provisions) Act 2009 (Section 17) (Commence- ment) Order 2009 Number: SI 455/2009 Contents note: Appoints 1/12/ 2009 as the commencement date for section 17 of the act. Section 17 amends, via the schedule to the act, the nancial Support) Act 2008 to allow mainly for the extension of the period of financial support be- yond 29/9/2010. Health (Miscellaneous Provi- sions) Act 2009 (Commence- ment) (No 3) Order 2009 Number: SI 543/2009 Contents note: Appoints 1/1/ 2010 as the commencement date for part 6 of the act. Part 6 pro- vides for the dissolution of the Crisis Pregnancy Agency and for the transfer of the agency’s em- ployees, liabilities, property etc, to the Health Service Executive. Housing (Miscellaneous Provisions) Act 2009 (Com- mencement) Order 2009 Number: SI 449/2009 Contents note: Appoints 1/12/ 2009 as the commencement date for various sections of the act – com- order The details. for SI see mences most of part 1 (ss ‘Preliminary 1-9, and general’), all jan/feb 2010 jan/feb Gazette Society Law

briefing 56 briefing 57

- Solici- 3,000 to the € Ballinrobe, Co December 2009 Law Society of Ireland, www.lawsocietygazette.ie advised, Pay the sum of the Law Society of Ireland, including witness expenses, as taxed by a taxing master of the High Court, in default of agreement. sional services, chiefly in the form of delay to the plainant, for com- a period in ex- cess of ten years, Failed to reply to the Soci- ety’s correspondence in and, particular, letters dated 4 December 2006, 25 January 2007 and 9 March 2007, re- sulting in a direction of the Complaints and Client Rela- tions Committee meeting on 18 April 2007. Do stand admonished and compensation fund, Pay the whole of the costs of Provided inadequate profes- ribunal In the matter of rying on practice under Anne the style and title bon of & Fitzgib- Company, Solicitors, at The Penthouse, 121/122 Capel Street, Dublin 1, and in the matter of the tors Acts 1954-2008 [5626/ DT10/09] Law Society of Ireland (applicant) Anne Fitzgibbon solicitor) (respondent The tribunal ordered that the respondent solicitor: Fitzgibbon, a solicitor car a) b) c) 1) 2)

lliot, Registrar of Solicitors, John Elliot, Registrar So- jan/feb 2010 jan/feb Gazette Society Law Solicitors, at Main Street, Mayo, fromsolicitor. practice as a 7,500 to the ribunal inquiries areribunal inquiries published by the given to the committee on 24 March 2004 to furnish a response within 14 days, Failed to attend the meeting April 28 on committee the of 2004, Failed to attend the meeting of the committee on 26 Sep- tember 2007. Do stand censured, Pay a sum of € compensation fund, Pay the whole of the costs of the Law Society of Ireland, including witnesses’ expens- es, to be taxed by a in Court, High the of master taxing default of agreement. 6) 7) The tribunal ordered that the respondent solicitor: a) b) c) In the Martin matter Carr, of formerly a practising John in solicitor firm the of William Company, Solicitors, 74 Old Davis & Seamus Quirke Road, - West side Business Park, Galway, and in the matter of the [4214/ 1954-2002 Acts licitors DT43/08] Law Society of Ireland (applicant) John Martin Carr solicitor) (respondent On 30 July 2009, the Solicitors found the Disciplinary Tribunal respondent solicitor guilty misconduct of in his practice as a solicitor in that he: November 2009, the - - So- €2,500 to the Take notice that, by order of the High CourtHigh the of order by that, notice Take made on Monday 9 President of the High Daniel Court suspended Coleman, practising as Daniel Coleman & Company, solicitor, formerly Do stand censured, Pay a sum of compensation fund, Pay the whole of the costs of the Law Society of Ireland, including witnesses’ expens- es, to be taxed by a in Court, High the of master taxing default of agreement. Was in serious delay in the administration of an estate, Failed to respond to numer ous letters from the Society, Failed to provide progress reports to the Society as di- rected by the committee, Failed in particular to pro- vide a progress specifically report directed as by the committee on or before 10 January 2004, Breached his undertaking Street, The tribunal ordered that the respondent solicitor: a) b) c) In the matter of Lindsay, John a BK solicitor former ly practising as Lindsay Company, & Solicitors, at 47 Wellington Quay, Dublin 2, and in the matter of the licitors Acts 1954-2008 Law Society of Ireland (applicant) John BK Lindsay solicitor) (respondent Solicitors the 2009, June 30 On the found Tribunal Disciplinary respondent solicitor, John BK Lindsay, guilty of misconduct in that he: 1) 2) 3) 4) 5) Coleman Coleman, - Main So- Daniel COURT HIGH : THE NOTICE Solicitors, at

Solicitors (Amendment)

ompany, Company, Failed to comply with a di- rection of the Complaints and Client Relations Com- mittee made on 2008 16 up to April the date of the swearing of the grounding affidavit Society’s (on 27 November 2008), multiple to respond to Failed correspondence from Society, the Through his lack of coop- in- eration with the Society’s vestigation of the complaint, effectively frustrated the So- ciety in resolving the matter, Breached section 68(1) the of provide to failing in 1994 Act the information prescribed by the section, Failed to reply to about the queries administration of an estate. In the matter of solicitor, solicitor, formerly practising as &

Ballinrobe, of Mayo, and in the matter Co the Solicitors Acts 1954-2008 olicitors DisciplinarySolicitors T IrelandLaw Society of as provided 17 of the 23 (as amended by section for in section ) of the Solicitors (Amendment) Act 1994 Solicitors (Amendment) Act 2002 Reports of Solicitors Disciplinary of the outcomes T In the matter of Lindsay, John a BK solicitor former On 30 June 2009, the Solicitors the 2009, June 30 On the found Tribunal Disciplinary respondent solicitor, John BK Lindsay, guilty of misconduct in that he had: a) b) c) d) e) ly practising as Lindsay Company, & Solicitors, at 47 Wellington Quay, Dublin 2, and in the matter of the [3483/ 1954-2008 Acts licitors DT/116/08] Law Society of Ireland (applicant) John BK Lindsay solicitor) (respondent 7 million in his client his in million 7 € 7 million that had been € The respondent solicitor is not a fit person to be a mem- a be to person fit a not ber of the solicitors’ profes- sion, The name of the respond- ent solicitor be struck off the Roll of Solicitors, paysolicitor respondent The the whole of the costs of the Law Society of Ireland, in- cluding witnesses’ expenses, to be taxed agreement. in default of spondent solicitor shall struck be from the Roll of So- licitors, That the Law Society recover the costs of do the pro- tor is not a fit person to be a member of the solicitors’ profession, That the name of the re- er named firm of solicitors, solicitors for the receiver, by telephone conversation dated 31 January 2008, that he con- the in deposit a hold to tinued of sum account, which had been paid on behalf of the same named solic- respondent the to client itor to act as a deposit for the sale of the shares in a named limited liability company to the above-mentioned named client in circumstances where he did not hold such funds. That the respondent solici- by letter dated 13 Novem- ber 2007, that he continued to hold a deposit in the sum of cli- named a of behalf on paid ent to the respondent solici- tor to act as a deposit for the sale of the shares in a named limited liability company to the above-mentioned named where circumstances in client no such sum was in fact paid by the named client, Falsely represented to - anoth The tribunal directed that: The tribunal directed that the matter be referred forward to the High Court and, on 12 Oc- tober 2009, the President of the High Court ordered: 2) 3) i) ii) iii) 1) g) 7 mil- 7 € 8.825 million, 7 million that had been € named firm solicitors of for a named third- solicitors, party financial institution, plication, to a named third- party financial by email dated institution 7 November 2007 that he continued hold to a deposit in of the sum cli- named a of behalf on paid ent to the respondent solici- tor to act as a deposit for the sale of the shares in a named limited liability company to the above-mentioned named where circumstances in client no such sum was in fact paid by the named client, Falsely represented to a named third-party financial institution by email dated 19 July 2007 that he had served a notice on a named threatening client to forfeit the de- closed not was sale the if posit by return in circumstances such served not had he where a notice, Falsely represented, by im- plication, to a named third- party financial by email dated 19 institution July 2007 that he continued to hold a of sum the in deposit lion that had been paid behalf on of a named client to the respondent solicitor to act as a deposit for the sale of the shares in a named lim- ited liability company to the above-mentioned named cli- ent in circumstances where no such sum was in fact paid by the named client, Falsely represented, by im- ent solicitor to act as a deposit a as act to solicitor ent for the sale of the shares in a named limited liability com- above-mentionedpany to the named client in circumstanc - es where no such sum was in fact paid by the named client and in circumstances where se- as furnished was letter that curity to a named third-party financial institution in order to secure a loan for a named limited liability company in the sum of € Falsely represented to a f) e) c) d) 7 million 7 million € € 1,500 to the € Solicitors Acts Solicitors’ Accounts Solicitors’ Accounts Regula- ter dated 19 February 2007 that a deposit of ter dated 19 February 2007 that a deposit of Pay a sum of the Law Society of Ireland as taxed by a taxing master of the High Court in default of agreement. a disregard for her statutory obligations to comply with the for disregard showed and tions statutory obliga- the Society’s tion to monitor compliance with the Regulations for the protection of clients and the public. Do stand censured, Falsely represented by let- strument no 421 of 2001) in a in 2001) of 421 no strument or at all, timely manner showed conduct, her Through compensation fund, Pay the whole of the costs of had been paid on behalf of a named client to the respond- had been paid on behalf of a named client to the respond- deposit a as act to solicitor ent for the sale of the shares in a named limited liability com- pany to the above-mentioned named client in circumstanc- es where no such sum was in fact paid by the named client, Falsely represented by let- In the matter of John Duffy, a solicitor formerly practising as John Duffy & Co, Solici- tors, at Main Street, Monas- the in and Kildare, Co terevin, matter of the The tribunal ordered that the respondent solicitor: 1954-2008 [7660/DT01/09 and High Court record 2009 no 87 SA] Law Society of Ireland (applicant) John Duffy solicitor) (respondent On 17 June 2009, the Solicitors found the Disciplinary Tribunal respondent solicitor guilty misconduct of in his practice as a solicitor in that he: b) a) a) b) c) b)

