Conference call Crossing the lion Fly me to the moon Gerald Kean speaks Calcutta Run does Shannon Airport and the on networking at the the business for the stopover of extraordinary annual conference 13th year in a row rendition flights LAW SOCIETY LAW GAZETTEGAZETTE€3.75 June 2011
PRIVATE INVESTIGATIONS: Covert surveillance evidence in injury cases
BUSINESS TO BUSINESS MAGAZINE OF THE YEAR EXPERT WITNESS CONFERENCE 2011 The Honourable Mrs. Justice Fidelma Macken will open The Expert Witness Conference 2011 where the issue of expert evidence in Ireland will be examined by an eminent panel of speakers including:
• The LRC Recommendations - Mr. Ray Byrne, Law Reform Commission • The Experts’ Roles & Duties - Mr. Paul Anthony McDermott, Barrister-at-law • Regulation, Accountability & the Expert Witness - Dr. Simon Mills, Barrister-at-law • Expert’s Fees - Mr. Stephen Fitzpatrick, Legal Cost Accountant
OPTIONAL PARALLEL SESSIONS INCLUDE: Towards an Integrated System of Justice – Experts and Mediation • Mary Lou O’Kennedy & Phil O’ Hehir, Amicus • Oliver Connolly B.L, ADR Lawyer, Friary Law Procedural Aspects of Giving Expert Evidence Caroline Conroy, Solicitor The Conference merits 5.5 CPD hours
Cost: €275.00 (€225.00 for every additional person from the same organisation) ENQUIRIES AND BOOKINGS TO: Date: 23rd June 2011 [email protected]; 01 8788263 Venue: Radisson Royal Blu Hotel, Golden Lane, Dublin 8 For additional information see www.latouchetraining.ie
Law Society Gazette www.gazette.ie June 2011 president’s message 1 promoting civiC responsibility
s I write this message, former Taoiseach Dr Garrett their time to discuss these FitzGerald has been laid to rest, two days ago. In the matters, and I look forward Awords of President McAleese, he was “a true public to further such meetings. servant and national treasure”. In one of his last articles in One of my initiatives is a The Irish Times, Dr FitzGerald wrote: “A factor common to Forum for Sole Practitioners, a whole range of recent Irish economic and financial failures which is taking place in seems to have been a striking absence of a sense of civic Blackhall Place on 10 June, responsibility throughout our entire society.” which is now fully booked. Closer to home, it seems to me that that civic responsibility The aim is to provide a should guide us in how we vote on the proposal to provide platform for sole practitioners financial support to the SMDF. Firstly, I would like to thank to discuss challenges and everyone who attended the special general meeting on 4 opportunities, explore new May, and those colleagues who contributed. It was the largest ideas, and support future general meeting of the Society, and it was very useful and sustainability and future essential to debate the issues involved. growth. I hope to meet many “Whatever life throws No one is happy with the situation we find ourselves in, but it of you there. It is hoped to at us, our individual appears to me that to apportion blame for the present financial repeat it again in July. position of the SMDF is not helpful. We have to ask ourselves responses will be what the correct decision should be in terms of protecting Mentor scheme all the stronger for colleagues, their clients and the reputation of the profession I am also progressing a as a whole. The financial support proposed is estimated at mentor scheme for newly working together and €200 (€100 net of tax) per practising solicitor per year for ten qualified and young sharing the load” years. The SMDF currently insures 22% of firms (482 firms solicitors. In addition, I with 1,479 solicitors) – until the last two years, the SMDF hope to appoint a Special insured more than 50% of firms. In addition, all solicitors have Mediation Committee to discuss new areas of practice where a colleague or a friend who is, or has been, a member of the mediation can be encouraged. In addition, I will be holding SMDF at one time. In my view, a vote in favour of financial a Legal Information Day on 8 July for charities and NGOs. relief would demonstrate the dignity, honour, integrity, On the social scene, a tennis tournament and barbecue has collegiality and decency of the profession in supporting been organised for solicitors and barristers in aid of the colleagues and numerous members of the public. We might Solicitors’ Benevolent Fund, in Donnybrook Tennis Club on also remember Queen Elizabeth’s words in her historic speech Sunday 26 June at 1.30pm. in Dublin Castle on 18 May when she said: “Whatever life Finally, may I say that, during my career, I have been throws at us, our individual responses will be all the stronger for motivated to serve my clients and colleagues purely for working together and sharing the load.” their benefit. I have no hidden agendas or desire to create any antagonism between colleagues. I may have a tendency Master policy for a greater concern towards the welfare of our more At the time of writing, there is no final decision made in vulnerable clients and colleagues, but for that I make no relation to the master policy issue. A special Council meeting apology. I listen to every colleague who has written to me or on 1 June will debate the issue in full. spoken to me during the year, and I thank you all for your Little over half of my term as president has flown by. contributions. We had a very successful annual dinner, where President During his official visit to Ireland on 23 May 2011, McAleese was our guest of honour and gave an inspiring Barack Obama said, in Dublin: “If anybody ever tells you speech. We also had a most successful annual conference that your problems are too big or your challenges too great, recently, and I would like to thank everyone who attended that we can’t do something, that we shouldn’t even try … and contributed to its success. I, and director general think about all that we have done together. Remember that Ken Murphy, have also met with nine bar associations whatever hardships the winter may bring, springtime is and a number of the larger firms in Dublin to discuss our always just around the corner.” Apt words for our profession challenging issues. I thank all of our colleagues who gave of at this time. G
John Costello President 2 contents Law Society Gazette www.gazette.ie June 2011
Law Society Gazette Volume 105, number 5 Subscriptions: €57
Editor: Mark McDermott FIIC Deputy editor: Dr Garrett O’Boyle Designer: Nuala Redmond Society Law Editorial secretaries: Catherine Kearney, GazetteGazette Valerie Farrell
Commercial advertising: Seán Ó hOisín, tel: 086 811 7116, RegularS email: [email protected] 1 President’s message 51 Briefing For professional notice rates (wills, title deeds, 51 Practice notes employment, miscellaneous), see page 62. 4 News 54 Legislation update: 9 April –11 May Published at Blackhall Place, Dublin 7, 55 One to watch: European Communities tel: 01 672 4828, fax: 01 672 4877. 12 Analysis (Electronic Money) Regulations 2011 Email: [email protected] 12 News feature: a report on the Society’s 56 Regulation: Solicitors Disciplinary Website: www.gazette.ie annual conference in Wicklow Tribunal Printing: Turner’s Printing Company Ltd, 16 Human rights watch: the right to 58 Justis update Longford housing is still vulnerable to political will 59 Eurlegal: recent developments in European law Editorial board: Michael Kealey (chairman), 18 Comment Mark McDermott (secretary), Mairéad Cashman, 62 Professional notices Paul Egan, Richard Hammond, Mary Keane, 18 For and against: poll of members on Aisling Kelly, Tracy Lyne, Patrick J McGonagle, the future of the SMDF Ken Murphy, Andrew Sheridan 20 Viewpoint: the Construction Contracts 63 Recruitment advertising Bill fails to follow the British example The Law Society of Ireland can accept 64 Captain’s blawg no responsibility for the accuracy of in relation to the binding nature of contributed articles or statements appearing adjudication in this magazine, and any views or opinions expressed are not necessarily those of the 41 People and places Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining 48 Books from acting as a result of the material in 48 Book reviews: Revenue Audits and this publication can be accepted by the Investigations – the Professional Handbook, authors, contributors, editor or publishers. The Arbitration and ADR in Construction editor reserves the right to make publishing Disputes and The National Asset decisions on any advertisement or editorial article submitted to this magazine, and to Management Agency Act 2009: A refuse publication or to edit any editorial Reference Guide material as seems appropriate to him. 49 Reading room: the library has an Professional legal advice should always be ongoing programme of repair and sought in relation to any specific matter. restoration of old leather-bound books 64 FSC independently-certified wood and paper products used by the Law Society Gazette come from ecologically-managed forests. Visit: www.fsc.org
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
The Law Society Gazette is a full participating member of the Press Council of Ireland and M supports the Office of the Press Ombudsman. R e s c ne This scheme, in addition to defending the free- ycl azi e Mag dom of the press, offers readers a quick, fair and free method of dealing with complaints that they may have in relation to articles that appear on our pages. To contact the Office of the Press Ombudsman go to: www.pressom- budsman.ie or www.presscouncil.ie. 44 43 Law Society Gazette www.gazette.ie June 2011 contents 3
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Fly me to the moon Shannon Airport and the crossing the lion stopover of extraordinary Annual Calcutta Run rendition flights Law Society Gazette • Vol 105 No 5 conference call does the business for Gerald Kean speaks the 13th year in a row on networking at the annual conference
€3.75 June 2011 Law Society Law GazetteGazettecover story
JUNe 2011 22 Private investigations While video surveillance can be a useful tool for defendant insurance companies, the use of PRiVate iNVeStiGatioNS: material obtained through covert surveillance can covert surveillance
Law Society of ireland
BUSINESS TO BUSINESS evidence in injury cases MAGAZINE OF THE YEAR lead to possible injustice for genuine accident 25/05/2011 17:27 victims. Liam Moloney gets his long lens out cover june try2.indd 1 features 30 26 Fly me to the moon 34 Reality dawns Irish airports were used over a The reality is that, in the current significant period as a transit stop in the climate, there is very little value in US extraordinary rendition programme. solicitors’ practices. However, there However, it is clear that the transit are ways to face these challenges. of prisoners through Ireland must be Hilary Haydon and Jason Bradshaw attended by a degree of formality and walk the walk procedure. Remy Farrell checks in 38 Paper cut 30 A meeting of minds For more than 35 years, people have As a result of a High Court decision, been forecasting the arrival of the the agreement of all shareholders to ‘paperless office’, to the extent that enter into a transaction that ordinarily some have dismissed the concept as a contravenes section 29 of the Companies myth. However, Gordon Smith talks Act 1990 will constitute an act of the to some lawyers who are making the company, writes Genevieve Coonan idea a reality 38
Get more at lawsociety.ie HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. Gazette readers can access back issues of the Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] magazine as far back as Jan/Feb 1997, right up PROFESSIONAL notices: send small advert details, with payment, to: Gazette to the current issue at lawsociety.ie. Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. You can also check out: All cheques should be made payable to: Law Society of Ireland. • Current news • Forthcoming events, including a seminar on COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, getting the best return from your technology, tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] at Blackhall Place on Friday 24 June • Employment opportunities HAVE YOU MOVED? Members of the profession should send change-of-address details to: • The latest CPD courses IT Section, Blackhall Place, Dublin 7, or to: [email protected] … as well as lots of other useful information 4 NEWS Law Society Gazette www.gazette.ie June 2011 Nationwide Compiled by Kevin O’Higgins
Kevin O’Higgins is junior vice- Kilkenny marks Judge Hartnett retirement president of the kilkenny Law Society and has been a The Kilkenny Bar Association (KBA) KBA secretary Sonya Lanigan for his concern for the public Council member hosted a dinner in honour of Judge said: “Judge Hartnett will be who appeared before him.” She since 1998 William Hartnett on the occasion greatly missed by the solicitors adds that the judge was always of his retirement from the bench, practising in the Kilkenny and keen to give defendants from having served in Kilkenny for 18 Castlecomer areas. The judge disadvantaged and difficult years. This much-loved Dubliner (ex always exercised his duties with backgrounds every chance and, as Dublin ball TP Robinson) was admired by the the utmost grace and integrity, a result, inspired many defendants dublin entire profession in the South-East. and he was particularly regarded to mend their ways.
The recent ball was a great success, with close on 300 attendees. The open forum on MSBA sets the insurance position held in Circuit of Ireland early May attracted a huge crowd about ‘ruining to the Radisson. Stuart Gilhooly is looking forward to leading a a good walk’! Dublin delegation to Belfast for mayo the annual get-together with colleagues from the three cities The Mayo Solicitors’ Bar of Dublin, Belfast and Liverpool. Association (MSBA) was delighted with the take-up for the Brehon Law Symposium, held recently in Westport, at which Mary heads Taoiseach Enda Kenny was the keynote speaker. for Garden The MSBA has established a Congratulating Judge Tom O’Donnell on his appointment to the Circuit golf society – with the inaugural County Court at a presentation ceremony on 20 April were (l to r): Christopher event taking place in Westport, Lynch, Judge Tom O’Donnell, Elisa McMahon (secretary, Limerick with a follow-up event in Carne. tipperary Solicitors’ Bar Association), Andrew D’Arcy (solicitor) and Ted McCarthy (solicitor) Contact Michael Keane if Presidentf o the Tipperary Solicitors’ interested in taking part. Bar Association Fred Binchy notes that colleagues were sad to see the departure of county registrar Mary Limerick’s Waterford solicitors walk tall Delehanty for Wicklow. They wish waterford her well in her new appointment. Her linked in replacement, Patrick Wallace, has WaterfordL aw Society (WLS) WLS is supporting the Tall limerick been serving in the Clare Circuit. Mr president Gerard O’Herlihy and Ships Races 2011, which will Wallace met with the bar committee Congratulations to Limerick secretary Johanna Geary inform come to the city for the second on 25 May to fully brief practitioners Solicitors’ Bar Association me that Waterford solicitors and time in six years. Local solicitors on changes in the Courts Service secretary Elisa McMahon, who Courts Service staff have arranged raised €15,000 for the event, and how his office will work with is the driving force behind the an informal retirement function which Gerard O’Herlihy (solicitor) solicitors during this difficult time of association’s new website and its for retiring District Judge William presented to Des Whelan (chairman change. LinkedIn presence – all essential Hartnett on Thursday 9 June. All of Waterford’s Tall Ships Races The association will host an event tools in the endeavour to keep members are welcome. committee) on 20 May. The city for a number of the area’s sitting colleagues in touch. Judge Gerard Griffin recently anticipates some 500,000 visitors judges and the new county registrar The 2011 golf outing will take presided at the Criminal Circuit to the city from 30 June to in the near future. The association’s place on Friday 24 June at Adare Court sessions in the city. A past- 3 July 2011. annual golf outing will take place on Golf Club, Adare Manor. The president of the Law Society, Law Society President John 24 June from 2 to 4pm. Interested cost of entry is €400 per team. Judge Griffin was appointed to the Costello and director general Ken colleagues should contact Joe Kelly All proceeds will go to charity. To Circuit Court bench in 2007. This Murphy will meet with Waterford at 0504 31278. sign up, contact Gerard O’Neill, was his first occasion, however, to members on 30 June. An evening CPD topics on 10 June include: O’Neill & Co Solicitors, 25 preside in Waterford. To mark the reception on board one of the ‘Pensions – past, present and future’ Glentworth Street, Limerick, event, local solicitors organised a tall ships will follow, which will and ‘What is the future for the small email: [email protected], dinner in his honour at La Palma coincide with a large outdoor to medium-sized solicitor’s practice?’ tel: 061 416 469. Restaurant on 19 May. concert by Brian Ferry. Law Society Gazette www.gazette.ie June 2011 news 5
International In News this month... Anyone for copyright 7 Practitioner support online 9 In the media spotlight – Judge tennis? 7 Fifty new staff for MH&C Tom O’Donnell conference 8 Law Society’s cross-training 10 Special general meeting on SMDF for Dublin initiative for job seekers 11 New legal body to serve elderly The Copyright Association of Ireland will host the bi-annual study days of ALAI in Dublin from 30 June to 1 July. Leading Genocidal intent conference global copyright lawyers and industry representatives will debate the most significant issues facing those involved in the industry. International participants will include the president of the French online enforcement agency HADOPI, Fancy yourself as a Rafael Federer and prolific author Professor or a Venus Sharapova? Then Silke von Lewinski of the Max battle it out on the tennis court Planck Institute. The industry with friends and colleagues (from perspective will be represented the Law Society and Bar) for by speakers from Google and the bragging rights in the picturesque Walt Disney Corporation. surroundings of Donnybrook Irish contributors will include Lawn Tennis Club, while being Judge Peter Charleton, Professor entertained, fed and refreshed. Robert Clark, and solicitor Helen In aid of the Solicitors’ Sheehy, who represented the Benevolent Fund, this tournament plaintiffs in the Eircom/UPC file- and summer barbecue will be held sharing litigation. on Sunday 26 June from 1.30pm The cost of the two-day Destructive intent is one of the and Dr Olaf Jensen (director of the at Donnybrook Lawn Tennis conference package is €400, most significant elements of the Stanley Burton Centre for Holocaust Club. For information and details which includes lunch on both crime of genocide – one that has and Genocide Studies). of how to book your place, please days and the conference dinner often been difficult to prove in One of the keynote speakers at contact Andrea Flynn, email: on 1 July. There is a special a trial setting. The University of the conference will be Prof William [email protected]; Rachel one-day rate of €150. Student Leicester will host a conference A Schabas, author of the seminal Halligan, email: rachel.halligan@ discounts are available. The on genocidal intent from 21-23 book Genocide in International Law: dilloneustace.ie; or Emer Walsh, programme and application forms September 2011. The conference The Crime of Crimes. email: [email protected]. can be downloaded at www. is organised by Dr Paul Behrens The call for papers is available at ‘Coaches’, fans, guests and curious alaidublin2011.org. from the University’s School of Law www.le.ac.uk/hi/centres/burton. bystanders are most welcome!
New member elected to Marked rise in reports of arbitrators’ committee abandoned solicitors’ firms Britain’s Solicitors Regulation to 31 March this year. Bill Holohan, senior partner of Authority (SRA) has seen a The figure represents a 45% Holohan Solicitors, has been “marked increase” in reports that increase on the number received elected to the committee of the solicitors’ practices have been in the same quarter last year. Irish Branch of the Chartered abandoned, with abandonment There has also been a rise in the Institute of Arbitrators at the reports at their highest level since number of ‘allegations’ its risk unit body’s AGM for a three-year term. 2008. received relating to bankruptcy Mr Holohan is a fellow of the According to the Law Society and dishonoured office account Chartered Institute of Arbitrators Gazette of England and Wales, cheques at law firms, compared and is an accredited mediator. the regulator’s latest figures show with the same period last year. He is also a founder member of that its risk unit received 94 There was a fall, however, in www.commercialmediators.ie. reports that a law firm had been the number of reports made to He is the author of Alternative abandoned from legal complaints the SRA relating to the legal and Dispute Resolution and Mediation bodies, members of the public and administrative competence of in Ireland – 2010 and Beyond. other sources in the three months practices. Add some colour into your career
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Senior Appointments at Gibney Communications Gibney Communications is pleased key clients while also taking a leading three years. He previously held senior to announce the appointments of role in the management of the company positions in Q4 and Murray Consultants. Donnchadh O’Neill as Deputy Managing reporting directly to Managing Director Director and Mark Leech as Account Ita Gibney. Gibney Communications is a leading, Director. independent Irish public relations Mark Leech joins from Micksgarage.ie, company and recently marked its 15th (Left to Right) Donnchadh O’Neill has been with the leading e-commerce firm he year serving clients in Ireland. Donnchadh O’Neill Deputy Managing Director Gibney Communications for more than co-founded and served as PR and Mark Leech Account Director five years and continues to look after Marketing Director in for the past www.gibneycomm.ie Ita Gibney Managing Director Law Society Gazette www.gazette.ie June 2011 news 7 A&L Goodbody named Expert witness Practitioner ‘Irish Tax Firm of the Year’ conference support: Mrs F Justice idelma Macken will online help deliver the keynote address at an expert witness conference at your on Thursday 23 June 2011 in Dublin. Organised by La Touche fingertips Training, the event will be held at the Radisson Blu Royal Hotel, Golden A new facility has been Lane, Dublin 8 from 9am-5pm. The made available on the conference should prove interesting, Society’s website, www. given the Law Reform Commission’s lawsociety.ie, aimed at 2009 recommendations on expert providing practitioners with evidence and a recent landmark easy access to information Supreme Court decision in Britain on and other resources relevant the immunity of experts. It will also to them. At the International Tax Review European Tax Awards were (l to r): Ralph examine how to manage costs and Cunningham (managing editor of International Tax Review), and James fees more effectively. Located in the members’ Somerville (tax partner, A&L Goodbody) area of the website, the Speakers will include solicitor ‘practitioner support’ facility Ray Byrne (Law Reform Commission), brings together, in one place, A&L Goodbody has been named Linklaters, Freshfields Bruckhaus barristers Paul Anthony McDermott information on: ‘Irish Tax Firm of the Year 2011’ Deringer, The Alliance (Herbert and Simon Mills, legal cost • Setting up in practice, at the International Tax Review Smith, Gleiss Lutz, Stibbe) and accountant Stephen Fitzpatrick, • Buying, selling and merging European Tax Awards, held at a Deloitte. Phil O’Hehir (solicitor), Mary Lou a practice, ceremony in London. Commenting on the award, (Amicus Mediation Ltd), Oliver • Promoting your business, A&L Goodbody beat off Peter Maher, head of tax at A&L Connolly BL and Caroline Conroy • Managing operations, competition from many of the Goodbody said: “This award (solicitor, La Touche Training). The • HR management, larger Irish firms to secure the is international recognition of day will include practical workshop • Support services, and award for its high-quality work the top quality tax advice A&L sessions dealing with mediation and • Retiring and closure. in the area of tax structuring and Goodbody provides to its clients. procedural reform. planning. It acknowledges our team’s ability For further information and The practitioner support The firm was also shortlisted in to effectively execute complex and booking, contact Adrian Kiernan at section also features an the ‘European Capital Markets Tax novel transactions, on both the tel: 01 878 8263, email: akiernan@ upgraded, online Solicitor Team of the Year’ category, along corporate legal and tax aspects of latouchetraining.ie, or visit www. Link Register. Members keen with international firms such as commercial deals.” latouchetraining.ie. to buy, sell, merge or share overheads can advertise and check out proposals from other members. Missing TD Up to 50 new staff for MH&C The Solicitor Link Register Mason Hayes & Curran went online in 2010. Further celebrated its fifth anniversary changes to the site now make at its Barrow Street offices in it easier to access and check Dublin 4 by announcing plans for out new listings on a regular the recruitment of up to 50 new basis. staff over the next 12 months. The practitioner support The influx will service demand facility, managed by the in new business from local and Society’s Member Support international clients and will see service, will be further In our story about solicitors who staff numbers rise to over 300 extended in the coming were elected to the 31st Dáil across their offices in Dublin, months to allow busy (see Gazette, April 2011, p7), London and New York. practitioners to gain quick one successful candidate slipped The firm is expanding its access to useful ideas and under our radar. Seán Conlon TD – financial services, taxation facilities. take a bow! A native of Ballybay, and commercial litigation Members with suggestions Seán is a practising solicitor and departments, and will also on how this facility might owns Conlan’s Bar on Main Street. provide trainee solicitor be improved should contact Educated at St Macartan’s College, positions. Mason Hayes & Curran managing partner, Emer Gilvarry, celebrates Louise Campbell (support Monaghan, he graduated with a BA Mason Hayes & Curran was five years at their Barrow Street services executive) at email: Honours degree in Economics from established in 1968 and currently offices with some of the firm’s [email protected]. UCD. He was elected to Ballybay employs over 260 staff, including 270 staff, with plans to recruit up Town Council in June 2009. 50 senior partners. to 50 new staff in the coming year 8 news Law Society Gazette www.gazette.ie June 2011 outlaws Law Society charts new Life outside legal practice directions for job seekers NICK based organisation working KELLY with low-income people who Music, are experiencing, or at risk of films and experiencing, over-indebtedness. creative Colette was appointed Nick national development officer for started his casework technical support and, band, The in this role, she has been able Fat Lady to mix her legal and banking Sings, expertise with her interest in the while training. Immediately after community and voluntary sector. qualifying, he persuaded other She supports staff in their people in the band to give up casework and is also involved in their jobs and move to London. organising training and in the They released two further development of policies internationally acclaimed albums and procedures for the delivery and toured the world, and Nick of the national service. went on to release three solo Colette liaises with albums. His second album, stakeholders on issues of social Running Dog, won ‘Irish Album policy. She also does research of the Year’ in 1999 and Nick and drafts submissions on civil was voted ‘Best Irish Male Solo’ rights issues. The Law Society has been move into rewarding new work artist the same year. approved to establish a major areas. It will also assist employers He has had great success OWEN ‘cross-training’ initiative for to fill vacancies in areas where in writing and directing films. KENNEDY solicitors who have worked in skills shortages currently exist. His third short film, Shoe, was Sign general practice firms and who This initiative has been shortlisted for the ‘Live Action business are now finding it difficult to find developed by the Law Society Short Oscar’ at the 2011 owner work. Skillnet and Law Society Finuas Academy Awards. Owen Funded by Skillnets Ltd (the Network, in collaboration Over the past 15 years, he has established State-funded, enterprise-led with the Society’s Policy, become one of Ireland’s best- Alpha Sign, support body), this initiative will Communications and Member regarded advertising copywriters Nameplate involve step-up training and work Services department and its and creative consultants. He and Decal experience that will facilitate Career Support service. has produced numerous award- in 1993. He has grown and participants to move into jobs that The initiative is funded by winning adverts, including the developed the business since. remain in demand by employers Skillnets Ltd under its Job Tom Crean advert for Guinness, Today, it employs 12 people. – and that also suit the skills and Seekers’ Support Programme. which won the 2003 Clio TV He says his legal training has abilities of solicitors. Training programmes start in advertisement award. stood by him. In particular, it A number of growing and June 2011, with opportunities helped him to identify and move emerging work opportunities to participate immediately. COLETTE into lucrative markets, such as suited to solicitors exist within the Other opportunities will become BENNETT the manufacture of safety labels financial services sector. Under available right through to the end Money for machinery. this initiative, training will be of 2011. Advice and Owen trained in a provided to facilitate solicitors The goal of this programme is Budgeting conveyancing practice but move into, and work in, areas to offer an opportunity to every Service did not overly enjoy the work such as: solicitor who is not working to Colette involved. While still training, he • Compliance and regulation, train in a new work area and qualified also tried court work. He found • Funds management, and gain valuable work experience. in 2008 that quite different to what he • Islamic finance. Participants will be entitled to and had expected – and not very retain their job-seekers’ allowance practised in the corporate interesting. Training will also be provided for the duration of the programme department of a large law firm. Having a drink in The Bailey to facilitate solicitors to avail of and all training will be 100% grant In the evenings, she volunteered to celebrate qualifying, Owen opportunities in other sectors, funded. with FLAC and Dublin Simon met an acquaintance who asked including jobs in: The initiative involves six Community. him to form a company. It was • Social policy, different training courses – Keen to work in the not- his first and last job as a lawyer. • Litigation, and each focused on the individual for-profit sector, Colette That person asked Owen to join • In-house – as legal officers. work areas identified above joined the Money Advice and him in the business and, as they – incorporating four weeks of in- Budgeting Service – a rights- say, the rest is history! The aim of the initiative is to open classroom training, followed by up up opportunities for solicitors to to six months of work experience. Law Society Gazette www.gazette.ie June 2011 NEWS 9 STEP in the Media right direction In the media spotlight
