Contents GazetteLawSociety

Regulars Cover Story Cork’s rough justice News 2 10 Three years after closing its doors for renovations, one of the country’s finest courthouses is still lying empty. Meanwhile, justice Letters 6 in Ireland’s second city is being dispensed in conditions that have been branded ‘sub-human’ and ‘intolerable’ by practitioners. Viewpoint 9 Conal O’Boyle reports Book reviews 23

Stockwatch 25 Voyage of discovery Briefing 26 16 Recent court decisions have led to Committee several important developments reports 26 relating to the rules of discovery and how strictly they must be interpreted, Practice note 27 as Eoin Dee explains Legislation update 28 Personal injury judgment 30 The man with Euro vision Eurlegal 34 18 The CCBE represents the interests of People and more than 500,000 lawyers places 39 throughout the European Union and the Apprentices’ page 42 European Economic Professional Area. This year’s information 44 president is Irishman John

COVER: JANICE O’CONNELL/ Fish, and here he F22 PHOTOGRAPHY talks to the Gazette about the role of the CCBE and what he hopes to achieve during his year of office

Sticking it to the spammers 21 The United States has been leading the way in the fight against unsolicited e-mails and other nuisance communications. Recently, that fight took a new turn in the US Supreme Court. Paul Lambert discusses the latest development

Editor: Conal O’Boyle MA. Assistant editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Nicola Crampton. Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 837 5018, fax: 884 4626, mobile: 086 8117116, e-mail: [email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial Board: Pat Igoe (Chairman), Conal O’Boyle (Secretary), Eamonn Hall, Mary Keane, Ken Murphy, Michael V O’Mahony, Michael Peart, Keith Walsh

The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, Editor or publishers. The Editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter.

Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Volume 96, number 2 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: €57.15

1 News

NEW GUIDELINES FROM THE REVENUE Record numbers entering The Revenue Commissioners have issued new guidelines for calculating tax due and for the legal profession completing declaration forms for investment undertakings and life ast year saw over 475 assurance companies. Any Lsolicitors enter the questions on the content of these profession, the highest number guidelines may be referred to the in the Law Society’s history. Direct Taxes International and This is substantially higher Administration Division, Financial than the previous record of 385 Services Unit, Blocks 8-10, Dublin in 1999 and the figure of 350 Castle, Dublin 2 (tel: 01 674 new entrants last year. 8018, fax: 01 679 3314). The According to Law Society guidelines are available on the Director General Ken Murphy: Revenue website at www. ‘The enormous increases in the revenue.ie under Publications numbers of new solicitors and Technical guidelines. qualifying every year gives the lie to any suggestion that the PRIVATE EQUITY CONFERENCE system is being used to suppress InterTradeIreland, the develop- numbers entering the ment body set up to facilitate profession. The society cross-border trade, is running a accepted as far back as the conference entitled Private equity: 1980s that it has no role to play an island and international in controlling the numbers The Law Society’s new Education Centre: home to 475 perspective. The conference will entering the profession. The trainee solicitors last year be held in Belfast on 24 April and aims to create a greater NUMBERS ENTERING market for legal services reigns professional training course awareness of private equity THE PROFESSION OVER supreme in this’. will now comprise 60% women finance and ultimately a greater LAST 50 YEARS The statistics also show that and 40% men. In terms of the demand for its use. For further 1951 – 22 1998 – 318 the gender balance within the profession as a whole, the information, visit the 1961 – 12 1999 – 385 profession has changed. In figures are reversed: 60% men organisation’s website at 1971 – 79 2000 – 350 every year since 1993, the and 40% women. In addition, www.intertradeireland.com or 1981 – 187 2001 – 473 number of women entering the just under half of the call Nicola McGuinness on 1991 – 203 profession has exceeded the profession (47% to be exact) 028 3083 4154. number of men. Typically, a are under 40 years of age. ONE TO WATCH: NEW LEGISLATION Dormant Accounts Act, 2001 accounts to an estimated value of schemes and fixed deposits to this effect must be displayed This act was passed last July and £130 million. • Section 10 provides for in the institution’s place of was brought into effect by SI The following are the key points notification of account-holders of business, brochures and any 593/01 on 1 January 2002. It of the act: accounts which are dormant, to relevant code of conduct provides a mechanism for •The financial institutions last known addresses, this year (section 11) transferring funds held in affected are listed in part 1 of in early April, and thereafter • Monies from any dormant accounts which are dormant for the schedule (section 8). They annually in early October. accounts must be transferred, 15 or more years from the include banks, building Omission to notify is an offence. not later than 30 April of the financial institutions in which they societies, An Post and licensed If the amount in the account is following year, to the Dormant are held to a new Dormant persons. They exclude accounts under €100, or it is a non- Account Fund, the first such Accounts Funds Disbursement held by bodies listed in part 2 of correspondence account, or transfer to take place by 30 April Board. This board will make the schedule, including the notification in writing has not 2003. They must be schemes for disbursement of courts, the Companies been successful, the financial accompanied by a written funds which are unlikely to be Liquidation Account, the institution must advertise the statement specifying the total reclaimed to benefit ‘projects that Bankruptcy Dividend Account, existence of dormant accounts amount of money transferred are designed to assist the and any account over which in two or more daily newspapers and accounts concerned. If an personal, educational and social there is a lien held by the and the Iris Oifigiúil that if a organisation does not hold any development of persons who are holding institution, or a right of transaction is not effected on dormant accounts, this too must economically, educationally or set-off the account on or before the be reported (section12) socially disadvantaged or persons • Accounts include deposit, share following 31 March, the monies • Each financial institution is with a disability … and, in and current accounts, whether in the account will be transferred obliged to keep a record of particular, programmes or projects personal, corporate, charitable, to the Dormant Account Fund. dormant accounts, which will that are designed to assist resident or non-resident, deposit The first notice is due to be include details of notifications primary school students with receipts, petty balances published on 30 April 2002, and under section 10 and details of learning difficulties’ (section 41). accounts, savings certificates or thereafter annually on the first transfers to the Dormant There are an estimated 840,000 bonds, instalment savings working day in October. Notices Accounts Fund. Such registers

2 News

LAW REFORM COMMITTEE: Court puts kibosh on MDPs INVITATION FOR CONTRIBUTIONS lans by the ‘big five’ are extremely pleased with the decision of the Court of Justice The Law Society’s Law Reform Paccountancy firms to judgment in this case. It has should not be seen as a victory Committee is starting work on establish multi-disciplinary confirmed the legal profession’s for lawyers over accountants. It a new project on partnerships with law firms core values of independence, is a victory for the fundamental solicitor/client confidentiality suffered a huge set back last confidentiality and the avoid- freedoms of all citizens’. and invites contributions from month when the European ance of conflict of interest. An The ruling was also warmly the profession in relation to any Court of Justice upheld a independent legal profession is welcomed by CCBE President views, experiences, problems or decision by the Dutch bar to essential to underpin an John Fish, who said: ‘We are ideas about the law and prohibit the establishment of independent judiciary, and an delighted by the outcome, practice as it affects this issue. such an arrangement. The court independent judiciary is which we think is clearly in the Please send any contributions found that the activities of essential to democracy. This public interest’. to Alma Clissmann, secretary lawyers and accountants were to the Law Reform Committee, ‘incompatible’ and that the Law Society, Blackhall Place, professional ethics of the two THE ECJ’S KEY CONCLUSION: Dublin 7, e-mail: professions in Holland were A regulation prohibiting multi-disciplinary partnerships of lawyers [email protected]. different. As a result, the ECJ and accountants ‘… adopted by a body such as the bar of The ruled that it was reasonable for Netherlands does not infringe article 85(1) of the treaty, since that TECHNOLOGY AND THE LAW the Dutch bar to ban MDPs body could reasonably have considered that the regulation, despite SEMINAR with accountants. effects restrictive of competition that are inherent in it, is The International Bar Commenting on the ECJ necessary for the proper practice of the legal profession, as Association is running a decision, Law Society Director organised in the member state concerned’. conference in Dublin on 29 May General Ken Murphy said: ‘We entitled The impact of technology on the practice of law. The conference aims to Solicitor advocacy course details ‘consider the impact of he Law Society’s new five-day, full-time intensive found in the CLE brochure technological advancement and TAdvanced advocacy for solicitors course from 16 to 20 September. included with this issue of the its role in creating a better- course (see last issue, page 7) The course is based on the Gazette. Anyone interested in managed legal world’. For will begin with a series of highly successful model offered the advocacy course should further information, contact the weekly seminars/workshops on by the Law Society of Northern contact Lindsay Bond at the IBA’s membership services evidence led by Dr Paul Ireland and was set up in Law School, Law Society, section on tel: +44 (0)20 7629 Anthony McDermott, taking response to a growing demand Blackhall Place, Dublin 7, DX 1206, fax: +44 (0)20 7409 place from April to June. This for solicitor advocacy. Further 79, fax: 01 672 4803 or e-mail: 0456 or by e-mail at will be followed by a practical details about the course can be [email protected]. [email protected].

are not to be open to public the end of each financial year, the criteria set out in section 42 board chairman inspection, but any valid the form of the certificate to be and mentioned above. The board • Section 48 provides for account-holder is entitled to prescribed by the minister is to be independent and consist confidentiality for individual inspect the register as concerns (section 20) of nine members. Disclosure of account-holders that account • Sections 21 to 27 set up a confidential information is an • Section 9 empowers the •The National Treasury system of inspectors, whose offence minister of social, community Management Agency (NTMA) is reports are privileged and who • The board is charged with and family affairs, in to establish the Dormant have the necessary powers to producing a plan for consultation with the Central Accounts Fund, to be managed inspect documents and disbursement, and must to do Bank, to extend the application and controlled by it. It will systems, to ensure they are so within three years, and at of the act to other classes of consist of a reserve account adequate. Entry onto premises least every three years account, account-holder and and an investment and requires a District Court warrant, thereafter. Any disbursement institution disbursement account and an inspector may request a over €300,000 must have the • Section 6 sets out criminal • Section 19 makes provision for garda escort in the exercise of minister’s prior consent (section penalties of fines and money from an account any of his powers. Obstruction 44) imprisonment for summary and transferred to the fund to be or giving misleading information • The NTMA must report annually indictable offences, which apply reclaimed by the person entitled, is an offence, as is non- to the board, by the end of to companies as well as with interest. It will typically take compliance with a direction to March, and the board must individuals, and those involved two months and is done through comply or rectify a material report to the minister by the end in the companies’ offences. the original institution, which defect of June Anyone convicted may be reclaims the money from the • Sections 30 to 40 deal with the •The NTMA’s accounts are required to pay the costs of NTMA. A fraudulent claim is an establishment of a Dormant subject to review by the prosecution. G offence Accounts Fund Disbursement comptroller and auditor general, • Each financial institution has to Board, which is charged with and the NTMA’s chief executive Alma Clissmann is the Law furnish a certificate of preparing a plan for disbursing is to account to the Public Society’s parliamentary and law compliance within a month of the money in accordance with Accounts Committee, as is the reform executive.

3 WORKING GROUP ON THE JURISDICTION OF THE COURTS Invitation to make observations: criminal jurisdiction

he Working Group, which is chaired by Mr Justice Nial Fennelly of the Supreme Court, has been established by Tthe Board of the Courts Service. The terms of reference of the Working Group are as follows: “ I. To examine the existing jurisdiction of the courts of Ireland and make recommendations as to any changes which, in the opinion of the Working Group, are desirable in the interests of the fair, expeditious and economic administration of justice, including proposals for the establishment of new courts jurisdictions, whether appellate or first instance, for determining the appropriate number of judges for each jurisdiction and the supporting staffs required in such jurisdictions and for alterations in the quantitative or geographical limitations of existing jurisdictions;

II. With a view to I., to conduct research into: (a) the manner in which the courts of Ireland have operated since their establishment in 1924 and are likely to continue operating in the future on the assumption that the existing structures remain unchanged; (b) the manner in which the administration of justice is conducted in other jurisdictions to the extent that the Working Group considers such research might be helpful;

III. To make such further recommendations as to changes in the law which, in the opinion of the Working Group, are desirable in order to secure the fairer, more expeditious and more economic administration of justice;

IV. To make such interim reports as it considers appropriate.”

he Working Group will be examining the jurisdiction of the Courts in a series of modules, the first of which is Tconcerned with the jurisdiction of the courts in criminal proceedings, followed by modules on jurisdiction in civil proceedings and changes in court structures. Further modules may be established if considered necessary.

To assist it in the process of public consultation which it has commenced under Module I, the Working Group invites written observations on the jurisdiction of the courts in criminal proceedings from interested bodies and individuals, and may invite any party making written observations to attend before it to provide further assistance. Observations made to the Working Group may be subject to disclosure on submission of the Working Group’s reports to the Board of the Courts Service.

Observations should be addressed to: The Secretary, Working Group on the Jurisdiction of the Courts, Green Street Courthouse, Dublin 7 or by e-mail to: [email protected]

The Working Group would hope, without imposing a deadline, to receive observations within four weeks. News

SBA GENERAL MEETING Notice is hereby given that the Successful seminar series th 138 annual general meeting of the Solicitors’ Benevolent on accounts regulations Association will be held at the Law Society, Blackhall Place, he Solicitors’ Accounts Monday 11 March and in seminars should contact Tina Dublin 7 on Friday 12 April 2002 TRegulations 2001 (statutory Limerick on 26 March. Beattie, executive officer at 12.30pm to consider the instrument no 421 of 2001) Further seminars may be (regulatory department), Law annual report and accounts for came into effect on 1 January arranged if there is sufficient Society, Blackhall Place, Dublin the year ended 30 November 2002 and replace the Solicitors’ demand for them. Anyone 7 on tel: 01 672 4800 or by e- 2001, to elect directors and to Accounts Regulations 1984 interested in attending the mail on [email protected]. deal with other matters (statutory instrument no 304 of appropriate to an AGM. Nearly 300 solicitors attended the recent seminar in Cork 1984). As part of the society’s programme for acquainting the UK BARRISTERS WIN DIRECT profession with the main ACCESS TO PUBLIC provisions of the new The Bar Council in England has regulations, a number of unanimously voted to relax its seminars have been arranged rule barring its members from throughout the country. having direct access to the These kicked off in Dublin public from next year. The move on 28 January, followed by follows a report by the UK’s Cork on 11 February, Kilkenny Office of Fair Trading which on 18 February and Sligo on 25 found that there are ‘undoubt- February. In view of the high edly cases in which a barrister demand for places, the society can usefully give legal advice or intends to hold two further draft a document without the seminars: in Dublin on intervention of a solicitor’. Calcutta Run goes for the record Postcard from the past

n July 1845, a bill was intro- A similar petition was present- Iduced in Westminster for the ed to the House of Lords on the appointment of a taxing master for society’s behalf by the Earl of the Court of Chancery in Ireland, Wicklow, supported by the with the appointment open only to Marquis Clanrickard and Lords barristers. The Committee of the Cottenham, Campbell and Society of Attorneys and Solicitors Langdale. A division was called in Ireland made representations to by Lord Wicklow, but the the attorney general seeking amendments were lost by 30 amendments to the bill to provide votes to 19. for the appointment of solicitors However, as a ‘result of their or attorneys to the position (as exertions’ the bill was subse- applied to the appointment of tax- quently altered to provide for the ing masters in England) and for appointment of ‘a barrister at law the appointment of more than one of not less than ten years’ stand- he Calcutta Run, the annual street children in Calcutta and taxing master. ing … or a solicitor with not less Tcharity event organised by Fr Peter McVerry’s shelters for The vice-president of the than ten years’ practise as a solicitors and supported by the homeless youths in Dublin. society, William Goddard, travelled solicitor’ to the position of taxing Law Society, will take place on The three runs to date have so to London and met the attorney master for the Court of Chancery Sunday 19 May. It comprises a far raised over €400,000. This general and the Lord Chancellor to in Ireland. 10k fun run/walk, followed by a year the target is €220,000. It advance the views of the society. Extracted from the Book con- barbecue at Blackhall Place. is hoped that this year’s event His efforts were unsuccessful. A taining the early Proceedings con- The participants raise money will be even bigger and better, petition was prepared by the soci- nected with the formation of the through sponsorship for their and the organisers are looking ety and presented to the House of Society and the Minutes of its var- participation. for participants and also for Commons by George Alexander ious Public Meetings held in the Last year’s event was the reps who will recruit and Hamilton proposing the desired Solicitors Room at the Solicitors biggest yet, with 1,400 runners organise participants within amendments, but these were Buildings, Four Courts and walkers taking part, raising their own firms. For further ‘negatived without a division’. – 1841-1850 a total of €185,000 for two information, visit the website charities, GOAL’s project for at www.calcuttarun.com.