2,500 to the € Solicitors’ Accounts Solicitors Acts 1954-2008 was furnished to the Society report for thean accountant’s year ended 31 March 2008 within six months date, in of breach of regulation that 21(1) of the in- (statutory 2001 Regulations Failed to ensure that there the Law Society of Ireland to of master taxing a by taxed be the High Court in default of agreement. Pay a sum of Do stand censured, state to settle brought by her proceedings named client on 29 July 2004 without get- instructions, ting her client’s Put her own interests in se- curing her costs before the interests of her client by re- fusing to accept a settlement offered to her client on July 2004, 29solely on the basis that her costs could not fully paid. be her named client on 29 July settle- 2004 to advise her of a ment proposal made by the state to settle her case, Refused an offer made by the Failed to make contact with compensation fund, Pay the whole of the costs of www.lawsocietygazette.ie In the matter practising solicitor a of Cazabon, Elizabeth Atlanta Solicitors, Cazabon as House, Wolfe Tone Bridge, Galway, and in the matter of the [8142/DT12/09] Law Society of Ireland (applicant) Elizabeth Cazabon solicitor) (respondent On 6 October 2009, the Solici- found Tribunal Disciplinary tors of guilty solicitor respondent the misconduct in her practice as a solicitor in that she: The tribunal ordered that the respondent solicitor: a) a) b) c) b) c) a) On 1 October 2009, the Solici- found Tribunal Disciplinary tors the respondent solicitor guilty of misconduct in her practice as that she: a solicitor in jan/feb 2010 jan/feb Gazette Society Law briefing 58 briefing 59 - 1 1 65 177,523 € €5,000 17,100, 15,000 to the 5,500. € 79,650, G

4,980, www.lawsocietygazette.ie 2,150, compensation fund, Pay the whole of the costs of Pay a sum of the Law Society of Ireland as taxed by a taxing master of the High Court in default of agreement. from November 2004 to May to 2004 November from 2007 with stamp duty in the amount of € updated be to deed a Allowed from February 2006 to Au- gust 2008 with stamp duty in the amount of € updated be to deed a Allowed from March 2004 to January 2009, resulting in the under payment of stamp duty € of updated be to deed a Allowed Jan- to 2006 November from uary 2009, resulting in the underpayment of stamp duty of € updated be to deed a Allowed No- to 2004 November from the in resulting 2008, vember underpayment of stamp duty in the sum of € Do stand censured, late stamping and updating of deeds totalling in 12 files, updated be to deed a Allowed Was involved Was in a process of The tribunal ordered that the respondent solicitor: a) b) c) b) c) d) e) f) a) €2,000 fine and costs €750 fine and costs €8,000 fine, €7,000 €3,000 fine and costs €7,500 fine and costs

and costs Censure, Eight cases withdrawn because solicitor struck off before hearing. cases Censure, order for restitution of restitution and costs Censure, Censure, Censure, Censure Censure and costs in two cases Recommendation of strike-off in ten ribunal otal • • • • • • • • • The remaining cases await hearing. (As of December 2009) Counsels’ fees T Outcome of the investigation of above complaints by the Solicitors Disciplinary T Conflict of interest jan/feb 2010 jan/feb Gazette Society Law 5 9 1 2 1 6 1 Solicitors Acts 25 37 66 43 28 38 35 132 417 199 1,754 ribunal a member of the solicitors’ profession, That the name of the re- spondent solicitor be struck of Solicitors.off the Roll That the name of the spondent re- solicitor shall be struck from the Roll of So- licitors, The court made no order as to the costs of the proceed- ings herein. The tribunal directed that the matter be referred forward to the High Court and, on 12 Oc- tober 2009, the President of the High Court ordered: In the McCullagh, a solicitor matter carry- of ing on practice as Harry Mc- Harry Cullagh & Company, Solici- - Rath House, Rathmore tors, more Lawn, South las Road, Doug- Cork, and in matter the of the 1954-2008 [7428/DT57/09] Law Society of Ireland (applicant) Harry McCullagh solicitor) (respondent On 3 November Solicitors Disciplinary Tribunal 2009, the found the respondent tor guilty solici- of misconduct in his practice as a solicitor in that he: ii) 1) 2) 255,038, € otal otal Shoddy work Other T Allegations of overcharging: Conveyancing Probate Litigation Matrimonial Other T Breaches of section 68 Failure carry out instructions Failure to protect interests of client Failure to comply with direction of CCRC Undertakings Dishonesty/deception failure to account Delay, Grand total Number of complaints referred to the Solicitors Disciplinary T failure to hand over papers Delay, 225,000 each to an €

2 13 80 32 19 11 78 128 105 614 134 172 937,576.33 937,576.33 to be paid from 303,076, after taking ac- 634,500, to be paid from 195,797, in breach of regu- tor is not a fit person to be appear on the estate of a de- ceased named client by pay- ing out two cheques in the sum of not invoiced, to be held in the client account amount- ing to the sum of the compensation fund, the compensation Caused a net sum count of of € recoveries the compensation fund, of Caused and permitted trans- fers from to client office account account there being any valid without reason or invoice to said transfer money, and in doing so the breached regulation 7(i)(ii) and regulation 7(i)(iii), Permitted a debit balance to arise on the estate deceased of a named client € of lation 7(2), Caused a debit balance to executor, Caused and permitted fees, which were originally invoiced not and posted to the books of account, in breach of regulation 5(2)(c). That the respondent - solici € € 1,138 The tribunal directed: i) g) h) e) f) d) Complaints about solicitors 722,263 € 918,060 as at Solicitors Acts € 195,797, otal and caused and debit allowed balance in a the sum of € Caused claims in the sum of client account to arise to due unallocated transfers office to account of on the client account to arise in the sum of 4 February 2008, Permitted a deficit on the ceedings herein and the costs the before proceedings the of - Tribu Disciplinary Solicitors expens- witness include to nal es as against the respondent or ascertained.when taxed Caused and allowed a deficit Allegations of misconduct Delay Information on complaints about solicitors published in accordance with section 22 of the Solicitors (Amendment) Act 1994. In rela- tion to complaints received by the Society from 1 September 2008 to 31 August 2009. Failure to communicate Failure to hand over Failure to account Undertaking Conflict of interest Dishonesty or deception Witnesses’ expenses Advertising Other T Allegations of inadequate professional services: Delay Failure to communicate In the matter of Joan Quinn, a solicitor formerly practising as Quinn & Co, Solicitors, at 23A The Village - Green, Tal laght, Dublin 24, and in the matter of the On 9 June 2009, the Solicitors found the Disciplinary Tribunal respondent solicitor guilty misconduct of in her practice as a solicitor in that she: 1954-2008 [6646/DT25/09 and High Court Record 2009 no 82 SA] Law Society of Ireland (applicant) Joan Quinn solicitor) (respondent c) b) a) She stated: “If the position mind that directive 89/665 im- poses on the member states not but review rapid of aim the only also the aim of effective review of award decisions. A national practice that achieves only one of those aims at of the the other is expense not in harmony with the directive. The exten- sion of the limitation under order 84A(4) of the RSC period indeed may decisions interim to serve the aim of rapid review without this also being clear made in the wording of order 84A(4) of the RSC – however, the practice operates at the ex- pense of legal certainty, thus ultimately and jeopardises the achievement of the aim of ef- fective review. She accordingly found that Ireland’s objection must therefore be rejected. Common law system In respect of Ireland’s further objection, on the grounds that law common a is law national its system a such in that and system not only statutory provisions but also decisions of the courts are determinative, she that stated it must be observed a that directive leaves it to the na- tional authorities to choose the achieving for methods and form the desired result. What mat- ters, however, is that with such full the proceeding, of method a application of the directive ac- tually is ensured with sufficient clarity and precision. in national law derives from the provisions statutory of interplay must that law’, ‘judge-made and not take place at the expense of Com- Even though there was no ime limit the period laid down by order 84A(4) and as regards the dura- tion of that period. Legal certainty In order to comply with article 1(1) of directive 89/665, the ad- vocate general stated that the member states must make the situation in national law suffi- ciently precise, clear and trans- parent for individuals to be able to ascertain their rights and ob- ligations (Case C-361/88, I ECR [1991] Germany v mission 2567, paragraph 24). Only if it is clear beyond doubt that even preparatory acts of contracting authorities or interim decisions under period limitation the start order 84A(4) of the RSC run- ning can tenderers and candi- precau- necessary the take dates tions to have possible breaches of procurement law reviewed effectively within the ing of mean- article 1(1) of directive 89/665. dispute that, in extend- is practice, 84A(4) order of scope the ed also to include interim deci- the to incompatible was it sions, requirements of article 1(1) of directive 89/665 for the scope to be so extended without that being clearly expressed in the wording of the provision. T Regarding Ireland’s objection challengingfor limit time a that interim decisions corresponds to the objectives of 89/665, directive in particular, the quirement re- to act rapidly, in borne be should it that stated she Rules of In respect of the - commis Article 1(1) of directive Order 84A(4) of the The commission referred right to invite the unsuccessful tenderer to enter into - discus selected the of place the in sions appro- if date later a at tenderer priate. application sion’s for a - declara tion that the time limits in Irish procedural law are contrary to community law, she observed wheth- is issue essential the that er those rules are clear sufficiently to make effective review within the meaning of article 1(1) of directive 89/665 sible. pos- 89/665 provides, in the relevant part: “The member states shall take the measures necessary to ensure that … decisions taken by the contracting authorities may be reviewed and, in particular, as rapidly effectively as possible … on the grounds that such decisions have infringed community law in the field of public procurement or national rules implementing that law.” the Superior Courts (hereinafter ‘RSC’) provides as follows: “An application for the review of a decision to award or the award of a public contract opportunity earliest the at made shall be and in any event within three months from the date grounds for the application first when considers court the unless arose, ex- for reason good is there that tending such period.” to lack of clarity in connection with determining the kinds of decisions against which chal- lenges must be brought within