The diploma programme and JUDGE TOM O’DONNELL the Society of Trust and Estate NEWLY APPOINTED JUDGE OF THE CIRCUIT COURT Practitioners (STEP) will once again offer their highly regarded Why is he in the news? and was now serving Diploma in Trust and Estate Judge Tom O’Donnell has been a sentence, so the Planning, starting in autumn 2011. appointed recently to the Circuit whole exercise was The course is designed to Court. His previous position as moot. We all left enable successful candidates to District Court judge in Limerick the Supreme Court advise clients on all aspects of the has been making the news of without any change creation of wills, the operation of late. A successor has yet to be in the law. trusts, associated tax implications appointed, and Limerick’s media The other case and overall estate planning for have been arguing that one that gained some clients. District Court judge is simply not notoriety was the The fee for the diploma is enough for the region’s significant Good Friday decision €2,150, but standard diploma case load. in March 2010 discounts apply in respect of regarding an area unemployed solicitors, multiple What does he have to say about it? exemption order applications from the same Well, first of all, I was appointed a from the licensing laws. The case – for everybody, including the firm or where the applicant has Circuit Court judge on 12 October took on legs due to its association judge. The chief lesson I’ll take attended two or more diplomas. last and I was sworn in recently. with a Magner’s League clash with me is to always treat people In respect of the comments between Munster and Leinster in with courtesy and dignity, be they being made in Limerick about my Thomond Park. The reality of that defendants, witnesses, members potential successor, the reality is particular decision was practical of the public generally, and the that the Limerick court is very, and based on the evidence that I people you are working with. It very busy. The statistics are there, had before me. is a very important feature of the through the Courts Services, and, The media seemed to running of a court. in my view, there is plenty of work completely gloss over the fact Limerick, no more than other for a second judge there. that Thomond Park had a sports places, has had its difficulties, arena licence and, no matter but we always seemed to be Why law as a career? whether I granted the area ripe to try out any piece of new That goes back quite a ways. exemption or not, they could, in legislation that came on the books, The diploma will begin in My grandfather, P O’Donnell, fact, have sold intoxicating liquor particularly in respect of criminal November 2011; however, was a solicitor in Limerick City. to 26,000 people on the day – organisation, detentions – things completed applications must My father was a solicitor who I Good Friday or not! of that nature. There’s been a be received by 31 August 2011. was apprenticed to for a short The health-and-safety aspect flurry of Criminal Justice Acts To ascertain eligibility to attend period of time, also in Limerick. was also significant. The match over the past number of years, the diploma, please see www. Unfortunately, during my first year was a sell-out. The gardaí and and they seem to try them out in lawsociety.ie/diplomas. as an apprentice, he passed away the Thomond Park authorities Limerick first. That possibly made For those who do not have the that summer. My brother Jim is were going to have to deal with us somewhat unique, but we dealt requisite practical experience, also a solicitor and the family has 26,000 people and, if it was the with them – we had to. or who have not completed the been involved in Limerick District only place in town that was open The hardest day I’ve ever had PPCII Advanced Probate and Court and legal life in the city for to sell alcohol, they were going in Limerick District Court was Taxation Module, an eight-week quite a number of generations. to experience difficulties there. on 12 May this year, when I sat foundation certificate course To get people to and from the for the last time as the judge will begin on 10 September Most interesting cases? match safely was the object of the there. It was the culmination of 2011. Successful completion In the early days, I was involved as exercise. 12 years as judge, but also 35 of the certificate will permit an instructing solicitor in the case I made it very clear, also, that I years of being part-and-parcel of entry to the diploma course. of Ryan v DPP [(1989] IR 399], wasn’t creating a precedent with the District Court. I qualified at A reduced fee of €850 applies which was a challenge to the bail this decision, though some people 21 years of age. The following to the certificate course. In laws. Being on the legal aid panel believe very, very strongly that day, I was working in Limerick addition, those who complete the only a short time, I found myself I have created a very important District Court, and I’ve been certificate and go on to attend in the Supreme Court briefing precedent – which is just not true. there since. the diploma will be eligible for a counsel on the matter. The As a Circuit Court judge, I’ll €350 discount on their diploma Supreme Court debated the matter Lessons he will take with him? have to get used to being on the application. for a number of days but, during I have described Limerick District circuit, but I’m delighted to have For further information, the course of the case, it came Court as one of the best training been given the opportunity. It’s a visit www.lawsociety.ie/diplomas out that the client, in fact, had grounds for solicitors and for learning curve, and I hope that I’ll or email diplomateam@ pleaded guilty to all of the charges members of the Garda Síochána be up to the challenge. lawsociety.ie. 10 news Law Society Gazette www.gazette.ie June 2011 520 attend special general Novel master’s programme meeting on SMDF invites applications
Te h llM (Practitioner) is an have the opportunity to apply innovative master’s programme for a maximum of 20 credits developed collaboratively between in recognition of completed the Faculty of Law, University professional diplomas. This College Cork, and the Law Society provision facilitates practitioners of Ireland. to combine practical and academic The programme offers an elements in their postgraduate excellent opportunity to practising studies. professionals who wish to increase The Law Society offers a number their skills base while continuing of diplomas that are eligible for to work. Participants may wish to recognition, including diplomas claim CPD points for attendance in in civil litigation, corporate law accordance with the regulations and governance, employment provided by the professional law, European Union law, family The biggest special general ultimately be decided by a postal bodies. law, finance law, trust and estate meeting in the history of ballot of all members, and not A unique aspect of this planning, as well as a diploma for the Law Society was held at simply by those who attended the programme is that participants in-house lawyers. Citywest Convention Centre meeting. The programme is open to on 4 May 2011. Citywest The meeting lasted almost four qualified solicitors and barristers was chosen as the venue, as hours. A total of 32 solicitors who have a minimum of two Blackhall Place could not have spoke from the floor and each years’ full-time, post-qualification accommodated the anticipated point raised was responded to, professional legal experience. numbers and, close to the M50 either by the spokespersons for The programme adopts a blended on the outskirts of Dublin, the Society’s PII Task Force or, approach to learning and many Citywest was as convenient a where appropriate, by a director modules incorporate elements location as could be found for of the SMDF. of distance and online learning. solicitors travelling from all over Of the 32 speakers, 17 declared Most modules are also assessed the country. themselves to be in support of wholly or in part by continuous The 520 solicitors who the motion put forward by the assessment. attended would probably have Council of the Law Society, Participants must complete 90 been much greater in number six declared themselves to be credits of law over a minimum of but for the news the previous opposed to it, and the balance 12 months full-time, or a maximum day that the resolution, which of speakers raised questions or of 36 months part-time. This the special general meeting had made points without declaring a includes a ten credit compulsory been called to consider, would position. module (clinical practice/reflective learning) and 30 credits for a minor thesis, to be completed under the supervision of an academic member of the Faculty of Law. New body to serve needs of the elderly The clinical practice/reflective It has been recognised for some The impetus to create SFE SFE Ireland will be a resource learning module is designed to time by legal practitioners Ireland was initiated by Mary for solicitors offering peer support encourage practitioners to reflect working in the area that there Condell (Porter Morris & and education in relation to the on, and utilise, their practical is both a lack of, and a need Company) and Anne Stephenson myriad of legal developments in experience in an academic context. for, an organisation in Ireland (Stephenson Solicitors) as this area arising from legislation Participants have a comprehensive dedicated exclusively to legal practitioners immersed in the and case law. Elderly clients will choice of modules available to issues concerning elderly clients field of elder law, with the also benefit from the work of SFE complete the remaining credits and, or vulnerable clients (being two assistance of an inaugural Ireland in promoting the specialist as noted above, this may include distinct categories of client), committee. legal knowledge and other skills credits for professional diplomas. writes Richard Hammond. Given the aging demographic in which this category of clients Candidates may also take individual This deficit in the landscape of of Irish society, complexities is entitled to expect proficiency modules on an ad hoc basis as a legal organisations in Ireland will pertaining to capacity, abuse, from their legal advisors. bridge to full entry into the degree. be redressed by the establishment substituted autonomy and care Solicitors interested in this Further information on the of Solicitors for the Elderly needs, coupled with the more area of legal practice are programme is available at www. Ireland (SFE Ireland), which will traditional topics of wills and encouraged to visit www.sfe.ie ucc.ie/en/lawsite/postgrad/ be launched on Thursday 23 June enduring powers of attorney, for further information, and to LLMPractitioner. Any enquiries 2011 at Dr Steevens’ Hospital, are a growing feature of legal register their interest in the should be addressed to Anna Dublin 8, at 4.30pm. practice in Ireland. new body. O’Sullivan at anna.osullivan@ ucc.ie. Law Society Gazette www.gazette.ie June 2011 news 11 Where to from here? Are you a practitioner seeking Morning: ‘Buying, selling, change and considering your merging, closing practices and options? Would you like to run partnerships’, including: your practice more effectively? If • Valuation of firms in the so, a forthcoming seminar, ‘Where current market, do I go from here? Options for • Due diligence, legal practitioners in the current • Risk management, market’, is not to be missed. • Partnerships, Offered by Law Society • Regulatory requirements, and Professional Training, in • Professional indemnity partnership with Law Society insurance. Member Support Services, the seminar will take place on Friday, Afternoon: ‘Back-to-basics in 1 July, from 9.30am to 3pm, in practice management’, which will Blackhall Place. Chaired by Law cover guidelines for the effective Society President John Costello, running of a practice, including: speakers will include: • Four crucial qualities – clients, • Brian Hyland (Baker Tilly staff, work and systems, Ryan Glennon), • Maintaining and building your • Anne Neary (Anne Neary practice, Consultants), • Member support services, and • John Elliott (director of • Practice advisory service. regulation, Law Society), Access programme still • Representative from Haydon Full details of the seminar are Chartered Accountants, featured on the Law Society opening doors ten years on • David Rowe (Outsource), Professional Training section Te h Society’s very successful wish to be part of this innovative • Des Peelo (Peelo and Partners), of the Society’s website www. Access scholarship programme is programme, please email • Louise Campbell (support lawsociety.ie/lspt. To reserve your celebrating its tenth anniversary [email protected], services executive, Law Society). place, contact the Law Society or call the Student Development Professional Training team at this year. The programme provides financial and practical assistance Service at 01 672 4802 for The seminar will consist of two tel: 01 881 5727; or email: lspt@ to students from disadvantaged further information. A list of sessions: lawsociety.ie. backgrounds who would not interested firms located across otherwise be able to pursue legal the country is currently being careers. compiled and will be made In all, 109 highly motivated available to Access students as students from across the country soon as it becomes available. have participated in the programme to date, 23 of whom are now fully qualified solicitors. what the students say The main challenges for Access What Access students are students lie in gaining appropriate saying about the scholarship legal work experience, and in programme: securing traineeships. To that “Both my parents are unemployed end, the Dublin Solicitors’ Bar and I have supported myself Association (DSBA), together with through work since the age of 13. the Law Society, are initiating an Having to work during college also internship programme, coordinated affected my study time. Access by solicitor Keith Walsh on behalf was a great help.” – Student NUI Galway holds summer of the DSBA. Students will be placed in law “I found it very hard to secure school on disability rights firms for periods of three months a traineeship. I didn’t know any in order to gain some practical solicitors, or people who knew The Centre for Disability Law The event will be co-hosted by experience of working in a solicitors on a social level. Access and Policy at NUI Galway will the Harvard Law School Project solicitor’s office. It is hoped that changed that.” – Student on Disability and will take place hold its third International such internships may grow into “Lack of connection to the legal in Áras Moyola on the NUI Summer School from Monday 6 traineeships – or, at the very least, world … for me it was pretty Galway campus. June to Saturday 11 June 2011. equip students to compete more much jump in with both feet. Further information is available The theme of the school is: ‘The competently for traineeships. Access pointed me in the right from the summer school website United Nations’ Convention on the If your firm has what it takes direction.” – Former Access at www.nuigalway.ie/cdlp/ Rights of Persons with Disabilities – to offer practical assistance to student – now a qualified solicitor from paper rules to action’. summer_school/welcome.html. an Access student and if you 12 analysis Law Society Gazette www.gazette.ie June 2011
making connections to grow your business
‘The smart economy in action: strategies for growth in the legal profession’ was the theme of the Society’s Annual Conference 2011 in Wicklow. The conversation also turned to the State of Ireland today and – more pertinently – the state of the profession. Gordon Smith reports (additional reporting: Mark McDermott)
aking connections of one multinational corporation has 500 in- Ian Jackson of Go2Web said that kind or another was a main house legal staff, but retains thousands setting up a business website can cost Mtheme of this year’s Law more ‘garage’ lawyers – specialist sole as little as €1,500 to €1,750 – with Society annual conference, held at practitioners – worldwide. some additional charges thereafter the Ritz-Carlton, Powerscourt, Co “Corporations are using this to save for hosting and updates. A site should Wicklow on 6 and 7 May. Those costs and obtain value for money. This look good and be easy for visitors to connections included both the ‘real- is an area where local navigate, and Jackson Gordon Smith is a world’ kind and the ‘virtual’ links sole practitioners can “One multinational recommended using freelance journalist of the internet and online social benefit,” she said. The pictures and video and has covered networks – both equally valid as means Law Society provides corporation has to create a good business and of promoting legal practices and professional training 500 in-house legal impression for visitors. technology for more encouraging new business. and development to “Potential clients, on than 15 years. Introducing the afternoon’s help re-skill solicitors staff, but retains a visit to your website, He is a regular proceedings, President of the Law in areas outside of thousands more may make a decision contributor to Society John Costello urged solicitors, traditional practice, whether or not to do The Irish Times, in particular sole practitioners, to O’Regan added. ‘garage’ lawyers business with you,” Siliconrepublic.com network – even to consider sharing – specialist sole he said. “The primary and Technology office space and secretarial services as a Harnessing the question to ask is, Ireland way to control costs more effectively. internet practitioners – why are you doing Sole practitioners were also the Other presentations worldwide” this: is it part of a focus for Attracta O’Regan, head covered different marketing plan and of professional training at the Law aspects of how to have you an idea about Society. She spoke of solicitors’ roles harness the internet for building and who your audience is?’ Also, what in the smart economy, noting that one maintaining relationships with clients. will differentiate you from another solicitor’s practice?” Using the right keywords repeatedly throughout a site ensures that a firm appears at, or near, the top of the
(A rankings whenever someone uses an ll
pics internet search engine like Google for
: S ‘employment law solicitor in Dublin’,
iobhan for example. Jackson said firms should monitor their sites regularly to check
B rankings on search engines, ensuring yrne that people are able to find them P
hotography easily. Every page on a site should include a prompt to contact the firm through filling out a form, sending an email or calling a number. “Calls to action need to be everywhere,” he added. Andrew O’Shaughnessy, CEO of Newsweaver, said that email Participants and speakers on day one of the conference (back, l to r): Tracey Donnery (Skillnets), Killian newsletters or e-zines can be an Flanagan, Andrew O’Shaughnessy, Ian Jackson, Attracta O’Regan, Gerald Kean, Brian Hyland. (Front, l to r): extremely effective way for law firms Mary Condell, John Costello (Law Society president) and Mary Keane (deputy director general) to stay in touch with their clients, as Law Society Gazette www.gazette.ie June 2011 analysis 13
they are far cheaper to produce assembling email newsletters are than print equivalents and can be easy to use, O’Shaughnessy said. sent more frequently. “Possibly An invaluable feature of email the number one sector to benefit newsletters is that everything from email newsletters is the legal in the message can be tracked, profession,” he said. allowing firms to evaluate the He pointed out that newsletters results and spot trends that don’t fall foul of regulations could help the business, such as around advertising for solicitors, if readers show an interest in a because clients will have opted in particular area. to receive the messages. Emails Summing up the benefits, he including descriptions of the said: “You will get more revenue services provided by a legal firm from your existing clients by are also permitted. talking to them through email and On the question of what to put telling them about your services. in emails, O’Shaughnessy said And if you are communicating that firms can provide factual more regularly with a customer, articles and information that they are more likely to refer you. might be relevant to clients. You are building confidence and “Content can come from any area trust over time in your expertise in law; for example, a ‘top ten because you’re putting it out on a things you should know about’ regular basis.” list. Make it useful and valuable, Killian Flanagan of Star such as telling people about Trawler spoke about how changes in legislation,” he said. dedicating a small amount of Most importantly, firms should time to the business networking plan their content in advance to website LinkedIn can pay ensure they have a regular supply dividends. It’s free to join and, of material. when creating a profile page, he Law Society President John Costello addresses the conference The software packages for recommended using the same
outsiders’ views on the master policy F ormer eu commissioner and executive of the Law Society of previous attorney general, Peter Scotland). Sutherland, addressed the They spoke of their experiences conference on day two, focusing in Northern Ireland and Scotland, on the topic of ‘The State of Ireland where all solicitors’ firms have Today’. obtained their primary level of This was followed by an in- compulsory professional indemnity depth look at the professional insurance through a master policy indemnity insurance market for since the 1980s. Irish solicitors. Unsurprisingly, it They were ‘not selling anything’ proved to be an extremely popular to this jurisdiction, but merely topic, given the difficulties that describing their overwhelming have been experienced during the satisfaction with the master past two years – and the current policy model as it works for them. crisis facing the Solicitors’ Mutual They said that it provides stable, Defence Fund. predictable, transparently priced Jamie Millar (president, Law Society of Scotland), John Costello (president, Those attending the conference Law Society of Ireland), Peter Sutherland (non-executive chairman of and – by comparison with their heard about an alternative model Goldman Sachs International), Brian Speers (president, Law Society of neighbouring jurisdictions of to the current ‘freedom-of-choice’ Northern Ireland), Simon Murray (chairman of the PII Committee of the Ireland, and England and Wales – model that currently operates in Law Society of Northern Ireland), Ken Murphy (director general, Law relatively inexpensive insurance. the Republic of Ireland, namely, the Society of Ireland) The master policy was popular ‘master policy’ model. Speaking with firms of all sizes, including on the topic of ‘Master policy – the (president of the Law Society of Society of Northern Ireland), Jamie the large commercial firms in experience in Northern Ireland Northern Ireland), Simon Murray Millar (president of the Law Society Glasgow and Edinburgh, they told and Scotland’ were Brian Speers (chairman of the PII Committee, Law of Scotland) and Lorna Jack (chief the conference. COMPANY FORMATIONS € FROM 219+VAT n EXPRESS SERVICE n COMPANY REGISTER n HAND SEAL n BOUND M&A n CERT OF INCORPORATION
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ISo27001:2005 1 890 222 587 keepitSafe is ireland’s only certified iSo 27001 backup company. www.keepitsafe.ie Law Society Gazette www.gazette.ie June 2011 analysis 15 words that people might use when they’re looking for a legal service. LinkedIn indexes all of those words to suggest groups to join. “Like any form of networking, the more visible you are, the better,” Flanagan said. “Contribute content to a group that others will find interesting. You may end up getting showcased on the page. There are thousands of questions being posted on LinkedIn every day and you can pick the one that allows you to give the most authoritative answer.” Flanagan recommended spending 30 minutes each day on the site, although he admitted that target might be “Clients that are difficult to achieve. “LinkedIn Kevin O’Higgins, Anne Leech, Claire Loftus and Rory Benville satisfied with the needs consistent investment and that pays itself back,” he said. value they are given However, he cautioned against has grown through the recession Use the right are the biggest turnover and spending too much time: “Social because it grows through personal person for the source of referrals cash flow while networking can very easily contact.” right piece saving on rent, become ‘social not-working’.” Brian Hyland of Baker Tilly of work,” he … Think about how rates and other Ryan Glennon broadened the recommended. complicated and overheads. “You Old-school networking discussion to talk about what Other tips on may be able to Colourful solicitor Gerald Kean’s makes a successful practice, becoming more urgent the matter is, put two and two freewheeling, entertaining stressing the importance of cost-efficient and communicate together and presentation changed tack from strategic planning, which included having come up with technology and focused on old- lets firms identify strengths, templates with the client the five,” he said. school networking. He explained weaknesses, opportunities and for letters of value you are giving Returning how he uses every opportunity threats to their business over a engagement and to one of the to meet clients and hand out three-to-five-year timeframe. certain types of them” themes of the business cards, since this has Many times, firms make reports, which conference, proven very successful in leading the mistake of having their can reduce the time and the cost Hyland said: “Clients that are to repeat and referral business. “If most expensive fee-earners of producing them repeatedly. satisfied with the value they are you embrace clients, they become doing mundane administration “Most costs are controllable. given are the biggest source of your selling product,” he said. He work, he said. Hyland advised You should review your costs on referrals … Think about how said that his firm typically opens looking carefully at systems and an ongoing basis,” said Hyland. complicated and urgent the more than 75 new files every procedures to correct this. “Too He also suggested considering matter is, and communicate week, including upwards of 30 often, people spend time doing mergers between firms as with the client the value you are accident claims. “Our practice things that aren’t productive. a strategic way to increase giving them.” G 16 human rights watch Law Society Gazette www.gazette.ie June 2011
righto t housing still subject to political will
Until the commitments set down in the homeless strategy are placed on a statutory footing, the basic human right to housing remains vulnerable to political will, argues Rose Wall
reland is a signatory to the to adequate housing: legal security of human rights. Residents in emergency International Covenant on Economic, tenure, habitability and accessibility. accommodation generally have to leave ISocial and Cultural Rights (ICESCR), their home all day. Access to adequate which recognises, at article 11(1), Legal security of tenure cooking facilities is totally interrupted. “the right of everyone to an adequate Article 17 of the International Covenant Health will suffer as a result of standard of living for himself and his on Civil and Political Rights places an poor diet. The family unit is totally family, including adequate food, clothing obligation on the State to ensure that disjointed. Education and ability to Rose Wall is the and housing, and to the continuous “no one shall be subjected to arbitrary or remain employed or gain employment solicitor in charge improvement of living conditions”. The unlawful interference with his privacy, also suffers. of the Mercy Law human right to adequate housing – which family, home or correspondence, nor The lack of an independent or Resource Centre, is thus derived from the right to an to unlawful attacks on his honour and impartial hearing on the merits of a an independent adequate standard of living – is of central reputation”. case where so fundamental a matter centre that provides importance for the enjoyment of all Section 62 of the Housing Act 1966 is as one’s entitlement to remain in one’s free legal advice economic, social and cultural rights. a summary procedure for the recovery home is concerned has led the Irish and representation This right is also echoed in article of possession of local authority housing. courts in a number of cases (see panel), to people who are 25(1) of the Universal Declaration of Under this procedure, a local authority following the European Court of homeless or at risk Human Rights, article 5(e)(iii) of the is not obliged to provide reasons as to Human Rights, to make a declaration of homelessness International Convention on the Elimination why it is seeking to recover possession, under section 5 of the ECHR Act 2003 of all forms of Racial and no independent or that section 62 is incompatible with Discrimination, article impartial hearing of the article 6 (right to a fair hearing) and 14(2) of the Convention “NAMA could merits of the case takes article 8 (right to respect for private life on the Elimination of act as a conduit place. and the home) of the ECHR. Discrimination against Where a local These cases are currently under Women and article 27(3) through which authority tenant has been appeal to the Supreme Court. of the Convention on the government subject to section 62 Local authority tenants are further Rights of the Child, all of possession proceedings disarmed in section 62 proceedings, which have been signed spending on on the basis of a decision as such proceedings have been up to by Ireland. social housing is by a local authority that interpreted as falling within one of the Seven aspects of the the tenant has engaged exemptions, contained in section 28(9) right to adequate housing channelled towards in antisocial behaviour, (a)(ii) of the Civil Legal Aid Act 1995, were identified by the the purchase of the future entitlements to the entitlement to civil legal aid, Committee on Economic, of the individual will also that is, “disputes concerning rights and Social and Cultural NAMA properties” be affected. Section 14 of interests in or over land”. Rights (CESCR General the Housing (Miscellaneous Comment 4), including legal security of Provisions) Act 1997 provides that, where Habitability tenure, availability of services, materials, a local authority considers that a person CESCR General Comment 4 provides facilities and infrastructure, affordability, was engaged in antisocial behaviour, that “adequate housing must be habitability, accessibility, location and it may refuse to make or defer the habitable, in terms of providing the cultural adequacy. making of a letting of a dwelling to inhabitants with adequate space and There is a disturbingly large gap such a person. Also, under section 16 protecting them from cold, damp, heat, between the standards set in General of the Housing Act 1997, the HSE may rain, wind or other threats to health”. Comment 4 and article 11(1) of the determine that such an individual is not Many local authority homes are not ICESCR and the situation prevailing entitled to a payment of rent supplement maintained to an adequate standard, in Ireland, where there are significant allowance for private accommodation. and regeneration projects have been problems of homelessness and inadequate A person found guilty of antisocial delayed or put on hold. One highly housing. This can be highlighted behaviour may thus end up in publicised example is Dolphin House, by examining three of the seven emergency accommodation indefinitely. where residents have experienced aforementioned aspects to the right This affects a wide range of other unprecedented levels of damp, mould Law Society Gazette www.gazette.ie June 2011 human rights watch 17 right to housing still subject to political will