5 Letters Letters

Clarification on the new Competition Bill From: Marco Hickey, LK Shields, and amending regulations whether or not the national only apply to Ireland) for doing Solicitors, Dublin (EEC) no 1017/68, (EEC) no competition authorities can so. It appears that neither the refer to the letter published 2988/74, (EEC) no 4056/86 apply stricter domestic European Court of Justice nor Iin the December issue of the and (EEC) no 3975/87 (OJ competition law in the European Court of First Gazette entitled Competitive 2000 C365, p284). circumstances where an Instance has, as yet, ruled on streak (page 9), commenting on Please note that the scope of agreement, decision or this issue. The current draft of the Eurlegal article in the the defence in head 6, section concerted practice benefits this bill does not appear to November issue entitled 1(d)(ii) and section 6(5) of the from an exemption under address this question. Article 3 General scheme of the bill is confined to situations in article 81(3) of the treaty. The of the proposed regulation Competition Bill published. This which it is alleged that article fact that certain block specifically provides that where letter comments that head 6, 81(1) of the treaty has been exemption regulations have an agreement, decision or section 1(e)(ii) of the heads of breached. Section 6(1) of the expressly provided that member concerted practice may affect the Competition Bill provides bill renders it an offence to states are allowed to apply trade between member states, that ‘if you can show that your enter into or implement an stricter national competition ‘community competition law agreement, decision or agreement or make or laws suggests that ordinarily shall apply to the exclusion of concerted practice benefits implement a decision or engage member states are not the national competition laws’. from an individual or block in a concerted practice that is permitted to apply their more As a result, this issue will be exemption by the European prohibited by article 81(1) of stringent national rules. laid to rest once the proposed Commission, or if, though it is the treaty. The defence The commission has regulation comes into effect. caught by article 81(1) of the provided for in section 6(5) of expressed the view that stricter In summary, the defence treaty, it is saved by article the bill does not apply where it national laws should not be provided for in section 6(5) of 81(3), then this will be “a good is alleged that the purely Irish applied to prohibit an the bill is confined to defence”. ’ law prohibition contained in agreement, decision or proceedings in which it is Head 6, section 1(d) (ii) of section 4(1) of the bill has been concerted practice exempted alleged that article 81(1) of the the heads of bill has now been breached. Section 4(1) mirrors under article 81(3) of the treaty treaty has been breached and is incorporated into section 6(5) the existing provisions (commission notice on co- not applicable to proceedings of the Competition Bill, 2001 contained in section 4(1) of the operation between national involving an allegation that and stipulates that it is ‘a good Competition Act, 1991 and competition authorities and the section 4(1) of the bill (which defence’ in any proceedings for prohibits all agreements commission in handling cases mirrors section 4(1) of the 1991 an offence under sub-section between undertakings, falling within the scope of act) has been contravened. (1) ‘in which it is alleged that an decisions by associations of articles 85 or 86 of the EC There appears to be much agreement, decision or concerted undertakings and concerted treaty [1997] OJ C313/3). The debate on the issue of the practice contravened the practices which have as their commission stated in this notice ability or jurisdiction of the prohibition in article 81(1) of the object or effect the prevention, that if the national competition national competition treaty’ (italics added for restriction or distortion of authorities were allowed to authorities to apply stricter emphasis) that the agreement, competition in trade in any apply more stringent national domestic competition law decision or practice is covered goods or services in Ireland or competition laws, the uniform where an agreement, decision by an individual or block in any part of Ireland. application of community law or concerted practice benefits exemption under article 81(3) As a result, an agreement, would be frustrated and the full from an individual or block of the treaty or that article decision or concerted practice effectiveness of an act giving exemption regulation and the 81(3) of the treaty is otherwise may be subject to the effect to the treaty would be European courts have yet to applicable to it. The latter is prohibition in section 4(1) of disregarded. rule on this issue. contained in the bill so as to the bill even though the The Irish Competition The proposed regulation cater for the direct applicability agreement, decision or Authority has in the past specifically deals with this issue, of article 81(3) of the treaty concerted practice benefits expressed a contrary view to the clarifying that national which is envisaged in the from an individual or block effect that Irish law can competition laws would be proposed council regulation on exemption regulation under override a block exemption if it inapplicable once an agreement, the implementation of the rules article 81(3) of the treaty. does not frustrate the main decision or concerted practice of competition laid down in There seems to have been quite purpose of the exemption and if may affect trade between articles 81 and 82 of the treaty some debate on the issue of there are special reasons (which member states. G

6 Letters Crilly v Farrington and those hospital fees From: John G Murphy, basis – that is, the total hospital that the ADC falls within the challenging it, so be it. The Enniscorthy, Co Wexford costs for the year divided by range of reasonable. It is plaintiff can settle his action made some enquiries with the the number of occupied beds. charged by the year in arrears. either including full payment ILaw Society library and, Obviously, this was quite an The capital cost is not for the hospital bill or, if apart from the Supreme Court artificial way of doing it, as it included. Of course, it is not accepting partial payment only, judgments themselves, I have would result in the hospital the only scheme possible under then with a full written not yet come across any article charging the same daily rate the section. However, the ADC indemnity from the insurance or publication which sets out in for treating a patient with a is within the scope of company itself for the balance a particular way the result or broken toe as would be reasonable’. Later she said: ‘A of the hospital bill outstanding. consequences of what is charged to a patient charge need not be the precise I have already seen one case commonly known as the Crilly undergoing complex brain charge for the actual services where Beaumont Hospital, v Farrington Supreme Court surgery. Clearly the insurance rendered. An average is a having already furnished a bill decision. As you know, that was company picking up the tab in reasonable basis for a charge. to a plaintiff’s solicitor, then the case which interpreted the broken toe case would feel The ADC is reasonable and (following the Crilly v section 2 of the Health a little aggrieved. (As a point of inter vives section 2(1) of the Farrington decision) wrote Amendment Act, 1986 information, the percentage of act of 1986’. again to the plaintiff’s solicitor concerning the amount of rate and sent a new, increased bill. of hospital charge which In my view, there is nothing injured parties/hospitals can whatsoever in the Crilly v expect to recover from Farrington judgment which defendants/insurance authorises the hospital to do companies in road traffic this and it seems to me that accident cases. some bright spark in Beaumont There are written judgments may have latched on in a rather from Murray J, Fennelly J, blinkered way to the words of McGuinness J and Denham J. Judge Denham quoted above, If you wish to go into chapter where she says ‘of course, it is and verse, Denham J is the not the only scheme possible judgment to read. The under the section. However, ‘practical effect’, with which the ADC is within the scope of you will be concerned in day- reasonable’. I do not think any to-day management of road court is going to look traffic accident cases, appears to favourably on a hospital which be as follows. Section 2 of the has already sent out its bill to a Health Amendment Act, 1986 plaintiff/plaintiff’s solicitor and enables health boards to make Beaumont Hospital: took the Crilly v Farrington judgment to heart? then many months later charges on an injured person decides to send out an (or his personal representative total patients who are road Contrary to popular belief, amended or increased bill. or dependant) who has received traffic accident victims Crilly v Farrington does not lay Again, however, from a or is entitled to receive numbers less than 1%. I down precise daily rates for plaintiff’s solicitor’s perspective, compensation concerning the thought you might like to hospital charges: it simply full payment or an indemnity negligent use of a vehicle. know that!) finds that the ADC system from the insurer is essential. Over the last number of While the 1996 act imposes used by hospitals was As a side issue, it is worth years, everybody worked on an obligation on the health appropriate, and thus the noting that all of the written what was called the ‘Kinlen authority to charge the practical effect is that the judgments in Crilly v rate’, a rate decided by Mr patient/defending insurer for hospital bill must be paid in Farrington deal at some length Justice Kinlen and which for a treatment provided arising out full. (In saying this, I am with the question of the period was accepted as being of a road traffic accident, the assuming that the hospitals will admissibility of ministerial £100 a day and later moved to act does not set out how the continue to furnish bills statements/Dáil debates and £150 a day. At the moment, the charge is to be made. The calculated on an ADC basis.) I so on. general view appears to be that hospitals were using the ADC would not propose that a In cases concerning the the hospital bill must be paid system – that is, the average plaintiff’s solicitor should make interpretation of statutes and ‘in full’. daily cost as described above. enquiries of a hospital in that the general exclusionary rule Why was it difficult for You can see that the average regard, but I would suggest concerning admissibility of health boards/hospitals to set daily cost probably lagged that he or she should simply such materials, some out their charges or to recover behind the actual cost because disclose the hospital bills at an practitioners might be their charges fully? The it would be based on the early date to the defence/ interested in reading the very hospitals attempted to set out previous year’s costs. Judge insurer’s solicitors, and if the detailed written judgment by the daily cost on an average Denham stated: ‘I am satisfied insurance company feels like Fennelly J on that point. G

7 Letters Letters Great A turnip for the family law books expectations From: Niall G Murphy, Kilkenny law of the EU states (Brussels II came into effect, it having From: Seán MacCann, Co Tyrone Law Centre III). Not only that, but there slipped in so quietly. I am originally wrote to the Law have just read in the January are also plans to harmonise the wondering what input the ISociety in 1998 to suggest I2002 issue of the English jour- laws on succession, probate and profession will have into the that we drop the terms ‘master’ nal Family law that the European inheritance (Brussels IV). It legislative process apparently and ‘apprentice’. Mr O’Herlihy Commission has already started appears to me that most Irish now under way. Hopefully, we (Letters, Jan/Feb issue) may feel a project to harmonise the practitioners had to rush to will get some warning before that such terminology is part of financial provisions in the family educate themselves after Brussels the new laws come into effect. a ‘fine old tradition’. Apart from the fact that I’ve yet to hear of an apprentice’s DUMB AND DUMBER ‘mistress’ (at least, not outside From: MJ O’Connor, Solicitors, MJ O’Connor, Solicitors, win of a divorce court), my Wexford the bottle of champagne this month. objection to this Dickensian he following is a quote But they would, wouldn’t they? They language has more to do with Tgiven by a client while were the only entrants, after all. Send th the 19 century attitudes discussing the circumstances of your examples of the wacky, weird towards the cynically- an accident where the client and wonderful in the legal world to underpaid young graduates attempted to overtake at a the Editor, Law Society Gazette, entering our profession that junction: ‘it’s not even a junction, Blackhall Place, Dublin 7, or you can such out-dated language it’s a main road with a lesser fax us on 01 672 4877 or e-mail us perpetuates in too many Irish road on either side’. at [email protected]. law firms. leaders… in the quest for excellence…

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8 Viewpoint Justice requires more judges In the interests of justice, the government must replace the High Court judges who have been seconded to tribunal and other duties, argues Ken Murphy

he government’s decision products and Judge O’Leary Circuit Court, where divorce Tearlier this week to appoint has been dealing with the and judicial separation cases are the former president of the Ansbacher account-holders and, now taking much longer than High Court, Mr Justice before that, the Luas inquiry. previously) and even major Frederick Morris, to conduct an The consequence is that a commercial law cases which inquiry into the conduct of High Court judiciary which have been specially fixed with certain gardaí in Donegal in today is 20% under-strength is witnesses travelling from what has become known as ‘the falling further and further abroad frequently cannot McBrearty affair’ is unusual behind. Apart from the obvious begin, often after days of only because the individual further deterioration if a judge waiting, because no judge is involved has retired as a judge. or two were to fall ill, the available. Much more frequently, increasing phenomenon of Worse is to come. Company individuals who are still serving lengthy cases such as the Master law enforcement and EU as judges have been taken away Meats case which settled competition law cases are on Ken Murphy: citizens’ access to from their courtrooms to chair justice is denied through delay suddenly very recently – the way and extradition cases tribunals or perform a range of having been at hearing for are about to be moved from other difficult tasks; roles where available to sit as judges because approximately a year – can the District to the High Court. judicial independence, analytical the government has called render judges unavailable to Yet as things already stand, in skills, knowledge of fair individual judges away for other take other cases for very almost every area of work procedures and the ability to duties without replacement. lengthy periods. (although not as yet in personal draft thorough and balanced At present, Mr Justice injury work) court delays are reports have been much needed Moriarty is in his fourth year in Objectionable delays growing, despite the enormous in non-courtroom contexts. Dublin Castle, chairing the Acute consequences are felt in hard work and creativity of But what happens in the tribunal of inquiry into the the Central Criminal Court, judges and court staff. courtrooms and to the caseloads finances of certain politicians where the most serious criminal The solution is simple. The that the judges leave behind? following on from the earlier cases such as murder and rape government should appoint Do governments ever consider tribunal report of another High are tried. What makes delay in half a dozen new High Court the level of disruption to the Court judge, Mr Justice such cases particularly judges and a number of justice system that results McCracken. Ms Justice Laffoy is objectionable is the fact that additional judges also in other from so many key personnel in her third year chairing the the accused, though presumed courts. Failure to do so is a being seconded to non- Commission of Inquiry into innocent, will often be in false economy. In many courtroom duties? Child Abuse. Mr Justice Quirke prison during this period. If on respects, the judge is the It seems not. A very serious is in his second year dealing bail, he may well be walking cheapest element in the whole problem of increasing and with benchmarking of public the same streets in the same system. Delays and unconscionable delay has service pay. Mr Justice Pat neighbourhood as the victim postponements in the courts emerged in the High Court and Smith has recently been and family of the victim of the waste economically and socially in other courts as a result of an seconded for what is expected to alleged crime. valuable personnel and already over-stretched justice be a period of years to oversee In the judicial review list, resources of all kinds. system being deprived for the new systems created under where legal challenges are Citizens’ access to justice is lengthy periods of substantial the standards in public office brought to decisions of various denied through delay, the numbers of judges. legislation. administrative bodies, the dynamism of the Irish economy The High Court at full In addition, the vacancy situation is also deteriorating. is blunted and all who deal strength, according to current created by the retirement of Mr Instead of cases receiving a with the courts are frustrated statutory provisions, has 24 Justice Morris has not yet been hearing date next term, they are by courtrooms lying idle judges. Even if all 24 were filled, with the new High Court now being put back to the because judges have been available, there are good judge, already nominated by the following term. Many of these committed elsewhere by the grounds to argue that the government, not due to take up cases are extremely urgent, as government. number of judges is inadequate office until next month – leaving in the asylum list where By all means continue to use to match the ever-rising tide of the High Court short of a decisions of the Refugees judges in the other roles for litigation of various forms that replacement judge for the not Appeals Commission are which their skills well suit our increasingly complex untypical period of four months. challenged by people facing them. But replace them, as a society produces. The trouble is Nor has the Circuit Court deportation. Delays are minimum, when you do so. G that for years it has never been escaped. Judge Lindsay has growing in the family law lists the case that all of the High spent years chairing a tribunal of in the High Court (although to Ken Murphy is director general of Court judges have been inquiry into contaminated blood an even greater extent in the the Law Society of Ireland.

9 Cover story

Three years after closing its doors for renovations, one of the country’s finest courthouses is still lying empty. Meanwhile, justice in Ireland’s second city is being dispensed in conditions that have been branded ‘sub- human’ and ‘intolerable’ by practitioners. Conal O’Boyle reports

PHOTOGRAPHS: JANICE O’CONNELL/F22 PHOTOGRAPHY CORK’ ROUGH magine, if you will, a dungeon or cave, sweat and stale coffee that assaults the nostrils of measuring perhaps nine feet by nine feet. anyone who has business here in this dank place. Imagine, too, that the only source of light These are the holding cells that lie behind an entering that dungeon comes through the insignificant white metal door at the back of I floor-to-ceiling metal bars that make up the courtroom number 1 in Cork’s Camden Quay front wall. Now picture that dark, dirty cage holding courthouse. nine or ten agitated men, each facing the most To call the conditions here Dickensian would be difficult day of their lives. And try, if you can, to an insult to Dickens. This is Cork’s black hole of imagine the stench of urine mingled with smoke, Calcutta.

10 Cover story

(Far left) One of the two unique courtrooms contained in the now empty courthouse on Cork’s Washington Street (left)

‘One of the finest courthouses in the country’: the empty corridor above Washington Street’s roundhall

• Inadequate facilities in ‘temporary’ courthouse • ‘Sub-human’ conditions in holding cells • Anger and frustration among Cork solicitors S MAIN POINTS JUSTICE Today is the first day of the Circuit Court Sympathy is hard to come by in this place. After criminal sessions in Ireland’s second city, and all four all, these are serious punters. And the cages are filled with men presumed innocent until accommodation is little better for the score of gardaí found guilty. In one small sense they are lucky: if and prison officers milling around out of sight there were any female remand prisoners awaiting behind the door. Few have chairs to sit on in their hearing, the men would lose one of the four cells spartan common room just round the corner from through segregation. They began arriving by prison the cells; most drink their coffee standing up. It is van at 9.30am and some will be there until the doubtful whether the room would pass a health and session closes at 4pm. safety inspection.

11 Cover story

But for criminal law practitioners, the situation is, if possible, even worse. The ‘consultation room’ is a corridor outside the fetid toilet, just yards away from the cages. It is furnished only with a mop bucket and a broom. This is where solicitors must consult with their clients, many of whom will have life-altering decisions to make. This is rough justice, Cork-style. ‘Sub-human’ is how one criminal lawyer describes the accommodation. ‘Unacceptable and intolerable’, says another, who adds: ‘You wouldn’t even call it second-rate’. ‘It’s impossible to provide a proper service’, says solicitor Frank Buttimer. ‘It’s just unimaginable that you could have any kind of coherent consultation with people who have important decisions to make’. On the other side of the white door, the court is full to overflowing. It’s standing room only as the court processes its workload efficiently, racing through the huge number of cases to be dealt with in the coming weeks. But poor acoustics and poorer air conditioning drive many people out into the public corridors, and their places are immediately taken by those who have been craning their necks at the door because their elbows lacked the skill to get them inside in the first place. To be fair, this is the first day of the criminal session and things are bound to improve as the days pass, but justice in Cork was never meant to be administered like this. On Washington Street, the city boasts one of the finest courthouses in the country, dating back to the 1830s. Historically, Washington Street housed the District and Circuit courts, and also the High Court when it came to town. But by the early 1990s, even the dullest bureaucrat had come to recognise that the courthouse facilities were no longer adequate for the purpose. In 1995, the District Court was hived Not surprisingly, practitioners and their clients are off to the newly-renovated Model School on Cork’s angry and frustrated at the lack of progress. As one Anglesea Street, while the city council began the solicitor put it: ‘You could put up with it for 12 search for a temporary replacement for the other months when you thought that it was only going to courts. be 12 months, but we’re two-and-a-half years in here Business continued in Washington Street while with the prospect of another three years down the the building’s facade was being cleaned and line’. sandblasted, but in 1999 the old courthouse closed And they’re not the only ones feeling the pinch. its doors, supposedly for one year, while interior Visiting judges are reported to have expressed grave refurbishment was to take place. By this time, Cork reservations about sitting in Camden Quay. Last City Council had acquired the Camden Quay site as November, for example, a jury trial was temporarily a temporary courthouse at an annual lease of abandoned because the courthouse flooded so much £500,000 (€635,000). Three years and £1,500,000 that jurors were trapped in their jury room and had later, the final design for the interior of Washington to be ferried out by boat. Street has been agreed but the renovation seems as For Cork solicitors, the issue is not simply one of far away as ever. Camden Quay looks like it will be better surroundings in which to ply their trade; they home to the Circuit Court and High Court until at are worried about the impact that such poor facilities least November 2004. have on their clients. This is particularly true when it Meanwhile, the original budget for renovating comes to family law. Washington Street has been revised upwards. As one practitioner puts it: ‘Family law cases are Current estimates suggest that the cost has jumped chaotic in Camden Quay. Both parties should be from €8.89 million (£7 million) in 1997 to €19.05 kept away from each other, but when the courthouse million (£15 million) when the work is scheduled to is crowded, that’s just impossible. Mind you, even in be completed in 2004. And three years after the Washington Street that was a serious problem’. courthouse closed its doors, a contractor has still not There are a number of consultation rooms in the been appointed to carry out the job. temporary courthouse, but solicitors are quick to

12 Cover story

(Right) Delusions of grandeur: images from the deserted courthouse on Washington Street

‘Last November a jury trial was temporarily abandoned because the courthouse flooded so much that Cork’s temporary courthouse on Camden Quay jurors were trapped in their point out that they’re pretty basic, to say the least. The rooms are airless and barely furnished, with no jury room and tables and a few plastic chairs. Perhaps people facing had to be into the trauma of a court case may have other things on their minds than furniture, but ferried out by practitioners here argue that their clients deserve boat’ more than the most basic facilities on offer. ‘I think the profession has shown a lot of forbearance and restraint up to now’, says Frank Buttimer, ‘but this situation is causing us more and more concern. And it’s not because we have a vested interest in being any more comfortable than anybody else doing their jobs; it’s just that at the end of the day this building is used by the public and as citizens they’re entitled to reasonable accommodation. ‘The end users have no-one to speak for them because they are just a group of individuals who happen to be using the court facilities, and that’s typically a voiceless grouping. It’s a pretty big grouping, but they don’t have occasion to use the court facilities more than once or twice. They look at it, they think its outrageous, their business is dealt with and they’re gone’. The Southern Law Association, the representative body for solicitors in Cork city and county, has been