News from EU and International the Affairs Committee Director of Ireland of Education, Law Society Edited by TP Kennedy, Uniplex Remedies Di- legal eur Commission v Ireland Commission v , Ireland the Rules of the Superior Courts isSuperior the of Rules he recent opinions of advo- cate general Kokott in Case Advocate general Kokott In SIAC Construction Limited v www.lawsocietygazette.ie T found that the first plea, regarding commission’s the failure to notify the award was decision, well founded, on grounds, among other things, that NRA the expressly reserved the (UK) Ltd v NHS Business Servic - es Authority, both of 29 October 2009, are important in clarify- ing the requirements 89/665/EEC Remedies Directives of the and 92/13/EEC in relation to the balance to be rapid of requirements the tween struck be- and effective review and, in the context of the new commission brought proceed- ings against Ireland in relation Bypass to the Dundalk Western Project tender process on two grounds: (a) that in a individual specific case, the subject of national review ( proceedings National Roads Authority [2004] IEHC 128), the Irish National Roads Authority (NRA), in the course of awarding a road con- inform not did project, struction the unsuccessful of tenderers consortium of the final award decision; and (b) that the pro- vision of Irish law on the time limits for seeking remedies, as laid down in order 84A(4) the of contrary to community law. and Case C-406/08, rective 2007/66/EC, amending trans- be to due directives those posed by member states by 20 December 2009. C-456/08, Public procurement: effective reviewof Directives under the Remedies decisions jan/feb 2010 jan/feb Gazette Society Law briefing 60 briefing 61 - www.lawsocietygazette.ie She observed that directive Advocate general Kokott cessful cessful in the award procedure may it generally be presumed that he knew, or in ought any to case have known, of alleged breach the of procurement pos - it is on then from Only law. prepare to sensibly him for sible review for application possible a and to estimate its chances of success. 2004/18 already lays down in article 41(1) and (2) that - con tracting authorities must form in- unsuccessful and candidates tenderers of the reasons for the their same rejection. To effect, article 2(c) of directive 89/665, as inserted by the new - pro 2007/66, Directive Remedies vides for future cases that the contract- the of communication ing decision authority’s to each tenderer or candidate must be accompanied by a summary of the relevant reasons and any that limitation periods for ap- plications for review may not expire until a certain number of calendar days after that com- munication. National court’s discretion NHS Business Services, Brit- ain and Ireland objected thateffective legal protection does not necessarily require that the limitation periods for seeking remedies in review proceedings run only from the time when the tenderer or candidate con- cerned knew or ought to have known of the alleged infringe- They law. procurement of ment trans- British the that submitted posing provision at issue sures en- effective legal protection by giving the national court a discretion to extend, if appro- priate, the period for bringing proceedings. said: “That argument does not convince me. Article conjunction 1(1) with article 1(3) of in directive 89/665 gives any per son who has or had an interest in obtaining a particular public contract and who has been or risks being harmed by an al- jan/feb 2010 jan/feb Gazette Society Law , Uniplex clarification was Rules of the Superior Courts. Superior the of Rules Uniplex commenced pro- The question arose in the In ceedings before the High Court High the before ceedings seeking, among other things, a declaration of alleged breaches of procurement law. The High Court was uncertain whether Uniplex had brought tion its in time and, ac- if it had not, whether it should exercise its discretion to extend the period for bringing proceedings under the English regulations trans- posing directive 89/665. Limitation period Advocate general Kokott stated that the mere fact that a derer ten- or candidate has that learnthis tender has been unsuc- cessful does not yet mean that he knows of any breach of pro- curement law. Only once the candidate or tenderer successful essen- the of informed been has tial reasons for his being unsuc- sought sought in relation to the lim- time appropriate the which from itation periods for review start to run. The referring English High Court essentially sought to know (i) whether it may take the date of the breach of pro- when point the as law curement time starts running, or must it applicant the when date the take of known have to ought or knew in a re- the breach; (ii) whether, view procedure, it may dismiss has it if inadmissible as action an not been brought ‘promptly’; and (iii) how it should exercise its discretion with respect to a possible extension of time. context of a provision of Eng- lish regulations, pursuant which the to period for bringing applications for review to starts run regardless of the unsuc- cessful knowledge tenderer’s of the breach of procurement law, and any extension of the period is at the discretion of the tional na- court. The relevant Eng- lish provision (regulation 47(7) (b)) is identical in effect to the wording of order 84(A)4 of the Irish tion of an independent court.” independent an of tion

- Rules of the Superior Courts Advocate general Kokott Advocate general Kokott She stated: “Article 1(1) in stated that: “If it is the case that the expression ‘at the earliest opportunity’ in order 84A(4) of the really gives the power, Irish at their courts discretion, dismiss to applications for review as inadmissible the even expiry of the before three-month period, then it does not satisfy community of requirements the law. A limitation period whose duration is at the discretion of the competent court is not pre- dictable in its effects.” Discretion of the national court Regarding Ireland’s contention if could, courts national the that extend necessary, the limitation period at their discretion, she stated that, while such a pos- sibility of extending time may make it easier for the courts to do justice in the individual case, it is not capable of curing the shortcomings of the order with respect to the requirements of clarity, precision and predict- ability of the limitation rule. conjunction with article 1(3) of directive 89/665 gives any per son who has or had an interest in obtaining a particular public contract and who has been alleged or an by harmed being risks right individual an infringement theof decisions the of review to contracting authority. The ef- fective assertion of such a claim cannot be made to depend on the absolute discretion of a na- discre- the even not body, tional She found that it was not Length of limitation period the to objected commission The phraseology of order 84A(4), according to which applications the “at made be must review for earliest opportunity and in any event within three months”. It contended that this provision leaves the tenderers and can- didates in question uncertain as to the precise length of the limitation period and makes it disproportionately difficult for them to bring an for application review. Further, it submit- ted that there is no indication of when an application within three months suffices and when brought be must application the earlier, before the three months. expiry of the clarity and precision of the provisions and rules concerned. where more the all applies That a directive is intended to confer rights on the individual and an unclear or complex legal posi- tion with respect to limitation periods could lead to the loss of rights – in the present case, of review to right the of loss the decisions taken by contracting authorities. Foreign tenderers and candidates, in could particular, be deterred from seeking contracts in Ireland by a com- plex and non-transparent legal situation.” compatible with the require- ments of the directive national for court a to limitation period laid apply down by the re- for apply to right the for law view (order 84A(4) of the RSC) by going beyond its and wording applying it by analogy also to the review of decisions for which the legislature has prescribed not such a period. The limitation legal position thereby made is less transparent. first the upheld accordingly She re- plea commission’s the of part garding uncertainty in the time limits for seeking remedies, as laid down in order 84A(4), as to the kinds of decisions to which the limitation period applies. ECJ not- G

reaty to move and T C law. EC The law. EC Accordingly, Accordingly, she found that James Kinch is a senior executive solicitor in the law department of Dublin City Council. she she observed that the applica - tion of a limitation period must not lead to the exercise of the right to review of award - deci prac- its of deprived being sions tical effectiveness. A limitation period such as that under the transposing national legislation, the duration of which is placed at the discretion of the petent com- court by the ‘promptly’, is not predictable in criterion its effects. the national courts declare may an not application for re- brought view, within the three- month period of the transpos- ing national legislation, inad- missible on the ground of lack of promptness. he paid in Germany. His applica- tion was rejected and he brought an action before the regional ad- ministrative court. It asked the ECJ whether the limitation of the right to a reduction of tax is com- patible with ed that retired persons who take up residence in another member state are exercising the right un- der the reside freely within the territory of the member states. The portunities op- offered by the treaty not could movement to relation in be fully effective if it were sible for pos- a national of a member state to be deterred from avail- ing himself of them by obstacles placed in the way of his stay in nation- by state member host the al legislation penalising the fact that he has availed of those op- legislation portunities.Polish The treated resident taxpayers differ- ently according to whether health insurance contributions compulsorynational a under paid were health insurance scheme. Only taxpayers whose health insur- Zamiejscowy Uwe Rüffler pril 2009. The 2009. April ement of of ement v Izby Skarbowej we Orodek ałbrzychu23 , She then stated: “Should W free mo free persons rocławiu isting exclusivity clause between the grantor of credit and the sup- plier would be at variance the aim of with the directive, which is primarily to protect the consumer as the weaker contracting party. Case C-544/07, v Dyrektor W w em- and living been had applicant ployed in Germany. Since 2005, resident permanently been has he in Germany as a retired person. He received two pensions paid in Germany – an invalidity person, and Germany, in taxed was which an occupational pension paid by Volkswagen, which was taxed in Poland. In 2006, he applied to the Polish tax authorities for the income tax to which he is liable in Poland on pension his received in occupational Germany to be reduced by the amount of the that contribution insurance health risdiction risdiction to achieve that - objec tive. the [national transposing leg- islation] not be amenable such to an interpretation, the referring court would as an then alternative have to look, in the context of its discretion to ex- tend the time limit, for a solu- the with compliant was that tion directive. The aim of effective review as prescribed by article 1(1) of directive 89/665 would then lead to the national court’s discretion being as it were ‘re- duced to zero’. It would thus be obliged to grant an extension of time to an applicant such as Uniplex.” Review promptly In relation to the requirement in the transposing regulation to apply for review ‘promptly’,

ECJ ECJ whether there must be In relation to the national As limitation periods for ac- of the sums already Bergamo paid. The District Court the asked the between clause exclusivity an grantor of credit and the supplier in order for the consumer to be able to pursue remedies against the seek and credit of grantor the termination of the credit agree - ment and reimbursement of the sums already paid, breachin is supplier obliga- its of where the The contract. the under tions was directive the that out pointed adopted with the aim of creating a common market in consumer credit and of protecting - consum ers taking out such credit. directive The prescribes harmonisation in matters of con- minimal sumer credit. Member states are therefore free to lay down rules that are more favourable to con- ex- more have should who sumers tensive rights than standard con- grantor the against rights tractual of credit. Making the consumer’s pursuit of remedies against the grantor of credit subject to condition the that there be a pre-ex- court’s court’s discretion to grant an extension of time, she that the noted referring court essen- steps what know to wished tially it should take if an unsuccessful tenderer or candidate did not initially know of breach the of procurement law and alleged was not in a position in which so it, of known have to ought he that he could not make an ap- plication for review within the three-month period under the English regulations. tions for declarations and com- pensation in connection with public contracts may not start to run until the time when the have to ought or knew applicant known of the alleged breach of procurement law, the referring national court must therefore do whatever lies within its ju-