“There is a disturbingly large gap between the standards set in the International Covenant on Economic, Social and Cultural Rights and the situation and sewage in prevailing in Ireland, entitled to it. the Department of Environment, Comment 4 and article 11(1) of their homes. Tests Disadvantaged Heritage and Local Government the ICESCR are met. carried out on where there are groups must be show that, by 2008, the number of Until the right to housing water coming up significant problems accorded full and households on the waiting lists for is recognised in Irish law and through the plug of homelessness sustainable access local authority housing had grown assimilated into national and local holes of sinks and to adequate to 56,249 – an increase of 33% on government housing policy, and baths in the flat and inadequate housing resources 2005. Of the 56,249 households, the commitments set down in complex found housing” …Within many 49% had been waiting for more the homeless strategy are placed the levels of faecal states, parties than two years. This is despite on a statutory footing, the basic coliforms were increasing the fact that the housing crisis has human right to housing remains consistent with those found in raw access to land by landless or created a large surplus of housing vulnerable to political will. G sewage. Research shows that 75% impoverished segments of the stock throughout the country. of residents surveyed are living in society should constitute a central In an effort to bridge the cases damp, 64% report mould, 84% policy goal.” gap between properties for have sewage coming up through While there is no reliable which there are no buyers and • Connors v United Kingdom their sinks and baths, and 91% say data on homelessness at national households that are unable to (application no 66746/01, their health is affected. level, the Homeless Agency in access housing, NAMA could judgment of 27 May 2004) There is no independent forum Dublin carries out a regular count act as a conduit through which • McCann v United Kingdom to complain to if local authorities of rough sleepers to assess the government spending on social (application no 19009/04, do not comply with minimum extent of homelessness in Dublin. housing is channelled towards the judgment of 13 May 2008) standards, as set out in the Housing The latest data show that rough purchase of NAMA properties. • Pullen & Others v Dublin City (Standards for Rented Houses) sleeping has not been eliminated While the commitment in Council [2008] IEHC 379 Regulations 1993, 2008 and 2009. in Dublin, contrary to what was the recent programme for • Dublin City Council v This leads to lengthy waiting times committed to by Dublin City government to end long-term Gallagher [2008] IEHC 354 for repairs, and disputes regarding Council in its local action plan. homelessness and to “offer • Donegan v Dublin City Council the obligation of repair. There are significant waiting homeless people suitable, (unreported, High Court, 8 lists for social housing, and long-term housing in the first May 2008) Accessibility persons with homeless priority instance” is be applauded, CESCR General Comment 4 may have to wait a number of significant, concrete steps need These cases are currently under provides that “adequate housing years before receiving an offer of to be put in place before the appeal to the Supreme Court. must be accessible to those accommodation. Figures from standards set in CESCR General 18 comment Law Society Gazette www.gazette.ie June 2011 1-13 June 2011 – Poll of Members on a resolution conducted pursuant to the Bye-laws of the Law Society of Ireland At the Special General (c), nominated and directed of the said resolution, each arguments advanced at the Meeting of the Law Society that Mr Stuart Gilhooly, as a be responsible for the meeting in support of the of Ireland held on 4 May proponent of the resolution, preparation of, respectively, resolution and in opposition 2011 (“the meeting”), the the text of which is set out a memorandum in writing to the resolution. The meeting, in accordance opposite*, and Mr Vincent (of no more than 500 words said two Memoranda are with Society Bye-law 4(8) Crowley, as an opponent each) summarising the reproduced below. NO Law Society Gazette www.gazette.ie June 2011 comment 19 1-13 June 2011 – Poll of Members on a resolution conducted pursuant to the Bye-laws of the Law Society of Ireland
resolution
“ That this General Meeting maximum of €16 million, to be through the practising certificate Proposed: * approves the recommendation of funded by way of an equal fee or as otherwise determined John Costello, President the Society’s Council to provide payment from every practising by the Society (currently Seconded: financial support to the Solicitors solicitor for a period of ten estimated at €200 per solicitor Donald Binchy, Senior Mutual Defence Fund up to a years and to be collected per year).” Vice-President yse 20 viewpoint Law Society Gazette www.gazette.ie June 2011
failure to follow british example is disappointing
It is disappointing that the Construction Contracts Bill fails to follow the British example in relation to the binding nature of adjudication, argues Fiona Forde
n 19 May 2010, Senator as amended (‘the NSW act’): The pursuant to the contract to claim Feargal Quinn introduced NSW act deals with payment-only for damages at adjudication stage, Othe Construction Contracts disputes, where a purported payee can thereby calling into question both the Bill to the Seanad and the concept submit a payment claim to be dealt substantive and procedural fairness of of adjudication to Ireland. The bill with within a certain timeframe. The the procedure set out in the act. was passed by the Seanad on 8 March British act allows for the possibility of The scope of the British act is 2011 and is currently awaiting further any party to a construction contract wider, providing the right for either Fiona Forde is debate in the Dáil. referring any dispute arising under party to make an adjudication a Dublin-based In order to properly consider the contract to adjudication. application in relation to any dispute barrister the subject of the appropriate form The NSW act only allows for falling within the scope of the of such legislation for Ireland, due progress payment claims to be construction contract. While this consideration must be given to the made by the purported payee to would lead to a greater immunity choices made by other jurisdictions in the purported payer, effectively to adjudications being set aside on relation to equivalent prohibiting the the basis of procedural unfairness, legislation. purported payer’s the all-encompassing nature of the Construction “A successful rights of counterclaim legislation may result in adjudication contracts and construction and severely being sought on a project for any security for payment restricting the reason. This may present potential legislation introduced industry payments purported payer’s for abuse, particularly having regard in other jurisdictions legislative scheme avenue of defence on to the suspension rights that can tend to share certain failure to comply with be invoked by a claimant under the commonalities, such needs to offer the the payment scheme British act in relation to a dispute as the prohibition facility of effective set out in the act. defined in section 108(1) of the of the use of ‘paid dispute resolution The British act allows act simply as “any difference”, when paid’ clauses for consideration as opposed to the more limited and ensuring the as well as the of both claims and suspension rights under the NSW act claimant’s right of assurance of fair counterclaims made arising only in relation to progress suspension of works by any party to the payment disputes. either for non- procedures” construction contract. payment or non- Under the British Right to defend claim compliance with an act, adjudicators Under the NSW act, a claimant adjudicator’s determination. are under a duty to exercise their serves a payment claim on the person The underlining shared priority of initiative to ascertain the facts and the who is or may be liable to make the legislation is to secure payment law. The NSW act does not allow for payment under the construction where validly due and owing for work consideration by the adjudicator of contract (‘the respondent’). The and services rendered in relation submissions made by the respondent respondent may reply by serving a to construction projects through regarding reasons for withholding payment schedule on the claimant, an expeditious forum of dispute payment, other than those which have identifying the amount the resolution. been made in accordance with the respondent proposes to pay the An indication of the key differences payment scheme set out in the act. claimant (‘the scheduled amount’). in the various forms of the legislation If the scheduled amount is less than can be established through a Scope of claims the amount claimed by the claimant, comparison of the British Housing In comparison to the restriction the respondent must set out in the Grants, Construction and Regeneration on the respondent’s entitlement to payment schedule the reasons why he Act 1996 (as amended) and New counterclaim for delay, damages is withholding payment. South Wales’ Building and Construction under the NSW act may be regarded If the claimant seeks to recover Industry Security of Payment Act 1999 as stripping a party of its rights through court proceedings the Law Society Gazette www.gazette.ie June 2011 viewpoint 21
“It is, however, slightly disappointing that the bill has failed scheduled to follow the British the lack of Additionally, there are no decision is final and binding amount due and example in relation to opportunity for limitations as to the inclusion of and takes immediate effect. It owing or the the respondent reasons for withholding payment is only on rare occasions that payment claimed the binding nature of to present its in a response to an adjudication the adjudication decision is to which the adjudication” defence or application. Thus, provided that superseded by the later decision respondent has counterclaim a party lodges their response of a judge or arbitrator. Under failed to submit a can lead to to an adjudication application the Irish bill (section 6(12)), payment schedule, the respondent a subsequent challenge to the within the time allowed by the adjudication shall not be binding is not entitled to make a cross- adjudicator’s decision by the legislation, it will not be deprived if the payment dispute is referred claim against the claimant or respondent on the grounds of of the opportunity to present its to arbitration or litigation, unless to raise any defence in relation the determination being unjust. full case. agreed between the parties. to matters arising under the This has been reflected by the The overall costs to the construction contract (section number of applications made Appropriate form construction industry of 25(4)(a)). by adjudication respondents to In considering the appropriate settling disputes needs to be Alternatively, if the claimant the NSW courts over the past form of legislation for Ireland, a considered, and this includes makes an adjudication application decade to have adjudicators’ party’s entitlement to adequately the costs of possible challenges in respect of the payment determinations set aside. make their case must be to an adjudicator’s findings claimed, the adjudicator is only Unlike the NSW act, the ensured and, in this context, on the grounds of procedural entitled to consider submissions British act adheres to the it is submitted that the Irish unfairness. However, a successful made by the respondent in parties’ agreed contractual Construction Contracts Bill as construction industry payments support of the payment schedule. payment regime and applies a presently drafted is correct to legislative scheme needs to In comparison, an adjudicator statutory regime only where follow at least in broad outline offer the facility of effective under the British legislation is the parties have failed to reach the procedural initiatives set out dispute resolution as well as the not restricted to a consideration such an agreement (section in the British act. assurance of fair procedures, and of documents submitted by the 109). The British legislation It is, however, slightly it remains to be seen whether parties when making his or her does not make the serving of a disappointing that the bill has failing to follow the British determination (section 108(2)(f)). response to a payment claim a failed to follow the British example of essentially binding While the NSW act offers an condition precedent to the right example (section 108(3)) in adjudication will afford the efficient and expeditious approach of a party who is served with relation to the binding nature Construction Contracts Bill the to the payment of monies due and an adjudication application to of adjudication. In most cases significance it deserves in the owing on a construction project, lodge an adjudication response. in Britain, the adjudicator’s Irish context. G 22 cover story Law Society Gazette www.gazette.ie June 2011 prite va investigations Law Society Gazette www.gazette.ie June 2011 cover story 23
While video surveillance can be a useful tool for defendant insurance companies, the use of material Liam Moloney is principal obtained through covert surveillance can lead to of Moloney & Co, Naas. He has been practicing in possible injustice for genuine accident victims. the areas of personal injury, Liam Moloney gets his long lens out employment, and medical negligence litigation for the past five years here has been a marked increase in the use of video surveillance by defendant insurance companies in the past few years. In serious injury cases, where private millions of euro are at stake, the cost of a few days’ surveillance is a modest amount to pay for evidence that may undermine, and potentially Tdestroy, a plaintiff’s claim. investigations However, in some cases, the use of video footage or pictures obtained through covert surveillance may distort the real picture for the genuine plaintiff and lead to possible injustice for genuine accident victims. Plaintiffs’ solicitors should be in a position to provide practical advice to combat the potential threat of unfair and unbalanced surveillance evidence. Social networking sites are now routinely surveyed by defendants and their advisors. Security settings, either for plaintiffs or their contacts, are often at a low level, which enables far greater access than may have been anticipated by the individual user.
Money for nothing Defendants are routinely using the punitive provisions of section 26 of the Civil Liability and Courts Act 2004 to challenge plaintiffs who, they allege, are deliberately exaggerating their symptoms to obtain greater awards. This issue was addressed in the case of Danagher v Glantine Inns Ltd. The plaintiff in that case had unsuccessfully sought to have liability imposed upon the defendant’s nightclub, arising from alleged injuries sustained by him during an altercation in which security staff intervened. The plaintiff had maintained that, for several years following the incident, he had suffered from persistent neck and back pain that had adversely affected his third-level studies and sporting activities. He gave evidence that he had required some 70 sessions of physiotherapy Fast facts in the two-year period following the incident, and that he had attended his GP on no less than 50 occasions during this period. > The potential threat of unfair and In the context of describing his physical symptoms, the plaintiff unbalanced surveillance evidence specifically denied that he had participated in a parachute jump > The advice solicitors should give in cases for charity in July 2006, which had received coverage in his local involving potential surveillance newspaper. He maintained that this parachute jump had taken place in > The preliminary steps to be taken when a the previous year, 2005. private investigator has>> been listed as a In order to explain the delay in the reporting of the parachute jump witness for the defendant in the newspaper, he told the court that the reason that the article did > Intrusion and the right to privacy not appear in the paper until the following year was because it was > Courts less reluctant to accept private only at that stage that the monies collected were being handed over to investigators’ evidence the relevant charities. The defendant challenged this version of events > Courts have yet to address the issue and led evidence to establish that the parachute jump had actually of whether a plaintiff, who has been taken place in July 2006, just six months after the alleged injuries observed by a private investigator (the sustained by the plaintiff. evidence of whom has not been accepted Judge Irvine found that the plaintiff sought to mislead the court, by a court), is entitled to an award of knowing full well that if he had admitted his involvement in the aggravated or exemplary damages parachute jump, just six months after his alleged assault, it would 24 cover story Law Society Gazette www.gazette.ie June 2011
“The use of video footage or pictures obtained through covert surveillance may distort completely undermine the real picture for sites. The purpose of this evidence is subjective and is often only a the extent of his injuries, the genuine plaintiff is not to seek to protect snapshot in someone’s life. How many of us for which he was claiming the fraudster, but to ensure are not prone to exaggeration when we are damages. She held that the and lead to possible that the ‘naïve’ plaintiff using our social sites? plaintiff had also misled the injustice for genuine is protected. In certain If a private investigator is listed as a court in claiming the level cases, people may say witness for the defendant, the following of attendances with his GP accident victims” they were out socialising, preliminary steps should be taken: and physiotherapist, which which can be purely • Request all edited and unedited footage, to he did deliberately, hoping to impress upon innocent commentary, but can be taken up include DVDs and pictures, the court the severity of his symptoms. the wrong way – even by a court. This does • Seek discovery of all logs and records The judge held that these were “phantom not mean that a plaintiff is not suffering relating to the said surveillance, visits” to his GP and physiotherapist and genuine symptoms that would not preclude • Seek discovery of the letter of instruction that his evidence was false and undoubtedly them from having a night out. Much of this and payment terms – it is known that some destined to influence and mislead the court as to the severity of his symptoms. She setting me up held that he had deliberately overstated his injuries. By its very nature, surveillance is intrusive. • There is a constitutional right to privacy, The judge said that, if it were not for the Perfectly innocent plaintiffs who have • The right to privacy is not an unqualified fact that she was dismissing the claim on suspected that they are under surveillance right, liability grounds, she would have, in any find the process very threatening. There is a • The right to privacy may have to be balanced event, been obliged to dismiss the plaintiff’s right to privacy enshrined under article 6 of against other competing rights or interests, claim, having regard to the provisions of the European Convention on Human Rights Act and section 26 of the Civil Liability and Courts 2003. The Irish courts have to give effect to the • The right to sue for damages for breach of the Act 2004 and to the falsity of the plaintiff’s provisions of the convention and, therefore, it constitutional right to privacy is not confined evidence. is appropriate to explore at the trial how this to actions against the State. surveillance evidence has been obtained. On every street In some instances, evidence may have been Therefore, surveillance evidence obtained As a matter of routine, all clients should be obtained through breach of constitutional and through breach of convention and constitutional advised that they are likely to be surveyed, convention rights. In the case of Herrity v rights that are in breach of the right to privacy and that investigations of their social Associated Newspapers (Ireland) Ltd, Dunne may entitle a plaintiff to damages against the networking use may be undertaken by J confirmed the entitlement of the private investigator and, as a corollary, against his or defendants and their representatives. individual to sue for infringement of the right to her principal. However, in civil injury claims, All clients should be warned to be careful privacy. The judge in that case confirmed that: this is a matter that has yet to be tested. about the information they place on their Law Society Gazette www.gazette.ie June 2011 cover story 25 private investigators work on a ‘no-fraud, Judge Brian MacMahon carefully be relied upon by successful plaintiffs in no-fee’ basis and so may be incentivised examined the photographs and came to the negligence cases where fraud has been alleged to produce material (in the edited version) view that they disclosed nothing that would on the parts of the defendants. that justifies payment, take from the plaintiff’s version of events. Griffin J in the Conway case said: “Such • Request confirmation that the defendant’s He ruled that, as there were no photographs damages may be awarded where there has solicitors have complied with the of her bending, lifting, running, jumping or been, on the part of a defendant, wilful and provisions of the Data Protection Act in carrying heavy shopping bags, the evidence conscious wrongdoing in contumelious relation to any information given to of the private investigator did not take from disregard of another’s rights. The object of private investigators (this will also include the genuineness of her complaints. He said: awarding exemplary damages is to punish seeking a copy of the letter of engagement “As to the allegation that the plaintiff was the wrongdoer for his outrageous conduct, between the private investigator and his seen linking her husband as they walked to to deter him and others from any such client), the solicitor’s office, this could hardly be conduct in the future, and to mark the court’s • Check the defendant’s defence to see something to be held against her, as married detestation and disapproval of that conduct.” if fraud has been specifically pleaded couples frequently link each other for no Aggravated damages were also awarded in by the defendants in other reason than to the case of Mary Iris Daly v Dessie Mulhern their defence, and take display affection for each and the Motor Insurers’ Bureau of Ireland. In counsel’s advice, and “Social networking other.” that case, the plaintiff sustained whiplash • Discuss with your The court took a injuries when her car was hit from the rear client the footage when sites are now routinely balanced approach to by a car driven by the first-named defendant. received, and your surveyed by defendants this type of evidence, The first-named defendant subsequently client’s response. which shows an increased wrote a letter alleging that the plaintiff had and their advisors. willingness on the called to her door enquiring as to whether she It is essential that late Security settings, either judiciary’s part to look had had an accident with the first defendant, disclosure of private for plaintiffs or their objectively at the entirety or any of his drivers, while she had drink investigators and their of the evidence. taken; and the first defendant alleged that the evidence does not cause contacts, are often accident never took place. panic among a plaintiff’s at a low level, which Walk of life The plaintiff, when informed of this by solicitor or his client. In An issue that has not her solicitors, couldn’t believe that the first many cases, it is a tactic enables far greater yet been addressed by defendant had denied the accident. She used by defendant insurance access than may have the courts is whether a was particularly hurt by the allegation that companies to try to force plaintiff who has been she was drunk, and by the implication that the unwitting plaintiff to been anticipated by the observed by a private she had fabricated the accident. Murphy J accept a lesser amount in individual user” investigator, and the awarded aggravated damages in that case. It settlement. evidence of whom has not is clear, therefore, that insurance companies been accepted by a court, and their representatives must be careful in Follow me home would be entitled to an award of aggravated how they mount their defences. Defendant In a recent High Court decision in the case of and/or exemplary damages. Surely, where a solicitors also have to advise their clients as to Murphy (née Condon) v Roche, MacMahon J defendant indirectly pleads fraud on the part the danger of running a ‘fraud’ defence that, made an award of €212,608 to an injured of a plaintiff, and this evidence is rejected by if rejected, could lead to aggravated damages plaintiff who had been the subject of the court, the penalty should be an award of being awarded. surveillance by a private investigator. The exemplary damages? Plaintiff solicitors also need to make sure plaintiff, who was a 36-year-old woman, The issue was not addressed by Mac that their clients are protected by ensuring sustained injuries to her right shoulder, neck, Mahon J in the Murphy case, but will that such evidence is obtained fairly, and back and chest in a traffic accident on 13 probably be tested quite soon in the civil accurately present the entirety of their client’s November 2006. courts. In many other cases that have come case to the court. The defendant’s insurance company before the High Court in recent years, Surveillance is now a part of dealing with engaged a private investigator to observe exemplary damages have been awarded by injury claims, and it is essential that solicitors her. He told the court that he observed her the courts. The landmark case of Conway should be able to properly advise their clients covertly, on two separate occasions. On one v Irish National Teachers’ Organisation may and be aware of the law in this area. G occasion, he told the court that he saw her throwing a snowball in the garden at her daughter, and that he did not observe any restriction in her movements on that day. Look it up On another occasion, he followed her as she and her husband drove to town to see her Cases: IEHC 140 solicitor. He said that he had noticed marked • Conway v Irish National Teachers’ • Murphy (née Condon) v Roche [2011] IEHC restrictions in her movements on that day, Organisation [1991] 2IR305 35 and that she had linked her husband’s arm as • Danagher v Glantine Inns Ltd [2010] she walked. IEHC214 Legislation: The inference was that she was • Herrity v Associated Newspapers (Ireland) • Civil Liability and Courts Act 2004 exaggerating her symptoms by adopting a Limited [2008] IEHC 249 • Data Protection Acts more restricted gait in an effort to impress • Mary Iris Daly v Dessie Mulhern and the • European Convention on Human Rights Act her solicitor. The investigator produced 86 Motor Insurers’ Bureau of Ireland [2005] 2003 photographs to the court. 26 extradition law Law Society Gazette www.gazette.ie June 2011
Ireland was used over a significant period as a transit stop for flights engaged in the US extraordinary rendition programme. However, it is clear that the transit of prisoners from other states through Ireland must be attended by a significant degree of formality and procedure. Remy Farrell checks in
Remy Farrell is a Dublin-based t is a feature of extradition law that detailed extraordinary rendition programme. The extent of barrister and provision is generally made for the transit of the Irish involvement was highlighted recently in an the co-author, prisoners through third states – that is, states extraordinarily detailed and comprehensive report by with Anthony that have neither surrendered nor sought the the Irish Human Rights Commission (IHRC) into Hanrahan, of extradition of the prisoner. This is no more extraordinary rendition. The European than the result of a practical reality that will The report described in laborious detail the Arrest Warrant be familiar to anyone who has had to take a connecting evidence relating to the use of Shannon Airport. It in Ireland I flight to reach their final destination. cited the conclusions and evidence as related in other (Clarus Press) Our own law is no different in that regard, in that both international reports, in particular, the reports of the the Extradition Act 1965 and the European Arrest Warrant Parliamentary Assembly of the Council of Europe, which Act 2003 contain detailed and elaborate provisions for specifically concluded that the CIA had been operating the transit of such prisoners. Both acts require that the what were somewhat euphemistically described as ‘black Minister for Justice be notified of the identity of the sites’ in Poland and Romania. These were, in fact, person and the details of the offence for which they are interrogation centres, where interrogation techniques in the process of being surrendered. It that would be recognised as torture is also a feature of both acts that the by any meaningful definition of that transit of these prisoners can be subject “The principle of word were being employed. to supervision by the gardaí. ‘mutual trust’ between The IHRC report also made It is quite clear from even the briefest specific reference to a European perusal of the relevant legislative EU member states Parliament report from January 2007, provisions that the transit of prisoners has, on occasion, which had gone so far as to censure from other states through Ireland must Ireland for its involvement in the CIA be attended by a significant degree been deployed to extraordinary rendition programme. of formality and procedure. It is not trump evidentially- The EU parliament report went so difficult to deduce why this ought to far as to identify the specific prisoners be so: it is simply a manifestation of based concerns and who had stopped over in Shannon the State’s duty under both domestic complaints as to the before being shipped to detention and international law to protect and centres in North Africa and Eastern vindicate the rights of the individual. It prison conditions or Europe. also serves as an important protection defects in the trial Indeed, it was a remarkable feature for the State itself to ensure that it is process in other of the various reports collated in the not made an unwitting accomplice to IHRC report that they contained illegal rendition. European countries” specific information in relation to the registration numbers of the aircraft Leaving on a jet plane involved, the dates of flights, and The concerns of the legislature in laying down even tied the flights into specific incidents of torture and such detailed procedures for the transit of prisoners kidnap. have, however, been all but entirely ignored by the The response of a number of European member states executive in more recent years, particularly insofar to the various reports of the different European bodies as rendition flights involving the United States was to conduct their own probes. Sweden, Germany and government have been concerned. It is now entirely Italy each carried out investigations. In Italy, a number beyond dispute that Ireland was used over a significant of US nationals were, in fact, convicted of various period as a transit stop for flights engaged in the US offences connected with the programme. Law Society Gazette www.gazette.ie June 2011 extradition law 27
fly me to the MOON
Fast facts
> The Extradition Act 1965 and the European Arrest Warrant Act 2003 contain detailed and elaborate provisions for the transit of prisoners through Ireland >> > Both acts require that the Minister for Justice be notified of the identity of the person and details of the offence for which they are in the process of being surrendered > These detailed procedures for the transit of prisoners have been all but ignored insofar as rendition flights involving the US Government have been concerned 28 extradition law Law Society Gazette www.gazette.ie June 2011 The response in Ireland was somewhat different. The then Minister for Foreign Affairs, Dermot Ahern, in response to the IHRC report, issued a rather terse statement. He deplored the practice of extraordinary rendition and suggested that there was no evidence of any Irish involvement: “No evidence has been produced – despite the various investigations which have been carried out – that any person has ever been subject to extraordinary rendition through Ireland, and this was acknowledged by chairman Maurice Manning in his submission to the European Parliament.”