13 Good lawyers always check the small print.

Vorsprung durch Technik www.audi.ie Cover story pressing for action on the Washington Street court- added: ‘Structurally we’re limited, and there’s no house, while highlighting the appalling inadequacies point in saying that we’ll put in three extra of the Camden Quay site. In the words of one SLA consultation rooms because physically we really member: ‘It’s an issue that’s been festering in the can’t. But cosmetically we can put in things like background as opposed to receiving the huge tables and chairs straight away. I’ve been on to our attention that it should have up to now. Everybody’s suppliers and we’ll get that done’. been sitting around waiting for something to happen, So will the move back to Washington Street but how long are you supposed to wait?’ mark an end to the rough justice experienced by According to the Courts Service, which only took those currently languishing in the remand cells at over the management of the state’s court facilities in Camden Quay? ‘Absolutely’, says the Courts November 1999, there is now some light at the end Service. ‘There will be more space, and at least two of this Jack Lynch Tunnel. A spokesman for the sets of holding cells – one under each of the main service told the Gazette: ‘Our project manager has courtrooms. In the new courthouse, there will be now set down a timetable and we will go out to proper consultation facilities for solicitors and their tender for this project on 10 May, with a tender clients’. period of six weeks, so tenders should be back in by Sean Durcan of the SLA believes that the legal 21 June. We hope that the contractor will be on site profession in Cork has learnt a few lessons from the in early August, after the builders’ holiday. I won’t move to Camden Quay. It’s had architects examine say that’s written in stone because things can always the plans for the refurbished Washington Street go slightly askew, but this is the timetable that courthouse and lobbied the Courts Service heavily everybody’s working to now. I would hope that by to ensure that the appropriate facilities will be in 2004 we will be able to provide a proper court with place when the court finally opens its doors again. the proper facilities in it for all court users’. He’s reasonably happy that the profession’s And there is some more immediate good news as concerns have now been taken on board. well. The Courts Service says it will move And like the rest of his colleagues – and their immediately to improve conditions in Camden clients – he won’t be sad to see the back of Camden Quay by supplying tables and chairs for the Quay. ‘You do get used to it’, says Durcan. ‘There’s ‘consultation room’ beside the holding cells. The nothing else you can do. You have to use what’s lawyers’ room in the courthouse will also be there. But Washington Street is a fantastic building extended over the Easter recess. But the spokesman and it will be great to get back there’. G

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15 Litigation VOYAGE of Recent court decisions have led to several important developments relating to the rules of discovery and their interpretation. Eoin Dee explains

n the recent case of Michael Swords v Western to the defendant’s Proteins (High Court, 1998, no 405P), the solicitor seeking decision of Mr Justice Frederick Morris documents from the indicated that, unless a letter seeking voluntary defendant which ‘touch I discovery is in the strict statutory form as on in any way the issue of required by statutory instrument no 233 of 1999, liability in this case’, discovery will not be granted. particularly a list of Originally, applications for discovery before the documentation including Superior Courts were governed by order 31, rule 12 the accident report book. of the Superior Court Rules. This provided that a party The defendant’s solicitor seeking discovery might apply to the court for an subsequently replied, order for it without the need to file any affidavit. The indicating the court might refuse or adjourn the application if requirement under the Superior Court Rules to specify satisfied that discovery was not necessary, or why they were needed. The plaintiff’s solicitor in turn unnecessary at that particular stage of the replied that ‘we would have assumed that the reason proceedings, for disposing fairly of the cause or why we require discovery of these documents was self- matter or for saving costs. Under these original rules, evident’. Thereafter, a notice of motion seeking it was not necessary to specify precise categories of discovery was issued. documents that were required to be discovered. At the hearing, the master adjourned the case for Neither was the applicant required to set out reasons the purpose of allowing the plaintiff’s solicitor to file a why discovery was being applied for. supplemental affidavit outlining why the documents Statutory instrument 233 changed all of this. It were required to be discovered. This affidavit stated came into effect from 3 August 1999 and provided that the documents were ‘required to prove the that the party seeking discovery must request it on a defendant’s state of knowledge at the time [of the voluntary basis from the party against whom accident] and its negligence as particularised in the discovery is sought. This written request must specify second, third and fourth paragraphs of the particulars the precise categories of documents required and of negligence’. must set out why these are necessary for disposing Before Mr Justice Morris, counsel for the defendant fairly of the cause or matter or for saving costs. Any objected to the order for discovery made by the notice of motion seeking discovery that subsequently master and submitted that the master misdirected issues must do likewise in an affidavit that must himself in granting the order. Counsel submitted that accompany the notice. The question therefore arises statutory instrument 233 of 1999 specifically precludes as to how these provisions are being interpreted by the court from making an order for discovery unless: the courts. The decision in Swords is important • The applicant has previously sought discovery because it shows that the courts are likely to apply a voluntarily, specifying precisely what is sought and strict interpretation when considering applications for the reason why, and discovery. •A reasonable time has been allowed for discovery to This case was a personal injury action that arose be made and the person requested to make • Swords v from burns sustained by the plaintiff while employed discovery has failed or neglected to do so. Western by the defendant at its meat-processing plant in Proteins Ballyhaunis, Co Mayo. On 19 May 2000, the master Counsel submitted that the letters written by the • Effects of of the High Court had ordered that within six weeks plaintiff’s solicitor made no attempt to specify the statutory the defendant make discovery on oath of ‘the accident precise category of documents required and did not instrument report form and all documents relating to the set out why these were required. Counsel submitted 233 of 1999 reporting and investigation of the accident in which that in these circumstances, the master had no power • Discovery the plaintiff was involved up to 1 October 1997, when to make the order. letters to be in the defendant was made aware of the plaintiff’s The defendant made a further submission that strict statutory intention to bring legal proceedings arising out of the there is an obligation on the party seeking discovery form accident’. The plaintiff’s solicitor initially sought to file an affidavit verifying that the discovery is

MAIN POINTS voluntary discovery on 29 November 1999 by writing necessary to dispose fairly of the matter or to save

16 Litigation DISCOVERY

‘The decision makes it

costs and giving the reasons why each category of In response to the second submission by the quite clear documents is required to be discovered. It was defendant’s counsel, Mr Justice Morris stated that it that the submitted that, as this had not been done by the time was within the master’s jurisdiction to give the the matter first came before the master, the master plaintiff an opportunity to file a supplemental affidavit rules had misdirected himself in adjourning the matter. to enable him to comply with the Superior Court Rules. governing Counsel for the defendant submitted that the master He stated that there was no obligation on the master should have determined the matter when it came to determine the issue on foot of the affidavit before the concept before him on the first return date. him, observing that ‘there is vested in the master an of discovery overall jurisdiction to adjourn the case if the interests A thing of the past of justice require that such an order be made’. are to be As regards the first submission, Morris J held that construed statutory instrument 233 of 1999 imposed on the Proceeding with care party seeking discovery a clearly-defined obligation to For litigation, the important element to take from this strictly, so pinpoint the documents or category of documents to decision is that, if you are seeking voluntary discovery, practitioners be discovered, and required that party to give the it is necessary that your request be in strict reasons why they were needed. In his ruling, the compliance with the provisions of SI 233 of 1999. In must be judge stated that ‘blanket discovery became a thing of particular, the preliminary letter requesting voluntary extremely the past’. He went on to say that the purpose of SI discovery must be quite specific in outlining what is 233 was so that ‘the party against whom discovery was required and must clearly state the reasons why these careful’ being sought would, upon receipt of the preliminary are required and why they are necessary for disposing letter, be in a position to know the documents or fairly of the matter or for saving costs. If a motion is category of documents referred to and be able to subsequently filed, the motion’s grounding affidavit exercise a judgement on whether the reasons given for must also specify these details. If the originating letter requiring these documents to be discovered was setting out what is required to be discovered is not in valid’. Morris J further stated that ‘if the letter of compliance with the Superior Court Rules, the master application does not comply with the rules, then the has no jurisdiction to make an order for discovery. If issue is not identified and there is no power vested in the affidavit fails to comply with the statutory the master to make a determination on any issue’. requirements, the master has inherent jurisdiction to The judge was of the view that the master derived his adjourn the matter to allow for the filing of any jurisdiction to determine the issues from the supplemental affidavit to remedy the defect in the identification of the issues in the originating letter motion papers. and that even an elaborate affidavit filed subsequently The decision makes it quite clear that the rules could not make up for earlier deficiencies. In this governing the concept of discovery are to be particular case, Morris J was satisfied that there had construed strictly, so practitioners must be extremely not been any effort made by the plaintiff’s solicitor to careful. G specify the precise category of documents sought and, accordingly, the master had no jurisdiction to make Eoin Dee is a solicitor in the Wexford law firm Nolan the order for discovery. Farrell & Goff.

17 Europe

The CCBE represents the interests of more than 500,000 lawyers throughout the European Union and the European Economic Area. This year’s president is Irishman John Fish and here he talks to the Gazette about the role of the CCBE and what he hopes to achieve during his year of office

he CCBE – which stands for the Council suspicious transactions to the authorities – had not of the European Bars and Law Societies – been adopted, political pressure, particularly since the maintains a secretariat in Brussels, at 45 tragic events of 11 September, has resulted in the Rue de Tréves. Its staff comprises a Council of Ministers and the European Parliament T secretary general, together with legal reaching a compromise agreed text. assistants, secretaries and translators. The secretary As a result of extensive lobbying by the CCBE, general is Jonathan Goldsmith, who was a former significant qualifications were included in the agreed international director for legal affairs in the Law text whereby the obligation to report may not apply Society of England and Wales. The remaining staff where the lawyer is acting on behalf of a client in consists of young lawyers and assistants from various judicial proceedings and during the course of giving parts of the European Union, including Ireland’s Peter legal advice. However, it remains to be seen how McNamee. national governments implement this legislation. A list of ‘action points’ has been prepared by the CCBE What does the CCBE do? and has been sent out to all the delegations. This list There is a considerable proliferation of bars in identifies the discretions vested in member states, so continental Europe. The European institutions prefer that bars and law societies can be forewarned of the to deal with a single entity such as the CCBE where issues on which they will need to be vigilant in dealing consultation with the legal profession as a whole is with national governments. required. This is the CCBE’s primary role. The institutions with which the CCBE maintains regular Were you happy with the outcome of the money- contact are the European Commission, the European laundering debate? Court of Justice and the Court of First Instance in I do not think any lawyer could possibly say that he Luxembourg, the European Parliament and the was ‘happy’ with the result of that debate, insofar as European Court of Human Rights in Strasbourg. lawyers will be obliged to report suspicious For example, the CCBE is regularly consulted by transactions to the authorities. The CCBE has the commission on any issues that affect the rights of maintained that, in the absence of proper safeguards, lawyers to engage in cross-border practice. In this such disclosures would be in fundamental breach of regard, the commission is currently examining whether European rules on the principle of lawyer/client there exist within the European Union any barriers to confidentiality. Having said that, I believe that in the the provision of cross-border professional services context of the fight against money laundering, the (including legal services) throughout the union. compromise eventually reached between the The CCBE has also been asked to examine European Parliament and the Council of Ministers is ethical issues arising out of the application of the probably the best that could be expected in the e-commerce directive. Currently, the CCBE Common circumstances. THE MAN WITH code of conduct deals with ethical issues arising out of How is the CCBE organised? cross-border activities by lawyers, but it is a code that Bars and law societies appoint national delegations to is likely to require revision. represent them individually. These delegations can A matter in which I was personally involved over comprise up to six delegates in the case of the larger the last two to three years was the extensive lobbying bars and law societies, whereas two to three delegates is that the CCBE undertook regarding the commission’s the norm for a number of the smaller ones. Each proposal to extend to the legal profession the delegation has a person who is nominated as its head, obligations of financial institutions under the existing who in turn attends regular standing committee money-laundering directive. Although we would have meetings (usually in Brussels). All delegates attend bi- preferred that the requirements of the directive – annual plenary sessions, one held in Brussels and the whereby lawyers would be obliged to disclose other in the country of the president. The Law Society

18 Europe

of Ireland and the Bar Council will have the pleasure lawyers to provide of hosting the plenary session in Dublin in early services within the December of this year. European Union. I The national delegations elect a first vice-president believe that the emphasis and a second vice-president who, together with the will now change towards president, are collectively known as ‘the presidency’. a demand from the European institutions How are you funded? that the legal profession Each bar and law society pays a subscription to the should have an input into CCBE which is calculated by reference to size. The new legal developments subscription for this year, which is shared by the Law intended to harmonise Society and the Bar Council, is €31,632. In the case of the law and legal practice Germany it amounts to €92,627. In recent years, where it impacts on the national delegations have sought, quite properly in my internal market. For view, to get more ‘value for money’ in relation to the example, there are matters handled by the CCBE. Certainly, the CCBE important new initiatives has implemented procedures within the secretariat to in the field of criminal ensure that it operates more efficiently and that law, especially with John Fish: ‘The CCBE delegations and their information officers are kept regard to proposals for minimum procedural standards has to work out how the advised of all relevant developments. I believe that this in the member states following an extradition under voice of the European is working well and it is my understanding that the European arrest warrant. legal profession can be heard at every level delegations generally are happy that they are being Another example where the CCBE should be within the European well served from Brussels. actively involved arises out of the commission’s Union’ proposals to review and harmonise aspects of contract What are your ambitions for 2002? law. The commission has just published a draft This year, issues will arise regarding the positions to proposal for a directive on legal aid, which I am sure be adopted by the European legal profession on the will give rise to considerable debate. To that extent I rights of European lawyers to provide legal services in believe that the CCBE has to work out, in conjunction jurisdictions other than Europe, and also of lawyers with the bars and law societies, how the voice of the from such other jurisdictions to provide services in European legal professional can be heard at every level Europe. This is all being conducted under the aegis of within the European Union. the WTO. The European Commission is the A matter of supreme importance to the profession is negotiating body on behalf of the European Union the long-awaited decision by the European Court of and we are in regular contact with the relevant Justice in the so-called Nova case. The CCBE personnel within the commission so as to ensure that intervened in this case in support of the Dutch bar our views are properly promoted. For example, the following a referral to the court by Arthur Anderson CCBE would wish to see that where the United States and PricewaterhouseCoopers against a decision of the government seeks access for their lawyers into the Dutch bar to prohibit in the Netherlands a multi- European Union, similar rights of access should be disciplinary partnership with accountants. The court conferred in the US. The same principle applies for held that the Dutch bar was entitled to impose EUROVISION other jurisdictions. restrictions, as these were necessary ‘for the proper On any issue, the CCBE tries to reach a common practice of the legal profession’. We are delighted with the position within the bars and law societies. Sometimes outcome, which we think is clearly in the public interest. this can be difficult to achieve. The dilemma for the Developments at European level that will affect CCBE, however, is that as more and more initiatives practitioners are moving ahead. It is not simply a question are developed by the European Commission both in of the CCBE keeping abreast of such developments, but relation to the practice of law and also in relation to also of influencing them from the point of view of the substantive law, there needs to be a body such as the practitioner and the consumer. G CCBE that can reflect the overall opinions of the European legal profession. John Fish is the president of the CCBE and a consultant with The CCBE has in the past focused the rights of the Dublin law firm Arthur Cox.

19 Coroner Rules Public Advertisement for Submissions Technology Sticking it to the spammers

The United States has been leading the way in the fight against unsolicited e-mails and other nuisance communications. Recently, that fight took a new turn in the US Supreme Court. Paul Lambert discusses the latest development

n June 2001, the Washington Supreme Court providers (ISPs) are upheld the constitutionality of a state law permitted to sue for prohibiting unsolicited commercial electronic $1,000 per spam message. communications or ‘spam’ (see Gazette, October Heckel is alleged to I 2001, page 22). have repeatedly used Washington’s attorney general had sued a man named deceptive subject lines, such as ‘did I get the right Heckel after receiving complaints from people who had e-mail address?’, which the attorney general feels received his spam communications. Heckel contested deceived recipients of the communications into the validity of the state’s Commercial Electronic Mail Act, opening them. Heckel is also alleged to have used false arguing that it violated the so-called ‘commerce clause’ return addresses as well as cancelling addresses as soon of the US constitution. He argued that US states are as each batch of spam had been sent. Ray Everett- not permitted to pass laws that regulate US inter-state Church (a spokesperson for the Coalition Against commerce. The Washington Supreme Court upheld the Unsolicited Commercial E-mail) is reported to have act and referred the case back to the Superior Court of said, in response to the US Supreme Court decision, King County (the trial court) in Seattle. Heckel that this type of deception and falsehood took the appealed to the US Supreme Court. appeal ‘out of being a pure commerce clause issue to The US Supreme Court decision would be an one of consumer protection … There is very little important test for all anti-spam laws in the United constitutional protection for deception, and that seems States and also in relation to the legality of spam to be really the bottom-line to the case’. generally. While many appeals are filed with the US It now remains to be seen what the trial court will Supreme Court, the sheer volume (and the limited decide. Will the allegations against Heckel be proved? number of judges) means that, in practice, only a small What sanction or fine may the court impose? It should selection of these cases are heard. In this instance, the be remembered that it is possible for damages to be court decided on 29 October 2001 that it would not awarded in relation to each individual spam hear Heckel’s appeal. This means that the original communication. It is also unclear if individual decision of the Washington Supreme Court remains recipients or ISPs intend to sue Heckel if the present intact and the case against Heckel will revert to the action is successful. The King County decision will be King County Superior Court for hearing. eagerly awaited by interested parties on both sides of The case awaiting Heckel is a claim made by the spam debate. Washington’s attorney general, originally filed in 1998. On 29 October 2001 on the other side of the world, Heckel is being sued for spamming millions of e-mail a Japanese court granted an injunction to a mobile users. The spam communications that were complained telecommunications company against a company that of sought to advertise a book that advised people how allegedly spammed hundreds of thousands of e-mail to use spam themselves. The Washington act proscribes users. So many messages were being sent that it was • Regulation of the sending of commercial e-mails that contain beginning to affect the capacity of the communications unsolicited misleading information in the subject line, use false network. This is just another example of network commercial e-mail return addresses or use third-party domain providers seeking the assistance of the courts against communi- names as a return address without the permission of the initiators of spam. It is clear that the technological cations the third party. capabilities that permit spam, and wireless spam, will • Washington v Various parties are permitted to bring cases under result in many more cases being taken by both Heckel the act. The state can bring actions against spammers communications companies and recipients. G • Recent case seeking damages of up to $2,000 per violation. law in the Consumers who receive spam are permitted to sue for Paul Lambert is a solicitor in the information technology United up to $500 per spam communication or the amount of law unit of the Dublin law firm Matheson Ormsby States

actual damage, if the damage is greater. Internet service Prentice. MAIN POINTS

21

Books Book reviews Towards a culture of human rights in Ireland Ivana Bacik and Stephen Livingstone. Cork University Press, University College, Cork, in association with the Centre for Cross-border Studies, Armagh (2001). ISBN: 1-85918-313-1. Price: €11.17.