Af- NEOS pril 2009. April individual Luigi Scarpelli v Credit Directive For that reason, ecent developments in EuropeanRecent developments law After paying the supplier Consumer consumer law 10,000 and receiving a loan of 19,130, he began to repay the She observed that the trans- ter making 24 monthly payments, monthly 24 making ter the vehicle had still not been de- livered to him. entitles a consumer to remedies pursue against goods a of supplier the where credit grantor of or services fails to performobligations in its whole or in and part, makes that right subject to a number of conditions, such as the existence of an exclusive re- lationship between the grantor of credit and the supplier. In 2003, With car. a purchased Scarpelli Mr the purchase contract, he signed a form (provided by the supplier) applying for a loan from Banca. € € loan by monthly instalments. he stopped making contested the bank’s request for payments, payment of the outstanding bal- ance, and sought reimbursement Case C-509/07, , 23 SpA, Banca NEOS The www.lawsocietygazette.ie posing legislation under con- sideration does not national court give any legal criteria the for the exercise of its discretion as regards a possible extension of time. She further noted that all the parties at the proceed- ings moreover agreed that the lack of knowledge of applicant’s a breach of procurement law is only one of several aspects that influence the national court’s assessment. Accordingly, lack of knowledge may lead to thisbut period, the of extension an accordingly It mandatory. not is becomes unpredictable for the person concerned in the indi- vidual case whether it will be worth his while to claim a legal remedy. right to review of the decisions authority.” of the contracting leged infringement an infringement leged jan/feb 2010 jan/feb Gazette Society Law briefing 62 briefing 63 A licence agreement G www.lawsocietygazette.ie by him or with his con- his with or him by EEA

may, may, for the purposes of the di- rective, be considered to have taken place without the consent of the proprietor of that established is it where mark the - trade such a breach contravenes one of the provisions listed directive. in the does not constitute the absolute the of consent unconditional and proprietor of the trademark the licensee putting to the marked goods on the market. The direc- tive enables the the proprietor mark of to invoke the the trademark rights confers on against him a licensee whether the latter contravenes certain provi- sions in the licence agreement. interpreted be must directive The as meaning that, where a licens- ee puts goods on the market in disregard of a provision in a precludesagreement,this li- cence exhaustion of the ferred rights by the con- trademark the of purposes the on for proprietor its directive if it can be established that the provision is included in those listed in article 8(2) of the directive. Damage done to the reputation of a trademark may, in principle, be a legitimate rea- son, within the meaning of the directive, allowing the proprietor to oppose the use of his trade- mark for further luxury marketing goods put on of the market the in sent.

jan/feb 2010 jan/feb Gazette Society Law FLAC will FLAC provide 200 Team FLAC with every support including a t-shirt, training schedules, sponsorship cards and a post on Doreen contact Please reception. race for [email protected] or 5690 01-874 assistance with registration and started. getting Join FLAC Team 200 for Mini- Marathon 2010! A sale in

rade rade Mark Directive T A selective distribution eam 200 EEC) (89/104/ entitles the pro- prietor of a mark to invoke confers trademark the the that rights on him in respect of a licensee where the licensee contravenes certain provisions in the licence agreement listed in article 8(2), including those concerning the quality of the goods. The quality of luxury goods is not only result the of their material teristics charac- but also of the and allure prestigious image, bestows on which them luxury. an aura of system seeks to ensure that the out- sales in displayed are goods lets in a manner that enhances regardsas especially value, their positioning, advertising, - packag ing as well as business policy. This contributes to the reputa- tion of the goods and therefore to sustaining the aura of luxury surrounding them. It is conceiv- goods those of sale the that able outside the selective distribution network might affect the quality itself of the goods. In such cir- cumstances, a contractual provi- sion prohibiting such sale must within falling be to considered be direc - trademark the of scope the tive. It is for the national court to determine whether breach of such a provision damages aura the of the luxury goods, affecting thus their quality. disregard of such a provision luxury. The French with EEA ECJ. It held rench CourtFrench St. Stephen’s part in the biggest Green event ofall-women’s havingits kind in the world. taken Picture preparegetyouhealthycanandfitas you too how for the race while helping for all. justice to access to promote Picture yourselfteam crossing and the your finishing line office at Join FLAC T Join 2009. In 2000, with Dior agreement licence agreedtrademark a SIL relating to the manufacture luxurycorsetryof distribution and goods bearing the Christian Dior trademark. In order to maintain the repute and prestige of Dior the trademark, SIL agreed not outside stores discount to sell to network distribution selective the without written agreement from Dior. SIL was also to make necessary all provision to that the ensure rule is complied with by its distributors or retailers. SIL difficuleconomic with - faced was ties and sold goods bearing the Dior trademark to Copad, a com- pany operating a discount store business. Dior brought an action against SIL and Copad for trade- mark infringement in the courts. The resellers exhaustion of pleaded Dior’s trademark rights, as the goods the in had market the on put been The consent. Dior’s de Cassation referred a number of questions to the trademark a of proprietor the that can invoke the rights conferred by the mark against a licensee who contravenes a provision in a licence agreement prohibiting, on grounds of the mark’s pres - tige, sales to discount It stores. must be established that this contravention damages the al- lure and prestigious image that gives those goods an aura of

ECJ April Chris- v v SA Copad s Mini Marathon 2010 Flora Dublin Women’ Run, Run, jog or walk with us and with your colleagues in the office. The Dublin Mini Marathon is an important fundraiser for legal rights charity, FLAC Advice (Free Centres). Legal We 200-strong are team recruiting of a women for the 10 km to challenge on Bank Holiday join us 2010. 7 June Monday intellectual property Case C-59/08, Case tian Dior couture SA, Société in - dusterielle lingerie (SIL), 23 found that the Polish limitation of limitation Polish the that found income of reduction a to right the tax is a restriction on freedom of movement and residence that is not objectively justified. ance contributions are paid in the in paid are contributions ance member state of taxation benefit from the right to a reduction of income tax. Resident taxpayers paying contributions to the Pol- and scheme insurance health ish those coming under a sory compul- health insurance scheme of another member state are in ob- jectively comparable situations, as in Poland both are subject to There- tax. to liability unlimited an fore, the taxation of their income in that member state should be carried out in accordance the with same principles and - conse samethe of basis the on quently tax advantages, including right to the a reduction tax. of The income national legislation issue at here places at vantage taxpayers a who, like disad- the applicant, have exercised their freedom of movement by leaving the member state in which they have worked in order to take up residence in another state, such as member Poland. The -

e- late Com- Advisory ationwide ationwide service N Residential and or [email protected] Contact Karen at Versant Consulting Ltd. (087) 2589467 2589467 (087) Ltd. Consulting miscellaneous reports reports will improving energy show performance of for value best getting and buildings options for investments. from long established engineering consultancy firm. Ratings: Energy Building Fully accredited, registered insured to carry and out ER B assess- ments of mercial buildings, new Pricing and is competitive old. and comes with the added exceptional benefit of construction knowledge. engineering our and solicitor, solicitor, 55 Carysfort Avenue, Black- rock, Co Dublin; tel: 01 275 6759, mail: [email protected] O’Shea, Thomas (deceased), of late Derryhasna, Limerick. Would any Castleconnell, person any knowledge having of Co a will made above-named by deceased, who died the on 6 September 2009, please contact Donal Houlihan, solicitor, Thornton Solici- tors, 88 O’Connell Street, tel: Limerick; 061 315 543, email: [email protected] fax: 061 315 503, Power, Mary Mountain (deceased), Lodge, late Slate Cabin Sandyford, Dublin of Lane, 18, who died on 9 September 2009. Would any having knowledge person of the whereabouts of any will made by the above-named deceased please O’Donnell Sweeney, 1 Earlsfort contact Cen- tre, Eversheds Earlsfort Terrace, Dublin 2, Ref: MJC/24327.12 Shanahan, Rev Liam (deceased), of Holy Family Residence, Road, Dublin 14; formerly Roebuck of 5 - Avon dale Crescent, Killiney, 76 Holmpatrick, Co Skerries, Co Dublin; Dublin; ‘Cuan Phadraig’, South Strand, Sker ries, Co Dublin; 15 Dalymount, Dublin Dalymount, 15 Dublin; Co ries, 7; and The 87 Presbytery, St Stephen’s Green, Dublin 2. by Would made will a of any knowledge any having person the above-named deceased, who John contact diedplease 2008, October 3 on O’Connor, Solicitors, 168 668 01 tel: 4; Pembroke Dublin Ballsbridge, Road, 4366, fax: 01 668 4203, johnoconnorsolicitors.ie email: info@ Sharples, Richard (deceased), Co of Sligo, Templeboy, widower and late pensioner, date of birth: 1939, 18 October who died (age70). on 5 Would January above- the by made will a any of knowledge 2010 person named deceased please having contact Seamus Monaghan & Co, 071 fax: 8572, Solicitors, 913 071 tel: Sligo; Street, Teeling 913 8573, email: gmail.com; www.sligo-solicitor.com seamusmonaghan@ - - late of late of 2 Haran, Haran, Joan (deceased), nelsfort Ken late Road, Palmerstown, Dub - of - knowl 16 having person any Would 20. lin edge of the whereabouts of a will made died who deceased, above-named the by on 13 October 2009 at 16 Kennelsfort Road, Palmerstown, Dublin 20, please contact HC Browne, Solicitors, - Mala hide Road/Kilmore Road Corner, Ar tane, Dublin 5; tel: 01 832 7849, fax: 01 832 7852 Harnett, Maurice Margaret (deceased), and late teen of West, Harnett, Ballingarry, Co Gur Would Limerick. any person having any knowl- edge of wills made by the above-named deceased, who died on please 29 contact July Donal Houlihan, 2009, solici- tor, Thornton Solicitors, 88 O’Connell Street, Limerick; tel: 061 315 543, fax: 061 315 503, email: dhoulihan@thorn- tonsolicitors.ie Hayes, Matthew (deceased), late Clonlard of Duncannon, New Ross, Wexford, Co who died on any person 1998. 25 having Would knowl- December above-named the by made will a of edge same,holding is firm any if or deceased, please contact VP Michele McMullin, Kennedy Solicitors, Street, of Ballyshannon, Co Tirconnell Donegal; tel: 071 985 1187, fax: 071 985 2057, email: [email protected] Hudner, Very Reverend James (deceased), PP late Limerick and of Adare and District Nurs- Feohanagh, ing Co Home, Adare, Co Limerick, died who on 25 August person 2009. with knowledge Would of any a will made by the above-named contact deceased Robert please M tors, Lee, Lord Lees, Edward Street, Solici- Kilmallock, Co Limerick; tel: 063 98003, fax: 98582, email: [email protected] 063 Looney, Patrick (deceased), 53 Annadale Drive, Whitehall, Dublin any person having 9. knowledgeWould of a will deceased, made who died by on the 14 please June above-named contact 2001, O’Donohoe, Solicitors, Dublin 3; tel: 11 01 Fairview, 833 2204, fax: 01 833 6941 McHugh, Nora (deceased), Fairhaven, Whitestrand Road, ill, Salth- Galway. Would any person having knowledge of a will made by the above- named deceased, who died on 24 No- vember 2009, please contact Adrienne O’Connor, solicitor, Home Conveyancing, Solicitors, Manorhamil- & Farm ton, Co Leitrim; tel: 071 985 5302, fax: 071 985 5663, email: veyancing.com titles@irishcon- Moreland, Charles (deceased), late of 276 Malahide Road, Artane, Dublin 5. Would any person having any above-named the by made - knowl will a of edge person, who died 2009, please contact on Anne Stephenson, 17 November late of late of late of 301 of late both late of wills Date: 5 FebruaryDate: 2010 Registrar of Titles, Land Registry, Carlow Waterford Section, Schedule: ll a that and those the - prop Hanover, Lane, Bridewell at situate erty in the town and parish of Carlow Carlow of county and Casey, William (deceased), William Casey, 81st Street, Apt B10, York Brooklyn, 11209, New or alternatively 150382 PO Van Box Brunt Station, Brooklyn, New York 11215, person and any Would Longford. Co originally lashee, - Kil having any knowledge of a will made by the above-named deceased, who in New died York on 18 April 2009, please contact Mary Tunney, solicitor, of JA Shaw & Co, Office Solicitors, Park, Marlinstown Marlinstown, 8721 tel: 044 934 Co Westmeath; Mullingar, known (otherwise Cecelia Coughlan, as Celia, Eileen Cecelia Cecelia) (deceased), and late of Ellen St Johns, 58B Albert Road Co Lower, Dublin. Would Sandycove, any person having any knowledge of a will above-named made by deceased, the who 12 died October 2009, please contact on Susan Halpenny, solicitor, of PCL Halpenny & Son, 96 Street, Upper Dun George’s 1315, 280 01 tel: Dublin; Co Laoghaire, shalpenny@pcl- email: 1393, 280 01 fax: halpenny.ie Cummins, Martin (deceased), Knockieran, Blessington, Co Wicklow, who died in Naas Hospital on 18 No- having person any Would 1976. vember knowledge of the whereabouts of a will executed by the above-named deceased please contact Kevin M Co, Houlihan Solicitors, & Main Street, ton, Co Wicklow; tel: Blessing- 045 865 651, fax: 045 865 072 Peter (deceased) Fogarty, and Foga- rty, James (deceased), Lisdowney, Ballyraggit, Co Kilkenny, respectively. 2005 and 1997 in died who of knowledge having person any Would a will made by either of the above de- ceased please contact Maher Broderick Solicitors, 6 The Courts, Main Street, Newbridge, Co Kildare; tel: 045 220, fax: 432 045 434 203, email: stephen. [email protected] Geary, Eugene (deceased), Ballynoulty, Kildorrery, Co Cork, who General Mallow at 2009 May 14 on died any Co Cork. Would Hospital, Mallow, person having knowledge of the where- abouts of a will named deceased made please contact by Sheena the above- Lally, Office of the General for Minors and of Wards SolicitorCourt, Court Services, 2nd Floor, 15-24 Phoenix Phoenix Street, Smithfield, Dub- House, lin 7; tel: 01 888 6231, fax: 01 872 2681