Magic carpet ride Quite how anyone could sensibly draw such a conclusion from the IHRC report is at best unclear. The minister laid very particular emphasis on the entitlement of the State to rely upon diplomatic assurances received from the US Government to the effect that none of the airplanes landing at Shannon were engaged in extraordinary rendition. The assurances received were backed up by the implicit threat that the gardaí could investigate where there were grounds for suspecting misconduct: “The Garda Síochána “The use of already have full powers to search civil aircraft of the type extraordinary alleged to have been involved in rendition and The extraordinary rendition of an illegal alien extraordinary rendition where they have reasonable grounds for torture by suspecting illegal activity.” the US in the suspicion. Indeed, it Wikileaks. The national media seem to have The minister proudly pointed rather turns on its head been entirely uninterested in contrasting to the various examples of aftermath of the investigative process – Mr Ahern’s statement of 11 December 2007 allegations that had been made 9/11 represents experience tends to suggest with the comments it is claimed he made in to the gardaí about rendition that the formation of a private to the US ambassador on the same flights and the steps taken on the most reasonable suspicion precedes topic just over a week later. foot of these allegations. On glaring and the exercise of powers In a leaked cable, it was stated that: each occasion, where a private of search that results in “Ahern noted that he had ‘put his neck on citizen or member of the cynical abuse evidence, not the other way the chopping block’ and would pay a severe Oireachtas made an allegation of human rights around. political price if it ever turned out that about extraordinary rendition at by a Western Notably, the minister rendition flights had entered Ireland or if Shannon Airport, a senior garda did not, at any point, seek one was discovered in the future. He stated was appointed, presumably for democracy in to actually engage with the that he ‘could use a little more information’ the purpose of conducting an living memory” material set out in either about the flights, musing that it might not investigation. The minister’s the IHRC report or, indeed, be a bad idea to allow the random inspection statement recounted how none of the other European reports. of a few planes to proceed, which would the individuals who had the impertinence Rather, he simply sought to dismiss it by provide cover if a rendition flight ever to raise the issue did any more than point to blithely suggesting that such reports were surfaced. He seemed quite convinced that at the material that was in the public domain informed by party political concerns and that least three flights involving renditions had in the form of the various reports already the various enquiries had been hijacked by refuelled at Shannon Airport before or after alluded to, and media coverage of same. In ‘activists’ – this last term deployed in what conducting renditions elsewhere.” each case, the gardaí felt entitled to leave was presumably intended to be a pejorative The cable goes on to note that a matters lie on the basis that ‘evidence’ had context. hearing before the Oireachtas Foreign not been produced by those making the Affairs Committee, on the same day as allegations. Shot down in flames the publication of the IHRC report on It is difficult to reconcile such an That would be the extent of the criticism extraordinary rendition, was barely reported. approach with the minister’s comments to that might be made of the State’s position The cable – assuming it to be a the effect that the gardaí were entitled to on extraordinary rendition were it not for correct account of that meeting – is search aircraft once they had a reasonable the more recent disclosures arising from rather disturbing on a number of fronts. Law Society Gazette www.gazette.ie June 2011 extradition law 29
Notwithstanding his public assurances, has, on occasion, been deployed to trump the minister is described as being quite evidentially-based concerns and complaints convinced that rendition flights had used as to the prison conditions or defects in the Shannon. This is notwithstanding his robust trial process in other European countries. protestations to the contrary. Insofar as the From the lawyer’s perspective, there must cable relates that he rather deferentially be a concern that this represents a new suggested allowing inspections, this was not approach on the part of sovereign states in any sense for the purpose of preventing and that there will be an increased tendency extraordinary rendition, but rather for the to seek to remove conditions of trial and express purpose of providing political cover detention in other states from forensic in circumstances where he had ‘put his neck scrutiny by means of the simple expedient of on the block’. citing some diplomatic or judicial assurance. Indeed, one might well question why This flight tonight it is that the State would appear to be so The use of extraordinary rendition and reluctant to afford an equivalent respect or torture by the US in the aftermath of 9/11 trust to its own domestic institutions, which represents the most glaring and cynical it has established specifically for the purpose abuse of human rights by a Western of vindicating and protecting basic human democracy in living memory. The most basic rights. The contemptuous manner in which norms of humanitarian law were simply Minister Ahern sought to rubbish not only dispensed with. The role played by Ireland, the IHRC report but also the other reports while relatively minor, was nonetheless emanating from European bodies is chilling. significant. The subsequent savage cuts to the budget The most disturbing aspect of the an approach will strike something of a of the IHRC would tend to suggest that it whole affair, however, is the extent to chord with those who practice in the area will be some considerable time before such which the State considered itself entitled of extradition law. Much of the more bodies can expect to receive the respect or to rely upon bland diplomatic assurances recent jurisprudence in this area has been trust from the core institutions of the State, over detailed and specific evidence on underlined by the principle of ‘mutual trust’ which are their due, having regard to the the issue of extraordinary rendition. Such between EU member states. This principle vital role that they play. G Moon Beever_Irish Law Gazette ad:MB 15/9/09 16:34 Page 1 123x91
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a mEETING of
Genevieve Coonan is a practising barrister and company law As a result of a 2010 High Court decision, the informal agreement of all shareholders to lecturer at the minds King’s Inns enter into a transaction that ordinarily contravenes section 29 of the Companies Act 1990 will constitute an act of the company. Genevieve Coonan examines this decision and its repercussions for company law in general
he effect of the decision in Kerr v Conduit In Kerr v Conduit Enterprises Ltd, the defendant company Enterprises Ltd is that the informal had leased premises owned by a number of individuals, two agreement of all shareholders to enter into of whom were directors of the company when the lease a transaction that ordinarily contravenes was entered into. The company subsequently underwent section 29 of the Companies Act 1990 multiple ownership changes, and the new owners sought will constitute an act of the company. to void the lease on the grounds that it had never been TIn turn, the passing of a formal resolution at a general approved by “a resolution of the company in general meeting is not absolutely necessary. In light of the current meeting”, pursuant to section 29(1). The landlords economic downturn, directors should be particularly careful argued that this requirement had been satisfied, as all of to ensure that transactions entered into by the company the shareholders with a right to both attend and vote at do not fall foul of section 29 of the a general meeting had agreed to and Companies Act 1990. The provision authorised the grant of the lease, albeit at prohibits the transfer of substantial “The Kerr decision a meeting of a board of directors. non-cash assets between directors (or has significant In refusing to void the lease, Finlay persons connected to them) and the Geoghegan J first noted that it was company. Breach of the prohibition may, ramifications due to the settled law since the 1954 decision in in certain circumstances, result in the plethora of situations in Buchanan Ltd v McVey that the informal transaction being rendered void. Worse agreement of all shareholders to do yet, a director or connected person may which the passing of an something that is honest and intra vires find themselves liable to account to the ordinary resolution is a the company is to be regarded as an act company for any gain made as a result of the company and does not require the and/or to indemnify the company for prerequisite to entering passing of a formal resolution at a general any resulting loss or damage. into a transaction. meeting. The decision in Buchanan was Of course, such transactions may be There may be many subsequently cited with approval in Re rendered enforceable by the passing of Greendale Developments (No 2) and Re an ordinary resolution by shareholders. cases in which it will PMPA Garages Ltd. A similar approach In many private companies in Ireland prove very useful” was also adopted in England in the 1969 today, this can be achieved quite easily, case of Re Duomatic Ltd. due to the fact that the owners and However, Finlay Geoghegan J went management are often one and the same. Nevertheless, on to note that the decision in Buchanan did not involve the situations can arise where a resolution is never formally passing of a resolution in relation to the type of statutory passed, in spite of the fact that all of the shareholders have requirement specified in section 29(1). Furthermore, agreed to carry out the transaction, and it is both honest and although the application of the Duomatic principle to a intra vires the company. The decision in Kerr addresses the statutory provision had since been approved of in England issue of whether such informal agreements will be sufficient in NBH Ltd v Hoare, such decisions were of persuasive to validate a transaction caught by section 29. authority only. As a result, whether the principles outlined Law Society Gazette www.gazette.ie June 2011 company law 31
Fast facts > The decision in Kerr v Conduit Enterprises Ltd addresses the issue of whether informal agreements will be sufficient to validate a transaction caught by section 29 > The effect of the decision is that the informal agreement of>> all shareholders to enter into a transaction can constitute an act of the company > Directors should be particularly careful to ensure that transactions entered into by the company do not fall foul of section 29 of the Companies Act 1990 > Situations can arise where a resolution is never formally passed, in spite of the fact that all of the shareholders have agreed to carry out the transaction and it is both honest and intra vires the company > The Kerr decision addresses the issue of whether such informal agreements will be sufficient to validate a transaction caught by section 29
in Buchanan applied to section 29 depended of 1990 is to protect the shareholders of a to the protection of shareholders with a right to upon the rationale underlying the statutory company against directors entering into certain vote. It does not have any wider ambit. Notice prohibition. transactions with the company in which they is not required to be given to any other person have a personal interest, without the approval of the proposed transaction, and the resolution Purpose of statutory prohibition of at least those shareholders holding a simple of the shareholders is not one which requires to Turning to the intention of the Oireachtas majority of the voting shares. Section 29(1) be filed in the Companies Registration Office. in enacting section 29, Finlay Geoghegan J only requires an ordinary resolution. The Section 29 does not so require, and it does not said: “The purpose of section 29 of the act mischief sought to be avoided appears confined come within the types of resolution specified in Winner of the 2011 Irish Institute of Training & Development (IITD) Awards – Networks & Groups Category This is awarded to the best submission from networks or groups who display excellence in training and development
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60(2) of the 1963 act. Indeed, with regard to the latter provision, Costello J said in Lombard v Bank of Ireland that “strict compliance with the procedures is necessary” where reliance is placed on the fact that a special resolution has been passed. This makes a good deal of sense when one considers the fact that these statutory prohibitions are designed to take into account the interests of creditors and other third parties who deal with the company. Furthermore, the decision in Kerr is based on the fact that the purpose of section 29 is to protect shareholders, and it does not require that notice be given to any other person of the proposed transaction. As a result, the decision will not apply where such notice must be given. Strict adherence to formalities will, therefore, be necessary where shareholders wish “ Kerr will not to remove a director or necessarily apply to auditor, as the Companies all statutory validation Acts require that the latter be given notice of the procedures. For meeting at which that example, it does removal will be proposed. Nevertheless, the not apply where the decision has significant passing of a special ramifications due to the section 143 of the act of 1963, which require of the ordinary shareholders resolution is required, plethora of situations in filing in the Companies Registration Office.” had, prior to the grant of which the passing of an Finlay Geoghegan J was also satisfied that the lease, been aware of the as such must be filed in ordinary resolution is a there was nothing in the wording of section key terms of the lease and the CRO” prerequisite to entering 29 that indicated that the Oireachtas intended of the fact that two of the into a transaction. There to preclude Buchanan from applying to the landlords were also directors may be many cases in express requirement for a resolution of a of the company. which it will prove very useful. While non- general meeting. In fact, she went further Of course, the court’s findings regarding adherence to legal formalities is not to be and stated that such an interpretation would this issue are, strictly speaking, obiter, as it recommended, it can be said that a failure render the application of section 29 absurd in had already held that section 29 did not apply to formally pass an ordinary resolution, be certain circumstances. She said: “Suppose the to the grant of the lease due to the fact that it through inadvertence or otherwise, will landlords had included all four of the persons it was virtually worthless and, therefore, did not always result in the invalidation of the who were then the shareholders entitled to not constitute an asset of “requisite value” resulting transaction, provided it is honest both attend and vote at a general meeting within the meaning of section 29. Even so, it and intra vires and that all shareholders have of the defendant, would the Oireachtas have is difficult to dismiss the decision on that basis, agreed to enter into it. G intended, in the enactment of section 29, that having regard to the strength of the court’s where a company entered into a transaction logic, the purpose of section 29, and the fact with all of its then ordinary shareholders, that it is in line with the English authorities on Look it up obviously fully aware of and consenting to the same issue. the transaction, 11 years later, following Cases: many changes of ownership, the company One size does not fit all • Buchanan Ltd v McVey [1954] IR 89 should be entitled to avoid the transaction It must be borne in mind that the reasoning in • Kerr v Conduit Enterprises Ltd [2010] just because all the shareholders who entered Kerr will not necessarily apply to all statutory IEHC 300 (unreported, High Court, Finlay into the transaction did not also record their validation procedures. For example, it does not Geoghegan J, 22 July 2010) approval by the passing of a resolution in apply where the passing of a special resolution • Lombard v Bank of Ireland (unreported, general meeting? It appears to me such an is required, as such must be filed in the CRO. High Court, 2 June 1987) interpretation would be absurd, having regard Formal procedures must, therefore, be adhered • NBH Ltd v Hoare [2006] EWHC 73 to the clear intention of the Oireachtas to to where a company seeks to act as guarantor • Re Duomatic Ltd [1969] 2 Ch 365 protect shareholders against transactions or provide security on a director’s behalf in • Re Greendale Developments (No 2) [1998] entered into by directors with the company, connection with a loan, quasi-loan or credit 1 IR 8 unless notice is given to and there is approval transaction pursuant to section 34 of the 1990 • Re PMPA Garages Ltd [1992] IR 315 of shareholders representing a majority of the act (as amended). voting shares.” They must also be adhered to where the Legislation: She concluded that there had been sufficient company seeks to provide financial assistance • Companies Act 1990 approval for the purposes of section 29(1), as all in the purchase of its shares pursuant to section 34 practice management Law Society Gazette www.gazette.ie June 2011
Fast facts
> At the moment, there is very little current value in your practice > Most practitioners are facing longer working hours and working longer in years than was expected five years ago > The challenge will be >>to focus on running practices to stay in the game and on planning for the future potential that will develop as the economy starts on the road to recovery > Focus on your areas of work and current skills resources, and ensure your current staff levels and skills base, as well as your overheads and costs, reflect these dawnsreality Law Society Gazette www.gazette.ie June 2011 practice management 35
The reality is that, in the current climate, there is very little value in solicitors’ practices. However, there are ways to face these challenges. Hilary Haydon and Jason Bradshaw get down and dirty back in the trenches – walking the walk, not just talking the talk
Hilary Haydon FCA is a partner in ow, has the landscape Price is a key component of any market, and it Haydon Chartered changed in recent times! must offer a win/win solution for both the buyer Accountants In the last two years, we and the seller. With current low profitability, the have seen it all – or have price or value of the practice is at an all time low we? We have gone from in terms of value for the seller – therefore, it is not NAMA to the IMF, and surprising to find that there are few willing sellers. fromW Fianna Fáil to Fine Gael. We have seen almost The banks have no money and, as such, there is all Irish banks nationalised. It is total carnage in little to no finance available to fund any possible boardrooms and offices all around the country. deal. Furthermore, the professional indemnity The mighty Quinn Group has fallen. We have seen insurance rules surrounding the takeover of work- the number of receiverships and liquidations rise in-progress files from practices is proving very Jason Bradshaw beyond all expectations. We now talk about losing difficult and, when possible, the cost of run-off ACA is director of billions, while losing millions hardly gets noticed. cover is proving to be prohibitively expensive. corporate finance The country is in ruins. While we all used to enjoy In order to create value you must have a market. and strategic listening to Morning Ireland and Ivan Yates on Legal practices are not unlike many businesses in development at Newstalk on the way to the office, the talk now is Ireland today, in which – due to the low level of the firm, which nothing but doom and gloom, day in and day out. transactions – the market for sellers is currently specialises in For most legal practitioners – whether working very poor and expectation for sellers is at a providing business on your own, in partnership or, indeed, with one of significant low. and accounting the bigger firms – the past two years have brought services to the legal almost total financial devastation. We have seen the Back to zero profession economic tsunami sweep through our business life, For most practitioners, you are facing longer bringing considerable financial headache and loss. working hours and working longer in years than Fees have been cut, business you had thought or expected five has been lost, income is years ago. down, salaries have been cut, “In this current The challenge in 2011 and professional indemnity insurance into 2012 for many practitioners is almost impossible to arrange, financial climate, most will be to focus on running their insurance costs have risen, legal practitioners need practice to stay in the game. We commercial rates have to be paid, to swallow the ‘reality have seen practices with losses bills are mounting, the electricity in fee income of up to 60% and and phone bills beckon, school pill’ – there is very little more. Bad debts are on the rise. fees are on the horizon, and the current value in your Slow paying clients are now part list goes on. of normal practice. The cost of This is not what we ‘bought practice” professional indemnity insurance into’ when we decided to follow has increased over twofold in a career within the professional many cases. The list goes on. In ranks. The legal profession is supposed to be a safe this current economic and financial war, there are haven when it comes to business risk. no safe havens. It is all about getting out and down and dirty in the trenches. Reality pill Many practitioners have now taken the hard In this current financial climate, most legal decisions, redundancies have been unavoidable, and practitioners need to swallow the ‘reality pill’ – yet there is still much to be done. there is very little current value in your practice. For many, the challenge of ‘getting back to The key elements needed to make a market zero’ presents a very positive opportunity for the include a willing seller and willing buyer. next 12 months. For others, who have managed There are some willing buyers, but most want to successfully ride this economic wave and have only the client fee block and would prefer having already trimmed overheads and got their house in no ongoing involvement from the seller – not very order, the challenge may well be planning for the appetising for a willing seller who might want future potential that will develop as the economy either an earn-out or consultative role. starts on the road to recovery.