n a triumph of diplomacy Human rights are thus now of economic and social rights as helping both communities to Iover violence and following very much to the fore in the legal well as group rights and assert their rights. extensive multi-party and political arenas in both parts observes that the incorporation The role of the courts, the negotiations, the Good Friday of this island, which means that of the ECHR can still promote new police force and the NIHRC agreement was signed on 10 the timing of this book could not awareness of rights and so bring will be crucial in ensuring the April 1998 by the British and be better. The publishers have about some social change. enforcement of human rights in Irish governments. One of the produced a series of essays However, she notes that most of the North. He sees the NIHRC many historic elements of the entitled Crosscurrents, which the ECHR rights are already as having a pivotal role, but only agreement was the central role examines aspects of the covered by the rights provisions if it is properly resourced and that human rights were given. relationship between the north of the Irish constitution. supported by the British A number of common and south of Ireland. Towards a Essentially, she advocates the government. Livingstone notes commitments were made by culture of human rights in Ireland need for a change in our that human rights commissions both governments, including sets out, in extended essay format, perception of human rights to in other jurisdictions generally the incorporation of the the views of Ivana Bacik on include economic, social and function best when surrounded European convention on human whether a human rights culture group rights through a by independent judges, human rights (ECHR) into domestic can be created in the Republic principled political debate – rights lawyers and an active law and the setting up of human and Stephen Livingstone on the without this debate and NGO sector. Human rights are rights commissions with similar future of a human rights regime consequent change, no culture not just related to unionists and mandates in each jurisdiction. in the North. of human rights can exist here. nationalists but to women, While the Northern Ireland The writers reflect the Livingstone, in contrast, is children and all others Human Rights Commission different societies and human less concerned with the ideology disadvantaged by the situation in (NIHRC) is at least up and rights culture from which they of rights and more involved in the North. If all are to benefit running, the commission in this come, and the contrast between the enforcement of human from the new approach to human jurisdiction, at the time of them provides the reader with an rights in Northern Ireland. rights, then a culture must be writing, still awaits the insight into the changes in the Equality, accountability, freedom created in which the people of appointment of a chief executive human rights geography of this and democracy are the values on the North recognise their new and approval of its staff budget. island since the agreement. which he believes the bill of duties as well as their new rights. Nor has the ECHR been passed Bacik identifies the rights for Northern Ireland Cork University Press is to be into Irish law as yet and the bill incorporation of the ECHR into should be based. He ponders the admired for producing this has been subject to severe domestic law as the best chance question of whether a truth volume. It is a fascinating criticism by the Irish Council of creating a human rights commission should be set up insight into the current human for Civil Liberties and the Law culture in this jurisdiction and and notes, with regret, the lack rights situation on this island as Society in relation to its examines the likely effect of of any commitment to such a articulated by two leading civil exclusion of the applicability of incorporation in light of the commission in the Good Friday rights advocates. G convention principles to private protection of human rights agreement. Human rights, he law cases and the unsuitability already contained in the believes, must not be viewed Keith Walsh is a solicitor with the of damages alone as a remedy in constitution. simply as assisting nationalists Dublin law firm Anthony Harris all cases. She emphasises the importance but should be perceived as & Co. Civil liability for industrial accidents, volume 3 John PM White. Oak Tree Press (2000), Lower Merrion Street, Dublin 2. ISBN: 1-86076-197-6. Price: €210. eaders will be familiar with work is updated by a In his prefatory note, Dr even now in this state. Dr White RDr White’s two earlier corresponding chapter in this White states that it is scandalous criticises the lack of resources to volumes on civil liability for third volume, with additional that, although the UK enable the relevant authority to industrial accidents, published in chapters dealing with major parliament required that enforce a statutory regime for the 1993. This volume, comprising developments since 1993. The compulsory insurance should be protection of workers imposed by 1,081 pages, updates the earlier present volume contains a carried in respect of employer’s the European Union on the state. work. cumulative table of cases, statutes liability as early as 1972, no In a review of this nature, it is Each chapter of the principal and statutory instruments. corresponding obligation exists only possible to touch briefly

23 Books

upon some topics considered by such as the ‘date of knowledge’ negligence, not only, as stated, outstanding and significant the author. Issues such as and the meaning of ‘injury’ are in relation to what a solicitor achievement. Dr White has vicarious liability and whether examined. knows but what he or she ought produced a richly thoughtful an employee is on business on Dr White’s view on the reasonably to have known. commentary on a vital area of his own account (the extent to which actual or The most recent legal our law. His three volumes determination whether a person constructive knowledge of a principles in relation to the represent a project of is a servant or an independent solicitor or other expert may be recovery for shock-induced enormous ambition, written contractor) – matters of imputed to a plaintiff are injury and the Occupiers’ Liability with remarkable clarity and practical significance in the law important, and will have Act, 1995 are also covered rigour. G of civil liability – are considered significance in any actions in extensively by the author. in some detail. In the context of this regard in relation to the Civil liability for industrial Dr Eamonn Hall is chief legal the Statute of limitations, terms liability of solicitors in accidents represents an officer of Eircom plc. Safety, health and welfare at work in Ireland: a guide Raymond Byrne. Nifast (2001), 46 Airways Industrial Estate, Santry, Dublin. ISBN: 1-899047-88-3. Price: €49. afety, health and welfare at Regulations (SI number 481 of should be treated like any other and the Organisation of Working Swork in Ireland: a guide 2001) have come into force, save health hazard’. Consequently, Time Act, 1997 to determine his provides a very useful and for the provisions detailed in he held that it is ‘strongly liabilities. Given the volume of practical guide to health and regulation 1(3). The 2001 arguable that today a reasonable legislation to be considered in safety management in the regulations revoke the Safety, employer would carry out the health and safety area at workplace. This guide, which is Health and Welfare at Work assessments of the risk of injury present, it seems appropriate to divided into two parts, is clearly (Construction) Regulations 1995 to their employees of stress at recall a portion of US President comprehensive as to breadth. It alluded to in chapters 10 and 11 work’. That said, workers Abraham Lincoln’s first State of identifies practically every issue of the guide. In light of the large claiming compensation for the Union address in 1861: and topic that can arise in health number of deaths on stress in England and Wales ‘The statute laws should be and safety management. construction sites, the new must satisfy strict new rules laid made as plain and intelligible as A flavour of the practical regulations require that training down by the Court of Appeal in possible, and be reduced to as nature of this work is to be for construction workers be February 2002 that make it small a compass as may consist found in part I, which reviews certified as per regulations 6, 9 clear that no job is inherently with the fullness and precision health and safety as part of the and 14 and the eighth schedule dangerous to an employee’s of the will of the legislature and general management and of the Safety, Health and Welfare mental health. In judgments the perspicuity of its language’. business strategy of a firm. This at Work (Construction) Regulations that signpost a sea-change in This guide assists, to a guide will also assist in keeping 2001. These regulations require compensation awards for stress, significant extent, in achieving the risk-management process that all site workers receive a the Court of Appeal overturned what Lincoln propounded by simple and appropriate to the basic safety course under the damages claims by three making our way through the level of the risk presented. In FÁS Safe Pass training workers totalling nearly countless regulatory laws in the addition to suggesting risk programme and are in £200,000. Lady Justice Hale health and safety area much management strategies, one also possession of a valid certificate. opined that it should not be the easier. In addition, the guide receives guidance as to how such Chapters 30 and 32 of the responsibility of an employer to introduces considerable strat-egies can be effectively guide have a very interesting make exhaustive investigations rationality into the current managed. discussion on the identification into the mental health of health and safety regime. In part II, the guide reviews in of stress, bullying and employees. Instead, the onus This is an excellent guide, detail specific hazards that exist harassment in the workplace. was on the stressed worker to indispensable to all involved in the working environment: The author, at chapter 30.1, decide whether to leave the job with or connected to places of the breadth of coverage of such notes the detectable movement or carry on working and accept employment. It is a major hazards can be gauged from the towards encouraging employers the risk of a mental breakdown. contribution to one of the more fact that this part of the guide to manage health and safety Consolidation of the complicated areas of employ- runs to more than 300 pages. issues. Such an approach legislation in the health and ment law and is a work that no One cannot help but feel that, involves, inter alia, the employer safety area continues to be a employer, insurer, lawyer, mana- no matter what hazard might carrying out a risk assessment priority. We have witnessed a ger, health and safety officer or arise, one will find at least some on an on-going basis. In the torrent of health and safety judge should be without. G reference to it in the chapters Scottish Outer Court of Session legislation in the last ten years. contained here. case of Cross v Highlands and The practitioner in this area Geoffrey Shannon is a solicitor and The author, in his preface, Islands Enterprise ([2001] IRLR must now trawl through the the Law Society’s deputy director of states that the guide describes 336), Lord MacFayden alluded Factories Act, 1955, the Safety, education. He is legal editor of A- the law as of July 2001. Since to the many publications and Health and Welfare at Work Act, Z of health and safety risk that date, the Safety, Health and guidelines on stress at work 1989, the numerous regulations assessment in Ireland (Round Welfare at Work (Construction) which emphasise that ‘stress implemented under that act, Hall Press).

24 Stockwatch What time is the right time? How important is timing in picking the right investments? Alan Murphy outlines the arguments

ime versus timing is an age- one can look to exploit the different approach is required in Told argument in investment seasonal effects. more uncertain times. circles. A noteworthy article In general, it has also paid to According to market timers, appeared in the investment reduce exposure to the market staying fully invested all the publication Barron’s late last as the summer approaches. This time is not the best strategy; Alan Murphy: ‘There is a strong year, providing an interesting has given rise to the ubiquitous there are always peaks and argument for more proactive slant on the costs of timing the phrase ‘sell in May’. But more troughs in the market which trading in your portfolio’ market incorrectly and the gains importantly, there are also market timers believe they can made when successful timing times when we would consider exploit. research, the S&P 500’s 19.5% has been achieved. reducing or increasing our Market timers cite the last gain in 1999 shrinks to only The broad consensus of the exposure to the market on the protracted bear market in US 3.9% if the five best trading fund management industry is basis of our fundamental view equities that started in February days are excluded. And 1998’s that correctly timing the market of the economy, sector and 1966 and lasted until August return of 26.7% slips to a mere is practically impossible as, company specifics. 1982 as an example. The Dow 4.5% without the five best days historically, the best returns in The Barron’s article outlined Jones index value in February of the year. The same applies in 1966 was 995 and 16 years later poor markets. For instance, the CHART 1: BANK OF IRELAND SHARE PRICE MOVEMENT, it stood at 777. So any investor 29.7% loss that the US market 1998 – 2002 who stayed fully invested in the suffered in 1974 balloons to market in this period lost 22%. 42.4% without the best five Yet over this time there were days. four periods in which equities Ironically, the market timing experienced strong rallies which camp turns this analysis on its boosted the Dow by 32%, 66%, head and suggests that those 76% and 38% respectively. dexterous enough to avoid the Those who do not accept the five worst days of market market timing case point out performance can significantly that much of any given year’s enhance their returns. For profits is made during the five example, in 1987 the S&P 500 best-performing days and that returned a meagre 2%, but Source: Bloomberg anyone who is out of the market those lucky enough to be out of any given year happen on the market timing case. It is on those days – as an the market for the five worst average in just five days. The their belief that while buying unsuccessful market timer days ended up with a 60.2% usual advice is that investors and holding the market is the might be – forfeits a huge return. should not frustrate themselves correct strategy in prolonged opportunity. Closer to home – and wondering when is the best time bull markets, an entirely According to Barron’s supporting the market timers’ to invest and should focus view – the share prices of Bank CHART 1: GLAXOSMITHKLINE SHARE PRICE MOVEMENT, instead on picking quality 1998 – 2002 of Ireland and GlaxoSmithkline companies at the lower end of are marginally above the levels their trading ranges. Time, it is they were at in early 1998. argued – not timing – is what However, there have been matters. numerous profitable trading As investment professionals, opportunities during that time, we would broadly agree with providing an argument for more this thesis, but there are proactive trading in your certainly times when it pays to portfolio. G be more aggressively invested, especially during the seasonally Alan Murphy is a portfolio strong out-performing period of manager with Davy Stockbrokers’ November to January, where Source: Bloomberg private clients unit.

25 Briefing Committee reports BUSINESS LAW rities law continues apace, with a transfer of personal data established under the act. proposed Market abuse directive between the EU and the USA Notification is by ordinary post No more Form 47 likely to be adopted later in in certain circumstances. to the last known address of the Practitioners are reminded that 2002. This would replace and There are some exceptions account-holder. A financial the prescribed form for furnish- supplement the existing 1989 to the general prohibition on institution failing to notify an ing of particulars of a charge is directive on insider dealing the transfer of personal data to account-holder is guilty of an now a form C1. This is available (enacted in Ireland by part V of third countries which do not offence. at http://www.cro.ie/c1.pdf. the Companies Act, 1990). A bill provide adequate data protec- The act also transfers the dealing with the accounting tion. Article 26 of the directive, Intestate Estates Fund Deposit Annual return dates profession arising out of the which is implemented by article Account to the Dormant The provisions of the Company Oireachtas DIRT enquiry is 5 of the regulations, provides Accounts Fund. It grants to the Law Enforcement Act regarding expected during the spring. that, in general, member states National Treasury Management companies’ annual return dates should allow transfers of data to Agency the administrative func- will be in force from 1 March New data protection regula- third countries provided that at tions under the act in relation to 2002. The key point to note is tions (European Communities least one of a number of condi- the control and management of that the former flexibility as to (Data Protection) Regulations tions is met. These conditions the fund. when to file an annual return is 2001, SI no 626 of 2001) include the unambiguous con- The minister for social, com- now gone, with a fixed date In 1995, the EU adopted the sent of the individual affected; munity and family affairs is the changeable not more than once Data protection directive the need to comply with the minister responsible. An every five years. Practitioners (95/46/EU). The Department performance of a contract account-holder may apply to a seeking further information of Justice, Equality and Law between the data subject and financial institution seeking should refer to the Companies Reform is responsible for bring- the data controller; a need or repayment of money transferred Registration Office website at ing forward proposals to the legal obligation involving to the Dormant Accounts Fund http://www.cro.ie/faq04.htm# Oireachtas to amend the 1988 grounds of important public and, if he can establish his enti- FAQannualreturn6. act and to implement the interest; and the need to protect tlement, he will be repaid the changes necessarily brought the individual’s vital interests. sum together with appropriate Company Law Review Group about by the directive. Alternatively, a transfer to a interest. The act provides for The first report of the statutory The 2001 regulations, which third country may be permitted the establishment of the Company Law Review Group, will come into effect on 1 April if the data controller can point Dormant Accounts Funds chaired by solicitor and 2002, bring into operation cer- to adequate safeguards, such as Disbursements Board, which is Business Law Committee mem- tain provisions of the directive appropriate contractual clauses charged with the disbursement ber Tom Courtney was and the protection of individuals governing the transfer. In this of the funds for the purposes of launched on 28 February. The with regard to processing of regard, the EU Commission, programmes or projects focus of the report is simplifica- personal data and on the free and in consultation with the designed to assist the personal, tion of a number of aspects of movement of such data. The member states, may appropriate educational and social develop- the law, including internal gov- regulations bring into effect certain standard contractual ment of persons who are educa- ernance, incorporation and reg- articles 4, 17, 25 and 26 of the clauses which can be regarded tionally or socially disadvan- istration, creditor and share- directive, which deal mainly as offering sufficient safeguards. taged or persons with a disabili- holder protection and the law with transfers of personal data ty (within the meaning of the concerning prospectuses and to ‘third countries’ and provide Dormant Accounts Act, 2001 Equal Status Act, 2000) and, in public issues. Other focus areas that such transfers may only This act came into effect on 4 particular, programmes or proj- include the law as to directors’ take place where an adequate July 2001. ‘Dormant accounts’ ects that are designed to assist duties and ultra vires. level of protection for such data are defined as accounts held primary school students with is deemed to exist. with a financial institution in learning difficulties – or such More company law? ‘Third countries’ are defined respect of which there has been other purposes as the minister Yes, and most of it is coming as being countries or territories no transaction for a period of 15 may from time to time deter- from Europe. The Regulation for outside the EU. Where a coun- years ending on 31 March 2002 mine. the statute for a European company try is found not to have adequate and 30 September of any subse- is now enacted (http://europa. data protection, the directive quent year. Asset Covered Securities eu.int/eur-lex/en/lif/dat/ provides that the EU The act imposes an obliga- Act, 2001 2001/en_301R2157.html) and Commission will enter into tion on financial institutions to The purpose of this act, which comes into force on 8 October negotiations with such countries notify each holder of a dormant was passed on 18 December 2004. The allied directive on with a view to reaching a practi- account as to the existence of 2001, is to enable (specifically employee participation has been cal solution to the issue. An such an account and that if a designated) credit institutions to adopted (http://europa.eu.int/ example of such a practical solu- transaction is not effected on issue ‘asset covered securities’. eur-lex/en/lif/dat/2001/en_ tion would be the so-called ‘safe the account on or before the 31 The act hopes to add to the ver- 301L0086.html) and must be harbour’ agreements between March 2002 the monies in the satility of the Irish capital mar- implemented by that same date. the EU Commission and the account will be transferred to kets and indeed the IFSC. The Lamfalussy review of secu- USA authorities to facilitate the Dormant Accounts Fund Credit institutions which want

26 Briefing to issue these types of securities will have priority without CONVEYANCING LITIGATION need to be specially designated actually registering security by the Central Bank. Two types interests in the Companies Amendments to Conditions of Costs penalty imposed by of securities may be issued, one Registration Office against sale, 2001 edition taxing master for failure to being what are known as mort- the issuer. At the time of writ- The attention of practitioners comply with SI 391/98 gage covered securities, and the ing, an order has yet to be made is drawn to the following mat- Practitioners should note that second, public credit covered implementing the legislation. It ter. The first print run of the on taxation of costs in the case securities. Basically, these are is thought that an order will not new Conditions of sale, 2001 edi- of John Casey v Mid-Cork securities (bonds, notes or other be made until the Central Bank tion, at general condition 36, Electrical Limited and Others paper evidencing indebtedness) has drafted regulations pre- did not impose an obligation on (High Court, 1998, no 2387P) issued to investors which are scribing the various require- the vendor to provide the pur- (Taxing Master Charles Moran, secured in the case of mortgage ments under the legislation; chaser with a certificate of 23 May 2001), the taxing mas- covered securities by mort- these regulations are likely to be compliance in appropriate cases ter accepted the defendant’s gages/charges on residential available soon. in respect of the Building submission that a doctor wit- property or commercial proper- A list of designated credit Control Act and regulations ness who had prepared a report ty held by the credit institution institutions is to be kept by the made thereunder. Subsequent and attended court on behalf of or in the case of public credit Central Bank. The register will print runs of the contract docu- the plaintiff should not be covered securities secured on be open to public inspection. ment contain appropriate allowed his court attendance debt issued by the state or any The list of designated credit amendments to address that sit- fee on a party-and-party basis other EEA country, Switzerland institutions is due to be pub- uation. The principal amend- because his name had not or the G7 states or certain other lished in the coming months ment is the addition in the appeared in the schedule fur- entities. Unlike a securitisation, and will be published thereafter third sub-paragraph of condi- nished to the defendants, in the mortgages will continue to annually. tion 36(e)(ii) of the words ‘and compliance with SI 391 of be held by the original Certain amendments will be (where applicable) the require- 1998. owner/lender credit institution. made to the Building Societies ments of the Building Control Objections were brought to However, the investors will have Act, section 61 of the Companies Act, 1990 and regulations made the disallowance, including first priority over any other Act, 1963 and the Taxes thereunder’. written submissions on the creditors on the credit institu- Consolidation Act, 1997 (section Practitioners using the first point. At the hearing of the tion’s underlying mortgages (or 198). In addition, there is a print run of the Conditions of objections, the taxing master public credit) covering the secu- stamp duty exemption to facili- sale, 2001 edition should pro- confirmed his original ruling. rities issued. tate the use of these asset cov- vide for this matter by way of The matter was not appealed to The act therefore marks a ered securities. special condition. the High Court. departure in that creditors Business Law Committee Conveyancing Committee Litigation Committee G