- - Co Co Laois Co Laois lands: Knockaroe and Clandonagh; barony of nan; folio: 6065; lands: Derrin and barony of Clandonagh; 18803F; folio: O’Gorman; Angelina andBorheenduff of townland lands: barony of Iffa and Offa East; Tipperary rykeel, Co Donegal; folio: 16817F; lands: Carrowkeel; Co Donegal rick-on-Shannon, Co Leitrim; fo- lio: 11061; lands: Dernahelty More; Co Leitrim lost land land lost certificates www.lawsocietygazette.ie First registration application: conveyance lost dated and 30 made between June Hanover Mills Limited 1983 of the one Gillespie of the other part part and RN An application has been made in the Land Registry for a first registration There Carlow. Hanover, at lands over with associated document missing a is this registration, which is a deed conveyance dated of 30 June 1983 and made between Hanover Mills ited Lim- of the one part and RN Gillespie of the second part. cannot This be document located and have been is lost stated or to stroyed. The inadvertently application will proceed de- unless notification is received in the registry within 28 days from the date of publication of the notice that the original deed of conveyance dated 30 June 1983 and made between Hano- ver Mills Limited of the one part and RN Gillespie of the other part is existence in and in the custody of some own- registered the than other person Any er. such notification should state conveyance the which on grounds the is being held. Regd owner: Paul Finan; folio: 9121; Regd owner: Sean Finan and Mary Fi- Regd owner: Liam Butler, Gort, Car Regd owner: Thomas O’Gorman and Registration of Deeds and Title Acts 1964 and 2006 An application has been received from the registered owners the mentioned schedule hereto in for an order dis- pensing with the land sued in certificate respect of is- the lands in specified the schedule, which certificate original is land stated to have or been inadvertently lost destroyed. The unless with land dispensed be will certificate notification is received in the registry within 28 days from the date of pub- lication of this notice that the original certificate is in existence custody of some person other than and the in the registered owner. Any such whichon grounds the state should tion - notifica the certificate is being held. Chancery Authority, Registration Property Dublin 7Street, (published 5 February 2010) Regd owner: John Fitzgerald, Ker jan/feb 2010 jan/feb Gazette Society Law

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144 from Gazette: Law Society Gazette Society Law 33 extra € Cheques should www.lawsocietygazette.ie

In default of any such notice being hold a superior interest in the aforesaid premises (or any of upon to them) furnish evidence of title to are the called aforementioned premises to the below named within 21 days from the date of this notice. received, Elizabeth Mitchell intends to proceed with the application before the county registrar at the end of 21 ap- will and notice this of date the from days coun- the for registrar county the to ply Gazette office on tel: 01 672 Deadline for March jan/feb 2010 jan/feb Gazette Society Law box around it – The price of advertising for all other profes- The section applies to a person holding a lien. This The application shall be on notice by the applicant 31 is applications of lodgement for date last The Where the certificate is claimed to be lost or de- must authority the as lengthy, be can procedure This €144 (incl VAT at 21%) Ireland. otice Notice rates (usually four to five times longer than sional notices). other profes- sional notices will remain unchanged at € January 2010 until further notice. Registration of lien created through deposit or pos- session of land certificate or certificate of charge of holder a that provides act 2006 the of 73(3)(b) Section a lien may apply to the authority for registration of the lien in such manner as the authority may determine. a lodge to undertaking of letter solicitor’s a include may land certificate or certificate of charge. to the registered owner and must be accompanied the original certificate (see section 73(3)(c)). by date that after lodged Applications 2009. December ensure therefore must Applicants accepted. be not will that the prescribed notices are served in good time, as the application may only be lodged after the expiration of 26 days from such service. stroyed, the applicant for a lien must first 170(2) apply rule for to pursuant its with, dispensed be to production Land Registration Rules 1972. satisfy itself that than (other the security as pledged been not has certificate and stroyed has been lost in- or would Proofs it). before application the of respect in de- owner registered and applicant the from affidavits clude the in directed be would notices and and a local or national newspaper.

- - €144 (incl VAT at 21%) by putting a Society of Take Take notice that Elizabeth Mitch- the premises now known as St Teresa’s Nursing Home, 1 Fitzwilliam Terrace, situate in the parish of barony Bray, of Rathdrum and county of to- Wicklow, gether with the dwellinghouse and of- fices erected thereon. ell intends to make an the application to county registrar of Wicklow for for the acquisition the of freehold the interest countyin the aforesaid prop- erty, and any party asserting that they €288 per deed (incl VAT at 21%) mportant Notice: Important Law be paid for prior to publication. rofessional Professional notice section are as follows: For further information, contact the €144 (incl VAT at 21%) your notice Registration of Title Act 2006 - pro Landlord Landlord and Registration of Title Act 1964. The sec- Registration of Title Lost land certificates – Wills – Title deeds – Employment/miscellaneous –