Law Society Gazette www.gazette.ie June 2011 practice management 37 The solution for most is to ensure that • Quality of staff – ability to get the job who introduced business to you in the your practice is put back into shape. The done in a timely manner and commitment past? Is there scope for them to bring you key challenges include: to care and attention, more business in the future? Put time • Business – review your areas of work and • Quality of work – commercial, insolvency, into building those relationships too. If current skills resources, and see if skills family law and good litigation work, you have fallen out with them in the past, resources, marketing plans and the ability • Quality of systems – technology/time mend the bridge if you can, as this life is to generate new business are correctly management and costing systems. no dress rehearsal. Relationships count for harmonised, everything in business. It • Staff – consider your current staff levels All practitioners need will take time. Results will and skills base and ensure that these to continue to develop “Make sure not be immediate, but they match your business profile and fee strong relationships with that your staff will happen in time. budgets, their clients. Letters of Make sure that your • Overheads – examine your overheads and engagement not only need to understand your staffing is appropriate to the ensure that these costs are appropriate be sent out to comply with business plan and business plan and model. for your current business size and plan of regulations, but time must Carry out a skills audit. Talk action. also be taken to sit down with are willing to work to your staff and understand clients and explain the billing with you to achieve their goals and ambitions. Consideration needs to be given to setting process. Make sure that your staff the business goals for the next two to three Value must be delivered your objectives. Key understand your business years. For some, these targets may involve both in terms of what the staff can contribute plan and are willing to work looking at merging, passing the business practitioner believes is value with you to achieve your on, or retirement. In the current financial but, more importantly, this greatly to goodwill objectives. You do not need climate, this may involve preparing your value must be appreciated by and the generation any players in your team practice for these objectives, which could the client. This takes a little who do not want to play for take a couple of years in order to maximise bit of communication and of fees and indeed the team. Your staff are one the value and benefit. marketing. new clients. Poor of the most important assets For others, these targets will focus on It is not good enough to and unmotivated of your business – as such, restructuring, reorganising and innovating say that you and your staff make sure that everything the current business model. Similarly, this spent 12 hours working staff can cause fits. Key staff can contribute will also involve changing the way business on a particular issue – it is major damage to greatly to goodwill and has been done through the ‘Celtic Tiger’ also essential that you can the generation of fees and years. demonstrate that value was your business” indeed new clients. Poor and For many practitioners, work needs to be delivered for that time. Your unmotivated staff can cause done to improve the current business plan, client must appreciate the value delivered major damage to your business. which may involve getting down and dirty and, when they do, then real goodwill and Take a good look at the areas of back in the trenches. These practitioners value will evolve for your practice. specialisation that your practice offers. have to go back to the basics that were the If your client appreciates the work you do, Can you focus on new areas of expertise? original foundation stones of the practice the easier it becomes to collect their fees and Can you reinvent yourself? In 2011, the when they first it up. It’s called walking the persuade them to refer other work to you. focus must be on change – and remember, if walk, and not just talking the talk. you want to stay here, you must move along. We need to focus on maintaining and If you build it, they will come building strong relationships with our Survival will continue to be the name of the Future value of your practice clients, whereby they fully appreciate the game for many practitioners throughout We need to be able to change in order to value and quality of the advice given. The 2011 and, unfortunately, 2012. Practices influence the future for our benefit and importance of these relationships has been that work hard and deliver quality to clients reward. Value will return to the market. lost in many businesses over the last few will see the dawn on the other side of the The storm will pass – and after it passes, years and, now more than ever, we must mountain. Unfortunately, for many, there we need to be ready to grasp opportunity understand and accept the value of the client will be continued stress and hardship until as it emerges. We need to create that relationship. the economic climate improves. opportunity. By focusing on the day-to-day One good referral from an existing client However, there are many things that can way we run our practices and connect with is worth volumes in terms of goodwill. How be done. Take a closer look at your own our clients, we can bring that change and many of your existing clients refer their business model. Decide what you want from bring that opportunity. friends and business contacts to you? How your business over the next two or three Golfer Gary Player has been quoted many of your clients have been asked to years and start getting your house in order many times: “The harder I practise, the refer clients to you? to achieve those objectives. No matter what luckier I get.” Start practising now, and real the target, your business needs to be put into value will return to your practice when the The key word is quality shape. tsunami subsides. Legal practices need to focus on quality Talk to your clients, even those that you Confidence will return as we all strive when trying to maximise profitability within have not spoken to in some years – open the towards a better working environment their firm: dialogue. Opportunities for business will and business structure. If you are worried • Quality of client – clients who bring good emerge if you put the time into rebuilding about retirement or the need to merge work to the practice and/or require a relationships. Look back and see where your business, the time could not be better professional service and who are prepared your business came from in the past. Are to focus on your existing business and to pay for the advice they receive, there accountants or indeed bank managers preparing it for such an opportunity. G 38 technology Law Society Gazette www.gazette.ie June 2011
Fast facts
> Technology offers the prospect of replacing physical paper with digital documents > Going digital isn’t just about clearing clutter – it’s about being able to retrieve information quickly > The key to working with>> less paper is to ensure its digital equivalent is managed correctly and that files are searchable > The growth in the volume of communications makes a good document management system a necessity, not a luxury
Paper cut Law Society Gazette www.gazette.ie June 2011 technology 39
For more than 35 years, people have been forecasting the arrival of the ‘paperless office’, to the extent that some have dismissed the concept as a myth. However, Gordon Smith talks to some lawyers who are making the idea a reality
rom legal briefs and case files to the six-person firm managed to accumulate enough paper Gordon Smith is a leather-bound tomes adorning office in two short years to push a paperless agenda. Going freelance technology shelves, paper and the legal profession digital wasn’t just about clearing clutter, but about being journalist have been inextricably linked for able to retrieve information quickly. “The advantages centuries. Technology offers the prospect are just overwhelming. Files are at our fingertips. When of replacing those reams of physical paper a client rings up, it’s not a case of ‘I’ll call you back’. withF digital documents; easily stored and retrieved, they Documents aren’t lost any more. Your office becomes can free up valuable office space and – more importantly mobile, so you don’t have to hold every meeting with a – fee earners’ time. client at your office, you can go to theirs. It also allows In the legal sector, however, the irresistible force of for more flexible working arrangements for staff. It’s a technological change often meets the immovable object no-brainer, quite frankly,” says Fenelon. of tradition. But with harsh economic reality causing many firms to pare their costs to the bone, paper is Follow me the elephant in the courtroom. Can solicitors sustain Byrne Wallace, which has close to 120 solicitors and a the expense involved in creating, filing and archiving further 40 other fee earners, has been steadily working physical documents in 2011? According to the research towards a ‘green’ and more efficient office environment. group, Gartner, managing a piece of paper in its lifetime It is currently formulating a plan to go paperless and, costs nine times the price of printing it. Improving at the time of going to press, representatives were in features and falling prices make the move to digital London to look at two law firms that have already more of a reality than ever, but is the long-promised made the move. The switch is most likely a couple of ‘paperless office’ an achievable aim? The Gazette years away, according to Michael Walsh, a partner with spoke to five firms to hear how they tackled the paper Byrne Wallace. “For us to be able to operate safely and mountain. efficiently in a full digital environment, we have a number of practical and No-brainer “According to the cultural challenges to overcome – Leman Solicitors started in January 2007, research group, something we are taking on in stages,” and partner Larry Fenelon says that it he says. is the first legal firm in the country to Gartner, managing The firm has already taken substantial go entirely paperless, which it did in a piece of paper in steps to reduce its use of paper in the October 2009. The following year it was office. Two years ago, it set out a policy honoured in the FBD Business Awards its lifetime costs that discourages wasteful printing. To for best use of technology. “When nine times the aid this, printers throughout the firm anybody runs a business, the prudent offer double-sided printing, scan to thing is to keep overheads low,” he price of printing it” DMS (document management system) explains. workspace facilities, as well as having a All paper documents coming in to the ‘follow me’ feature that only outputs the firm are automatically scanned and every solicitor has document when the person who requested it is standing an online in-tray rather than a physical one. This allows at the printer. This avoids the common problem of them to read letters and assign them to files in the hitting the ‘print’ key at the desktop and then forgetting software. Leman can also let its clients view files relating to collect the documents from the printer. Similarly, to them via the internet. As well as eliminating the cost faxes received are distributed digitally and, in tandem of handling paper, Fenelon considers this good customer with the introduction of digital signatures, software has service. “If we’re not watching our costs, and we’re not been installed on desktops to enable faxes to be issued watching our clients, they’ll walk,” he says. “Clients without the necessity of printing. have benefited from our efforts because our rates are Walsh reports that paper use has decreased by up to competitive. We have been able to keep prices down.” 50% so far in some departments. Other results have He advises firms to plan for going paperless well in been achieved through a well-used intranet and internal advance. “There has to be a lead-in date. To manage it forms that pass by way of email links through the properly, there has to be a four-to-six-month period,” reporting chain, reducing processing time and the loss he adds. risks associated with physical paper transmission. Fenelon acknowledges Leman’s inherent advantage The 2009 policy was introduced just as Byrne Wallace over most other law firms: no bound volumes and files invested in a document management system from built up over decades to have to scan. Even so, the Interwoven. Having this spring concluded an upgrade, 40 technology Law Society Gazette www.gazette.ie June 2011 the latest version has improved filing features reducing paper further, it also saves the expense maintenance of machines, the cost of having an and the ability to put relevant emails and of renting a fax line and frees up the space archiving department and so on,” Barton adds. documents in a workspace through predictive taken up by the fax machine, not to mention “Costs have focused people’s minds, and the email management. “The absolute key for the running costs. bottom line tends to grab people’s attention.” DMS is the ability to search and retrieve data Butler notes how technology has improved, in a Google-like manner,” says Walsh. “The saving unnecessary re-scans: for example, That extra little step implementation of the document management Microsoft Word 2007 and 2010 both have the Binchy Solicitors in Clonmel operates a system involved a substantial investment ability to convert documents into PDF, while complete electronic office, but managing of time, money and resources, but in the case-management suites can now view a greater partner Fred Binchy stops short of calling it short, medium and long term, it was in our array of file formats. paperless. “There’s a slight hint commercial interest to make this move.” of fiction. I find you actually Other technology that is reducing reliance Necessity, not luxury “This isn’t technology need the break that paper on hard copy is a research facility called John Barton, IT manager for its own sake: it’s gives you. There’s the ease Solcara SolSearch, which allows fee earners to with Matheson Ormsby of spreading paper out on a check in-house and external legal precedents, Prentice, believes directly connected to desk, especially when you’re opinions, case law and so forth. This system technology has only the need to adapt to working on a court case,” he connects both to the firm’s own DMS and recently reached a stage clients’ expectations says. Moreover, he finds some also to a variety of subscription-based sites, where systems for scanning clients will still want to send including Westlaw and LexisNexis, and returns large volumes of paper have and to operate more hard-copy letters by post, so a a composite view of the best and most relevant become readily available. cost-effectively” firm’s dealings with clients have search results. However, full scanning of to take into consideration what all post at the point of entry they are comfortable with. Learning curve hasn’t yet become a reality at MOP. That’s There are some individual desktop scanners Neil Butler of Neil J Butler Solicitors in partly for cultural reasons, he says, but also within the firm and then one large unit that Thurles has been scanning paper documents because certain documents are confidential acts as the workhorse, taking most of the since 1994. While this meant a steep learning and, as such, they aren’t opened until they major scanning jobs. Every single piece of curve, and the network scanner technology reach the secretaries in practice areas. post is scanned every day, and this is then was more expensive at the time, he says that However, the growth in litigation and related stored in the firm’s case management system. productivity was immediately improved. correspondence in recent years has made “Your procedures are a critical component Client service was enhanced, while finding searching large volumes of paper documents of this: documents are archived and scanned, old documents no longer involved checking “nearly impossible”, he says. there has to be a complete record. It needs archives or off-site storage. The growth, not just in the volume of meticulous archiving. You’re taking that extra Butler uses one multi-function unit that acts communications but the means of doing so – little step every day, once you accept that as a colour copier, scanner and printer for pages email being a prime example – makes a good those disciplines are essential. If you engage up to A3 size. While there are less expensive document management system a necessity, in the electronic paper exercise, and you’re black-and-white machines, he believes that this not a luxury. “You have to make sure you can not prepared to engage in the extra effort, is a false economy, because some work might control every method of information coming you may fall down and lose a document,” involve maps or photos of accidents for an into a firm, not only in hard copy but in soft he cautions. insurance claim. Butler estimates that he scans copy too,” Barton recommends. Technology is changing not just the roles around 50 pages per day. “In the ‘tiger’ years, Scanning volumes alone have doubled in the of fee earners in a firm. Binchy uses digital volumes might have been at least double that. past two years. MOP has engaged with Xerox dictation and “couldn’t abide the idea of going The reduction in volume is also explained by to provide outsourced scanning and document back to the old way”. This has meant that his the fact that I have so much stuff digitally now services and, in recent months, the firm has secretary has now become a legal executive and can so much more easily access more – for been encouraging partners to avail of a service who can prepare documents: rather than example, downloads of PDFs from Revenue, where stacks of paper occupying desk space someone who types out files, she can edit or the Law Society website for precedents and filing cabinets can be catalogued, scanned, prepare affidavits or meet clients while Binchy and so on, vastly increased use of email (so and filed in the appropriate electronic location. may be in court. correspondence is already digitised) – that the “When the fee earners see the clear desk, they need for scanning is reducing.” realise the benefit of it,” Barton reports. “It’s Adapting to expectations Scanning is only a small part of the picture, all about trying to change the culture. Once Based on the experiences of the solicitors he emphasises. The key to working with less you win the battle, the good news spreads here, most agree that ‘less paper’ rather than paper is to ensure its digital equivalent is quickly.” ‘paperless’ is the most likely outcome. What’s managed correctly and that files are searchable. The cost is also a factor: “We have been not in doubt is that this isn’t technology for its He uses an email-to-fax facility that is available highlighting the costs of printing to people in own sake: it’s directly connected to the need for a minimal monthly charge. As well as the firm – that covers the paper, recycling costs, to adapt to clients’ expectations and to operate more cost-effectively at a time when all sectors are feeling the economy’s chill winds. Michael Tips for going paperless Walsh of Byrne Wallace sums up: “The role of • Plan for the move well in advance – ideally, • Factor in additional costs, such as an uninter- technology is taking centre stage in terms of as much as six months ahead, ruptible power supply and strong data backup, the ability of lawyers to operate profitably. The • There are external companies that provide • Ensure that any scanned documents are old practice focused solely or predominantly scanning services for historical documents, stored in a system where they can be easily on paper files is a model that, in my opinion, to save on staff time, searched and retrieved. the market may not tolerate for very much longer.” G Law Society Gazette www.gazette.ie June 2011 people and places 41 Law Society annual conference in Powerscourt, Co Wicklow
Margaret O’Connell Solicitor to the celebrities Gerald Kean encouraged all lawyers to use every opportunity to meet clients and hand out (Michael Houlihan & business cards. (From l to r): John Costello, Moya Quinlan, Michael Houlihan, Dan O’Connor and Gerald Kean Partners, Ennis) and Maeve Callanan (Dundon Callanan)
Michael Moran, Emma Lovegrove, Denis Moriarty, Karen Grenham Eimear Binchy, Philip Joyce, Deirdre McDermott, Owen Binchy and and Jonathan Dunphy Maura Derivan
Joe Mannix, James Wolsey and Cliodhna Mulcahy Gareth Noble, Jonathan Dunphy, Brian McKenzie and Nicola Dunphy 42 people and places Law Society Gazette www.gazette.ie June 2011 PIC: ADRIAN DONOHOE Cavan Solicitors’ Association
While Dublin and Moneygall were awaiting the arrival of President Barack Obama, Cavan had its own presidential visit when President of the Law Society, John Costello, visited Cavan, accompanied by director general Ken Murphy. The Cavan Solicitors’ Association (CSA) met at Cavan Courthouse on the evening of Wednesday 18 May. The meeting discussed the proposed financial assistance to the SMDF for its orderly wind-down of business and the proposed master policy for professional indemnity insurance. The meeting was attended by 31 solicitors, including (front, l to r): Aine McGuigan, Damien Rudden, Ken Murphy (director general), CSA president Rory Hayden, John Costello (Law Society president), Helena Brady and Eilis McCabe. (Second row, l to r): Jacqueline Maloney, Paul Carolan, Hugh Thornton, Damien Glancy and Fionnuala Finn. (Third row, l to r): Diane Dawson, Maire Barr, Ronan O’Brien, Aisling Hayes, Rita Martin, Marian O’Donovan-Mackey, John Keaney, Kathleen McCabe-Gibbons, Joan Smith, Brid Brennan and Brid Mimnagh. (Back, l to r): Michael Ryan, John Quigley, Barry McAllister, Aileen Dolan, Brid McQuillan, Mary McAveety, Eirinn McKiernan, Noel O’Gorman, Paul Kelly and Elaine Grills
Meath Solicitors’ Bar Association
At the Meath Solicitors’ Bar Association (MSBA) meeting with Law Society President John Costello and director general Ken Murphy in the Knightsbrook Hotel, Trim, Co Meath on 9 May 2011, were (front, l to r): Áine McCabe, Audrey O’Reilly, Ken Murphy (director general), Anthony Murphy (MSBA president), John Costello (Law Society president), Katie Barbour (MSBA secretary), Elaine Byrne and Cora Higgins. (Middle, l to r): Cliona Martin, Brian Coady, Barry Lysaght, Brendan Steen, Fiona Geraghty, Paul Brady, Peter Higgins, James Martin and Annie Walsh. (Back, l to r): Mark Dillon, Michael Keaveny, Kevin Martin, Liam Keane, Declan Brooks, William O’Reilly, Pat O’Reilly, Raymond Finnegan and Paul Moore Law Society Gazette www.gazette.ie June 2011 people and places 43 PIC: JAMES CONNOLLY, PICSELL8 Sligo Bar Association
Law Society president John Costello and director general Ken Murphy met with members of the Sligo Bar Association (SBA) on 18 May 2011 at the Glasshouse Hotel, Sligo. The meeting discussed many matters, including the wind-down of the SMDF, professional indemnity insurance, Law Society regulations to prohibit solicitors giving ‘commercial undertakings’, the new programme for government and the EU/IMF Programme of Financial Support for Ireland, and Law Society initiatives on sole practitioners. A CPD course followed on ‘Surviving the current climate: PII – learning from 2010 and preparing for 2011’. Attending the event were (front, l to r): Sean Cosgrove, Michael Monahan, Ken Murphy (director general), John Costello (Law Society president), Tom MacSharry (SBA president), Michele O’Boyle, Caroline McLaughlin (SBA secretary), Gerry McCanny, Eoin Armstrong, Eamonn Gallagher and Brian Gill. (Middle, l to r): Declan Gallagher, John Creed, Sinead Travers, Deirdre Munnelly, Lorraine Murphy, Claire Gilligan, Aisling Lupton, Lisa Walsh, Paula Daly, Eamonn Creed, Mark Mullaney and Roger Murray. (Back, l to r): Fergal Kelly, Damien Martyn, Trevor Collins, Noel Kelly, Carol Ballantyne, Kieran Ryan, John Murphy, Donnacha O’Connor, Keenan Johnson and Peter Martin
Hats off to Law Society team on Stetson moot court win! PIC: JASON CLARKE PHOTOGRAPHY Three students from the Law Society of Ireland have won the 15th Stetson International Environmental Law Moot Court Competition. The annual event was held at the University of Maryland School of Law in Baltimore, USA. The three-day event, which took place from 17-20 March 2011, saw teams from Ireland, the United States, Ukraine, the Philippines, Brazil, Zimbabwe, Trinidad and Tobago, India and China compete to be named champions. The team, consisting of Maeve Larkin, Denise Daly and Clare McQuillan, argued successfully in the final against the University of Hawaii to be named winners of the competition. In all, 80 teams from around the world took part in national and regional rounds, with 16 teams qualifying for the Winners of the 15th annual Stetson International Environmental Law Moot Court Competition in Baltimore, USA, were international finals. This year’s (l to r): Clare McQuillan, Law Society Director of Education TP Kennedy (team coach), Maeve Larkin and Denise Daly problem was very topical, dealing with international law governing environmental law. semi-final was against the North took the title after arguing in the oil-spill liability. The preliminary The Society team won its America (Atlantic) champions, international final against a team rounds were judged by professors quarter-final round against Hugh Wooding Law School from the University of Hawaii and practitioners specialised in Ateneo de Manila School of from Trinidad and Tobago. The William S Richardson School of the fields of international law and Law from the Philippines. Their Law Society of Ireland team Law. 44 people and places Law Society Gazette www.gazette.ie June 2011 PICS: CIAN REDMOND
Your run helps them run: Calcutta Run 2011
Given the recession, 900 people made great efforts to raise money for this year’s event and initial figures are looking promising. The grand total will be announced on www. calcuttarun.com in the coming weeks. Every cent raised goes to the GOAL and the Peter McVerry Trust. This is due to the generous support of the event’s sponsors, namely Irishjobs.ie, Bank of Ireland, 1escape Health On Saturday 14 May, ominous the 10k run in aid of homeless Club, DX, Shred-it, the Priory clouds loomed over Blackhall children in Dublin and Calcutta. Clinic, Pearl Audio, N Smyth & Place, prompting anxious faces to Nowadays, 10k runs are in Co and Thornton’s Recycling. wonder whether anyone would vogue, but, 13 years ago, the Thanks to everyone who turn up for this year’s Calcutta original committee was way ahead In addition, just about every took part, to all the helpers and Run? The good news was that the of the curve when it organised profession was represented, volunteers, as well as all the bad weather proved no deterrent its first Calcutta Run. This year, including those working in the families, friends and colleagues for runners and supporters of the RTÉ sports presenter Michael financial services and insurance who sponsored participants, or 13th annual run. Lyster was on hand to give industries. One runner even who made direct donations to the Expectant queues started to everyone their final instructions, completed the entire route charities. Your run helps them form at the registration desks while the MaSamba Drummers running backwards! run! before the registrars had finished kept spirits high. Matt Cooper their briefing sessions. The legal was the man with the gun and he profession and a motley collection was as adept on the trigger as his of friends, family and colleagues namesake Gary! The pistol smoke came out in force to support had barely cleared at the starting line when the rain started to fall, but the plucky runners saw it as an opportunity to stay cool. Snaking through the Phoenix Park’s leafy boulevards, the cavalcade rushed, cantered or strolled towards the finish line. As is customary, the 2011 event comprised an eclectic mix of solicitors, trainees, Law Society staff, families and friends. Top troika: Donald Binchy, John Costello and Kevin O’Higgins Law Society Gazette www.gazette.ie June 2011 people and places 45 Law Society Gazette • Vol 105 No 5 conference call crossing the lion Fly me to the moon Gerald Kean speaks Annual Calcutta Run Shannon Airport and the on networking at the does the business for stopover of extraordinary annual conference the 13th year in a row rendition flights Law Society Law GazetteGazette€3.75 June 2011
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Irish and American lawyers descended on Westport, Co Mayo, in May A copy of the book Child Law by Geoffrey Shannon was presented to for the inaugural US/Ireland Brehon Law Legal Symposium. (From l to r): Uachtarán na hÉireann Mary McAleese, on 20 May. (From l to r): Geoffrey Katie Cadden, Donncha O’Connell, Taoiseach Enda Kenny, Professor Shannon, President Mary McAleese, Catherine Dolan (Round Hall), and Willie Golden and Professor Nollaig Mac Congáil Mark Schlageter (president, Thomson Reuters, Britain and Ireland) P P ic ic : A : L lice ensmen C lancy
The Society’s Student Development Service hosted a seminar for PPCII trainees on 4 May at the Law School. The event focused on how professional legal training can support newly qualified solicitors into At the launch of the book Corporate Crime (Bloomsbury Professional) the future. (From l to r): Antoinette Moriarty, Robert Connolly (Abrivia on 5 May 2011 were (l to r): Judge Doirbhile Flanagan, James Hamilton Recruitment manager), Keith O’Malley and Attracta O’Regan (DPP), Shelley Horan BL (author) and Mr Justice George Birmingham P ic Receiving their : L
ensmen parchments at a Law Society of England and Wales ceremony in Chancery Lane, London were (l to r): Michael Twomey (Arthur Cox), Lucy Scott-Moncrieff (deputy vice-president, Law Society of England and Wales) and Olan Buckley (Harrison O’Dowd Solicitors)
Celebrated human rights lawyer, Gareth Peirce, officiated at the conferral of the Law Society’s Certificate in Human Rights at Blackhall Place on 10 May 2011. (Front, l to r): Betsy Keys Farrell (lead tutor), John Costello (Law Society president), Gareth Peirce, Mr Justice Garrett Sheehan and Ruth Dowling (student). (Back, l to r): Rory O’Boyle (course leader), Sinead Haughey (student), Dr Elaine Dewhurst (lecturer), Patrick J Ryan (student), Patrick Wall (student), Deirdre Kenny (student), Augustus Cullen (student), Joyce Mortimer (human rights executive, Law Society), and Colin Daly (chairman, Human Rights Committee) 48 book reviews Law Society Gazette www.gazette.ie June 2011 Revenue Audits and Investigations – the Professional Handbook Mark Barrett, Tim Quinlivan and Julie Burke (editor). Irish Tax Institute (2010), www.taxireland.ie. ISBN: 978-1-8426-021-26. Price: €35 (incl VAT).
The Code of Practice for Revenue purposes of mitigation of penalties. of qualifying disclosures. It also Audits (2010 code) came into effect This handbook clearly and contains a section dealing with in October 2010, replacing an concisely sets out the tax-geared publication of the names of tax earlier version that had been in penalties regime and the criteria defaulters and (albeit not within effect since 2002. for mitigation of penalties. It the scope of the 2010 code) a short One of the reasons for the shows, for comparison purposes, section on the prosecution of tax replacement of the 2002 code the pre and post-Finance (No 2) Act offences. was the introduction of a new 2008 position in a series of clear While the topic of Revenue
civil penalties regime by the tables. It also helpfully lists, in an audits is not likely to be of Finance (No 2) Act 2008. The new appendix, the legislative sources of concern to most solicitors, the dealing with capital acquisition tax regime included a range of tax- the penalty regimes. analysis of tax-geared penalty and stamp duty matters. geared penalties for tax defaults The book also clearly analyses regimes and mitigation of across most tax heads and various the meaning and consequences of, penalties in the handbook will Emmet Scully is a solicitor at LK categories of default for the and procedures for, the making be useful to solicitors who are Shields.
The National Asset Arbitration and ADR in Management Agency Act Construction Disputes 2009: A Reference Guide Brian Hutchinson. Round Hall (2010), www.roundhall.ie. Máire R Whelan, Mark Kennedy and Feargus Ó Raghallaigh. Gill & Macmillan ISBN: 978-1-8580-061-78. Price: €145 (incl VAT). (2011), www.gillmacmillan.ie. ISBN: 978-0-7171-484-00. Price: €315.