PRACTICE NOTE Time limits for notifying and referring discrimination claims he Employment and Equality respondent, within two months of tion 21 that the written notifica- months from the last occurrence. TLaw Committee wishes to draw the last occurrence of the dis- tion must specifically mention the However, both acts provide the attention of all practitioners to: criminatory act. (No complaint claimant’s intention to refer a that in order to extend time, the • The strict time limits which are can be referred unless this has claim to the director of equality director of equality investigations applied to claims under the been correctly done.) investigations in the absence of a must be satisfied that ‘exception- Equal Status Act, 2000 and Under section 21, the director satisfactory response. al circumstances prevented’ the the Employment Equality Act, of equality investigations may Practitioners acting for complainant from referring their 1998, and extend the time limit for notifica- claimants are advised to ensure case within the time limit. • The restrictive conditions appli- tion from two months, up to a that any initial correspondence Practitioners should note that cable to extensions of time. maximum of four months, after fulfils this requirement within the the director has taken a strict the last discriminatory act. But in two-month time limits. interpretation of this provision, The committee is aware that a order to do so, she must be sat- There is no equivalent notifica- and should avoid the need to number of practitioners have isfied, inter alia, that ‘exceptional tion requirement under the 1998 seek extensions. Again, the acts already run into difficulties by circumstances prevented’ the act. do not provide for any appeal. overlooking the dates applicable complainant from notifying cor- The Labour Court has so far to their clients. rectly. Practitioners should note Referring claims considered the ‘exceptional cir- that the director has taken a Both the Equal Status Act, 2000 cumstances’ test in two cases Notifying claims strict interpretation of this provi- and the Employment Equality Act, where it had original jurisdiction Under the Equal Status Act, a per- sion, and that no extensions of 1998 require claims to be under the 1998 act, and extend- son wishing to make a claim of time for notification have so far referred within six months of the ed time in each case. discrimination in goods, services been granted. The act does not last occurrence of the discrimina- or facilities must first serve a writ- provide for any appeal. tory act. This time limit can be Employment and Equality Law ten notification on the proposed The act also requires at sec- extended to a maximum of 12 Committee Briefing LEGISLATION UPDATE: ACTS PASSED IN 2001 This list was updated by the Law Children Act, 2001 Dormant Accounts Act, 2001 (per SI 596/2001) Society Library on 11 February Number: 24/2001 Number: 32/2001 2002 Date enacted: 8/7/2001 Date enacted: 14/7/2001 Fisheries (Amendment) Act, 2001 Commencement date: Com- Commencement date: Com- Number: 40/2001 ACC Bank Act, 2001 mencement order/s to be made, mencement order/s to be made Date enacted: 27/11/2001 Number: 12/2001 subject to s2(2) (per s2(1) of the (per s1(2) of the act): 1/1/2002 Commencement date: 27/11/ Date enacted: 29/5/2001 act); commencement order/s to be for all sections of the act (per SI 2001 Commencement date: Com- made for parts 2 and 3 (per 593/2001) mencement order/s to be made s2(2)(a) of the act); commence- Health Insurance (Amendment) (per s13(2) of the act): ment order to be made for s77 Electoral (Amendment) Act, 2001 Act, 2001 15/6/2001 for all sections other (per s2(2)(b) of the act); com- Number: 38/2001 Number: 17/2001 than sections 6, 8, 10, 11(2) and mencement order to be made for Date enacted: 24/10/2001 Date enacted: 27/6/2001 12 (per SI 278/2001) s88, insofar as it relates to junior Commencement date: Com- Commencement date: Com- remand centres (per s2(2)(c) of the mencement order/s to be made mencement order/s to be made Adventure Activities Standards act); commencement order/s to be (per s1(9) of the act): 1/11/2001 (per s15(3) of the act): Authority Act, 2001 made for part 10 (per s2(2(d) of for ss1 to 4, 9, 10, 14, 15, 24, 26, 19/11/2001 for ss1, 2, 3(b) to Number: 34/2001 the act); commencement order to 28 to 48, 50, 51, 52, 54 (other 3(f), 4, 5 (except in so far as it Date enacted: 16/7/2001 be made for part 11 (per s2(2)(e) than para (k)) and 55; 1/1/2002 relates to the amendment of the Commencement date: Com- of the act) for ss11, 16, 18 to 21, 23, 49, 56 Principal Act by s6), 9, 10, 11, 12, mencement order/s to be made to 58; 15/2/2002 for ss5 to 8, 13(a) to 13(g) (except in so far as (per s1(2) of the act) Company Law Enforcement Act, 12, 13, 25 and 27 (per SI s13(b) relates to the amendment 2001 497/2001) of the Principal Act by s6), 14, 15 Agriculture Appeals Act, 2001 Number: 28/2001 (per SI 514/2001) Number: 29/2001 Date enacted: 9/7/2001 Electricity (Supply) (Amendment) Date enacted: 9/7/2001 Commencement date: Com- Act, 2001 Health (Miscellaneous Commencement date: 9/7/2001 mencement order/s to be made Number: 9/2001 Provisions) Act, 2001 (per s2 of the act): 4/8/2001 for Date enacted: 17/4/2001 Number: 14/2001 Air Navigation and Transport part 1 (ss1-6) and s111 (per SI Commencement date: 17/4/ Date enacted: 5/6/2001 (Indemnities) Act, 2001 391/2001); 1/10/2001 for ss47, 2001 Commencement date: Com- Number: 48/2001 62, 66 to 71, 75 to 79, 80 to 83, mencement order/s to be made Date enacted: 19/12/2001 85 to 87, 89, 90, 91(b), 92, 93 Euro Changeover (Amounts) Act, (per s5(4) of the act): 1/7/2001 Commencement date: 19/12/ (except insofar as it inserts sub- 2001 appointed as the commencement 2001 (see s19 for duration of the paragraph (ii) of paragraph (fa) into Number: 16/2001 date for section 1(1)(a) (per SI act) s213 of the Companies Act, Date enacted: 25/6/2001 305/2001); 1/8/2001 appointed 1963), 94, 95, 98, 100, 102 to Commencement date: 25/6/ as the commencement date for s2 Appropriation Act, 2001 106, 108 and 114; 26/10/2001 2001 of the act (per SI 344/2001) Number: 52/2001 for ss63(1)(b), 64 and 99; Date enacted: 20/12/2001 1/3/2002 for ss59, 60, 61, European Communities and Swiss Heritage Fund Act, 2001 Commencement date: 20/12/ 63(1)(a), 63(2), 65 and 84(a) (per Confederation Act, 2001 Number: 44/2001 2001 SI 438/2001); 28/11/2001 for Number: 41/2001 Date enacted: 10/12/2001 ss7 to 24, 25(b), 26 to 39, 72 to Date enacted: 1/12/2001 Commencement date: Com- Asset Covered Securities Act, 74, 96, 97, 112 and 113 of, and Commencement date: Com- mencement order/s to be made 2001 the schedule to, the act; mencement order to be made (per (per s1(2) of the act): Number: 47/2001 1/3/2002 for s88 (per SI s4(3) of the act) 21/12/2001 for all sections of Date enacted: 18/12/2001 523/2001) the act (per SI 656/2001) Commencement date: Com- Extradition (European Union mencement orders to be made Criminal Justice (Theft and Fraud Conventions) Act, 2001 Horse and Greyhound Racing (per s1(2) of the act) Offences) Act, 2001 Number: 49/2001 Act, 2001 Number: 50/2001 Date enacted: 19/12/2001 Number: 20/2001 Aviation Regulation Act, 2001 Date enacted: 19/12/2001 Commencement date: Com- Date enacted: 2/7/2001 Number: 1/2001 Commencement date: 19/12/ mencement order/s to be made Commencement date: 2/7/2001 Date enacted: 21/2/2001 2001 for parts 5 and 7 and ss23, (per s1(3) of the act) for sections other than ss8 and 19 Commencement date: 21/2/ 53, 58 and 60(1); commencement for which commencement orders 2001. 27/2/2001 appointed as order/s to be made for all other Family Support Agency Act, 2001 are required (per s8(2) and the establishment day for the pur- sections (per s1 of the act) Number: 54/2001 s19(2)): 29/7/2001 for s19 (per poses of the act (per SI 47/2001) Date enacted: 22/12/2001 SI 363/2001); establishment day Customs and Excise (Mutual Commencement date: 22/12/ order to be made (per s3 of the Broadcasting Act, 2001 Assistance) Act, 2001 2001; establishment day order to act) Number: 4/2001 Number: 2/2001 be made (per s2 of the act) Date enacted: 14/3/2001 Date enacted: 1/3/2001 Horse Racing Ireland Commencement date: Com- Commencement date: Com- Finance Act, 2001 (Membership) Act, 2001 mencement order/s to be made mencement order/s to be made Number: 7/2001 Number: 46/2001 (per s1(4) of the act): 1/9/2001 (per s12 of the act) Date enacted: 30/3/2001 Date enacted: 18/12/2001 for all sections of the act (per SI Commencement date: Various Commencement date: 18/12/ 362/2001) Diseases of Animals commencement dates – see act, 2001 (Amendment) Act, 2001 and: 1/7/2001 for s169 (per SI Carer’s Leave Act, 2001 Number: 3/2001 212/2001); 1/10/2001 for part 2 Housing (Gaeltacht) Number: 19/2001 Date enacted: 9/3/200 (ss96 to 153) (per SI 413/2001); (Amendment) Act, 2001 Date enacted: 2/7/2001 Commencement date: 9/3/ 22/10/2001 for s50 (per SI Number: 10/2001 Commencement date: 2/7/2001 2001 471/2001); 1/1/2002 for s57 Date enacted: 23/4/2001

28 Briefing

Commencement date: 23/4/2001 1/1/2002 for part 23 (ss238-242) Prevention of Corruption Standards in Public Office Act, (transfer of shareholding in Temple (Amendment) Act, 2001 2001 Human Rights Commission Bar Properties Limited to Dublin Number: 27/2001 Number: 31/2001 (Amendment) Act, 2001 Corporation) (per SI 458/2001); Date enacted: 9/7/2001 Dated enacted: 14/7/2001 Number: 35/2001 1/1/2002 for s142 of the act and Commencement date: Commence- Commencement date: Com- Date enacted: 16/7/2001 1/1/2002 for the date on which ment order/s to be made (per mencement order to be made sub- Commencement date: 16/7/2001 s51 of the Local Government Act, s10(3) of the act): 26/11/2001 for ject to s29(2)(b) (per s29(2)(a) of 1991 shall be repealed (per SI all sections of the act, other than the act): 10/12/2001 appointed Industrial Designs Act, 2001 551/2001); 1/1/2002 for various s4(2)(c) (per SI 519/2001) as the commencement date for Number: 39/2001 provisions of the act and for certain the act, except in so far as it Date enacted: 27/11/2001 repeals listed in the schedule to SI Protection of Employees (Part- relates to either house of the Commencement date: Commence- 588/2001 (per SI 588/2001); Time Work) Act, 2001 Oireachtas, or members, or the ment order/s to be made (per s1(2) 1/1/2002 appointed as the estab- Number: 45/2001 clerk, of either house, or commit- of the act) lishment day for the purposes of Date enacted: 15/12/2001 tees of either such house or joint the act (per SI 591/2001) Commencement date: 20/12/ committees of both such houses Industrial Relations (Amendment) 2001 for all sections of the act (per or sub-committees of any of the Act, 2001 Mental Health Act, 2001 SI 636/2001) committees aforesaid, or their Number: 11/2001 Number: 25/2001 members or clerks (per SI Date enacted: 29/5/2001 Date enacted: 8/7/2001 Referendum Act, 2001 576/2001) Commencement date: Commence- Commencement date: Commence- Number: 53/2001 ment order to be made (per s13(3) ment order/s to be made (per s1(3) Date enacted: 22/12/2001 Teaching Council Act, 2001 of the act): 31/5/2001 for all sec- of the act) Commencement date: 22/12/ Number: 8/2001 tions of the act (per SI 232/2001) 2001 Date enacted: 17/4/2001 Ministerial, Parliamentary and Commencement date: Com- Irish National Petroleum Judicial Officers and Oireachtas Sex Offenders Act, 2001 mencement order/s to be made Corporation Limited Act, 2001 Members (Miscellaneous Number: 18/2001 (per s1(2) of the act) Number: 26/2001 Provisions) Act, 2001 Date enacted: 30/6/2001 Date enacted: 9/7/2001 Number: 33/2001 Commencement date: 27/9/ Transport (Railway Commencement date: Commence- Date enacted: 16/7/2001 2001 for all sections of the act (per Infrastructure) Act, 2001 ment order/s to be made (per Commencement date: 16/7/ SI 426/2001) Number: 55/2001 s13(2) of the act): 16/7/2001 for 2001 for all sections except for: Date enacted: 23/12/2001 all sections of the act (per SI ss37, 39(c) and (d) and 40 which Social Welfare Act, 2001 Commencement date: 23/12/ 328/2001) are taken to have come into opera- Number: 5/2001 2001. 28/12/2001 appointed as tion on 26/6/1997; ss7, 11 and Date enacted: 23/3/2001 the establishment day for the pur- Irish Nationality and Citizenship 39(a) and (e) which are taken to Commencement date: Various poses of part 2 of the act (per SI Act, 2001 have come into operation on commencement dates – see act, 649/2001) Number: 15/2001 17/9/1997; and ss3, 4, 5, 6, 22, and: 29/5/2001 for part 5 (ss29- Date enacted: 5/6/2001 23, 24, 27(1), 28, 31, 34(a) and 31) (amendments consequent on Trustee Savings Banks Commencement date: Section 36 which are taken to have come the alignment of the income tax and (Amendment) Act, 2001 2(a)(iii) and (d) and section 3 shall into operation on 25/9/2000 (per the calendar year) (per SI Number: 6/2001 be deemed to have come into oper- ss1(2) to 1(5) of the act) 243/2001); 29/5/2001 for s38 Date enacted: 28/3/2001 ation on 2/12/1999, being the day (amendment to Health Commencement date: 28/3/ of the making of the declaration by Motor Vehicle (Duties and Contributions Act, 1979 – align- 2001 the government under article Licences) Act, 2001 ment of tax and calendar year) (per 29.7.3 of the constitution (per Number: 22/2001 SI 244/2001); 2/7/2001 for s22 Valuation Act, 2001 s9(3) of the act). Commencement Date enacted: 3/7/2001 (recovery of payments from finan- Number: 13/2001 order/s to be made for all other Commencement date: 3/7/2001 cial institutions) (per SI 300/2001); Date enacted: 4/6/2001 sections of the act (per s9(4) of the 28/6/2001 for s26 (amendments Commencement date: Com- act) Nitrigin Éireann Teoranta Act, to the qualifying conditions for enti- mencement order to be made (per 2001 tlement to carer’s benefit) (per SI s2 of the act) Local Government Act, 2001 Number: 21/2001 301/2001); 27/7/2001 for s25 Number: 37/2001 Date enacted: 3/7/2001 (signature of certificate of debt Vocational Education Date enacted: 217/2001 Commencement date: 3/7/2001 where collector general initiates a (Amendment) Act, 2001 Commencement date: Section 7 of for all sections of the act, except prosecution for offences under the Number: 23/2001 the act provides that commence- ss5 and 6 for which commence- income tax and social welfare Date enacted: 5/7/2001 ment order/s are to be made for all ment orders are required (per s5(2) codes) (per SI 360/2001); various Commencement date: Com- sections except for part 2 (ss9-11) and s6(2) of the act) dates in the first week of mencement order/s to be made for which an establishment day September 2001 for ss13(1)(a)(iii), (per s1(3) of the act) order is to be made (per s9), sec- Oireachtas (Ministerial and 13(2)(a)(iii), 13(3)(b), 13(4)(b) (per tion 161 for which a commence- Parliamentary Offices) SI 407/2001); various dates in last Waste Management ment order is to be made (per (Amendment) Act, 2001 week of December 2001 and first (Amendment) Act, 2001 s161(2)), and chapter 3 (ss39-45) Number: 30/2001 week of January 2002 for s37(6) Number: 36/2001 (direct elections of cathaoirleach Date enacted: 14/7/2001 (conversion of certain monetary Date enacted: 17/7/2001 and leas-chathaoirleach) of part 5 Commencement date: 14/7/2001 amounts consequent on the intro- Commencement date: 17/7/ of the act which will come into oper- duction of the euro currency) (per SI 2001 ation in 2004 (per s39(1)). Ordnance Survey Ireland Act, 618/2001) 9/10/2001 for ss1(1), 1(6), 1(7), 2001 Youth Work Act, 2001 2, 3, 4, 6, 7, 8 and 247; Number: 43/2001 Social Welfare (No 2) Act, 2001 Number: 42/2001 9/10/2001 for s5(1) and part 1 of Date enacted: 5/12/2001 Number: 51/2001 Date enacted: 1/12/2001 schedule 3 to the extent specified Commencement date: 5/12/ Date enacted: 20/12/2001 Commencement date: Com- in the schedule to SI 458/2001 2001. Establishment day order to Commencement dates: Various – mencement order/s to be made (repeals of certain enactments); be made (per s2 of the act) see act (per s1(2) of the act) Briefing Personal injury judgment