Landlord Landlord and Tenant 288 per notice, reflecting the significantly • • • • Highlight rates in the February 2010. Law Society Gazette has found it necessary to The subsection also provides that section 105 of the Section 73(2) of the 2006 act provides that land cer From 1 January 2010, both land and charge Abolition of land certificates and certificates of charge All notices must be made payable to 17 4828 (fax: 01 672 4877) professional professional Professional Notices announcement The increase the price of advertising ‘Title deed’ notices in the professional notices double to € section. The price will greater amount of space that such notices consume Section 73(1) of the vides that the Property Registration Authority shall (PRA) cease to issue land certificates and certificates charge under the of tion commenced on 1 January 2007. Registration of Title Act 1964 (requirement apply only will charge) of to certificates or certificates land produce to certificates issued before commencement, and then only for a three-year period after the commencement of the section. tificates and certificates of charge issued before mencement of section 73 that are not com- already cancelled will cease to have force or effect three commencement years after of the the section, that is on ber 31 Decem- 2009. Until that furnished with all applications date, by the registered owner. land certificates must Certificates of charge, where issued, must be be produced on all releases of charge except where such release is by discharge. certificates will cease to have any force and and effect should not be lodged with applications. In cer the land the without lodged is application an if interim, tificate, where one issued, it will be rejected. If the land be should application the forthcoming, not is certificate held over and relodged after 31 December 2009. Dublin 2; tel: 01 676 5473, fax: 01 660 7116, email: [email protected] In the matter of the Tenant Acts 1967-1994 and matter in of the the (Ground Rents) (No 2) Act 1978 and in the matter of an Elizabeth Mitchell application by notice that any person having anyTake interest in the freehold following estate property: of all that the and those - - Interest- box no Established over 15 years Offices in Belfast and War We would like to We talk to you in Senior legal costs accountant with over 30 wishes years’ to experience semi-retire and out work of office contract, weekly wage plus small environment on commission, drawing costs and will bring existing client portfo- lio, DX number and small cash flow as part of contract deal; re- ply – principals only – to 0110/01 title deeds merly of 15 Ballygihen Road, Sandy- cove, Co Dublin. Would any having knowledge person of the whereabouts of the title deeds to erty, the the above-named above having died prop- on 9 October 2009, please contact Messrs Maxwells, Solicitors, 19 Herbert Place, Clarke, Madeleine (deceased), for Rosemary employment and Connolly equality law spe- cialists. Solicitors, the strictest confidence. The climate has seen a number current of challeng- es thrown at our profession, and might you be thinking ‘I’ve arrangeto you to talk to like would had We enough’. a mutually acceptable arrangement to allow for the easy transfer and winding down of your business. Reply in confi- dence to box no 0110/03 renpoint. and recognised as expert providers in our field. Available for agency work in all employment law related matters in Northern Ireland. Please contact us di- de- further for website our see or rectly tails; 2 The Square, Warrenpoint, Co tel: (0044) 0284 175Down, BT34 3JT; 3121, fax: (0044) 0274 175 3141; Elm- wood House, 44-46 Elmwood Avenue, Belfast BT9 6AZ; tel: (0044) 0289 066 0823; www.solicitorsni.net Galway city/county. winding Thinking down your practice or of re- tiring? Wanted: Wanted: profitable small to - medi practice. solicitor’s um-size - Wish practice? legal your selling in ed ing to stay on as a part-time consult- ant? Wishing to retire? If interested, please contact the box below-mentioned number. All communications will be in the strictest of a confidence and confidentiality agreement signed and furnished will prior to be the re- lease of any information. If interested, please contact box no 0110/02 Solicitor Solicitor available on an ad hoc basis to attend the Court District for Court/Circuit miscellaneous to applications include return dates, adjournments and motions. Reasonable rates. Apply 818 2149 to mobile: 087 - - - - fee simple Landlord Landlord and Landlord Landlord and Tenant In default of any such notice being re- being notice such any of default In Take notice that be- Joseph O’Reilly, Take In default of any such notice being notice that be- Joseph O’Reilly, Take or any said intermediate property is called interest upon to evidence furnishof their in title thereto to the un- the dermentioned solicitors within 21 days from the date of this notice. ceived, the said Joseph O’Reilly intends to proceed with the application before the said county registrar at the 21 days end from the date of this of notice and direc- such for registrar said to apply will one part and Clarinda Ellen the Bilton other of part, subject to the perpetual yearly rent of £50.15s.5d, late - pre-dec imal currency. ing the person entitled to the grantee’s interest in the said fee - reg county Dublin farm the to apply to tends grant, in - istrar at Áras Uí Dhálaigh, Inns Quay, Dublin 7 for the acquisition of the simple fee estate and all intermediate inter ests in the said property, and any party asserting that they hold the fee simple or any said intermediate property is called interest upon to evidence furnishof their in title thereto to the un- the dermentioned solicitors within 21 days of this notice. from the date received, the said Joseph tends O’Reilly to in- proceed with before the the application said county registrar at end of 21 days from the thedate of this no- tice and will apply to said registrar such for directions as on maybe the basis that appropriatethe person or persons inter superior all to entitled beneficially ests up to and including the fee simple in the said property are unknown unascertained. and Date: 5 February 2010 Signed: William Fry (solicitors for the - ap plicant), Fitzwilton House, Wilton Dublin 2 Place, In the matter of the Tenant Acts 1967-2005 and matter in of the the (Ground Rents) (No 2) Act 1978 and in the matter of Joseph O’Reilly an application by Any person having any interest fee in the simple estate or interest any in all intermediate that and those editaments the and her premises known as ofparish the in Street O’Connell Upper 61 the being Dublin, of city and Thomas St DN174200F folio in comprised property July 15 dated grant farm fee a under held 1907 made between Charles James Hill, Josephine Gaven and Richard Edward Maunsell of the one part and Caroline of the other part and subject to Welland the perpetual yearly rent of £55.14s.5d late pre-decimal currency. ing the person entitled to the grantee’s interest in the said fee reg- county Dublin farm the to apply to tends grant, in- istrar at Áras Uí Dhálaigh, Inns Quay, Dublin 7 for the acquisition of the simple fee estate and all intermediate inter ests in the said property, and any party asserting that they hold the - - and in the and in the Landlord Landlord and Landlord and Landlord Landlord and Tenant Landlord and Tenant Take notice that Joseph O’Reilly, be- O’Reilly, Joseph that notice Take In default of any such notice being Signed: Signed: William Fry (solicitors for the ap- plicant), Fitzwilton House, Wilton Place, 2 Dublin In the matter of the Tenant Acts 1967-2005 matter of the (Ground Rents) (No 2) Act 1978 and in the matter of Joseph O’Reilly an application by Any person having any interest in fee the simple estate or theof parts those and that all in interest any intermediate hereditaments and premises known as 37 and 38 Henry Street in the parish of St Mary and city of Dublin, held with other property under a fee farm grant dated 15 August 1859 (1) made Anne between Worthington and (2) Susanna Fanny Shury Daniel, Eliza Daniel and Emily Stanton Gould Sams, subject £13.16.11 of rent yearly perpetual the to thereby reserved with sixpence in pound receiver’s fees the (pre-decimal cur rency) and to the covenants on the part of the grantees and conditions therein contained. ing the person entitled to the grantee’s interest in the said fee for registrar county farm the to apply grant, to tends in- the city of Dublin for the acquisition of the fee simple estate and all intermedi- ate interests in the said any property, party and asserting that they hold fee simple the or any intermediate interest in the aforesaid property is called upon to furnish evidence of their title thereto withinsolicitors undermentioned the to 21 days from the date of this notice. received, the said Joseph O’Reilly tends in- to proceed with the before application the said county registrar at theend of 21 days from the date of this no- tice and will apply to said registrar for such directions as may be appropriate on the basis that the person or persons beneficially entitled to all superior in- terests up to and including the fee - sim ple in the said property and unascertained. are unknown Date: 5 February 2010 Signed: William Fry (solicitors for the ap- plicant), Fitzwilton House, Wilton Place, Dublin 2 In the matter of the Tenant Acts 1967-2005 matter of the (Ground Rents) (No 2) Act 1978 and in the matter of Joseph O’Reilly an application by Any person having any interest in fee the simple estate or interest any in intermediate all that reditaments and and premises those known as 48 the he- Upper O’Connell Street in ish of the St par Thomas and city being of part Dublin, of the property in folio comprised DN173953F, held under a fee farm grant dated 2 October 1862 made between Anna Maria Boucicault (oth- erwise Boursiquot), William Irwin and Mercy Bithea Irwin of the Glenny, -

d7 or website: 700 SQ FT. ON LUAS LINE. tel: (01) 2454800, OFFICE/LEGAL. ISO 27001 certified; TO VIEW, PHONE email: [email protected] SELF-CONTAINED, €I,I00 PER MONTH + CRIMINAL COURTS, BLACKHALL PLACE. www.wpg.ie/docstore.htm BRENDAN 087 2567172 RATES + INSUR + ESB. HALF-WAY BETWEEN Wood Printcraft DocStore’s Wood service from €500 per GB. BESIDE LAW SOCIETY, four COURTS AND NEW GOOD STREET PARKING. GROUND FLOOR, CORNER BUILDING, HIGH PROFILE, professional e-discovery support In default of any such notice being UPPER FLOORS FULLY LET BATHROOM, SHOWER ETC. OWN ENTRANCE, KITCHEN, OFFICES TO LET TO OFFICES STREET, BENBURB the fee simple estate and all intermedi- ate interests in the said any property, and party asserting that they hold fee the simple or any intermediate interest in the aforesaid property is called upon to furnish evidence of their title thereto within solicitors undermentioned the to 21 days from the date of this notice. received, the said Joseph O’Reilly tends in- to proceed with the before application the said county registrar at the end of 21 days from the date of this no- tice and will apply to said registrar for such directions as may be appropriate on the basis that the person or persons inter superior all to entitled beneficially ests up to and including the fee simple in the said property are unknown and unascertained. Date: 5 February 2010 - and and in the Landlord Landlord and Landlord Landlord and Tenant care in Ireland. For information: A Caring Legacy: ollate, paginate and index Collate, paginate chosen expert your record Identify missing records record into an easily Summarise your medical understandable document further consideration by your Identify key issues for e will: bequests to The Carers Emma at 057 9370210. or www.carersireland.com. Road, us: Minerva Medicolegal Ltd., Roseville, Mill Contact E-Mail: info@ Phone: 00353-1-2874133. Greystones, Co. Wicklow. Greystones DX: 205011 minervamedicolegal.com. W • • • • Do you need help with your medical medical help with your need Do you records negligence,clinical in personal injury cases? coroner’s and Association (CHY10962) help Take notice that Joseph O’Reilly, be- notice that Joseph O’Reilly, Take to support home-based family [email protected] www.lawsocietygazette.ie jan/feb 2010 jan/feb Gazette Society Law ty of Wicklow for directions as may be appropriate on the basis that the person or persons beneficially entitled to superior interest including the freehold re- premises aforesaid the of each in version are unknown or unascertained. Date: 5 February 2010 Signed: Cunningham (solicitors for the ap- Co Kildare Athy, plicant), 8 Emily Square, In the matter of the Tenant Acts 1967-2005 matter of the (Ground Rents) (No 2) Act 1978 ing the person entitled to the grantee’s interest in the said fee for registrar county farm the to apply to tends grant, in- the city of Dublin for the acquisition of in the matter of Joseph O’Reilly an application by Any person having any interest in fee the simple estate or interest in any all that intermediate and those that piece or parcel of ground to and the 38 rear of Henry 37 Street in St Mary the and parish city of of Dublin, held other with property under a fee farm dated grant 25 April 1900 made between (1) Evan Lake and others and (2) the Ever BenefitPermanent Derby West and ton Building Society, which reserved yearly rents of two £36.18.6 (late Irish pre- decimal currency).