process to award. A useful brief There has been, and continues certainly achieves that objective chapter is also included on to be, vast media coverage and comprehensively. The act is statutory arbitrations, describing analysis of NAMA, but such broken down into each of its the correlation between such coverage has not generally focused 15 constitutive parts. All 241 arbitrations and the 2010 act. on the legal aspects. To this end, sections of the act are reproduced The procedures and practices this work provides us with a and supplemented by general applicable to the various types comprehensive source of legal notes, legal commentary, details of ADR – mediation, conciliation, commentary and guidance. of legislative cross-references expert determination, The book’s stated intention is (including EU provisions), adjudication and the use of that it “is not a textbook; rather, it details of amendments made dispute boards – are well is intended as a practical guide to during the enactment process, canvassed and explored, as are the legislation and an explanation details of relevant provisions of the consequences of the power of its origins, including the the Constitution, and details of Te h construction alternative of the court to refer the parties international context and the relevant case law. dispute resolution (ADR) to ADR as provided in order 56A EU setting, and the economic Regarding the book’s secondary landscape in Ireland has of the Rules of the Superior rationale that underpins it”. aim of providing background, undergone a significant Courts (Mediation & Conciliation) Regarding its principal aim context and economic rationale, transformation in recent years, 2010. The text of the 1954 and as a practical guide, the book each of the three authors has with the advent of the new 2010 Arbitration Acts is also contributed a chapter on the act public works contracts and appended. from the different perspectives the Arbitration Act 2010. This The result is a very rewarding of law, accounting and corporate book provides a comparative and practical reference for governance. These chapters analysis of the dispute the use of arbitration and ADR focus on themes such as state resolution mechanisms under that will be an indispensable aid, the EU dimension and the the Engineers Ireland, RIAI and resource to those who practise or ‘exceptionalist’ nature of the act public works contracts and a have an interest in this area. and would be an interesting read detailed account of the law and not only for legal practitioners but practice of arbitration under James Kinch is a member of the also for most Irish citizens. G both the 1954 and 2010 acts, Law Society’s Arbitration and from the initiation of the arbitral Mediation Committee. Peter O’Toole is a solicitor in A&L Goodbody. Law Society Gazette www.gazette.ie June 2011 reading room 49 Preserving the past for the future The library has an ongoing programme of repair news and restoration of old leather-bound books, •L inkedIn: the library has created and developments. writes Mary Gaynor a group on the LinkedIn profes- • Electronic precedents in sional network (www.linkedin.com) MS Word – available from Laffoy, as a forum for discussion of library Irish Conveyancing Precedents Mary Gaynor joints of the covers to weaken services among members, trainees (LexisNexis), Encyclopedia is head of and become detached from and legal information professionals of Forms and Precedents library and the books”. Material from this within law firms. We welcome (LexisNexis) and Practical information period has also suffered over new participants to the group. Commercial Precedents (Sweet services at the the years from manipulation The discussion forum will be & Maxwell). Contact the library Law Society of for photocopying purposes and used to invite comments and for further details; tel: 01 Ireland fluctuations in temperature and suggestions and to convey 672 4841, email: humidity. news on library library@law During 2010, repair and services society.ie. n 1895, a catalogue of restoration work began, which materials held by the has strengthened and enhanced Ilibrary was compiled by the the condition of these volumes librarian, Samuel W Evans. It for preservation into the future. shows an entry under ‘Irish acts’ The volumes were surface for the statutes at large passed in cleaned to remove grime, dust the parliaments held in Ireland and dirt, and repairs have been from 1310-1800: 21 volumes, made to the original bindings edited by William Ball and to a high archival standard. printed by George Grierson in This has now been completed. incomplete, as three volumes are executive assistant librarian, who Dublin between 1786 and 1804. Thanks to scanning techniques, missing. is responsible for library binding, Whether the corresponding most of the acts from this The library has an ongoing says that “during the next two set of volumes still in the library period that are still required by programme of repair and years, it is hoped to concentrate is the set listed in the 1895 practitioners are readily available restoration of old leather-bound on the acts of the United catalogue is doubtful, as virtually from the library in PDF format, books, and many volumes of Kingdom of Great Britain and all of the library stock was and photocopying from these law reports and journals have Ireland for the period 1801-1829, destroyed in the Four Courts volumes will not be required in been repaired or re-backed over which require fairly substantial fire in 1922. It is more likely future. Unfortunately, the set is the last decade. Eddie Mackey, refurbishment”. G that this set of volumes is the series included in a list in the Just published Gazette in March 1926 (pp39- 40) as having been added to the library since March 1925. Some New books available to borrow evidence suggests that they may • Andrew, Jill (ed), Managing People in a Legal (Oxford: OUP, 2011) have originally been owned by Business (London: Law Society, 2010) • Raz, Joseph, The Authority of Law: Essays on a prominent firm of Kilkenny • Bariatti, Stefania, Cases and Materials on EU Law and Morality (2nd ed) (Oxford: OUP, 2009) solicitors – one of the volumes Private International Law (Oxford: Hart, 2011) • Sachs, Albie, The Strange Alchemy of Life and has a GS & WR train ticket ‘to • Bracken, Tim and Margaret Campbell, The Law (Oxford: OUP, 2009) Kingsbridge’ firmly embedded in Probate Handbook (Dublin: Clarus Press, 2011 • Smith & Williamson, Professional Practices the outer leather binding, which • Dworkin, Ronald, Law’s Empire (Oxford: Hart Handbook (6th ed) (Haywards Heath: suggests that they may have taken Publishing, 1986 (Reprint, 2010)) Bloomsbury Professional, 2011) a train journey to Dublin many • Fox O’Mahony, Lorna, The Idea of Home in • Stewart, Heather, Client Service for Law Firms years ago! Law: Displacement and Dispossession (London: (London: Law Society, 2011) The passage of time has not Ashgate, 2011) • TCD School of Law, seminar papers on planning been kind to these volumes. • Horan, Shelley, Corporate Crime (Haywards law (Jan 2011), civil partnerships (Apr 2011), Charles Dunn, managing Heath: Bloomsbury Professional, 2011) tort litigation (Mar 2011) director of Riley Dunn & • Hopper, Andrew, The Solicitor’s Handbook • Van Dokkum, Neil, Nursing Law for Students in Wilson, has advised the library 2011 (London: Law Society, 2011) Ireland (2nd ed) (Gill & Macmillan, 2011) on conservation of these volumes. • Kenna, Padraic, Housing Law: Rights and • W alden, Julia, Credit Management in Law He explains that “leather-bound Policy (Dublin: Clarus Press, 2011) Firms (2nd ed) (London: Nova Law & Finance, books from this period show • Godfrey, Gwendoline (ed), Neate and Godfrey: 2010) distinctive symptoms, including Bank Confidentiality (5th ed) (Haywards Heath: • W eedle, Peter and Leonie Clarke (eds), ‘red rot decay’, which causes Bloomsbury Professional, 2011) Pharmacy and Medicines Law in Ireland the leather surface to become • Olivares-Caminal, Rodrigo, Debt Restructuring (London: Pharmaceutical Press, 2011) a red powdery mess and the Technology commiTTee
CuTTinGcutting edgeEdGE geTTinggetting The the BesT best ReTuRn from fRom your youR technology Technology
Venue: Green Hall Law Society, Blackhall Place, Dublin 7 Date: Friday 24th June, 1.45pm. to 5.30pm Fee: €95.00 3 hours & 15 minutes Management and Professional Development Skills by Group Study CPD Hours: Most practitioners have invested substantially in office technology. This seminar will look at ways to ensure you get the best return from your investment. What are the current issues and developments in technology as it applies to a legal practice? How can you use innovative ways to communicate with clients? Is there really such a thing as the “paperless office”? A practical and stimulating afternoon which will encourage new thinking in the use of existing technology and assist you in operating a cost efficient practice. programmePRogRamme
1.45 Registration
2.00 Chairman’s Introduction – Frank Nowlan, AB Wolfe & Co
2.15 Using Technology in Recessionary Times This session will provide an overview of key issues and developments in the use of technology within the legal sector. The session will include an overview of how a firm can leverage developments in client and practice management systems, accounts and other key applications to improve profitability and cashflow. Donal Maher, Outsource Consultants
3.00 Up in the Clouds – Can cloud computing assist the legal profession? It looks like cloud computing is here to stay. This session will identify what cloud computing actually consists of and how it is relevant to the legal profession. The session will consider practical issues surrounding cloud computing including licensing arrangements and security issues. Tom Heerey, General Counsel, Legal & Corporate Affairs, Microsoft Ireland
3.45 Coffee
4.00 The “Paperless Office” – Does it really exist? Is it possible to function as a legal practice with minimal use of paper? A practitioner with significant experience in this area will provide an overview of how he has introduced paperless systems in his practice. The session will provide practical experience in the set up and operation of such systems. Laurence Fenelon, Leman Solicitors
4.45 Online Marketing and the Legal Sector The session will look at ways in which you can better communicate with clients and promote your practice online. It will include an overview on how to successfully and quickly build a web presence using traditional web tools and blogs or wikis. The session will also consider the potential for use of social networking tools such as Facebook, Twitter and Linked In by the legal profession. Martin Molony, Dublin City University
5.30 Questions & Answers
Technology committee Cutting Edge – Getting the Best Return from your Technology
Venue: Green Hall, Law Society, Blackhall Place, Dublin 7. Time: 1.45p.m. to 5.30p.m. Date: Friday 24th June, 2011 Fee: €95.00
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Please return to Veronica Donnelly, Law Society of Ireland, Blackhall Place, Dublin 7. Email: [email protected] Law Society Gazette www.gazette.ie June 2011 practice notes 51 briefing Practice notes Transfers by housing Heading letters in authority or Affordable Home conveyancing transactions Partnership now stampable ‘without prejudice’ conveyancing Committee conveyancing Committee The Conveyancing Committee lations 2009 (SI no 476 of 2009) The Conveyancing Committee has settling the dispute. would like to highlight the has been amended by the Stamp been asked to express a view as to The committee cannot see recent e-brief from Revenue Duty (E-stamping of Instruments) the significance of correspondence any justification for the use of regarding the changes in stamp (Amendment) Regulations 2011 (SI passing between solicitors during the words ‘without prejudice’ in duty for transfers by a local no 87 of 2011). the negotiation of contracts for the heading of correspondence authority or the Affordable The regulations now provide the sale of land being headed between solicitors engaged in the Homes Partnership, whereby that only instruments to which ‘without prejudice’ in addition to, negotiation of a contract for the sale such transfers are now stampable. section 106B(2) of the Stamp or in substitution for, ‘subject to of land, and believes that the use of There has been no change Duties Consolidation Act 1999 contract’. such words is mistaken and will not regarding transfers to a local apply (that is, transfers to a Correspondence between confer any benefits on the parties authority or the Affordable housing authority or to the AHP) parties to a dispute, which is whose solicitors are using them. Homes Partnership – the position do not have to be stamped. entered into with a view to The committee recommends that remains that these need not be Accordingly, any instrument settling the dispute, is regarded solicitors should cease using such stamped. See the details as set out executed on or after 1 April as being made without prejudice words in correspondence leading in Revenue’s e-brief below: 2011 that gives effect to the and cannot normally be opened to to the creation of a contract. conveyance, transfer or lease a court dealing with the dispute. The committee is aware that “Revenue eBrief no 15/11 of a house, building or land The mere use of the words does some solicitors have been adding 15 March 2011: by a housing authority or not mean that the correspondence the words ‘without prejudice’ to Stamp duty on transfers of the Affordable Homes Partner- must automatically be regarded their replies to pre-contract enqui- property by housing authorities ship (AHP) must be stamped as being without prejudice – the ries. This is entirely inappropriate. the Affordable Home Partnership through the e-stamping system court will always reserve the A prospective purchaser is entitled Paragraph 3 of schedule 1 to and any stamp duty, up to a right to examine the correspond- to get clear and unequivocal replies the Stamp Duty (E-stamping of maximum of €100, must be ence to see it was genuinely from the prospective vendor to Instruments) Regulations 2009 (SI paid.” entered into with a view to such enquiries. no 476 of 2009) lists instruments that do not have to be stamped using the e-stamping system. They include instruments giving New and revised family law Cloud effect to the conveyance, transfer or lease of a house, building or declarations: civil partnership computing land to or by a housing authority or the Affordable Homes and cohabitants consultation Partnership (AHP). conveyancing Committee technology Committee However, with effect from 1 April 2011, section 64 of The Conveyancing Committee single people, while others are The Technology Committee wish- the Finance Act 2011 (which has recently published a new set new declarations to cater for es to draw the attention of practi- amended section 106B of the of precedent family law declara- civil partners and for co- tioners with an interest in ‘cloud Stamp Duties Consolidation Act tions to take account of the Civil habitants. computing’ to the European Com- 1999): Partnership and Certain Rights It is vital for practitioners to mission’s recently launched consul- 1) Removed the stamp duty and Obligations of Cohabitants Act take full and detailed instructions tation process. On 16 May 2011, exemption that applied on 2010. These can be found in the of clients’ history of marriage, as part of its ‘digital agenda’ the the transfer of property by a precedents section and on the civil partnership and cohabita- European Commission launched housing authority or the AHP, committee’s page in the mem- tion. a public consultation seeking views and bers’ area of the Law Society’s The precedents are drafted to on how best to exploit cloud com- 2) Limited the stamp duty website. deal with most routine situations, puting in Europe. payable on such transfers to a A table of all current declara- but practitioners should adapt For those interested in par- maximum of €100. tions is also published as a basic them to meet the facts of individ- ticipating, the online question- guide to use of the precedents. ual cases as necessary, and it may naire can be found at: http://ec. As a result of these changes, Some of the precedents are be appropriate, in some cases, to europa.eu/yourvoice/ipm/forms/ paragraph 3 of the Stamp Duty revised versions of pre-exist- use parts of two or more prec- dispatch?form=cloudcomputing& (E-stamping of Instruments) Regu- ing declarations for married or edents. lang=en. 52 practice notes Law Society Gazette www.gazette.ie June 2011 briefing
Guidance on the ‘virtual’ execution of documents business law Committee This note offers general guidance execute a complete and amended the signature and attestation to very particular circumstances, only. A particular document may final version of the deed because form part of the same physical has led to discussion about the require specific execution formalities section 1(3) of the British document when the deed is effectiveness of the use of pre- or may specify its own procedures, Law of Property (Miscellaneous signed. Accordingly, the Mercury signed signature pages and restrictions or requirements, Provisions) Act 1989 required decision, while concerned with virtual signings and completions and so every transaction must be approached on its facts. Also, this note does not address regulatory summary or tax considerations that may be relevant to execution and completion. Option Steps Documents This note applies only to the Option 1 (return • Once the documents have been agreed, final execution Option 1 may be used execution of a document that is the entire PDF/ versions are emailed to the parties and/or their lawyers. for any document or governed by Irish law. This is an Word document • For convenience, a separate extracted signature page may deed, ie including: evolving area of law. You should and a PDF of also be attached to the email, but this is not necessary. • A deed, keep up-to-date with any relevant the signed • Each authorised signatory prints and signs the signature • A real estate contract, developments. signature page) page. If appropriate, the signing may need to take place in • A guarantee (whether The recent British case R the presence of a witness. a deed or in simple (Mercury Tax Group and Another) • The signature page is then scanned and returned by email contract form), v HMRC1 (Mercury) has cast • A simple contract. doubt on the effectiveness of the together with the whole document previously emailed to practice of ‘virtual’ signings and the signatory. (For a deed, make it clear when delivery is completions where some or all of to occur.) the signatories involved are not • See suggested wording for covering email (panel, p53) present either physically or by Option 2 • Once the documents have been agreed, final execution Option 2 may be used attorney at the same meeting. (return a PDF versions are emailed to the parties and/or their lawyers. for: In circumstances where it is of the signed • For convenience, a separate extracted signature page may • A guarantee (in not practical to have all parties in signature page also be attached to the email, but this is not necessary. simple contract form attendance at completion, parties only) • Each authorised signatory prints and signs the signature only), to a transaction often arrange for: page. • A simple contract, • Signature pages to transaction • The signature page is then scanned and returned by • A real estate contract, documents to be executed in email, together with authority for it to be attached to the advance and then transferred to final approved version of the document. (The degree of Option 2 may not be the final form of the documents formality required for this authority will depend on the used for a deed (of any once the transaction is ready circumstances.) type).6. for completion (the signature pages being then circulated Option 3 (use • Before the documents are in final agreed form, signature Option 3 may be used by email or fax to the various a pre-signed pages from the drafts are emailed to the parties and/or their for: parties upon completion), and/ signature lawyers. • A guarantee (in or page and an • Each signature page should, as a matter of good practice, simple contract form • Final form documents to authority to clearly identify the document to which it relates, for only), be emailed to the parties by add it to the example: ‘Credit Agreement: Signature Page’. • A simple contract, the lawyers drafting them document as • The signature page is executed by each authorised • A real estate contract. and executed by the parties agreed) signatory and then returned by email (or, if there is time, remotely (the signature pages by courier), to be held to the order of the signatory (or his Option 3 may not be being then circulated by email lawyers) until authority is given for it to be attached to the used for a deed (of any or fax upon completion). relevant document. type).7 • Once each document has been finalised, final versions are Background emailed to the parties and/or their lawyers. Mercury was a first-instance • Each party should confirm that the final version of the decision and the comments document is agreed and authorise the attachment of concerning virtual execution the pre-signed signature page to the final version of the were obiter dicta. The court in document and authorise it being dated. (The degree of Mercury held that the signature formality required for this authority will depend on the on an incomplete draft deed circumstances.) could not be transferred to Law Society Gazette www.gazette.ie June 2011 practice notes 53 briefing
where signature pages are sent or limited to its particular facts and should always be the preferred For options 1 and 2, you should transmitted by email or fax. The that, to the extent that Mercury is completion method. In the ensure that signatories have Mercury decision is a cautionary inconsistent with Koenigsblatt, the alternative, attorneys should access to a PDF scanner. tale against the practice of the latter should prevail. Koenigsblatt be formally appointed by the Note: for registration and transfer of signature pages upheld a contract that had been relevant parties and the attorneys other purposes, a ‘wet-ink’ from one version of a written altered by a party’s agent after should be physically present for signature by every party may contract to another without signing, the party having ratified the purposes of completion. be required on a document, proper procedures being agreed the alteration thereafter. If, however, neither of so appropriate undertakings in advance and complied with at these options is practical, should be sought to obtain completion. The approach in Ireland then practitioners in this same, post-closing. The Law Society of Ireland, jurisdiction should have regard Caution: Prior to giving any British guidance mindful both of Mercury and also to the options as set out below undertaking to forward original In response to concerns raised of the potential interpretation and agree, in advance of executed documents, it is in Britain, the Law Society of of the execution provisions completion, which option, recommended that the solicitor England and Wales (LSEW) of section 64 of the Land and or any other method deemed should obtain an undertaking has issued guidelines outlining a Conveyancing Reform Act 2009, appropriate in any particular in writing from his/her client non-exhaustive range of options endorses the position adopted circumstance, will be employed to send the original signed for the execution (by virtual in the Guidance in respect of and proceed to effect the document to his/her solicitor means) of documents governed documents governed by Irish appropriate steps: by courier/post on the day by English law (the Guidance).2 law, but, in respect of Irish law, • Option 1 (may be used for the PDF document is released The Guidance was drafted to the Law Society advises that a document of any type): or the next business day allay concerns following the options 2 and 3 below may also return the entire PDF/Word thereafter. Mercury case and with a view to properly be used to execute document and a PDF of the In reliance on this undertaking, facilitating the continuation of real estate contracts (which the signed signature page, the solicitor should then only the practice of virtual signings LSEW excludes from options • Option 2 (may be used for a undertake to forward the and closings. 2 and 3 on the basis of English document of any type except original document if and when The Guidance confirms that the law).4 a deed): return a PDF of the received. decision in Koenigsblatt v Sweet3 signed signature page only, Whichever option is used, remains the leading authority The suggested procedure • Option 3 (may be used for the solicitor who is arranging to on the execution of documents, The physical presence of all a document of any type have a PDF version of the signed that Mercury should be seen as parties at the execution stage except a deed): use a pre- signature page sent should signed signature page and ensure that his or her client has an authority to add it to the approved the finally agreed terms template wording for an email relating to option 1 document as agreed. of the entire document. G We attach the execution version[s] each complete document in the of [ ... ]. form attached to this email, A detailed explanation of each Footnotes Please ensure that [you/your c) [You authorise/your client option is set out in the panel on 1 [2008] EWHC 2721. client]: authorises] us, without further the previous page. 2 www.lawsociety.org.uk/prod- Print(s) off [the/each] document notice to [you/your client], at The options suggested below uctsandservices/practicenotes/ in full, closing to release the copies are practical and are for the executionofdocs. Sign(s) [the/each] document on the of each signed signature page most part already being followed 3 [1932] 2 Ch 314. signature page, to each other party and to date in practice in Ireland and in 4 The provisions of the Law of 5 Return(s) to [ ... ], by fax or email, each document accordingly; on England and Wales. Property (Miscellaneous Provi- copies of [the/each] complete our doing so, [you/your client] For each of the options where sions) Act 1989. document, and will be bound by the terms of a contracting party cannot attend 5 The inclusion of a ‘counter- Return(s) the original executed of that document, the closing meeting in person, it parts clause’ in transaction [the/each] document to [ ... ], by d) In the case of any document is recommended that such party agreements is recommended. post or courier, by [date]. which is a deed, its release and is made aware of the need for Such a provision clarifies that dating constitutes delivery of the someone suitably authorised to separate copies of an agree- The return by [you/your client] of a deed by [you/your client] or by be available remotely (such as ment may be executed by dif- PDF or faxed copy of each signed the person on whose behalf the online) at the time of the virtual ferent parties and each copy signature page and each fully deed was signed, and closing in order to: will be considered to be an executed document will constitute e) [You/your client] will send each a) Receive and approve final original. confirmation that: original signed signature page versions of the documents, 6 Options 2 and 3 may not be a) [You/your client] approve(s) the for the contractual documents b) Sign the relevant documents used for a deed of any type relevant document, and in the case of the deeds, the under options 1 and 2, or because of the view that a b) In the case of the deeds, [you executed document to us by post c) Authorise the release of the signature on an incomplete have/your client has] executed or courier by [date]. pre-signed signature pages deed is not valid. under option 3. 7 See footnote 6. 54 legislation update Law Society Gazette www.gazette.ie June 2011 briefing Legislation update 9 April – 11 May 2011
Details of all bills, acts and statutory instruments since 1997 Regulations 2011 Number: SI 172/2011 are on the library catalogue – www.lawsociety.ie (members’ and Number: SI 183/2011 Content: Requires learner students’ area) – with updated information on the current stage a Content: Implements Directive drivers in future – that is, learn- bill has reached and the commencement date(s) of each act. All 2009/110 (Electronic Money Di- er drivers whose first learner recent bills and acts (full text in pdf) are on www.oireachtas.ie rective) on the taking up, pursuit permit is issued on or after 4 April and prudential supervision of the 2011 – to undergo essential driver and recent statutory instruments are on a link to electronic business of electronic money in- training before sitting a driving statutory instruments from www.irishstatutebook.ie stitutions. test. Commencement: 30/4/2011 Commencement: 4/4/2011 act pASSED force in September 2011. The bill Road Traffic Act 2011 also clarifies the position regard- Immigration Act 2004 (Visas) Road Traffic (Courses of Number: 7/2011 ing mandatory preliminary breath Order 2011 Instruction) (Learner Permit Content: Provides for the testing and the powers of arrest Number: SI 146/2011 Holders) Regulations 2011 amendment to existing legislation conferred by law on the Garda Content: Classifies the classes Number: SI 173/2011 (sections 12 and 15 of the Road Síochána. of non-nationals who are exempt Content: Requires learner Traffic Act 1994) to permit the Enacted: 27/4/2011 from Irish visa requirements and drivers in future – that is, learn- early introduction of the manda- Commencement: Commence- those who are required to be in er drivers whose first learner tory alcohol testing of drivers of ment order(s) required as per s5 possession of a valid Irish transit permit is issued on or after 4 April mechanically propelled vehicles of the act visa when transiting within a port 2011 – to undergo essential driver in certain circumstances, includ- within the State. training before sitting a driving ing involvement in road traffic SELECTED STATUTORY Commencement: 25/4/2011 test. collisions, in advance of the pro- INSTRUMENTS Commencement: 4/4/2011 visions contained in part 2 of the European Communities Road Traffic (Courses of Instruc- Road Traffic Act 2010 coming into (Electronic Money) tion) (Cars) Regulations 2011 Prepared by the Law Society Library
job-seekers’ legal register vacancies For Law Society members seeking For Law Society members to advertise a solicitor position, full-time, part-time for all their legal staff requirements, or as a locum not just qualified solicitors
Log in to the members’ register of the Law Society Visit the employment section on the Law Society website, www.lawsociety.ie, to upload your website, www.lawsociety.ie, to place an ad or CV to the self-maintained job seekers contact employer support by email on register within the employment [email protected] section or contact career or tel: 01 672 4891. You support by email on can also log in to the members’ [email protected] or area to view the job seekers tel: 01 881 5772. register. Law Society Gazette www.gazette.ie June 2011 legislation update 55 briefing