Road traffic accident – bus colliding into vehicle – liability not disputed – extent of injuries and financial loss challenged – High Court judge’s difficulty in ascertaining the nature of injuries – award of damages – appeal to the Supreme Court – medical evidence in notice of particulars in earlier accidents available to court – question of the extent to which reliance can be placed on replies to particulars – issue of who is personally responsible for replies to particulars – role of solicitors in relation to details of personal injuries and in communications in lit- igation – the question of whether it was the responsibility of trial judge to disentangle any contradictions – issue of whether exemplary damages apply to a plaintiff where his or her conduct merited the court’s strong disap- proval – desirability of written submissions to the court CASE Patrick Vesey v Bus Éireann, Irish Bus, Supreme Court (Denham, McGuinness and Hardiman JJ), judgment of Mr Justice Hardiman of 13 November 2001. THE FACTS n 9 September 1996, stationary at traffic lights on the drove into the rear of his vehicle. company denied the extent of OPatrick Vesey was involved Stillorgan road in Dublin when a Liability for the accident was not the injuries and the financial loss in a road traffic accident. He was bus, the property of Bus Éireann, disputed by Bus Éireann, but the claimed by Mr Vesey. THE HIGH COURT r Vesey’s case against Bus In the High Court, Johnson J rendered the opinions of the the great mysteries’. MÉireann was heard in the stated that he would say some- doctors almost useless because The trial judge accepted that High Court on 7, 8 and 9 thing that he had never said the doctors themselves depend Mr Vesey suffered some damage, November 2000 before Johnson about any plaintiff in the last on the veracity of the history but as to the nature of the dam- 1 J. Judgment was reserved 13 /2 years on the bench. The given to them by a plaintiff to age he could only ‘speculate’. overnight and was delivered on plaintiff had lied to the judge, form their opinions. In relation The judge accepted the evidence 10 November 2000. The trial he had lied to his own doctors to Mr Vesey’s work history, the of the doctors of Bus Éireann judge stated that despite the and he had lied to the doctors of trial judge stated that the work that Mr Vesey (a) had no psychi- apparent simplicity of the issues, Bus Éireann in a manner which history in the case was ‘one of atric problems or demonstrated the trial was a difficult one. He no sign of them and (b) ‘he was stated that the only fact in the THE AWARD IN THE HIGH COURT shaken up and he had a bad con- case about which he was Damages awarded to Mr Vesey in the High Court were as dition beforehand’, though he absolutely certain was that the follows: was able to work with it. The accident took place and he was • Special damages: £7,500 (€9,523.04) judge stated that he did not only certain of that because Bus • Loss of earnings to date of trial think that Mr Vesey was in any Éireann had admitted it. Had and into the future: £35,000 (€44,440.83) way really worse off than he was Bus Éireann not admitted it, the • Pain and suffering to date of trial before the accident, but he cer- judge would have ‘the gravest and into the future: £30,000 (€38,092.14) tainly had not proved that to the difficulty in coming to that con- Total: £72,500 (€92,056.01) judge’s satisfaction on the bal- clusion’. ance of probabilities. THE SUPREME COURT us Éireann appealed to the and on the facts in making ages, in that Mr Vesey had delivering the judgment of the BSupreme Court on the fol- any award of damages in failed to discharge the burden court on 13 November 2001. lowing grounds: respect of loss of earnings to of proof upon him to satisfy Hardiman J referred to the diffi- • The trial judge erred in law Mr Vesey, there being insuffi- the court as to the injuries he culties experienced by the trial and on the facts by making an cient evidence to support had allegedly sustained. judge in ascertaining the precise award of general damages to such an award physical injuries and disability Mr Vesey which was exces- • In regard to ‘the dishonesty’ The case came before the suffered by Mr Vesey and Mr sive and unsupported by the of Mr Vesey, the trial judge Supreme Court composed of Vesey’s work history insofar as it evidence erred in law and on the facts Denham, McGuinness and bore on his pre-existing condi- • The trial judge erred in law in making any award of dam- Hardiman JJ, with Hardiman J tion and on his likely loss of

30 Briefing earnings for the future. This of an accident in 1984, Mr by Mr Vesey. However, it was unsupported by the evidence. issue was complicated by the Vesey had been asked to ident- suggested in argument in the In the Supreme Court, coun- fact that Mr Vesey had at least ify all his employers since the Supreme Court that the find- sel on behalf of Bus Éireann four previous accidents, three of date of that accident. The reply ings were too harsh. In particu- made what Hardiman J them while in the employment to the notice for particulars lar, it was submitted that far too described as ‘an interesting sub- of a company for which he stated that after the accident Mr much weight was put on the mission’. Counsel referred to worked for a total of only six or Vesey endeavoured to continue contradictions between Mr the well-established principles seven months. In those cases, his existing employment ‘but Vesey’s evidence and the partic- whereby exemplary damages Mr Vesey had made claims of was not physically fit to do so’. ulars delivered in previous liti- may be awarded to a plaintiff if various sorts of injuries which In particular, he stated that he gation, on the basis that partic- the defendant’s evidence or would have the effect of render- subsequently tried to work as a ulars are drafted ‘by someone account of the case has been ing him fit for only light work. steel fixer but found ‘he was else’. It had also been submitted such that the court wishes to However, in the six months or physically incapable of work’. in the Supreme Court that mark its disapproval of it. so prior to the present accident When, in the same action, Mr while the evidence was unsatis- Counsel referred to a recent with Bus Éireann, Mr Vesey had Vesey was asked to state the factory and unreliable, it was personal injuries case, Crawford been working in the building amount of his earnings in the obligation of the trial judge v Keane (High Court, unreport- trade and earning an average of respect of each employment, he to ‘disentangle any contradic- ed, 7 April 2000), where this £365 (€463.45) a week. replied: ‘The periods (of tions’. In this regard, Mr Vesey had been done. In effect, coun- Having referred to extracts employment) were of such relied on the well-known pas- sel argued that the same princi- from the judgment of the High short duration that these figures sage from the judgment of ple should apply in reverse Court, Hardiman J stated that are of no significance’. McCarthy J in Reddy v Bates against a plaintiff such as this, the evidence in the High Court In his judgment, Hardiman J ([1984] ILRM 197 at 205) to whose conduct of the case had took a number of ‘unusual stated that Mr Vesey appeared the effect that the court should merited the court’s strong dis- turns’. Mr Vesey ‘gave contra- to have been employed outside not intervene with the trial approval. Counsel had found no dictory evidence on a consider- the country at periods when, court’s award of damages unless Irish or English authority for able number of points both in according to what he had told there is a very significant dis- the proposition that this could relation to his medical condi- his doctors treating him, he had parity between the sums award- be done. tion and his work history’. been out of work and he ed in the High Court and that Hardiman J stated that he did Particulars of his medical state claimed again to have been which the Supreme Court not accept that the High Court had been furnished by another employed abroad at periods would consider appropriate. judge’s observations on Mr firm of solicitors acting on his during which he was drawing Bus Éireann submitted that, Vesey were in any way unjusti- behalf in relation to an earlier social welfare in Ireland: ‘He having regard to the trial judge’s fied or unduly harsh. Nor did accident. The particulars were replaced one untrue account unappealed assessment of Mr he accept that the High Court dated July 1993 and these par- with another equally untrue’. Vesey’s evidence, the trial judge judge placed too much empha- ticulars contained the allegation The judge stated that it became was wrong in making any award sis on the particulars given by that Mr Vesey’s ‘incapacity was perfectly clear that Mr Vesey at all to Mr Vesey either of gen- Mr Vesey in his previous litiga- such that he will be unable to had only made a very partial eral damages or of loss of earn- tion. Hardiman J stated that he compete with others with realis- disclosure of his history to cer- ings. It was emphasised that the would specifically deprecate the tic hope of obtaining even tain of his own medical advisers. onus of proof lay on Mr Vesey submission made that particu- lighter work’. In particular, Dr Browne, a pain and it was submitted that, hav- lars in another accident should Hardiman J stated that Mr specialist, stated in cross-exami- ing regard to what the High be disregarded, or regarded Vesey claimed that his pre-acci- nation that she was unaware of Court judge had stated, Mr with less seriousness, on the dent work history was a general- the history set out in the state- Vesey had plainly failed to dis- basis that everybody knows that ly good one and that, in particu- ment of claim in Mr Vesey’s charge the onus of proof. they are not drafted by the lar, as a result of work he carried prior proceedings. She stated According to Bus Éireann, plaintiff personally. The out in the Isle of Man and in that she would have expected to there should be no award except Supreme Court considered that Jersey, he had earned enough have been told about these for special damages. in providing the particulars money to buy a house. symptoms. Additionally, Bus Éireann sub- which a defendant is entitled to However, in the particulars No appeal was taken from mitted that the specific sums require, a plaintiff may rely on delivered in 1993, but in respect any of the trial judge’s findings awarded were excessive and the advice of his lawyers, doc- SOLICITORS’HELPLINE The Solicitors’ Helpline is available to assist every member of the profession with any problem, whether personal or professional. The service is completely confidential and totally independent of the Law Society. If you require advice for any reason, phone: 01 284 8484 01 284 8484 •

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• T: 01 678 8490 F: 01 678 8491 E: [email protected] W: www.outsource-finance.com Briefing tors, engineers and other profes- the very difficult task of decid- Browne testified that he did not warning in the circumstances of sionals. But none of these profes- ing what should be awarded to a consider the accident at issue the present case. sionals are responsible for the plaintiff, who undoubtedly had made Mr Vesey’s previous condi- Hardiman J noted that in the factual content of the replies. an entitlement to some award, tions any worse. United States there is well- Hardiman J stated that these in circumstances where the In the context of the claim for established jurisprudence on the replies are the plaintiff’s docu- plaintiff himself had made the past loss of earnings, Hardiman J inherent power of a court to dis- ments for which he is personally exercise all but impossible by stated that this was extremely miss an action for ‘flagrant’ bad responsible. persistent lies in and out of problematic. Mr Vesey had sup- faith (see National Hockey League In the present case, Hardiman court. plied the names of five employers v Metropolitan Hockey Club Inc J stated that Mr Vesey’s capacity The Supreme Court, per with whom he said he had [427 US 69]). The power would for work after an accident and his Hardiman J, considered that the worked over the years. The major be exercised in circumstances employment history were mat- award in relation to future loss issue was that Mr Vesey had stat- such as dishonest conduct by a ters peculiarly within his knowl- of earnings was largely ‘specula- ed that he was in good employ- litigant, obstruction of the dis- edge and about which his lawyers tive’ and should be set aside. ment at the time of the accident. covery process, abuse of the and doctors could have no direct The Supreme Court took the It appears that he had worked for judicial process or otherwise knowledge other than on the view that the plaintiff had a major company for some seeking to perpetrate a fraud on basis of his instructions to them. almost entirely failed to produce months but this was not continu- the court. The rationale was It was essential and, as far as the credible evidence in this regard ous and he had been drawing stated in the Hockey League case judge knew, was the general prac- and was accordingly entitled to social welfare at some time. as follows: ‘Here, as in other tice that a plaintiff’s solicitor no award. In view of the utterly In relation to loss of earnings cases of the law, the most severe should carefully go through with sporadic nature of proved between the date of the accident in the spectrum of sanctions the plaintiff replies to particulars employment and Mr Vesey’s lies and the date of the trial, provided by statute or rule must in the form in which it was pro- and deceptions in relation to his Hardiman J considered the mat- be available to the District posed to send them to the defen- Court in appropriate cases, not dant and to obtain the plaintiff’s THE AWARD IN THE SUPREME COURT merely to penalise those whose assent. The fact that particulars conduct may be deemed to war- • Special damages of £7,500 (€9,523.04) as determined by of negligence or breach of statu- rant such a sanction, but to deter the High Court to stand tory duty are necessarily those who might be tempted to • Loss of earnings to date of trial and into the future of expressed in legal terms and par- such conduct in the absence of £35,000 (€44,440.83) was reduced to £7,500 (€9,523.04) ticulars of injuries or prognosis in such a deterrent’. • General damages of £30,000 (€38,092.14) were reduced to medical terms in no way exempts Hardiman J noted that there £15,000 (€19,046.07). the plaintiff from ensuring, with was plainly a point where dis- Total: £30,000 (€38,092.14) the assistance of his solicitor, that honesty and a prosecution of a the underlying facts are correctly claim could amount to an abuse stated. employment history and med- ter was unsatisfactory and Mr of the judicial process. Hardiman J could not agree ical evidence, the court did not Vesey’s evidence entirely ‘unre- In his judgment, Hardiman J that it was the responsibility of a believe that Mr Vesey had liable’. However, it was conced- referred to a judgment in the trial judge to ‘disentangle’ the established on the balance of ed by Mr Browne that it was case of Kelly v Bus Éireann, deliv- plaintiff’s case when it became probabilities that he was enti- not unreasonable for Mr Vesey ered 16 March 2000, when he entangled as a result of lies and tled to any award in respect of to have been off work for nine expressed the view that counsel misrepresentations systematically loss of earnings into the future. months after the accident. could probably assist the trial made by the plaintiff himself. He In the context of general Counsel had argued in the court in many personal injury noted that the procedure in our damages, Hardiman J stated Supreme Court to the effect actions by making brief submis- courts is an adversarial one. The that a court is not obliged or that the damages to which the sions as to the issues arising and trial judge was quite correct to entitled to speculate in the plaintiff may be entitled should the salient evidence bearing on point out that the onus was on the absence of credible evidence. be reduced or extinguished as a them. Obviously, this would not plaintiff and that he had in signifi- Here, Mr Vesey was contradict- mark of the court’s disapproval be necessary in an entirely cant respects failed to discharge it. ed ‘out of his own mouth’ both of the sustained dishonesty straightforward case, but In the context of the trial in relation to his history of which characterised Mr Vesey’s Hardiman J stated that the pres- judge’s statement that he accept- working and to his pre-accident prosecution of his claim. ent action could not possibly be ed that Mr Vesey suffered some medical condition. In these cir- However, Hardiman J stated regarded as being in this catego- damage but as to what damage he cumstances, Hardiman J stated that he was not satisfied that ry. It was a case in which the evi- could only ‘speculate’, Hardiman that the trial judge was correct there was a direct analogy with dence underwent several dra- J stated that this was not a correct in his decision that the only an award of exemplary damages matic changes. Hardiman J con- basis on which to approach an reliable evidence was that of to mark the court’s disapproval sidered that the court might assessment of damages and that a Bus Éireann’s medical witness- of the conduct of a defendant have been assisted by a brief defendant was entitled to have es. and that even if, according to statement of each side’s con- the exercise approached in a Hardiman J referred to the Hardiman J, there was an tentions at the end of the evi- more specific and evidence-based evidence of Mr Harold Browne, inherent power to reduce dam- dence. G fashion. The Supreme Court the well-known surgeon, to the ages in circumstances such as noted that the High Court was, effect that Mr Vesey had a pre- the present, it would not be This case was summarised by solici- of course, attempting to perform existing back condition. Mr appropriate to do so without tor Dr Eamonn Hall. Briefing

Eurlegal

News from the EU and International Law Committee Edited by TP Kennedy, director of education, Law Society of Ireland Directive on resale rights n July 2001, the Council of artists such as Francis Bacon and ferred to these countries. In requirements in certain third IMinisters adopted a directive Louis Lebrocquy will be treated order to deal with this concern, countries should act as a disin- on resale rights for the benefit like composers such as U2 and the directive introduces a sys- centive to transfers of sales to of authors of original works of Sinead O’Connor in terms of tem of decreasing percentage non-EU countries. Germany art. The directive entitles the royalty resale rights. royalty rates as the value of the currently applies a 5% resale artist, or his heirs, to receive a The directive covers only original work of art increases. right and there is no evidence percentage of the selling price original works of art. Original Artists will, therefore, receive that sales are being transferred of art when it is resold by an art works of art are defined as 4% where the sale of the origi- from Germany to its neighbour market professional such as an graphic or plastic art such as pic- nal work generates between Switzerland. auctioneer, an art dealer, an art tures, collages, ceramics, glass- €3,000 and €50,000, 3% for Resale rights are written into gallery and so on. The principle ware and photographs. Copies sales between €50,000 and the legislation of 11 of the 15 on which the resale right is of works of art that have been €200,000, 1% for sales member states of the EU, nine based is that as an artist’s repu- made in limited numbers by the between €350,000 and of which apply resale rights in tation grows, and his work con- artist himself, or under his €500,000 and 0.25% for sales practice. The approach of each sequently increases in value, he authority, shall be considered to over €500,000. The maximum of these nine member states dif- should be entitled to a propor- be original works of art for the fers substantially in the type of tion of the benefits of his purpose of the directive. The work which is subject to the enhanced reputation. The roy- directive will only apply to sales resale rights, the rates that are alties payable under the new by professional art dealers as applicable and so on. Resale directive will be significant opposed to private sales or sales rights are currently not provid- when one considers that the to non-profit making museums. ed for in the domestic legisla- total annual worldwide level of Member states are permitted to tion of the Netherlands, Austria, sales of works of art is of the exempt art galleries which the UK and Ireland. order of €8,000 million. These acquire works directly from the This situation obviously cre- sales are divided between deal- author from the resale right for ates distortions in the market. ers, who account annually for sales of works of art, which take For example, an Irish artist such approximately €6,000 million place within three years of the as Robert Ballagh is currently sales worldwide and auction acquisition from the author. entitled to a resale right, or droit sales which account for approx- This exemption is limited to de suite, when one of his works is € Artists will now be in the same imately 2,000 million. such acts of resale where the position as performers such as sold in Paris, whereas the estates The primary objective behind resale price does not exceed U2 and Sinead O’Connor (above) of French artists such as the directive is to ensure that the €10,000. in terms of royalty resale rights Bernard Buffet or Raoul Dufy artist and his beneficiaries will Resale rights will only apply would not be entitled to such a benefit from a percentage of the as long as the selling price of the an artist can receive as resale payment when one of their seller’s profit as the value of their work in question exceeds rights on a single sale is limited works is sold in Dublin. One of work increases. It ensures that €3,000. There is, however, an to €12,500. the aims of the directive is to artists, or their estates (for 70 option given to member states The rationale of the com- eliminate existing differences years after the artist’s death) in the directive to apply resale mission in introducing this slid- between laws where they have a benefit from the artist’s work rights to sales of art of less than ing scale of royalties is to make distorting effect on the func- when it is subsequently trans- €3,000. There is concern that it unattractive, from an eco- tioning of the internal market. ferred. Because of the 70-year an art-selling professional may nomic point of view, to transfer The commission considers that limit, the resale rights will apply choose to effect sales outside of sales outside of the EU. It is the existence of differences almost exclusively to 20th centu- the European Community in interesting to note, in this between national provisions on ry works of art. This places con- order to avoid the provisions of regard, that over 80% of all EU the resale right creates distor- temporary artists in a similar the directive. Neither the USA art sales concern works of art tions of competition and dis- position to other categories of nor Switzerland recognises which have a value of less than placement of sales within the authors such as composers and resale rights and art-market pro- €50,000. In addition to the community and leads to unequal writers who receive on-going fessionals are concerned that sliding scale introduced by the treatment between artists copyright royalties even after sales which would normally be directive, it is expected that depending on where their works their death. In other words, effected in the EC will be trans- import procedures and CGT are sold.