briefingprofessional notices 66 briefingprofessional notices 67  Landlord Landlord and of Dublin and are Landlord Landlord and Tenant licence FRCOphth, DO. Prenton CH43 5SW, UK Selling or Buying Fax: + 44 (0)151 604 7152 Expert-Witness www.lawsocietygazette.ie Renuntiabo, 8 Rose Mount, a seven-day liquor  E-mail: [email protected] Contact 0404 42832 Consultant Ophthalmic Surgeon LOUIS CLEARKIN ChM, FRCS, Full diagnostic support services. Secretary: + 44 (0)151 604 7047 Consultant Ophthalmic Surgeon, OPHTHALMOLOGY 20 years+ medico-legal experience.  In the matter of the Tenant Acts 1967-2005 and matter in of the the (Ground Rents) (No 2) Act 1978 and in the matter of premises certain lands comprising and St Estate, part of Goldenbridge Michael’s Estate and the former Christian Brothers’ school known as St tional School, Michael’s all - Na situate at - Golden bridge in the parish of St Jude, - Dub lin 8: an application by Dublin City Council notice Take that any person having an interest in the freehold estate in the fol- lowing property: all that, that - con Kilmainham of lands and town the part of April24 dated grant farm fee a by veyed 1852, made between the ourable Right Valentine Lawless Hon- Lord Baron Cloncurry (1) and William Stewart (2) and formerly described as comprising by a late survey 14 acres, one rood and measure, plantation Irish late perches 18 be the same more or less leading Road bounded Turnpike the by north the on from Rathcool to Dublin, on the south by petty cannon ground formerly in the east the on Smith, William of possession partly by a part of the estate of Richard Bowles, formerly in the occupation of the representatives of George or Goold their under-tenants and the representatives partly of Edward Cusack, by and on the west by another holding of the said William Smith, said all lands and of premises are which situate, ly- ing and being in the barony of Cross Upper in the county now known as St Estate, Michael’s part of Goldenbridge Estate and the former   CONTACT US AT:-   E: [email protected] [email protected] E: jan/feb 2010 jan/feb Gazette Society Law  Landlord Landlord and to see how we can help you! 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Huge selection of Harbour. o you want to hide away, Do you want to hide away, massage, holistic & beauty Rushbrooke, Cobh, Co Cork homeopathy, Chinese herbal homeopathy, surroundings overlooking Cork  Take notice that the applicant, Take Mary In default of any such notice being Specialists in Office Fit-Out, refurbishment & Move nagementMa                Date: 5 FebruaryDate: 2010 Signed: Adrian Shanley & Company - (so licitors for the MeathCo Dunboyne, applicant), Navan Road, In the matter of the Tenant Acts 1967-2005 and matter in of the the 2) Act 1978 Rents) (No (Ground notice that any Take person having any fol- the of estate freehold the in interest lowing property: number 111 Dublin 1. Dorset Street, Lower Bermingham, intends to submit an ap- plication to the county registrar for the city of Dublin for the acquisition of the freehold interest in the aforesaid prop- erty, and any party asserting that they hold a superior interest in the aforesaid premises (or any of upon to furnish them) evidence of the are title to called the aforementioned premises to the be- date the from days 21 within named low of this notice. received, the applicant intends to pro- ceed with the application county registrar at before the end the of 21 from the date of this notice and will ap- days of city the for registrar county the to ply Dublin for directions as may be appro- ben- persons the that basis the on priate eficially entitled to the superior interest eachin reversion freehold the including of the aforesaid premises are unknown or unascertained. Date: 5 February 2010 Signed: Frank Ward & Company (solici- Upper House, Equity applicant), the for tors Dublin 7 Ormond Quay, - - - Ten and Landlord the Landlord Landlord and Tenant (Ground Take notice that Frank Ormsby, being Ormsby, Frank that notice Take In default of any such notice being Take notice that the applicant, St Lau- St applicant, the that notice Take re- being notice such any of default In sons beneficially entitled to the superior interest including the freehold reversion or unknown are property aforesaid the in unascertained. Date: 5 February 2010 Signed: Mason Hayes & Curran (solicitors for the applicant), South Bank House, Bar row Street, Dublin 4; our ref: DDP078.3/ DR of matter the In ant Acts 1967-2005 and in the matter of the Rents) (No 2) matter Act 1978 of and an Ormsby in application the by All Frank that and and those premises known as the 91 Cabra dwellinghouse Road in the parish of Grangegorman, Dublin 7, being the held premises under indenture comprised of lease and dated April 25 1895 and made Matthews on between the one Robert part and William Thomas Dinnage on the other part; the William said the to demised was premises Thomas Dinnage for a term of 250 years at a rent of £50 per annum. the person currently entitled to the les- intendslease, said the under interest see’s to apply to the county county registrar of of Dublin for the the acquisition of the freehold interest and all intermediate interests in the aforesaid property, any and party asserting that they hold a su- perior interest in the aforesaid property their of evidence furnish to upon called is title to same to the below named within 21 days form the date of this notice. received, the said Frank Ormsby intends to proceed with the application the Dublin county registrar at the end of before 21 days from the date of this notice and will apply for such directions as may be appropriate on the basis that the person or persons beneficially entitled superior interest to including the the freehold reversion in the aforesaid premises unknown and unascertained. are mum yearly rent of £12 under lease dated lease under £12 of rent yearly mum FitzSimon Christopher 1856, February 9 and Christopher O’Connell FitzSimon to Andrew Philip Walsh, Maguire, Lau- rence Patrick McNancy, Linehan, James Dwyer. Quigley and Christopher rence O’Toole Diocesan Trust, intends to apply to the county registrar for county theof the city of Dublin for the ac- quisition of the freehold interest in the aforesaid property, and any party assert- ing that they hold a superior interest in the aforesaid property is called upon to furnish evidence of title to the aforesaid property to the below named within 21 days from the date of this notice. ceived, the applicant intends to proceed with the application before the registrar at county the end of 21 days from the date of this notice and will apply to city the of county thethe for registrar county appro- be may as directions for Dublin of per or person the that basis the on priate an - Landlord and Ten - Ten and Landlord Landlord Landlord and Tenant (Ground Landlord and Tenant (Ground Rents) (Ground Tenant and Landlord Take notice Take that Mary Maharaj (act- In default of any such notice being Rents) (No 2) Act 1978: an application by St Laurence Trust in O’Toole the matter Diocesan of the known Glencullen, as the propertyPresbytery, Sandyford, Co Dublin Take notice that any person having aninterest in the freehold estate or any su- property:following the of interest perior all that and those the hereditaments and Glen- Presbytery, the as known premises cullen, Sandyford, Co Dublin years 999 for lease under held lands lated and re- maxi- to subject 1855, November 1 from ant Acts 1967-2005 and in the matter of the application by Mary Maharaj by Margaret (acting McGreevy as committee the of direction the under estate her of President of the High Court) the of matter the In Any person having a freehold estate or any intermediate interest in all that and those number 62 John Street, Kilkenny, datedlease of indenture an of subject the 8 October 1935 between John McEnnis, one the of McGrath May and Ashby Lily part and John Finn of the other part for a term of 99 years from 1 May 1934 at a rent of £10 per annum. ing by Margaret McGreevy as commit- tee of her estate under the intends direction Court) High the of ofPresident the to apply to the county registrar county of Kilkenny to vest in her the fee of the simple and any intermediate interests in the said property, and any party assert- ing that they hold a superior interest in the aforesaid property is called upon to furnish evidence of title to same to the below-named within 21 days from date of this notice. the received, the said Mary Maharaj (acting by Margaret McGreevy as of her estate committee under the direction of the President of the High Court) intends to proceed with the application before the county registrar at apply will the and notice this of end date the from of 21 days directions such for registrar county the to as may be appropriate on the basis that the person or persons beneficially enti- tled to the superior interests the including freehold reversion in the property are unknown or unascertained. aforesaid Date: 5 February 2010 Signed: WA Smithwick & for Son the (solicitors applicant), 43 Kilkenny Parliament Street, and in the matter of matter the in and 1978 Act 2) (No In the matter of the of matter the in and 1967-2005 Acts ant the tions as may be appropriate on the basis that the person or and to up interests persons superior all to entitled beneficially prop- said the in simple fee the including and unascertained. erty are unknown Date: 5 February 2010 Signed: William Fry (solicitors for the ap- plicant), Fitzwilton House, Wilton Dublin 2 Place,

Employment Taxes Consolida- Taxes for all their legal 2. Particulars of applicants’ lease: recruitment A double deduction can be claimed by claimed be can deduction double A your firm for any emoluments relating under apprentice an as me employing to section 88A of the 1997 tion Act. Thus, for negligible costs, you get a science graduate who Ad- Business in has Master’s a with FE1s, passedall ministration (MBA) as an apprentice. I have also experience with leading Blue Chip multinational and have lectured at 087 at Brendan Telephone level. MSc an 284 1434 or email: [email protected] being part of the lands of Crumlin front- Crumlin of lands the of part being dwelling- the with Road Crumlin to ing there- erected premises and shop house, known be to intended or known and on, in situate Road, Crumlin 251 number as the barony of Upper Cross and county of county (formerly Dublin of city the of Dublin), containing the measurements and bounded as shown on the map en- dorsed hereon and red” thereon and coloured more particularly thereto. map attached on the delineated The applicant herein holds lessee’s in- terest in the said premises by virtue of the lease dated 15 July 1935 under and made between Peter McGough of the one part and John Joseph Murphy and Elizabeth Mary Murphy of part the for other a term of September 490 1934, years subject from to 29 the yearly by the lease. £12 reserved rent of FebruaryDate: 5 2010 Signed: Maura Madden (solicitor for applicant), Nationwide the House, Grand Pa- rade, Dublin 6 August/September 2006 issue of the - oard has taken this decision based on legal advice, advice, legal on based decision this taken has oard NO recruitment advertisements will be published B Landlord Landlord and All that and those ditorial ditorial Gazette, E Society members to advertise Take Take notice that the appli- NOTICE TO THOSE PLACING RECRUITMENT Law Gazette Description of land to which SOCIETY GAZETTE ADVERTISEMENTS IN THE LAW For Log in to the new expanded employment recruitment register in the employment opportunities section on the Law members’ Society area website, of www.lawsociety. the recruitment Murphy, Trina contact or ie, Cork Society’s Law the at administrator, office, tel: 021 422 [email protected] 6203 or email: staff requirements, not just qualified solicitors. In default of any such notice be- 1. that include references to years of post-qualification experience (PQE). The Please note that, as and from the Law Society Equality Acts 1998 and 2004. which indicates that such referencessuch that indicates breachwhich in the be of may FREE EMPLOYMENT RECRUITMENT REGISTER dra, dra, Dublin 9, should provide evidence of their title to the below-named - solici tors within 21 days from the date of this notice. ing received, the said Patrick Maxwell and Marie Maxwell intend to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the city of Dublin for directions as may be appropriate on ben- persons or person the that basis the eficially entitled to the superior interest including the freehold reversion in the aforesaid property are unknown or un- ascertained. Date: 5 February 2010 Signed: Sean Ó Ceallaigh & Co (solicitors for the applicant), The Old Bank, Phibsbor ough, Dublin 7 In the matter of the Tenant Acts 1967-1984 and matter of an application by Irish Na- in the applicant. tionwide Building Society, Notice of intention to simple: acquire fee cant, being the person the entitled above-mentioned under acts, proposes to purchase the fee simple in the lands de- scribed in paragraph no 1. this notice refers: the lands and premises known Crumlin as Road, 251 Dublin 12, leaseof indenture an in comprised lands being the dated 15 July 1935 made between Pe- ter McGough of the one part and John Joseph Murphy and Murphy Elizabeth of the Mary that other “all as therein described particularly part, and more and those that piece or plot of ground -