One to watch One to watch: new legislation European Communities (Electronic state that is not acting in its ca- cant has established to comply money holder’s on whose behalf Money) Regulations 2011 pacity as a monetary authority, or with its obligations in relation to the funds are held, and (b) if still Directive 2009/110/EC on the tak- other public authority, money laundering and terrorist fi- held by the electronic money in- ing up, pursuit and prudential su- • A member state, or a regional or nancing, stitution and not yet delivered to pervision of the business of elec- local authority of a member state, • A description of the applicant’s the payee or transferred to another tronic money institutions has been that is acting in its capacity as a structural organisation, includ- electronic money institution by implemented in Ireland by way of the public authority, ing, if applicable, a description the end of business day after the European Communities (Electronic • A credit union, of the intended use of agents and day of receipt, shall be deposited Money) Regulations 2011. The regu- • A person that has been registered branches and a description of any in a separate account in a credit lations are effective from 30 April after qualifying as a small elec- outsourcing arrangements, institution or invested in assets 2011. The Central Bank will be the tronic money institution under • Names and details of each person accepted by the Central Bank of competent authority for the purpose regulation 33, holding in the applicant, directly Ireland as secure and low risk, or of the Electronic Money Directive. • A person for the time being per- or indirectly, • Users’ funds shall be insured by an mitted under part 6 to issue e- • Names and details of each director insurance company or guaranteed Electronic money money, or or other person responsible for the by a credit institution that does not Under the regulations, ‘electronic • An e-money institution authorised management of the applicant, belong to the same group as the money’ means electronically (includ- as such in another member state • The name of the person who will electronic money institutions. ing magnetically) stored monetary pursuant to a law giving effect to carry out for the applicant the value as represented by a claim on the Electronic Money Directive. functions of audit required by the Registration the electronic money issuer that: Companies Acts, The regulations contain a waiver in • Is issued on receipt of funds for Authorisation of electronic money • The applicant’s legal status and relation to small electronic money the purpose of making payment institutions memorandum and articles of as- institutions (in terms of authorisation transactions, An application for authorisation as an sociation or other constitutional and safeguarding requirements). A • Is accepted by a person other than electronic money institution shall be documents, person qualifies as a small electronic the electronic money issuer, and directed to the Central Bank of Ire- • The address of the applicant’s money institution if: • Is not excluded by regulation 5. land and shall contain the following: head office. • The total business activities of the • A programme of operations, person immediately before the Persons that may issue electronic • A business plan, Initial capital time of registration do not gener- money • Evidence that the applicant holds The Central Bank of Ireland shall not ate average outstanding electronic • A credit institution (within the initial capital, authorise an applicant as an e-money money that exceeds €1 million, meaning of Directive 2006/48/EC, • For some applicants (those to institution unless the applicant holds and which includes a branch located which regulations 29 and 30 ap- initial capital of at least €350,000. • The average amount of payment in a member state of a credit in- ply), a description of the measures transactions executed by the per- stitution having its head office in taken for protecting electronic Safeguarding requirements son and any agent for which the or elsewhere than in a member money holders’ funds, According to section 29 of the regu- person bears full responsibility state), • A description of the applicant’s lations, an electronic money institu- during the previous 12 months, • An electronic money institution as governance arrangements and tion that is engaged in the issuance or the average amount of payment defined in article 2 of the E-Money internal control mechanisms, of electronic money shall safeguard transactions likely to be executed Directive, including administrative, risk- user’s funds in either of the follow- by the person within the next 12 • An Post, management and accounting pro- ing ways: months, assessed on the projected • The Central Bank of Ireland, the cedures, • Users’ funds (a) shall not be mixed total amount of payment transac- European Central Bank, or the • A description of the internal con- at any time with the funds of any tions in its business plan, is not central bank of another member trol mechanisms that the appli- person other than the electronic more than €3 million per month. G
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The Consult a Colleague helpline is available to assist every member of the profession with any The service is completely confidential and problem, whether personal or professional totally independent of the Law Society 56 regulation Law Society Gazette www.gazette.ie June 2011 briefing Solicitors Disciplinary Tribunal
Reports of the outcomes of Solicitors Disciplinary Tribunal The reasons for the tribunal’s only to practise as an assistant inquiries are published by the Law Society of Ireland as provided opinion that it was appropriate to solicitor for ten years under the for in section 23 (as amended by section 17 of the Solicitors make such an order were as fol- direct control and supervision (Amendment) Act 2002) of the Solicitors (Amendment) Act 1994 lows: of another solicitor of at least i) The activity complained of ten years’ standing, to be ap- In the matter of Charles A Kel- deed was submitted to the Rev- within the practice would ap- proved in advance by the Law ly, solicitor, practising as Doug- enue in May 2005, pear to have been the exception Society of Ireland, las Kelly & Son, Solicitors, e) In the course of acting for a rather than the rule in view of 2) The respondent solicitor do Swinford, Co Mayo, and in named client in a purchase of the number of incidents taken pay the sum of €50,000 to the the matter of the Solicitors Acts property, the question of inter- into account in comparison to Compensation Fund of the Law 1954-2002 [2512/DT20/08 and est and penalty on the stamp the firm’s turnover, Society – that he have three High Court record no 2009 no duty of €22,500 was avoided ii) The respondent solicitor had months to pay same, 1 SA] because he ‘updated’ the deed a 20-year unblemished record, 3) The Law Society do recover Law Society of Ireland (applicant) from on or about 2 December despite being audited by the the cost of the High Court Charles A Kelly (respondent 2004 to a date close to when the Society during that period, proceedings and the cost of the solicitor) deed was submitted to the Rev- iii) The respondent solicitor proceedings before the Solici- On 26 November 2008, the Solic- enue in December 2005, would appear to have cooper- tors Disciplinary Tribunal when itors Disciplinary Tribunal found f) In the course of acting for a ated with the investigation, taxed and ascertained. the respondent solicitor guilty of named client in the purchase of iv) The respondent solicitor took misconduct in his practice as a so- three properties, the question appropriate and prompt steps In the matter of Daniel J Cole- licitor, in that he: of interest and penalty on the to address and rectify matters man, solicitor, formerly practis- a) In the course of acting for stamp duty of €4,493 on each with the Revenue Commis- ing as Coleman & Co, Solici- named clients in a purchase of of the properties was avoided sioners to their satisfaction, tors, Main Street, Baltimore, property, the question of inter- because the deeds were ‘updat- and Co Mayo, and in the matter of est and penalty on the stamp ed’ from on or about 7 January v) The respondent solicitor ap- the Solicitors Acts 1954-2008 duty of €7,110 was avoided 2005 to a date close to when pears to have submitted the [8347/DT20/09 and High because he ‘updated’ the deed the deeds were submitted to the documents for stamping short- Court record no 2010/65SA] from on or about 31 March Revenue in July 2005, ly after being put in funds by Law Society of Ireland (applicant) 2000 to a date close to when g) In the course of acting for the client. Daniel J Coleman (respondent the deed was submitted to the named clients in a purchase of solicitor) Revenue in August 2005, property, the question of inter- The Society applied to the Presi- On 10 February 2010, the Solici- b) In the course of acting for a est and penalty on the stamp dent of the High Court for: tors Disciplinary Tribunal found named client in a purchase of duty of €22,320 was avoided i) Orders rescinding or varying the respondent solicitor guilty of property, the question of inter- because he ‘updated’ the deed that part of the order of the misconduct in his practice as a so- est and penalty on the stamp from on or about 13 December tribunal whereby the tribunal licitor in that he: duty of €13,300 was avoided 2004 to a date close to when the censured the respondent so- a) Caused or allowed the name because he ‘updated’ the deed deed was submitted to the Rev- licitor and imposed a monetary of another named solicitor to from on or about 20 July 2005 enue in July 2005, penalty of €15,000, and be written on contracts for sale to a date close to when the deed h) In the course of acting for a ii) An order prohibiting the re- dated 19 May 2004 without the was submitted to the Revenue named client in a purchase of spondent solicitor from prac- authority of that solicitor, in December 2005, property, the question of inter- tising on his own account as a b) Caused or allowed a fictitious c) In the course of acting for a est and penalty on the stamp sole practitioner or in partner- contract, dated 19 May 2004, named client in a purchase of duty of €17,910 was avoided ship and placing a restriction to come into existence and property, the question of inter- because he ‘updated’ the deed on the practising certificate purportedly made between the est and penalty on the stamp from on or about 12 April 2005 of the respondent solicitor re- complainant’s clients and that duty of €12,000 was avoided to a date close to when the deed quiring that he be in the direct other solicitor in trust for the because he ‘updated’ the deed was submitted to the Revenue employment of another solici- purpose of misleading ACC from on or about 7 April 2004 in September 2005. tor of at least ten years’ stand- Bank into advancing monies to to a date close to when the deed ing, inter alia on the ground a named client, knowing that was submitted to the Revenue The tribunal ordered that the re- that the sanction imposed by the sale of the land from that in February 2006, spondent solicitor: the tribunal was inadequate in named client had not closed and d) In the course of acting for a a) Do stand censured, all the circumstances. that the dwelling units had not named client in a purchase of b) Pay a sum of €15,000 to the been constructed, property, the question of inter- compensation fund, On 2 March 2009, the President c) Destroyed a file consisting of est and penalty on the stamp c) Pay the whole of the costs of of the High Court ordered that: merely three contracts relating duty of €5,286 was avoided the Law Society of Ireland, 1) The respondent solicitor shall to the contested contract, dated because he ‘updated’ the deed as taxed by a taxing master of not be permitted to practise as a 19 May 2004, without the ex- from on or about 16 December the High Court, in default of sole practitioner or in partner- press or implied instructions of 2004 to a date close to when the agreement. ship and that he be permitted both parties and, in particular, Law Society Gazette www.gazette.ie June 2011 regulation 57 briefing
the complainant’s named clients, sion of the President of the High iii) That the respondent solici- On 9 March 2011, the Solicitors d) Acted for both the vendor/ Court under Supreme Court ap- tor pay the whole of the costs Disciplinary Tribunal found the builder, a named client, and pur- peal number 319/2010. of the Law Society of Ireland, respondent solicitor guilty of mis- chasers of 13 newly constructed including witness expenses, to conduct in his practice as a solici- houses at Galway Road, Tuam, In the matter of Daniel J Cole- be taxed by a taxing master of tor in that: Co Galway, involving himself man, solicitor, formerly practis- the High Court, in default of 1) An amount of €1,184 remains in in a possible conflict of interest ing as Coleman & Co, Solici- agreement. the possession of the respondent contrary to the provisions of ar- tors, Main Street, Ballinrobe, solicitor to this day, and he has ticle 4(a) of the Solicitors (Profes- Co Mayo, and in the matter of On 26 July 2010, the President of made no effort whatsoever to sional Practice, Conduct and Disci- the Solicitors Acts 1954-2008 the High Court ordered that: rectify the matter in question. pline) Regulations 1997, SI no 85 [8347/DT89/09 and High 1) The name of the solicitor be 2) The respondent solicitor re- of 1997. Court record no 2010/66SA] struck from the Roll of Solici- ceived €1,400 from the Law Law Society of Ireland (applicant) tors, Society that was held in the ac- The tribunal directed that: Daniel J Coleman (respondent 2) The respondent do pay the sum counts of a named firm of solici- i) The respondent solicitor is not solicitor) of €320,000 in restitution to a tors. The applicant paid €1,400 a fit person to be a member of On 25 February 2010, the Solici- named credit union, to a named solicitor when the the solicitor’s profession, tors Disciplinary Tribunal found 3) The respondent pay the ap- applicant purchased a property. ii) The name of the respondent the respondent solicitor guilty of plicant the costs of the Solici- The named solicitor failed to solicitor be struck off the Roll misconduct in his practice as a so- tors Disciplinary Tribunal, to complete the necessary work of Solicitors, licitor, in that he: include witness expenses, same in order that the applicant be iii) The respondent solicitor pay a) Failed in a timely fashion or at to be taxed in default of agree- registered as owner of the prop- the whole of the costs of the all to comply with an under- ment, erty. It is quite evident from the Law Society of Ireland (to in- taking given by him in a letter 4) The respondent solicitor pay correspondence between the re- clude the Law Society’s costs dated 6 February 2004 to the the applicant the costs of the spondent solicitor and the Law of the adjourned hearing of 26 complainant, whereby he un- High Court proceedings, same Society, and in particular one of November 2009), to be taxed dertook to hold the title deeds to be taxed in default of agree- the Society’s investigating ac- by a taxing master of the High in respect of an identified folio ment, countants, that the €1,400 was Court in default of agreement. in trust to the order of a named 5) That a named firm of solicitors to be rightfully returned to the credit union, be notified as to the making of applicant, yet it remains in the On 26 July 2010, the President of b) Failed to adequately respond to the order, possession of the respondent the High Court ordered that: the complainant’s correspon- 6) Liberty to apply to both parties. solicitor to this day. 1) The name of the solicitor be dence and, in particular, the 3) The respondent solicitor has struck from the Roll of Solici- complainant’s letters dated 31 Subsequent to the making of that refused to acknowledge writ- tors, January 2008 and 1 September order, the respondent solicitor has ten correspondence that the 2) The respondent pay the ap- 2008, lodged an appeal against the deci- applicant sent to his office by plicant the costs of the Solici- c) Failed to reply adequately to sion of the President of the High registered post requesting rea- tors Disciplinary Tribunal, to the Society’s correspondence, in Court under Supreme Court ap- sonable information in rela- include witness expenses, same particular, letters dated 30 Janu- peal number 318/2010. tion to the applicant’s file. The to be taxed in default of agree- ary 2009, 3 March 2009 and 6 respondent solicitor failed to ment, April 2009. In the matter of Frank McArdle, communicate with his client in 3) The respondent do pay to the solicitor, of McArdle & Associ- a reasonable manner. applicant the costs of the High The tribunal directed: ates, 10 Roden Place, Dundalk, Court proceedings, same to be i) That the respondent solicitor Co Louth, and in the matter of The tribunal ordered that the re- taxed in default of agreement. is not a fit person to be a mem- the Solicitors Acts 1954-2008 spondent solicitor: ber of the solicitors’ profession, [2472/DT74/09] a) Do stand censured. Subsequent to the making of that ii) That the name of the respon- Named client (applicant) b) Pay a sum of €2,584 as restitu- order, the respondent solicitor has dent solicitor be struck off the Frank McArdle (respondent so- tion to the applicant without lodged an appeal against the deci- Roll of Solicitors, licitor) prejudice to his legal rights. G
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The Law Society’s e-zine is the legal newsletter members’ section on the Law Society’s website of the solicitors’ profession. The e-zine issues at www.lawsociety.ie. Click on the ‘e-zine once every two months and brings news and and e-bulletins’ section in the left-hand menu information directly to your computer screen in a bar and follow the instructions. You will need brief and easily-digestible manner. your solicitor’s number, which is on your 2010 If you’re not receiving the e-zine, or have practising certificate and can also be obtained opted out previously and would like to start by emailing the records department at: receiving it again, you can sign up by visiting the [email protected]. 58 justis update Law Society Gazette www.gazette.ie June 2011 briefing Justis update News of Irish case law information and legislation is available from FirstLaw’s current awareness service on www.justis.com Compiled by Bart Daly
EUROPEAN cants to adduce further evidence to had brought District Court pro- trespass on the policy making and Judicial review contradict the evidence gathered ceedings against the second-named legislative role of the Oireachtas in Immigration – residence card – appli- by the minister. The applicant’s notice party regarding sums al- devising amending legislation. The cant married to EU citizen – statutory solicitors had in fact subsequently legedly owing relating to service apartment was a dwelling to which time limit – decision to refuse residence clarified the matter in respect of charges. A District Court order had the act applied, and the court was card – delay in issuing decision – the second-named applicant’s em- been granted regarding the sums, precluded from dealing with the deportation – European Communi- ployment. It was then a relatively which order the Circuit Court dispute in respect of the service ties (Free Movement of Persons) straightforward matter for the EU judge had vacated. The second- charges. Accordingly, the court (No 2) Regulations 2006. Treaty Rights Section to decide named notice party was the owner would refuse the reliefs sought by The first-named applicant had whether or not that documenta- of an apartment and held the apart- the applicant. been refused a residence card un- tion answered the doubts that had ment on a long lease of 500 years Private Residential Tenancies der the provisions of the European been raised. The delay in giving the from S&L Management Company Board (applicant) v Judge Linnane Communities (Free Movement of review decision was unreasonable Limited, subject to a yearly rent of and Others (respondent), High Persons) (No 2) Regulations 2006 and excessive to a degree that justi- €0.05. It was the applicant’s con- Court, 23/4/2010 and brought judicial review pro- fied granting an order of mandamus. tention that the respondent erred ceedings to quash the decision. An There would therefore be an order in law in that it was never the in- TORT order of mandamus was also sought of mandamus to direct the minister tention of the Oireachtas to include Employer’s liability to compel the minister to issue a to give a decision on the review ap- owner-occupied long leases within Duty of care – vicarious liability – con- decision regarding an administra- plication within 28 days from the the ambit of the 2004 act, as the tributory negligence – safe system of tive review of the refusal. The first- date of perfection of the order. act could not accommodate the work. named applicant contended that he Adbenour Chikhi and Ilza realities of a long lease, and if the The appellant had been employed had entered the State illegally and Orechowska (applicants) v Minis- 2004 act was so to apply, many of in a mart as a yardman and drover. had subsequently unsuccessfully ter for Justice, Equality and Law the results would be wholly absurd. It was his case that he had ended up applied for refugee status. There- Reform and Others (respondents), Counsel on behalf of the second- working an unsafe system of work in after, the first-named applicant High Court, 18/2/2011 named notice party submitted that separating animals on his own. One had married the second-named ap- the relationship between the first of the animals kicked him, and it was plicant, a Polish national. Accord- LANDLORD AND TENANT and second-named notice parties the appellant’s case that the respon- ingly, the first-named applicant Judicial review was that of landlord and tenant as dent was liable for the accident in submitted a form EU1 application Definition of lease – definition of tenant defined by section 3 of Deasy’s Act question. It was the appellant’s case for a residence card to the minister, – service charges – statutory definition 1860. The second-named notice that the respondent was vicariously pursuant to the regulations, on the – whether dispute relating to service party had relied on the provisions liable in allowing two other employ- basis that he was a ‘family member’ charges referable to PRTB – Deasy’s of the 2004 act as meaning that the ees absent themselves at the time of of a Union citizen. The minister Act 1860 – Residential Tenancies act applied to his tenancy, that the the incident. This had resulted in an refused the application as the rele- Act 2004 – Interpretation Act 2005. dispute, being in respect of alleged unsafe system of work. The High vant section (the EU Treaty Rights The Private Residential Tenan- arrears of service charges, was capa- Court had rejected the claim, and Section) were unable to verify that cies Board brought judicial review ble of being referred to the PRTB the appellant lodged an appeal. the second-named applicant was in proceedings seeking to quash the and that the courts had no jurisdic- The Supreme Court (Fennelly the employment stated. A review of order of the respondent (vacating tion in the matter. J delivering judgment) allowed the the decision was thereafter sought a District Court order) and seek- Budd J refused the relief sought, appeal, holding that the fellow em- and no decision had issued in re- ing an order of mandamus compel- holding that the Circuit Court ployees of the appellant had com- spect of same. ling the respondent to deal with judge was correct, in that, if the rel- mitted a breach of duty of care to Cooke J granted the relief a dispute that had arisen between evant provisions of 2004 act were the appellant by absenting them- sought, holding that the minister the two notice parties. The dispute not to apply to long leases of own- selves at the time of the incident. was entitled to carry out appropri- centred around the jurisdiction of er-occupied apartments, then the The employer was vicariously li- ate checks to confirm the reality the applicant board and the Circuit legislature should have expressly able for this breach. The employer and authenticity of an application Court to deal with disputes brought excluded such dwellings. If the per- bore prime responsibility for a safe when a residence card was applied by management companies for the son drafting the act omitted such a system of work not being in opera- for and that the relevant conditions recovery of service charges by rea- dwelling in error, then it was not tion. The appellant, as an experi- were fulfilled. This must not in- son of the wording of the Residential the function of the court to concoct enced handler of cattle, should have volve the imposition of additional Tenancies Act 2004. The second- an appropriate exclusionary provi- appreciated the risks involved, and administrative obstacles outside named notice party contended that sion or to rectify such a mistake. contributory negligence would be those allowed by the regulations. it was the applicant board and not The relevant section was clear and assessed at 33%. The case would be As the relevant section had made the respondent Circuit Court judge unambiguous, and the function of remitted to the High Court for as- efforts to verify the application, it that had jurisdiction to hear the dis- the court in interpreting a statute sessment of damages. would not be justifiable to quash pute in respect of service charges. was confined to ascertaining the Patrick J Lynch v Binnacle Limited the refusal decision. However, it The first-named notice party, S&L true meaning of each statutory pro- (t/a Cavan Co-Op Mart), Supreme was thereafter open to the appli- Management Company Limited, vision. The courts had no license to Court, 9/3/2011 G Law Society Gazette www.gazette.ie June 2011 eurlegal 59 briefing Eurlegal Edited by TP Kennedy, Director of Education Recent developments in European law EMPLOYMENT ESTABLISHMENT side in Britain under EU law. Her ation of Mrs McCarthy has no Case C-29/10, Heiko Koelzsch v Case C-400/08, Commission v husband applied for a residence connection with EU law and is Luxembourg, 15 March 2011 Spain, 24 March 2011 document as the spouse of an covered exclusively by national Mr Koelzsch is a heavy goods ve- The opening of a large retail EU citizen. Those applications law. In these circumstances, she hicle driver domiciled in Germany. establishment in Catalonia is were refused, as Mrs McCarthy cannot base her residence in He was hired by Gasa, the Lux- subject to a prior authorisation could not base her residence on Britain on rights associated with embourg subsidiary of a Danish system. This system limited the EU law and invoke that law to European citizenship. company, to transport flowers from localities available for new estab- regularise the residence of her Denmark to various locations in lishments and their sales areas. spouse, since she had never exer- Case C-61/11, Hassen El Germany and in other EU states Licences for new establishments cised her right to move and re- Dridi alias Soufi Karim, by means of lorries based in Ger- were granted only where it was side in member states other than 28 April 2011 many. The lorries were registered found that there would be no Britain. The British Supreme Mr El Dridi, a non-EU national, in Luxembourg and the drivers impact on existing small trad- Court asked the CJ whether she entered Italy illegally. In 2004, were covered by Luxembourg ers. The European Commission could invoke the rules of EU law a deportation decree was issued social security. His employment took the view that this legisla- designed to facilitate the move- against him. On the basis of that contract provided for the applica- tion was precluded by freedom ment of persons within the ter- decree, an order for him to leave tion of Luxembourg law and the of establishment and took this ritory of the member states. The Italy within five days was issued jurisdiction of its courts. In March case against Spain for failure to Court of Justice stated that Di- in 2010. The order stated that he 2001, he was elected as a represen- fulfil its obligations. The Court rective 2004/33/EC, relating to had no identification documents, tative of the employees of Gasa. of Justice held that the contested freedom of movement for per- no means of transport were avail- He was discharged a week later. legislation restricted freedom sons, determines how and under able, and it was not possible for He brought proceedings in Ger- of establishment. It has the ef- what conditions EU citizens can him to be accommodated tempo- many, but the German court de- fect of hindering or making less exercise their right of freedom of rarily at a detention centre as no clined jurisdiction. He then sued in attractive the opening of retail movement within the territory places were available. He did not Luxembourg, arguing that he was establishments in Catalonia and of the member states. Under a comply with the order and was protected by mandatory rules of thus affects their rights of estab- principle of international law, sentenced by the Trento District German labour law protecting em- lishment in the Spanish market. reaffirmed in the European Con- Court to one year’s imprison- ployees’ representatives. The court Such restrictions can be justified vention on Human Rights, citizens ment. He appealed this sentence, in Luxembourg held that, as he was on the basis of overriding reasons residing in the member state of and the appeal court asked the not working in a single state, the in the public interest, provided which they are a national, such as Court of Justice whether Direc- mandatory rules of the place pro- that they are proportionate. Such Mrs McCarthy, enjoy an uncon- tive 2008/115, on the return of tecting him under article 6 of the overriding reasons include envi- ditional right of residence in that illegally staying third-country Rome Convention were those of the ronmental protection, town and state. The directive cannot apply nationals, precludes national place where the business that has country planning, and consumer to such persons. The fact that an rules that provide for a prison engaged him was located (Luxem- protection. Purely economic EU citizen is a national of more sentence to be imposed on the bourg). The Court of Justice con- objectives cannot constitute an than one member state does not sole ground that an illegally stay- sidered the convention and held overriding reason in the public mean that he has made use of his ing foreign national remains on that the criterion of the country interest. right of freedom of movement. the national territory contrary to in which the employee “habitu- Thus, the directive is not appli- an order that he leave the terri- ally carries out his work” must be FREE MOVEMENT OF PERSONS cable to Mrs McCarthy’s situa- tory within a given period. The given a broad interpretation. The Case C-434/09, Shirley tion. As her husband is not the Court of Justice observed that CJ listed factors to be taken into McCarthy v Secretary of State spouse of a national of a member the directive on return establish- account in determining this. The for the Home Department, state who has exercised her right es common standards and proce- local court must consider in which 5 May 2011 to freedom of movement, he also dures with a view to implement- state the employee carries out his Shirley McCarthy was born in cannot benefit from the rights ing an effective removal and re- transport tasks, where he received Britain of an Irish mother. She is conferred by the directive. In patriation policy for persons with instructions concerning this tasks, a British national and has always the absence of national measures respect for their fundamental where he organises his work, and resided there. She is also an Irish that have the effect of depriving rights and their dignity. Mem- the place where his work tools are national. Following her mar- her of the genuine enjoyment of ber states may not apply stricter located. The local court must also riage to a Jamaican national, she the substance of the rights aris- standards than those in the di- determine the places where the applied for an Irish passport for ing by virtue of her status as an rective. The directive set out the transport is principally carried out, the first time and obtained it. She EU citizen or of impeding the procedure to be followed for the where the goods are unloaded, and then applied to the British au- exercise of her right to move and return of illegally staying foreign the place to which the employee re- thorities for a residence permit, reside freely within the territory nationals and the sequential or- turns after completion of his tasks. as an Irish national wishing to re- of the member states, the situ- der of the different stages of that 60 eurlegal Law Society Gazette www.gazette.ie June 2011 briefing