34 Briefing

The directive will have sig- ment in the third countries All this is good news for commission has expressed nificant repercussions in mem- concerned. This means that artists. However, the time limits regret that the time limit for ber states such as the UK where sales in Ireland by US artists for transposition of the directive implementing the directive is so there is currently no legislation will not be entitled to resale are so lengthy that artists will long and that some member on resale rights. The UK is the royalties because US legisla- not benefit from its adoption states will be able to defer its largest market for art in the tion does not offer resale until possibly 2012. Member introduction until 2012. Ireland EU. It accounts for approxi- rights to Irish artists whose states are obliged to transpose does not currently have domes- mately 48% of dealer sales works are sold in the US. The the directive into national law tic legislation on resale rights within the EU and 61% of all council intends, in the short by 1 January 2006. Those coun- and if it fails to introduce legis- auction sales. term, to open negotiations tries that do not apply resale lation by 2006, it will be in a The directive states that with countries throughout the rights at that date will be able to position to apply for an exemp- member states must provide world so as to harmonise laws restrict its application to living tion until 2010 and possibly that authors who are nationals on resale on an international artists for a further four years until 2012. G of third countries will enjoy the basis. This is particularly until January 2010. artist’s resale right, provided important in an international If a particular member state Lynn Sheehan is a solicitor with that authors from the member market such as the market for requires it, this can be extended the Cork law firm Ronan Daly states enjoy reciprocal treat- modern art. for a further two years. The Jermyn.

Davidoff/Levis: Community exhaustion of rights in the context of trademarks n 20 November 2001, the stipulated territory. A&G provides as follows: OEuropean Court of Justice Imports Limited acquired ‘1)The trademark shall not enti- issued a preliminary ruling stocks of Davidoff products tle the proprietor to prohibit under article 234 of the EC which had been manufactured its use in relation to goods treaty in response to a request within the EEA and which had which have been put on the made by the High Court of originally been placed on the market in the community Justice of England and Wales, market in Singapore by under that trademark by the Chancery Division (Patent Davidoff or with his consent. proprietor or with his consent Court) in the context of certain A&G imported those products 2) Paragraph 1 shall not apply questions regarding interpreta- into the UK and Davidoff where there exist legitimate tion of article 7 of first council brought proceedings against reasons for the proprietor to directive 89/104/EEC of 21 A&G before the High Court of oppose further commerciali- December 1988 to approximate Justice of England and Wales, sation of the goods, especially the laws of the member states Chancery Division (Patent where the condition of the relating to trademarks (OJ 1989 Court), alleging that the impor- goods is changed or impaired L 40 p1) as amended by the tation and sale of those products after they have been put on Agreement on the European in the United Kingdom the market.’ Uniform interpretation: Economic Area (EEA) of 2 May infringed its trademark rights. no cheap Levis 501s 1992 (OJ 1994 L 1 p3). In the other joint cases, The issue for the ECJ effective- The judgment of the ECJ C–415/99 and C–416/99, Tesco Court), claiming infringement. ly was to define exactly when the arose out of two sets of national Stores Limited and Tesco Plc Under EU law, the ECJ by holder of trademark rights is proceedings. In the first case, (together ‘Tesco’) and Costco its case law has established a considered to have exhausted his C–414/99, Zino Davidoff SA Wholesale UK Limited general principle that the hold- right to oppose the importation was the proprietor of a number obtained Levis 501 jeans from er of intellectual property (IP) and sale of products bearing the of trademarks registered in the traders who imported them rights is considered to have trademark. In other words, the UK, which were used for a wide from countries outside the EEA. exhausted his rights under the ECJ had to rule on the issue of range of toiletries and cosmetics The products had originally laws of the member states to when the owner of the trade- products. Davidoff entered into been sold by Levis or on its oppose the importation and sale mark rights is regarded as hav- an exclusive distribution con- behalf in territories outside the of products in circumstances ing consented to the sale of his tract under which the distribu- EEA. Levi Strauss & Co and where the goods have been goods in the EEA. tor undertook to sell Davidoff Levi Strauss (UK) Limited marketed in the EU by the The ECJ ruled as follows: products solely within a defined (together ‘Levis’) claimed that holder of the IP rights or with 1) It confirmed that the princi- territory outside the EEA to the importation by Tesco and his consent. ple of exhaustion of rights as local sub-distributors, sub- Costco infringed Levis’ trade- With regard to trademarks, embodied in the directive did agents and retailers, and the dis- mark rights and initiated pro- this principle is now contained not apply in respect of goods tributor further undertook to ceedings before the High Court in article 7 of the directive enti- placed on the market in non- impose on its customers a pro- of Justice of England and Wales, tled Exhaustion of the rights con- EEA countries as established hibition on resale outside the Chancery Division (Patent ferred by a trademark, which in case C-355/96 Silhouette Briefing

International Schmied ([1998] fell to be determined at com- renounced his right to imposing any contractual ECR 1-4799). In other munity level oppose the placing of the reservation and that, words, there is no scope for 3) In view of the ‘serious effect’ goods on the market within according to the laws gov- an international, as opposed of the exhaustion of rights the EEA erning the contract, the to community, principle of principle in the context of the 5) Consent cannot be implied property right transferred exhaustion of rights. The main proceedings before the from the mere silence of the includes, in the absence of ECJ pointed out that there- national courts, the ECJ owner of the trademark such reservation, an fore the effect of the directive ruled that consent must be so 6) The burden of proof of unlimited right of resale is to limit exhaustion of rights expressed that an intention to establishing consent is on the or, at the very least, a right in cases where goods have renounce those rights is party who alleges the exis- to market the goods subse- been put on the market in the unequivocally demonstrated tence of consent quently within the EEA EEA and to allow the propri- 4) Article 7(1) of the directive is 7) The ECJ ruled that consent 8) The ECJ confirmed that it is etor to market his products to be interpreted as meaning could not be inferred in the not relevant to the exhaus- outside that area without that the consent of a trade- following situations: tion of rights principle that exhausting his rights within mark proprietor to the mar- i) From the fact that the pro- the importer of the goods the EEA. The ECJ pointed keting within the EEA of prietor of the trademark bearing the trademark is not out that in this way the com- products bearing that mark has not communicated to aware that the proprietor munity legislature has which have been previously all subsequent purchasers objects to their being placed allowed the proprietor of the placed on the market outside of the goods placed on the on the market in the EEA or trademark to control the ini- the EEA by that proprietor or market outside the EEA its sold there by traders other tial marketing in the EEA of with his consent may be opposition to marketing than authorised retailers or goods bearing that mark (case express or may be implied. within the EEA that the authorised retailers C-173/98 Sebago and Maison The ECJ ruled that consent ii) From the fact that the and wholesalers have not Dubois [1999] ECR I-4103) may be implied or inferred goods carry no warning of imposed on their own pur- 2) The ECJ confirmed that the from facts and circumstances a prohibition against their chasers contractual reserva- concept of consent was not a prior to, simultaneous with or being placed on the market tions setting out such opposi- matter of interpretation at subsequent to the placing of within the EEA tion, even though they have national level. It held that in the goods on the market out- iii)From the fact that the been informed of it by the the interests of a uniform side the EEA which, in view trademark proprietor has trademark proprietor. G interpretation of the concept of the national court, transferred the ownership of consent throughout the unequivocally demonstrate of all of the products bear- Marco Hickey is a solicitor with the community, its interpretation that the proprietor has ing the trademark without Dublin law firm LK Shields.

The European company statute

he European company statute, up a network of subsidiaries ent member states to create an An SE with commercial interests Twhich will come into force governed by different national SE. in more than one member state on 8 October 2004, is a new laws. There will be advantages An SE can be set up in any of will be able to move across bor- community law instrument in terms of reductions in five ways: ders easily in response to the which will give companies the administrative and legal costs, a • By the merger of two or more changing needs of its business. option of forming a European single legal structure and uni- existing public limited compa- This is because the statute will company – known formally by fied management and reporting nies from at least two different allow an SE which is registered, its Latin name of Societas systems. On a European-wide EU member states for example, in Ireland to move Europaea (SE). It consists of two basis, the potential savings in • By the formation of a holding its registered office to any other separate pieces of legislation, terms of administrative costs are company promoted by public member state without, as is the namely a regulation1 (directly estimated to be up to €30 bil- or private limited companies case now, having to wind up the applicable in member states) lion a year. from at least two different company in Ireland and re-reg- establishing the company law Each SE will be registered in a member states ister it in the other member rules and a directive2 (which given member state on the same • By the formation of a joint state. An SE should also be able will now have to be implement- register as companies established subsidiary of companies from to attract private venture capital ed in national law in all member under national law. However, the at least two different member more easily than a series of states) on employee participa- registration of each SE will also states national companies, all operat- tion. be published in the EC’s Official • By the transformation of a ing under national rules. The European company statute journal. The SE must be regis- public limited company which For tax purposes, an SE will will allow companies which are tered in the member state where has, for at least two years, had be treated in the same way as any now established in more than it has its administrative head a subsidiary in another mem- other multinational company one member state to merge and office. The minimum capital ber state under the applicable national fis- operate throughout the EU on requirement has been set at • By the creation by an SE of a cal legislation. While the tax the basis of a single set of com- €120,000; this will enable medi- wholly-owned single share- rules relating to SEs are still pany law rules instead of setting um-sized companies from differ- holder subsidiary. under discussion, there are likely

36 Briefing to be tax advantages in operating plans, production and sales ation of the SE, to participate in was created. Where the SE is a pan-European business through levels, the implications of these company decisions. formed through the transforma- an SE with branches in different for the workforce, management In the case of a an SE created tion of a national company into member states rather than changes, mergers, divestments by a merger, the standard rules an SE, the arrangements for through a holding company with and potential closures and on participation of its workers worker participation, if any, local subsidiaries in different layoffs. will have to be applied when at applied by the company prior to member states. In certain circumstances, least 25% of employees had the its transformation into an SE will Under the directive on where managers and employee right to participate before the continue to apply. G employee involvement, the cre- representatives are unable to merger. Agreement on this ation of an SE will require the negotiate a mutually satisfactory aspect of the directive had Gerald FitzGerald is a partner in negotiation of arrangements agreement and where the com- proved impossible until the Nice the Dublin law firm McCann relating to employee involvement panies involved in the creation summit in December 2000. The FitzGerald. in the business of the SE. If it of an SE were previously cov- compromise struck by heads of proves impossible to negotiate a ered by employee participation state and government was to Footnotes mutually satisfactory arrange- rules under the relevant national authorise a member state not to 1 Council regulation no ment, then a set of standard prin- law(s), an SE will be obliged to implement the directive on 2157/2001/EC of 8 October ciples, laid down in an annex to apply the standard rules on the employee participation in the 2001 on the statute for a the directive, will apply. These participation of its employees in case of SEs created by merger; European company (SE). principles oblige SE managers to the SE. This will be the case for but in that case, the SE can be 2 Council directive 2001/86/ provide regular reports to an SE created as a holding com- registered in that member state EC of 8 October 2001 sup- employee representatives in rela- pany or joint venture when a only if an agreement on employ- plementing the statute for a tion to a range of different mat- majority of the employees had ee participation is concluded or European company with ters including the companies’ the right under the relevant if no employees were covered by regard to the involvement of current and future business national law, prior to the cre- participation rules before the SE employees.

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HARVEST SOFTWARE, 15 PARNELL ST WATERFORD TEL 051-872111 FAX 051-872880 E-MAIL [email protected] THETHE GOLDEN GOLDEN PATH PATH TO TO PROFIT PROFIT Briefing Recent developments in European law FREE MOVEMENT dent’s circumstances may change conditions are satisfied. It is for being applied to applications for the and they should not be barred from national courts to determine recognition of psychology qualifica- Persons subsequently having recourse to the whether the infringement is neces- tions obtained in other member Case C-184/99 Rudy Grzelczyk v social security system of a host sary and proportionate. The Belgian states. The ECJ held that France Centre public d’aide social state. court asked whether EC law allows had failed to meet its obligations d’Ottignies-Louvain-la-Neuve,20 Therefore, Belgium could not states to refuse to grant a resi- under the directive. It pointed out September 2001. The applicant was make entitlement to non-contributo- dence permit to or expel non-EU that a draft law that the French gov- a French national undertaking a ry social benefits conditional on a spouses of EC citizens who enter a ernment had used in its defence course of studies in physical educa- criterion which need not be satisfied state illegally. The advocate general amounted to an admission that the tion in a Belgian university. During by its own nationals. regarded such a refusal as ‘a meas- directive had not been correctly the first three years of his course, ure of public policy’ under communi- implemented. he defrayed his own costs by taking Case C-459/99 Mouvement contre ty directive 64/221. Such measures various part-time jobs and through le racisme, l’antisémitisme et la must be based ‘exclusively on the INTELLECTUAL loans. The fourth year of the course xénophobie ASBL [MRAX] v Belgium, personal conduct of the individual PROPERTY is the most demanding and for this Opinion of Advocate General concerned’. A blanket rule is not year he applied for payment of the Christine Six Hackl, 13 September permitted, as it does not require Trademarks minimum substance allowance 2001. Since 1980, Belgium has each case to be examined individu- Case T-359/99 Deutsche (‘minimex’). This was initially grant- had a law governing access to ally. The same principle applies to Krankenversicherung AG (DKV) v ed and then withdrawn, as he was a Belgium in respect of particular expulsion. The Belgian court asked Office for Harmonisation in the student. The Belgian court asked nationalities. The ASBL movement whether a state could refuse a resi- Internal Market (Trade Marks and the ECJ whether it was contrary to challenged this law in the Belgian dence permit to a non-EU spouse of Designs) (OHIM),7 June 2001. In EC law for entitlement to a non-con- courts, arguing that part of it an EU citizen whose visa has 1996, the applicant filed an applica- tributory social benefit to be made offended EC law. The Belgian expired. tion for a community work mark at conditional, in the case of nationals Council of State referred the matter The advocate general said that if the Office for Harmonisation in the of other member states, upon their to the ECJ. Its questions related to a person enters a state legally they Internal Market for the term being regarded as workers where the status of non-EU nationals mar- could not be refused a residence EuroHealth. In 1998, the examiner this condition was not required of ried to EU nationals and wishing to permit on the basis that their visa refused the application on the nationals of the home state. The move the state of the latter for the has expired. ground that the word in question ECJ held that the minimex was a purpose of bringing their family was devoid of distinctive character. social benefit that Belgian students together. The advocate general Case C-285/00 Commission of the In 1999 the applicant appealed. The would have obtained. Thus, Mr noted that the legal position of non- European Communities v French appeal was dismissed. The ECJ Grzelczyk had been discriminated EU family members of an EU nation- Republic, 10 May 2001. Council upheld the finding of the examiner. against on the ground of his nation- al living in his or her home state and directive 89/48/EEC provides for a The term health was purely descrip- ality. One of the fundamental rights not exercising his or her EC right to general system for the mutual tive of health insurance services guaranteed by the treaty is the right free movement of persons is gov- recognition of diplomas (awarded and the prefix ‘Euro’ merely indicat- to move and reside freely in other erned exclusively by national law. after professional training of at ed that the services were offered at member states. The treaty on The Belgian court had asked least three years’ duration) in the the European level. The applicant European Union introduced the sta- whether EC law permits states to EU. The commission brought an had sought to register the term in tus of citizen of the EU. Such citi- refuse entry at its border to non-EU enforcement action, arguing that respect of all services falling within zens pursuing university studies in spouses of EU citizens where no France had failed to enact legisla- the category of insurance. The other states cannot be discriminat- identity document or visa is pro- tion allowing access to the profes- board of appeal had also refused a ed against on grounds of nationality. duced. The advocate general point- sion of psychologist. Thus, it had similar application for the financial Nevertheless, states can require ed out that there is no express pro- failed to comply with article 12 of services sector but had not given students that reside on their territo- vision in EC law on refusal to allow the directive, which required imple- reasoned grounds. This is a require- ry to declare that they have suffi- entry in these circumstances. Such mentation measures within two ment of the regulation 40/94 (arti- cient resources for themselves and refusal infringes the spouse’s basic years of its enactment. The com- cle 7(1)(b)) which applies in this their family to avoid becoming a bur- EC law right to respect for his or her mission argued that no legislation area and therefore the ECJ annulled den on the social assistance family life. Such infringement can be had been introduced and that the the decision of the board on that scheme of the host state. A stu- permissible provided that certain principles of the directive were not application. G EXCELLENCE IN REPORTING SINCE 1954

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38 People and places

Meeting of minds Georghias M Pikis, president of the Supreme Court of Cyprus, with Law Society President Elma Lynch. President Pikis and all the other members High society of the Cypriot Supreme Court recently visited Blackhall Place to meet At the Cork launch of the 2001 edition of the contract for sale on members of the society’s EU and International Law Committee to 30 January at the Imperial Hotel were (left to right) Law Society discuss Ireland’s experience of the legal issues that arise on the Conveyancing Committee member Stephen O’Riordan, committee accession of a new member state to the EU chair Patrick Dorgan, CLE executive Lindsay Bond and committee member Patrick Fagan

Civil tongues At the launch of Civil procedure in the Superior Courts are (left to right) Catherine Dolan of publishers Round Hall Sweet & Maxwell, authors Hilary Delaney and Declan McGrath, and Mr Justice Peter Kelly

Presidential air Pictured on the day of his election as president of the CCBE last November are John Fish of Arthur Cox and Law Society Senior Improve your career prospects Vice-President Geraldine Clarke of Gleeson McGrath Baldwin with a specialist diploma ith the recent introduction consumer law and litigation. Wof the euro, the European The next starting date for Community now has a visible the society’s Diploma in daily presence in our lives. The applied European law is impact of European legislation Saturday 27 April 2002. on national legislation can be Bookings are currently being felt in areas as diverse as accepted. For further inform- company law, labour law and ation on this, or other diploma agricultural law. It is important courses, contact Michelle that all solicitors have a working Nolan of the Law Society knowledge of EU law and, in ([email protected]). recognition of this, the Law The Law Society currently Society actively supports such offers six diplomas: property learning through its Diploma in tax, commercial law, applied European law. The e-commerce, applied course is designed to provide a European law, legal French, balance between the theory and and legal German (certificate). practice of EU law. Particular The society plans to continue emphasis is placed on areas of expanding the programme Getting it on account At the Law Society’s recent seminar on the Solicitors’ day-to-day relevance to and hopes to introduce a accounts regulations in Cork were Tina Beattie, executive officer with the solicitors, such as the law diploma in banking and the society’s regulatory department; Simon Murphy, chair of the relating to the economic corporate finance before the society’s Compensation Fund Committee; accountant Charles Russell; freedoms, competition law, end of the year. and investigating accountant Tim Bolger

39 The first law of WHERE THERE’S A WILL choosing your home… THIS IS THE WAY… …make sure it’s When a client makes a will in favour of the Society, it would built by faktor5 be appreciated if the bequest were stated in the following words: “I give, devise and bequeath the sum of X pounds to the Irish Cancer Society Limited to be applied by it for any of its charitable objects, as it, at its absolute discretion, may decide.” All monies received by the Society are expended within the Republic of Ireland. “Conquer Cancer Campaign” is a Registered Business Name and is used by the Society for some fund-raising purposes. The “Cancer Research Advancement Board” allocates all Research Grants on behalf of the Society.