Landlord Landlord and Landlord Landlord and Tenant

a solicitor position, In In default of any such notice being In particular, such persons who are and any party asserting that they hold a superior interest in the aforesaid prop- erties is called upon to furnish evidence properties aforementioned the to title of to the below-named solicitors within 21 notice. of this the date from days received, the said William Killion tends in - to proceed with the before the county registrar at the end of application 21 days from the date of this notice and will apply to the county registrar for the city of Dublin for directions as may be appropriate on the basis that the person or persons beneficially entitled to superior interest including the the freehold reversion in the aforesaid properties are unknown or unascertained. Date: 5 February 2010 Signed: Sean Ó Ceallaigh & Co (solicitors for the applicant), The Old Bank, Phibsbor ough, Dublin 7 In the matter of the Tenant Acts 1967-2005 and matter in of the the (Ground Rents) No 2 in Act the 1978 matter and of Patrick Maxwell an and Marie Maxwell application by and in the matter of premises ate situ- at rear of 98 Lower Drumcondra 9 Road, Drumcondra, Dublin Take notice that Patrick Maxwell andMarie Maxwell intend to submit an ap- plication to the county registrar for the city of Dublin for the acquisition of the freehold interest in the property known as rear of 98 Lower Drumcondra Road, Drumcondra, Dublin 9, and any party asserting that they hold a superior terest in in- the aforesaid property is called upon to furnish evidence of title to the aforementioned property to the below- named solicitors within 21 the date of this notice. days from entitled to the interest of George Fot- trell Junior, pursuant to lease dated 17 May 1882 and made James and part between one the of Junior Fottrell George sec- the of Boyland George and Derwin ond part for a term of 500 years from 1 May 1882 in the property known as 98 Lower Drumcondra Road, Drumcon- - - FREE Landlord Landlord and aforementioned 153.55) and the

Landlord Landlord and Tenant Society members seeking

Law full-time, part-time or as a locum. For Log in to the employment opportunities new section self-maintained on the job-seekers’ members’ area Law register of Society the in website, the www.lawsociety. ie, or contact Trina Murphy, recruitment Cork Society’s Law the at administrator, office, tel: 021 422 [email protected] 6203 or email: In default of any such notice being Take notice that Dublin Take City Coun-

job-seekers’ REGISTER www.lawsocietygazette.ie tained. Date: 5 February 2010 Signed: Terence Dublin City O’Keeffe Council), Civic Offices, Wood (law Dublin 8 Quay, agent, In the matter of the Tenant Acts 1967-1994 and matter in of the the (Ground Rents) No 2 Act in 1978 the and matter of William Killion an and in the matter of application by premises situate at rear of 87 James- town Road, Finglas, Dublin 11 Take notice that William tends Killion to in- submit an application county to registrar for the the city of Dublin inter freehold the of acquisition the for est in the property known as rear of 87 Jamestown Road, Finglas, Dublin 11, received, Dublin City Council intends to proceed with the application before the county registrar at the days end from of the 21 date of the for registrar county the to apply this will notice and county of the city of Dublin for direc- basisthe on appropriate be may as tions that the person or persons beneficially entitled to the superior interest includ- ing the freehold reversion in the above property are unknown or unascer property to the below named within 21 days from the date of this notice. Christian Christian Brothers’ school St National known Michael’s School, Golden- as bridge, Dublin 8, held with other lands subject to the perpetual yearly fee farm rent of £120.18s.7d (€ cil (as statutory successor to the Right Honourable Lord Mayor, and Burgesses Aldermen of reg- county the to application an Dublin) submit intends to istrar for the county of the city of Dub- in- freehold the of acquisition the for lin and any terest in the aforesaid property, superiora hold they that asserting party furnish to upon called is therein interest evidence of title to the covenants and conditions contained in the said fee farm grant, should give no- tice of their interest to the undersigned solicitor. jan/feb 2010 jan/feb Gazette Society Law

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1*!**!.) "+##+)' !&$%!+"'% $) $+& ++ )#! #)*#!(* 15 1 ! 0 # %% 5#) !5 # . #2 2!*!.)*.%% !.* *#1 #!..2#!!  5 ! *.). #!!#!   '// $$,$ '// $$,$ #)   5#1)  .# 5 5! #! &# & 4 '// $,7$"" #)# %)!*2 *. # #1) 2!* 2*. #1) 3*..  333&! #! &# 333&! #! &#   !#! #! &# COMPANY SECRETARY – JAMES HARDIE INDUSTRIES

James Hardie is a building products industry leader that strives to stay ahead with constant innovation and growth. It is a fast paced, performance- driven organization looking for passionate people to continue driving it forward and to help establish our new Dublin office. It is currently based in Amsterdam but is changing its corporate domicile to Dublin. James Hardie is traded on both the Australian and New York stock exchanges. The Company Secretary is primarily responsible for ensuring that the corporation complies with all corporate governance, statutory and regulatory requirements and that the Board of Directors is informed of all issues to do with such governance.

The Role: • Ensure compliance with all Irish statutory and legal requirements for all entities resident in Ireland • Oversight of best practice regulatory and compliance posture for all James Hardie entities globally • Attend all Board meetings and advise directors of their duties and responsibilities • Advise the General Counsel on legal and commercial issues under Irish law

The Person: • The successful candidate is likely to be at Senior Associate, Partner or equivalent level • A strong knowledge of Irish Company Law • Expertise in legal, regulatory and commercial matters of interest to the Board of Directors of a major corporation • The ability to work with, and support, directors located in multiple jurisdictions • Knowledge of listed company requirements • An ability to quickly learn the skills required to manage the company secretarial function of company quoted on major international stock exchanges.

Remuneration: • Basic Salary €110,000 - €130,000 + Bonus + Benefits Please contact Brendan Murphy, Managing Director, Osborne Recruitment, Dublin. [email protected] www.osborne.ie +353(0)1-6384400 Position available

Want to place your recruitment advertisement here?

Contact Seán OhÓisín Tel: 01 8375018 Mobile: 086 8117116

Email: [email protected]

Adventure. Change. Leadership. A new departure in Legal.

Outstanding Opportunities for:

- Law Graduates and Junior Associates

Dublin

Our Client is one of the world’s most respected and innovative brands This new organisation will consist of a combination of high calibre and most sought-after employers. Active in almost all segments of law graduates and junior level associates. You may have graduated the technology and business services markets, it operates in more or qualified in any European jurisdiction and prior technology than 170 countries, including throughout Europe, the Middle East, experience is not a requirement as successful candidates will Africa (EMEA), has approximately 400,000 employees, and recorded receive in-depth training. over $100 billion in revenue in 2008. In addition to a strong academic background, fluency in English They are now looking to establish a Legal Centre of Excellence and at least one of the following languages is strongly preferred: (COE) in Dublin. The CoE will provide comprehensive contract and German (DE, AT, CH); Danish; Finnish; Swedish; Norwegian; commercial related support to business professionals and Attorneys Turkish; Arabic; Dutch; French; Spanish; Portuguese; Russian; across the EMEA region. The remit will be challenging and broad, Polish; Czech; Slovakian or Hungarian. International experience encompassing a wide variety of technology agreements including or advanced legal training (LLM) would be an advantage. the development, negotiation, analysis and red-lining of software, hardware, financing, business partner and other agreements for This is a unique opportunity to become part of a new, exciting, the business throughout the region. This will necessitate working dynamic and truly multicultural team of lawyers from throughout closely and effectively with other members of the EMEA and Global EMEA who will be working together to deliver world-class legal Legal Department. services.

To find out more information about these roles please contact:

Portia White | Managing Consultant Kate Coughlan | Consultant t: 353 (0)1 669 8522 t: 353 (0)1 669 8523 e: [email protected] e: [email protected]

Our Client is committed to creating a diverse environment and is proud to be an equal opportunity employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, gender, gender identity or expression, sexual orientation, national origin, genetics, disability, age, or veteran status.

Remaining the number one Irish legal recruitment consultancy takes a dogged determination, thinking creatively, spotting www.benasso.com new opportunities and keeping an open mind

True Pedigree

Assistant Solicitor Positions - Private Practice Banking: A Leading Dublin practice is seeking an experienced banking practitioner to join the team.

Litigation/ Professional Indemnity: Top rated practice searching for an experienced Professional Indemnity specialist.

Litigation/Insolvency: A high calibre practice with an excellent client base is searching for a first class Insolvency practitioner.

Corporate/Commercial: First class Dublin practice searching for a high calibre lawyer with strong academics to join a busy Corporate department.

Commercial Contracts: Top tier law firm requires a Commercial Contracts lawyer with proven drafting and negotiation skills and commercial nous.

Intellectual Property: Top ranking practice seeks an excellent junior practitioner with a scientifi c background. Partnership - Private Practice Our clients are searching for first rate practitioners in the following practice areas: Banking; Insolvency; Funds; Litigation; Employment.

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