procedure. The first stage con- notified to him and the period sation such as the Engineering engineer. However, the work of sists of the adoption of a return granted in that order has expired. Council and where the applicant assessment carried out in collabo- decision, with priority given to Such a custodial sentence risks for recognition is not a full mem- ration with a private company the possibility of a voluntary de- jeopardising the attainment of ber of such an organisation. The that specialised in technology re- parture. If voluntary departure the objective pursued by the di- Court of Justice noted that the lating to liquid waste processing does not take place, the mem- rective, namely the establishment Greek legislation transposing the might constitute actual pursuit of ber state can then proceed with of an effective policy of removal directive excluded the mechanism the profession concerned. forced removal, using the least and repatriation of illegally stay- in the directive of recognition coercive measures possible. It is ing third-country nationals in a based on professional experience INTELLECTUAL PROPERTY only where the removal risks be- manner in keeping with funda- where the person has acquired Case C-70/10, Scarlet ing jeopardised by the conduct mental rights. his/her education and training Extended v Société Belge des of the person concerned that the in a member state in which the Auteurs Compositeurs et member state may hold that per- Case C-424/09, Christina pursuit of that profession is regu- Éditeurs (Sabam), opinion son in detention. The detention Ionna Toki v Ipourgos Ethnikis lated not by the member state of Advocate General Cruz must be for as short a period as Pedias kai Thriskevmaton, itself but by private organisations Villalón, 14 April 2011 possible, to be reviewed at rea- 5 April 2011 recognised by that member state. Belgian law allows its courts to is- sonable intervals of time, and is In Greece, the profession of en- In this case, the court held that sue an order for any infringement to be ended when it appears that vironmental engineer is regulated the mechanism of recognition of an intellectual property right a reasonable prospect of removal by the state, but it is not in Brit- that requires full-time pursuit to be brought to an end. Where no longer exists. The detainees ain. In Britain, the Engineering of the profession for at least two a third party uses the services of are to be placed in a specialised Council provides some regula- years is applicable. That mecha- an intermediary to breach such a centre and to be kept separated tion of the profession, but mem- nism is applicable irrespective of right, the courts can issue an order from ordinary prisoners. The di- bership of that organisation is not whether the person concerned against that intermediary. Sabam rective calls for a proportionate required in order to work as an is, or is not, a member, of the or- applied for interim relief against response and a gradation of the engineer. Ms Christina Toki, a ganisation concerned. The court Scarlet Extended SA, an inter- measures to be taken in order to Greek national, obtained a bach- stated three conditions governing net service provider. It sought enforce the return decision. The elor of engineering degree and a whether professional experience a declaration that copyright in directive, therefore, pursues the master of science in environmen- should be taken into account. musical works in its repertoire objectives of limiting the maxi- tal engineering in Britain. From Firstly, the professional experi- had been infringed because of mum duration of detention and 1999 to 2002, she worked for the ence must consist of full-time unauthorised sharing of music of ensuring the observance of University of Portsmouth in the work for at least two years during files through the use of Scarlet’s illegally staying third-country Department of Civil Engineer- the previous ten years. Second, services – in particular by means national’s fundamental rights. In ing. Her duties included research the work must have consisted of of peer-to-peer software. Sabam that regard, the CJ takes account and assisting and assessing stu- the continuous and regular pur- sought an order requiring Scar- of the jurisprudence of the Eu- dent work. She applied for rec- suit of a range of professional ac- let to bring such infringements ropean Court of Human Rights. ognition in Greece of her right tivities that characterise the pro- to an end by blocking or mak- The directive has not been trans- to pursue there the profession of fession concerned in the member ing impossible the sending or the posed into Italian law. However, environmental engineer, on the state of origin. This work need receiving by its customers in any the relevant provisions are un- basis of her British qualifications not encompass all the activities way of files containing a musical conditional and sufficiently pre- and experience. This application characteristic of the profession. work, using peer-to-peer soft- cise to be relied on by individuals was made on foot of Directive Third, the profession as normally ware, without the permission of against the member state that has 89/48/EEC, which provides for pursued in the member state of the copyright holders. The Bel- failed to transpose them. The CJ recognition of higher education origin must be equivalent, in re- gian court found that there had held that the Italian removal pro- diplomas. The Greek Council for spect of the activities it covers, to been infringements of copyright cedure differed significantly from the Recognition of the Equiva- the profession that the person has and granted the order sought by that provided for by the directive. lence of Higher Education Di- sought authorisation to pursue Sabam. Scarlet was given a period Italy was not free to apply rules, plomas rejected her application in the host member state. The of six months to comply with the even criminal rules, that are li- as she was not a full member of directive covers professions that, order, with a penalty of €2,500 able to jeopardise the achieve- the Engineering Council and did in the member state of origin per day if it failed to do so. Scarlet ment of the objectives pursued not hold the title of ‘chartered and the host member state, are appealed against this order to the by a directive and deprive it of engineer’. She challenged this identical or analogous or, in some Court of Appeal, Brussels. The effectiveness. Member states may before the Greek courts. That cases, simply equivalent in terms appeal court sought a ruling from not provide for a custodial sen- court sought guidance from the of the activities they cover. The the Court of Justice on whether tence on the sole ground that a CJ on the conditions established court considered that Ms Toki’s EU law and, in particular, the third-country national continues by the general system for the activities, such as research work Charter of Fundamental Rights, to stay illegally on the territory recognition of higher education or assisting the work of students, permits a national court to order of a member state after an order diplomas where a profession is do not constitute actual pursuit of an internet service provider to to leave the national territory was regulated by a private organi- the profession of environmental install a system for filtering and Law Society Gazette www.gazette.ie June 2011 eurlegal 61 briefing
blocking electronic communica- residence. The system must be that the installation of that filter- concerning “the quality of the tions. Advocate General Cruz capable of blocking any file sent ing and blocking system is a re- law” at issue. A restriction on the Villalón noted that the system by an internet user, who is one of striction on the right to respect rights and freedoms of internet to be installed must, first, filter Scarlet’s customers, to any other for the privacy of communica- users would be permissible only all data communications passing internet user, where that file is tions and the right to protection if it were adopted on a national via Scarlet’s network in order to thought to infringe a copyright of personal data, both of which legal basis that was accessible, detect data that involve a copy- managed, collected or protected are rights protected under the clear and predictable. It cannot right infringement. The system by Sabam. It must also be capable Charter of Fundamental Rights. be held that the obligation on in- must block communications that of blocking receipt by an inter- The deployment of such a sys- ternet service providers to install infringe copyright either at the net user, who is one of Scarlet’s tem would restrict freedom of the filtering and blocking system point at which they are request- customers, of any file infring- information, which is also pro- at issue, entirely at their own ex- ed or at the point at which they ing copyright that has been sent tected by the charter. The char- pense, was laid down expressly are sent. He considered that the by any other internet user. The ter accepts that the exercise of the and in clear, precise and predict- court order is a general obliga- obligation to protect copyright rights and freedoms it guarantees able terms in the Belgian legisla- tion that, it is intended, will be would be imposed on Scarlet. It may be restricted, on condition tion. Neither the filtering system, extended in the longer term on would also be responsible for the that any such restriction is in ac- which is intended to be applied a permanent basis to all internet cost of installing the filtering and cordance with the law. The advo- on a systematic, universal, per- service providers. The court or- blocking system. Thus, the legal cate general looked to the cases manent and perpetual basis, nor der will have a lasting effect for and economic responsibility for of the European Court of Human the blocking mechanism, which an unspecified number of natu- combating illegal downloading Rights and thus considered that can be activated without any pro- ral or legal persons, irrespective of pirated works from the inter- the legal basis for any restric- vision being made for the persons of whether they have a contrac- net would largely be delegated to tion on the exercise of the rights affected to challenge it or object tual relationship with Scarlet internet service providers. Thus, and freedoms guaranteed by the to it, are coupled with adequate and regardless of their state of the advocate general considered charter must meet requirements safeguards. G
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62 Professional notices Law Society Gazette www.gazette.ie June 2011 notices
wills Rates Baker, Brian (deceased), late of 55 Moyard, Shanballa, Lahinch Road, Co Clare. Would any person having knowl- Professional notice rates edge of the whereabouts of any will made by the above-named deceased, rates in the Professional notices section are as follows: who died on 13 November 2008, please contact Bowen & Co, Solicitors, Pound • Wills – €144 (incl VAT at 21%) Street, Sixmilebridge, Co Clare; tel: 061 • Title deeds – €288 per deed (incl VAT at 21%) 713 167, fax: 061 713 642, email: info@ legalsupportservices.ie • Employment/miscellaneous – €144 (incl VAT at 21%)
Conran, Carrie (deceased), late of 27 Highlight your notice by putting a box around it – €33 extra Lyons Avenue North, Newcastle Lyons, Newcastle, Co Dublin, and formerly of Al l nOTICES must be paid for prior to publication. Cheques should be Derryclooney, New Inn, Co Tipperary, who died on 13 April 2011. Will any made payable to Law Society of Ireland. Deadline for July Gazette: 15 June 2011. person having knowledge of any will For further information, contact the Gazette office on tel: 01 672 4828 (fax: 01 672 4877) executed by the above-named deceased please contact Barrett Solicitors, First Active House, Blessington Road, Tal- Drimnagh, in the city of Dublin. Joyce, Martin (deceased), late of Halt- 2009. Would any person having knowl- laght Village, Dublin 24; tel: 01 462 Would any person having knowledge ing Site, Dunsink Lane, Finglas, Dub- edge of any will executed by the above- 3999, fax: 01 462 3032, email: info@ of the whereabouts of the original will lin 11, who died on 17 February 2011. named deceased please contact Reddy barrettsolicitors.ie executed by the above-named deceased, Would any person having knowledge of Charlton McKnight Solicitors, 12 Fitz- please contact B&P Byrne, Solicitors, 5 any will executed by the above-named de- william Place, Dublin 2; tel: 01 661 9500, Dunne, Frances (deceased), late of Tyrconnell Road, Inchicore, Dublin 8; ceased please contact E O’Shea, solicitor, fax: 01 678 9192, email: bsharkey@rcmck. Little Sisters, Kilmainham, Dublin tel: 01 453 3309, fax: 01 453 8180, email: 3 Chancery Place, Dublin 7; tel: 01 677 com 8, and formerly of 142 Curlew Road, [email protected] 7495, fax: 01 878 2347, email: eoshea@ osheabusiness.ie O’Rahilly, Eileen (deceased), late of 24 Avondale Road, Killiney, Co Dublin, Kelly, Ulick (deceased), late of no 8 who died on 8 February 2010. Would any WPG DocStore’s professional Rossvale, Green Road, Portlaoise, Co person having knowledge of a will made e-discovery support service Laois. Would any person having knowl- by the above-named deceased please con- from €500 per GB. edge of the whereabouts of any will made tact Fagan Bergin Solicitors, 57 Parnell ISO 27001 certified; by the above-named deceased, who died Square West, Dublin 1; DX 266003 Par- tel: (01) 2454800, on 2 May 2011, please contact Brian P nell Square; tel: 01 872 7655, fax: 01 873 email: [email protected] Adams & Co, Solicitors, Cormac Street, 4026, email: [email protected] or website: Tullamore, Co Offaly; tel: 057 932 1866, www.wpg.ie/docstore.htm fax: 057 935 1443, email: bpadams@ Queally, Patrick Joseph (deceased), A Caring Legacy: brianpadams.ie late of 6 St Francis Avenue, Askeaton, Co bequests to The Carers Limerick, who died on 19 January 2011. Association (CHY10962) help McNamara, Denis (deceased), late of Would any person having knowledge of to support home-based family Coolnahilla, Bodyke, Co Clare. Would the whereabouts of a will made by the Professional care in Ireland. any person with knowledge of a will ex- above-named deceased please contact Security & ecuted by the above-named deceased, Ted McCarthy & Co, Solicitors, Wyvern For information: who died on 10 February 2011, please House, 2 Newenham Street, Limerick; Investigation Emma at 057 9370210. contact Desmond J Houlihan & Compa- tel: 061 461 024, fax: 061 461 025 Services [email protected] ny, Solicitors, Salthouse Lane, Ennis, Co or www.carersireland.com. Clare; tel: 065 684 2244, email: lburke@ Sweeney, Marie (deceased), late of 4 20 years experience of djhoulihan.ie Stirrup Lane, Dublin 7, who died on criminal & civil investigations, 8 April 2011. Would any person hav- Mathews, Sarah Gertrude (otherwise testifying in UK/Irish Courts, ing knowledge of any will executed by Sally) (deceased), late of 5 Tivoli Ter- the above-named deceased please con- expert witness, case review, Is your client Interested race North, Dun Laoghaire, Co Dublin, tact Barbara Tanzler, solicitor, of Denis interview witnesses, who died on 8 May 2011. Would any McSweeney, Solicitors, 1 Upper Grand surveillance etc. in selling or buying a 7-day liquor licence? person having knowledge of any will Canal Street, Dublin 4, tel: 01 676 6033, executed by the above-named deceased fax: 01 661 5723, email: barbaratanzler@ Contact Danny Boles, MSc, please contact Mary Casey, solicitor, Ma- denismcsweeney.com BSc on 01 640 1953 If so, contact Liquor son Hayes & Curran, South Bank House, or 086 6680154. Licence Transfers Barrow Street, Dublin 4; tel: 01 614 5000, Waller, Mary (deceased), late of 27 fax 01 614 5001, email: [email protected] Ormond Square, Dublin 7, who died on Email: [email protected]. Contact 3 April 1990. Would any person having Murray, Philip (deceased), late of Elm www.dfbsecurity.com 0404 42832 knowledge of any will executed by the Green Nursing Home, Castleknock, above-named deceased please contact Dublin 15, who died on 22 September Mary McKeever of Eugene F Collins, So- Law Society Gazette www.gazette.ie June 2011 Professional notices 63 notices
licitors, Temple Chambers, 3 Burlington Any person having any interest in the fee recruitment Road, Dublin 4, tel: 01 202 6400, fax: 01 simple estate or any intermediate interest 667 5200, email: [email protected] in all that and those the hereditaments and premises known as 43 Upper O’Connell NOTICEO T THOSE PLACING title dEEDS Street in the city of Dublin, held under RECRUITMENT ADVERTISEMENTS IN To whom it may concern – re: prop- a lease for lives dated 12 May 1792 from THE LAW SOCIETY GAZETTE erty at Old Railway Station, Shillelagh Thomas Bennett to John Allen, subject to Road, Tullow, Co Carlow the adjusted yearly rent of £64.42 Please note that, as and from the August/September 2006 issue Would any person having knowledge of Take notice that Joseph O’Reilly, being of the Law Society Gazette, NO recruitment advertisements the whereabouts of the following original the person entitled to the lessee’s interest will be published that include references to years of post- documents: in the said lease, intends to apply to the 1) Grant of probate in the estate of Sam- county registrar for the city of Dublin for qualification experience P( QE). uel Agar, dated 6 January 1977 and the acquisition of the fee simple estate and The Gazette Editorial Board has taken this decision based on granted to Beatrice Agar, all intermediate interests (if any) in the legal advice, which indicates that such references may be in 2) Assent dated 14 October 1977, grant- said property, and any party asserting that ed by Beatrice Agar to herself of all they hold the fee simple or any interme- breach of the Employment Equality Acts 1998 and 2004. that and those part of the lands of diate interest in the aforesaid property is Tullowphelim in the barony of Rath- called upon to furnish evidence of their villy and county of Carlow, compris- title thereto to the under-mentioned so- Take notice that Patrick U Murphy ing six acres, one rood statute measure licitors within 21 days from the date of intends to submit an application to the RETIRING SOLE or thereabouts, which said premises this notice. county registrar for the county of Mayo PRACTITIONER? is more particularly described and In default of any such notice being re- for the acquisition of all superior interests delineated on the map endorsed on ceived, the said Joseph O’Reilly intends to in the aforesaid property, and any party Retiring/scaling down over the within recited conveyance of 4 proceed with the application before the asserting that they hold an interest therein the next few years or sooner? October 1961 and thereon coloured said county registrar at the end of 21 days is called upon to furnish evidence of their Experienced Assistant pink and marked ‘lot 2’ and coloured from the date of this notice and will apply title to the undersigned solicitors within Solicitor wishes to acquire yellow and marked ‘lot 3’, together to said registrar for such directions as may 21 days from the date of this notice. busy established practice be appropriate on the basis that the person with all the Tullow Railway Station In default of any such notice of interest in Dublin or within Buildings and other buildings, erec- or persons beneficially entitled to all supe- being received, Patrick U Murphy intends commuting distance. Enquiries tions, stores, platforms, banks and rior interests up to and including the fee to proceed with the application before the cabins standing on the said lands for simple in the said property are unknown county registrar at the end of 21 days from to [email protected] an estate in fee simple, and unascertained. the date of this notice and will apply to the or box no 06/11/02 3) Lease dated 1988 and made between Date: 3 June 2011 county registrar for the county of Mayo John and Gordon Agar and Fitzpatrick Signed: William Fry (solicitors for the for such directions as may be appropriate Construction (Carlow) Limited of all applicant), Fitzwilton House, Wilton Place, on the basis that the person or persons that part of the factory premises with Dublin 2 beneficially entitled to all or any of the su- T heoffice.ie concrete surround situate at Station perior interests in the above property are Going on Holiday? Road, Tullow, in the county of Carlow In the matter of the Landlord and Ten- unknown or unascertained. Attending Court? as the same are outlined in red on a ant Acts 1967-2005 and in the matter Date: 3 June 2011 Meetings? map annexed hereto, all of which said of the Landlord and Tenant (Ground Signed: Patrick J Durcan & Co (solicitors for Do you need: property is situate in the townland of Rents) (No 2) Act 1978 and in the mat- the applicant), Westport, Co Mayo • Calls answered in your own name Tullowphelim in the barony of Rath- ter of the dwellinghouse and premises • Voicemail for out of hours calls villy and county of Carlow, lately occupied by Bridget Murphy, recruitment • Messages can be relayed to you 4) Lease dated 23 February 1990 and deceased, at Abbey Street, Ballinrobe, Solicitor’s apprenticeship sought by via emails or SMS made between Beatrice Agar and Co Mayo: an application by Patrick U hardworking, highly qualified and very Tullow Investments Limited of all that Murphy confident law graduate. Passed all FE1s All this for only €10 per day Call us now 045 844080 part of the factory premises with con- Take notice that any person having a supe- and trained typist. Tel: 086 331 3039 crete surround situate at Station Road, rior interest in the following property: the Tullow, in the county of Carlow as the plot of ground together with the dwell- same are outlined in red on a map an- inghouse standing thereon lately occupied nexed hereto all of which said property by Bridget Murphy, deceased, at Abbey is situate in the townland of Tullow- Street, Ballinrobe, Co Mayo, being the phelim in the barony of Rathvilly and land demised by a lease dated 25 March county of Carlow. 1869 made between Henry Augustus Dil- Please contact Morrissey & Co, So- lon of the one part and Patrick Murphy licitors, Lismard House, Bridge Street, of the other part from 1 March 1866 for SAVE THE DATE Tullow, Co Carlow; tel: 059 915 2910, and during the lives of Michael Murphy, fax: 059 915 2163, email: tmurphy@ eldest son of Patrick Murphy, Edward morrisseycosolicitors.ie Fergus, eldest son of Patrick Fergus and James O’Connor, youngest son of John In the matter of the Landlord and Ten- O’Connor and the survivor of them, plus ant Acts 1967-2005 and in the matter the term of 61 years, subject to the yearly of the Landlord and Tenant (Ground rent of £1.15s.0d (€2.22), should give no- FOR MORE INFORMATION, PLEASE VISIT: Rents) (No 2) Act 1978 and in the mat- tice of their interest to the undersigned WWW.AMERICANBAR.ORG/GROUPS/INTERNATIONAL_LAW ter of an application by Joseph O’Reilly solicitors.
Untitled-1.indd 1 4/13/2011 3:24:45 PM 64 captain’s blawg Law Society Gazette www.gazette.ie June 2011
wiw ld, eiRD and wacky stories from legal ‘blawgs’ and media around the world Suits you, sir Hilton Stein, who literally wrote the book on how to sue one’s lawyer, has not practised since 2002 – but an unhappy client continues to pursue a ten-year-old claim against him, the New York Lawyer reports. US Bankruptcy Judge Donald Steckroth (Newark, New York) has refused to dismiss an adversary action by Dr Monica Mehta, who wants to block the discharge of a $40,000 debt Stein allegedly owes her. Stein is the author of How To Sue Your Lawyer: The Consumer Guide to Legal Malpractice, which was first published in 1989. GPS surveillance wrong turn California shuts ‘maternity A Washington appeals court has officers must obtain a warrant to tourists’ birthing centre struck down a man’s conviction and use GPS tracking equipment. The life sentence in a drug case on the appeals court said the government Authorities have shut down a babies born in the US turn 21, grounds that the police unlawfully had violated the Fourth Amendment Californian birthing centre for they can petition for permanent tracked his movements with a GPS and reversed the conviction of the Chinese ‘maternity tourists’ who residence status for their parents. device that had been installed on his defendant, Antoine Jones. wanted their babies born in the The newspaper said that the vehicle without a warrant. Federal prosecutors used data from United States. The women paid discovery of the facility raised The BLT (blog of the Legal Times) a global positioning system device to tens of thousands of dollars to questions about whether maternity reports that the unanimous three- link Jones to an alleged drug house in have their babies delivered in a tourism had entered “a new, more judge ruling in the US Court of Maryland, where the authorities found row of connected townhouses institutionalized phase”. Appeals for the District of Columbia nearly 100 kilograms of cocaine and on a quiet street lined with palm One other possible incentive – a Circuit says that law enforcement about $850,000 in cash. trees in San Gabriel, the New Turkish-owned hotel in New York York Times reports. The possible City includes a stroller with its incentive for the baby boom? After month-long ‘baby stays’! Belly dancer stripped ... of settlement Flapper flap as dresses A Staten Island woman who lost her hefty divorce deal when her reveal much too much former husband showed a judge her online belly-dancing photos Seven former cocktail photos reviewed by a modelling says she was just posing. “I wasn’t waitresses are suing Atlantic agency. Those deemed unsexy really belly-dancing in them,” City’s Resorts Casino Hotel, or unfeminine in the outfits – Dorothy McGurk (43) is reported claiming they were fired all of whom were older and to have said, in the New York Daily because revealing new ‘flapper’ “not of a certain body shape” – News. “I was posing. In some of dresses – part of a rebranding had their employment them I was moving a veil around plan to evoke a Roaring ’20s terminated for not “meeting with my arms, but I wasn’t belly when he saw a blog in which she theme – were not flattering on uniform standards,” the dancing.” posted the photos and boasted them, the New York Lawyer plaintiffs claim. McGurk won $850 a month for of dancing “every day for three reports. The waitresses allege life and the couple’s home three years”. The suit, Agudelo v RAC violations of the state law years ago after convincing a judge The posts and photos were Atlantic City Holdings, alleges against discrimination and that her injuries from a 1997 enough to persuade Richmond that the new owners had are seeking reinstatement, car wreck prevented her from County Supreme Court Justice waitresses audition for their compensatory and punitive working. Catherine DiDomenico to positions by trying on the skimpy damages, attorneys’ fees – and Her ex-husband, Brian strip Dorothy McGurk of her dresses and posing for faceless so-called ‘back and front pay’. McGurk, went back to court settlement.
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www.benasso.com Remaining the number one Irish legal recruitment consultancy takes a dogged New Openingsdetermination, thinking creatively, spotting new opportunities and keeping an open mind NewPrivate Practice Openings Banking - Associate to Senior Associate: First rate law fi rm seeking a strong Banking lawyer with exposure to SPVs. You will be involved in a range of transactions acting on behalf of both domestic and international clients. CommercialPrivate Practice Litigation – Associate: Central Dublin practice is looking for a strong practitioner with an excellentBankingPrivate litigation - Associate Practice background. to Senior Associate: First rate law fi rm seeking a strong Banking lawyer with CommercialexposureBanking to – SPVs. 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FundsEU/Competition - Assistant/Associate: - Assistant: Our Top client ranking is a lawfi rst fi class rm requires legal practice excellent whose Funds client specialists base includes at all prestigiouslevels. You will advise investment managers, custodians, administrators and other service providers of investment funds on publicCorporate/Commercial service and private sector – organizationsAssociate tooperating Senior both Associate: in the domestic An exciting market andopportunity internationally. has arisen You establishingwill be a Solicitor operations or Barrister in Ireland. with excellent exposure to EU and Competition Law, gained either in private practicefor a strong or in-house. Corporate/ Commercial practitioner to join this major legal practice. The team deals with a Fundsbroad range- Assistant of transactions to Senior spanning Associate the corporate: International and law commercial fi rm recently spectrum. established You in willDublin be isa searchingstrong all- for ambitious commercially-minded practitioners with strong exposure to investment funds. Fundsrounder, - ideallyAssistant/Associate: with exposure to FDI.Top rankingAn excellent law fi rm academic requires recordexcellent is essential.Funds specialists at all levels. 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Professional Indemnity – Associate to Senior Associate: A high calibre practice with an TelecomsInexcellent House client - Junior base isSolicitor searching orfor Barrister:a first class OurPI practitioner.client is searching Strong forexposure a junior to solicitorprofessional or barrister indemnity to workSeniormatters with Legalis a essential. growing Advisor: team. Candidates You Our will clientwill be need dealingis searching to demonstrate with afor variety a senior the of driveTelecoms solicitor and orenthusiasmrelated barrister matters. with to market expertiseThis is and a newin develop equity role whichcapitalthe firm’s requiresmarkets, services strong corporate withpeople fiexisting nance, skills mergersandand prospectivebusiness and acquisitions acumen. clients. Fluency or general in corporateSpanish is practice an essential advising pre-requisite. Irish or UK listed companies. PartnershipTelecoms - Junior Solicitor or Barrister: Our client is searching for a junior solicitor or barrister to OurworkIn-house clients with ainclude growing the team. leading You Irish will law be fi dealingrms. Signifi with cant a variety opportunities of Telecoms exist inrelated the following matters. practice This is areas a new and role a client following is not essential. whichBanking requires and strong Insolvency people skills – andAssociate business toacumen. Partner: Fluency If you in Spanishhave strong is an experienceessential pre-requisite. in either of Employment ; Funds ; Insolvency ; Litigation ; Regulatory/Compliance ; Environmental & Planning Partnershipthese practice areas, we would like to hear from you. Our clients include the leading Irish law fi rms. Signifi cant opportunities exist in the following practice areas and a client following is not essential. For more information on these or other vacancies, please Employment ; Funds ; Insolvency ; Litigation ; Regulatory/Compliance ; Environmental & Planning visit our website or contact Michael Benson bcl solr. in strict confi dence at: Benson & Associates, Suite 113, The Capel Building, St. Mary’s Abbey, Dublin 7. TFor +353 more (0) information 1 670 3997 on these E [email protected] or other vacancies, please visit our website or contact Michael Benson bcl solr. in strict confi dence at: Benson & Associates, Suite 113, The Capel Building, St. Mary’s Abbey, Dublin 7. T +353 (0) 1 670 3997 E [email protected]