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There’s a first time for everything Law Society Director General Ken Murphy, President of the High Court Joseph Finnegan and President of the Law Society of England and Wales David McIntosh at a recent parchment ceremony. It was the first parchment ceremony that former solicitor Mr Justice Finnegan attended as the new president of the High Court. It was also the first-ever time that a president of the Law Society of England and Wales, Young bloods the elected leader of 104,000 solicitors, became a Pictured at the Autumn 2001 conference of the Society of Young Solicitors of Ireland are member of the Law Society of Ireland Law Society President Elma Lynch and Director General Ken Murphy, who addressed the conference, in the company of the SYS committee, speakers, sponsors and guests

Jump right in Niall Lord, Paddy Bardon of Gerard Black & Co, William Brennan of Binchys and John Healy of A&L Goodbody (left to right) together raised €6,000 in a Mayo dressing sponsored parachute jump for the homeless. Further At the December 2001 annual dress dance of the Mayo Solicitors’ Bar Association were donations to Focus Ireland’s appeal may be made to: (front row, from left to right) Jaqueline Durcan, treasurer of the association; James Cahill, ‘Jump for Focus’, Ulster Bank, Lower Baggot St, the association’s president; Judge Mary Fahey; Law Society Dublin 2. The account number is 0353 5075 President Elma Lynch; and Judge Mary Devins

Conferring of diplomas in commercial law Chief Justice Ronan Keane, Law Society President Elma Lynch, Director General Ken Murphy and chairman of the Law Society’s Education Committee Michael Peart, with the recipients of the society’s Diploma in commercial law pictured at a recent graduation ceremony in Blackhall Place

41 Apprentices’ page SADSI Age and experience beats TRAINEES’ Solicitors Apprentices Debating Society of Ireland youth and vigour DIRECTORY ue to delays caused by foot his year’s SADSI Dand mouth disease, the Tcommittee hopes to SADSI 2001 Gaelic football compile a trainees’ match between trainees and directory for the 2001 solicitors finally took place in PPC1. A similar directory the Guinness Iveagh Grounds in was compiled for the Crumlin, Dublin. previous year and has Over 40 players assembled proved a valuable tool in there, with both sides grateful forging links with other for the participation of this trainees. The directory will year’s PPC1. It was a strongly contain your name, the contested encounter, with a office in which you are bitter wind blowing across the indentured, office pitch that kept the score to a telephone number and your minimum. Age and experience: the winning solicitors’ team e-mail address. We intend The trainees were led by to distribute the Daireann Gibson and scored the questionnaire during the early points, but by half-time next skills days on 4 and 11 they were equal. The towering March 2002. If you do not presence of Enda Newton receive a questionnaire and dominated all high balls in wish to have your details in midfield, and he undoubtedly the directory, please e-mail played a pivotal role in the your details to us at overall outcome. The result: [email protected]. solicitors 0-06, trainees 0-04. Youth and vigour: the trainees If you think it’s good to talk, then this is for you rainees are always reminded forced many solicitors to look solicitor who has never stood in open to all on the professional Tthat advocacy skills have afresh at their abilities as an front of a judge? Help is at hand. practice course at the time. more relevance than ever before. advocate. How do you become a During December, January and The competition provides an Greater rights of audience for good advocate? Well, practice February, the Law School runs ideal environment to practice solicitors and increased monetary makes perfect. So where does its annual trainee solicitor and hone advocacy skills – you jurisdiction in the courts have this leave the novice, the trainee mooting competition, which is can make mistakes and no harm will be done and you get support, praise and constructive COMING EVENTS feedback from the presiding ■ We plan to kick off the year with Galway, at 6pm. Many thanks to on the King’s Inns students’ judges. our first regional event in Galway Ulster Bank for their continued team in UCD. The club would like In a moot court the facts are on Friday 8 March, in The Skeff at support in sponsoring this event. to invite all interested players to not at issue; instead you are ■ 8pm. Dawn Carney, your western On 13 March in Blackhall Place, contact SADSI’s eastern arguing points of law before the representative, guarantees a night SADSI will host a guest speaker representative and welfare appellate courts, usually the filled with subsidised beverages, debate on the motion that ‘Ireland officer, Christian Victory, at Supreme Court – it’s not every good music and great crack. Even has a justice system to be proud [email protected], giving details of though this is a regional western of’. There will be several high- positions played. For insurance day that you get to do that. The event, the event is open to all profile guest speakers on the reasons, the club can only judges are usually faculty trainees. To this end, your sports night, which augurs well for a lively consider players who are already members or indeed retired liaison officer, Noel Devins, has and interesting debate. If anyone fully paid-up members of a judges. also organised a soccer match at is interested in representing SADSI registered rugby club. Jerseys and By engaging in courtroom 1pm at Corrib Village football pitch in the Irish Times or Mace kit will be provided. advocacy, you will also learn the on the following day. It is hoped debating competitions, or indeed rules of the courtroom and gain that a team will travel from Dublin in the annual challenge debate Further details of these events, experience in researching and to Galway to take on the might of against the King’s Inns later in the including information on transport drafting written briefs. For the the West. Other activities have year, please contact Ronan Feehily and accommodation, may be ambitious mooter, it also also been organised, including by e-mail at [email protected]. obtained via e-mail at provides a training ground for bowling and golf. All are then ■ On Saturday 16 March, the Irish [email protected] or on our website invited to meet in The Quays, apprentices’ rugby team will take at www,sadsi.ie. larger competitions.

42 Recruitment

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43 Professional information

Folio: 20245; Lands: Townland of 5921; Lands: Known as the town- LawSociety Cromane Lower and Barony of land of Bewley situate in the Gazette Trughanacmy; Area: 1.055 acres; Barony of Decies without Drum; Co Kerry Co Waterford Regd owner: Patrick and Elizabeth Regd owner: Maurice Dunne; Folio: ADVERTISING RATES Looby; Folio: 7318F; Lands: 8759F; Lands: Eardownes Great Advertising rates in the Professional information section are as follows: Foulkscourt and Barony of and Barony of Forth; Co Wexford Galmoy; Co Kilkenny Regd owner: Charles A Gambrill; ¥ Lost land certificates Ð €46 (incl VAT at 20%) Regd owner: Patrick Dunne Folio: 334R; Lands: Borleagh and ¥ Wills Ð €77 (incl VAT at 20%) (deceased); Folio: 743F; Lands: Barony of Gorey; Co Wexford ¥ Lost title deeds Ð €77 (incl VAT at 20%) Graiguenamanagh and Barony of Regd owner: John Breen (deceased); ¥ Employment miscellaneous Ð €46 (incl VAT at 20%) Gowran; Co Kilkenny Folio: 1236 and 13072; Lands: Regd owner: Paul Walsh; Folio: Crory and Barony of Scarawalsh; HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT Ð €30 EXTRA 7174F; Lands: Clogga and Barony Co Wexford All advertisements must be paid for prior to publication. Deadline for April of Iverk; Co Kilkenny Regd owner: Malachy Quinn; Folio: Gazette: 22 March 2002. For further information, contact Nicola Crampton on Regd owner: Bridie Bohan and Jane 7388F; Lands: Ballynamona and 01 672 4828 (fax 01 672 4877) Anne Dolan; Folio: 6759; Lands: Barony of Ballaghkeen; Co Aghaboneill; Area: 23.7937 acres; Wexford Co Leitrim Regd owner: Sean Byrne; Folio: LOST LAND Folio: 15398; Lands: Termon Regd owner: Carmel Collins; Folio: 13861F; Lands: Townland of CERTIFICATES (parts); Area: 1.102 hectares; Co 27121; Lands: Townland of Thereewells and Barony of Donegal Cloongownagh and Barony of Ballinacor south; Co Wicklow Registration of Title Act, 1964 Regd owner: Daniel McElchar; Folio: Kenry; Co Limerick Regd owner: Joseph Maguire; Folio: An application has been received from 33747; Lands: Ballylast 9.7937 Regd owner: James Hickey; Folio: 3197L; Lands: Bray and Barony of the registered owners mentioned in acres, Ballylast 23.675 acres; Co 317L; Lands: Townland the lease- Rathdown; Co Wicklow the schedule hereto for the issue of a Donegal hold estate in the parcel of land sit- Regd owner: John Cullen; Folio: land certificate as stated to have been Regd owner: Kathleen, Anne and uate on the south east side of 2168; Lands: Redcross and Barony lost or inadvertently destroyed. A new Vincent McDonnell; Folio: Corbally Road in the Parish of St of Arklow; Co Wicklow certificate will be issued unless notifi- DN8653; Lands: Property situate Patrick; Co Limerick cation is received in the registry with- in the townland of Rathcoole and Regd owner: Michael Holmes; Folio: in 28 days from the date of publica- Barony of Newcastle; Co Dublin 13680; Lands: Townland of Rath WILLS tion of this notice that the original Regd owner: Kathleen, Anne and and Barony of Owneybeg; Co certificate is in existence and in the Vincent McDonnell; Folio: Limerick Collins, Margaret (deceased), late of custody of some person other than the DN3329; Lands: Property situate Regd owner: Christina Foley; Folio: 22 St Mary’s Road, Edenderry, Co registered owner. Any such notifica- in the townland of Rathcoole and 12350; Lands: Aghnashannagh; Offaly. Would any person having any tion should state the grounds on Barony of Newcastle; Co Dublin Area: 0.73125 acres; Co Longford knowledge of a will being made by the which the certificate is being held. Regd owner: Fiona and Maurice Regd owner: John Joseph Reilly; above named deceased who died on 16 (Register of Titles), Central Office, Land Keenan; Folio: DN87272L; Lands: Folio: 7567; Lands: Tawnagh February 2001, please contact Byrne Registry, Chancery Street, Dublin Known as apartment no 16, second (part); Area: 58.9062 acres; Co & O’Sullivan, Solicitors, Windsor (Published 1 March 2002) floor and car park space no 13, Longford Lodge, Edenderry, Co Offaly Kings Court, Parnell Street, situate Regd owner: James Carroll; Folio: Regd owner: Brian Flynn; Folio: in the parish of St Mary’s and dis- 3166; Lands: Athlumney; Area: Cummins, Annie (deceased), late of 8688F; Lands: Grangeford Old and trict of North Central; Co Dublin 25.60 acres; Co Meath Kildwan Bonmahon Co Waterford. Barony of Carlow; Co Carlow Regd owner: Eileen Purcell; Folio: Regd owner: Patrick Joseph Smyth; Would any person having knowledge Regd owner: Peter Thomas Gaynor; DN72429L; Lands: property being Folio: 19211; Lands: Castletown; of the whereabouts of the original will Folio: 565; Lands: Cornakill; Area: flat no 6, the first floor of the build- Co Meath executed by the above named 10.70625 acres; Co Cavan ing known as Hollywood, situate Regd owner: Patrick Christopher deceased on 21 March 1984 and cod- Regd owner: Joy McAlavey; Folio: on the north side of Donnybrook Hickey; Folio: 25921; Lands: icil executed by the above named 15297F; Lands: a plot of ground and district of Pembroke and city Rackenstown; Area: 0.831 acres; deceased on 22 June 1988, said situate on the west side of Fisher of Dublin; Co Dublin Co Meath deceased having died on 29 Street otherwise Lower O’Connell Regd owner: Thomas and Margaret Regd owner: Edward McElroy; Folio: September 2001, please contact T Street in the town and parish of Ty rrell; Folio: DN28920L; Lands: 11123 revised; Lands: Kiersey & Co, Solicitors, 17 Kinsale shown as plan 82 edged red property situate in the townland of Tonysillogagh; Area: 21.0937 acres; Catherine Street, Waterford, tel: 051 on the registry map (OS 112/13). Carrickhill and Barony of Coolock; Co Monaghan 874 366 or fax: 051 870 390 6641/16; Co Cork Co Dublin Regd owner: Madge McGuinness; Regd owner: Timothy Coleman; Regd owner: John and Philomena Folio: 10159F; Lands: Deane, Robert, late of Knockskeagh, Folio: 16410; Lands: Known as the Gubbins; Folio: 39829; Lands: Corrybrannan; Co Monaghan Iyre, Clonakilty, Co Cork. Would any townland of Knockacorbally situate Townland of Annaghvaan and Regd owner: Christopher Fetherstone person having any knowledge of the in the Barony of Muskerry East; Barony of Moycullen; Area: 7.9240 and Ann Fetherstone; Folio: 12325; whereabouts of a will of the above Co Cork hectares; Co Galway Lands: Breaghmore and Barony of named deceased dated 14 August 1998, Regd owner: Michael Holland; Folio: Regd owner: James Kearney; Folio: Ballybritt; Co Offaly who died on 18 June 1999, please con- 6663F; Lands: Known as a plot of 12945; Lands: Townland of Cordal Regd owner: Richard Charles Hunter tact Collins, Brooks & Associates, ground situate in the townland of west and Barony of Trughanacmy; (deceased); Folio: 1644; Lands: Solicitors, 7 Rossa Street, Clonakilty, Donegall Middle, the Barony of Co Kerry Townland of Ballincar and Barony Co Cork, quoting ref AOD. Carbery west (east division); Co Regd owner: Rev Mother Mary of Carbury; Area: 12 acres, 2 roods Cork Baptista and others; Folio: 26800; and 30 perches; Co Sligo Donnelly, Maureen (otherwise Regd owner: Edmund W and Lands: Townland of Whitefield and Regd owner: John Finnan and Jacqui Mary), late of Patrick Street, Margaret B McClean; Folio: Barony of Dunkerron North; Co Finnan; Folio: 22349F; Lands: Portarlington, Co Laois, formerly of 43349; Lands: Meenderryowan; Kerry Rathsasseragh and Barony of Ballinrahan, Rathangan, Co Kildare. Area: 0.50 acres; Co Donegal Regd owner: Castlemaine Harbour Clanwilliam; Co Tipperary Would any person having knowledge Regd owner: John and Jo O’Donnell; Co-operative Society Limited; Regd owner: Fergus Roche; Folio: of a will executed by the above named

44 Professional information deceased who died on 31 January O’Rourke, Angela, anyone knowing Solicitor with three years PQE seeks MISCELLANEOUS 2002, please contact Wilkinson & the whereabouts of a will of the late part-time employment in general Price, Solicitors, Main Street, Naas, Angela (otherwise as Ellen) practice, North Dublin area. Please Northern Ireland solicitors provid- Co Kildare, tel: 045 897 551 O’Rourke, formerly of Knockaun, reply to Box no 120 ing an efficient and comprehensive Annestown, Co Waterford, obituary legal service in all contentious/non- Gilroy, Sara (deceased), late of 56 13 January 2002, please contact Chartered accountant available for contentious matters. Dublin-based Palmerston Road, Rathmines, Dublin Aherne Swift Solicitors, 51 contract work. Dublin based FCA consultations and elsewhere. Fee 6. Would any person having knowl- O’Connell Street, Waterford, tel: 051 with 20 years and wide industrial apportionment. ML White, edge of a will executed by the above 879 484 or fax: 051 852 230 experience and computer skills, avail- Solicitors, 43-45 Monaghan Street, named deceased who died on 16 able for part-time work. (20/25 hours Newry, Co Down, tel: 080 1693 December 2001, please contact per week). Please reply to Box no 68144, fax: 080 1693 60966 Moriarty & Co, Solicitors, 11 EMPLOYMENT 124 Anglesea Street, Dublin 2, tel: 01 677 Northern Ireland agents for all 7306 or fax: 01 677 0277 AMT-Sybex Group, a consultancy Partner designate required for contentious and non-contentious and software company require an in- busy, well-established midland prac- matters. Consultation in Dublin if Hunt, James, late of 45 Whitechurch house solicitor. Based at our Dublin tice; also assistant solicitor. Excellent required. Fee sharing envisaged. View, Ballyboden, Co Dublin. Would office in Sandyford, candidates terms and prospects for right candi- Offices in Belfast, Newry and any person having knowledge of a will should have one to three years dates. Reply to Catherine Corcoran, Carrickfergus. Contact Norville of the above named deceased who PQE. Work will involve advising on HR manager, Ryan Glennon & Connolly, D&E Fisher, Solicitors, 8 died December 2001 please advise and negotiating consultancy and soft- Company, Chartered Accountants, Tr evor Hill, Newry, tel: 080 1693 White and Company, Solicitors, ware licence agreements and general Trinity House, Charleston Road, 61616, fax: 080 1693 67712 Market Square, Abbeyleix, Co Laois, legal matters. Forward CVs by post Ranelagh, Dublin 6, tel: 01 496 5388 tel: 0502 31123 or fax: 0502 31304 to Paul Reynolds, AMT-Sybex or e-mail: hrmanager@ryanglen- London solicitors will advise on UK Group, Oak House, Leopardstown non.com matters and undertake agency work. Kenny, Catherine (otherwise Office Park, Foxrock, Dublin 18. Or All areas. Corporate/private clients. Katherine) deceased, late of 38 alternatively e-mail: paul.reynolds@ Ellis & Fairbairn, 26 Old Brompton Farmleigh Avenue, Stillorgan, Dublin amt-sybex.com AT Road, South Kensington, London 18, formerly of Monkstown Avenue, SW7 3DL, tel: 0044 171 589 0141, Blackrock, Co Dublin and of Bon Apprentice – currently on PPC1, MARY fax: 0044 171 225 3935 Voyage Travel Limited, Dun seeking apprenticeship for May 2002, Laoghaire. Would any person having in West/North Dublin, Co Meath. B CREMIN knowledge of the whereabouts of the Other areas in greater Dublin consid- LEGAL DIVISION EYE INJURIES AND will of the above named deceased who ered. Please reply to Box no 116 21 years of excellence OPHTHALMOLOGICAL died on 4 January 2002 please contact NEGLIGENCE Sean Hooper, Hooper and Company, Derry firm with busy cross-border Solicitor D2 €45K+ Solicitors, 97 Upper Georges Street, practice seeks qualified solicitor. This busy city centre firm Mr Louis Clearkin ChM, FRCS, Dun Laoghaire, Co Dublin. Ref: Attractive salary for suitable candi- seeks a solicitor with 2-3 FRCOphth, DO, MAI, MEWI 3876-001. Tel: 01 280 6971 or fax: 01 date. Please apply with CV to Box no years PQE. The ideal candi- Consultant Ophthalmic Surgeon 280 1558 117 date must have experience in conveyancing litigation and Experienced expert witness in McCormack, Anna (deceased), late Post-PPC1 student seeks litigation commercial. Excellent remu- ophthalmological personal of 26 Mount Saint Oliver, Drogheda, experience for a three to six month neration package injury, medical negligence and Co Louth. Would any person having secondment period commencing civil litigation knowledge of a will being made by the May 2002. Please reply to Box no Solicitor D2 €44K+ above named deceased who died on 118 Busy practice are seeking a Renuntiabo, 8 Rose Mount, 26 July 2000, please contact John J qualified solicitor with two Oxton, Wirral, Merseyside, Tully, Tully & Duffy, Solicitors, of 49 Are you snowed under? years PQE in litigation. L43 5SW Laurence Street, Drogheda, Co Experienced solicitor seeks part Experience in defence litiga- Louth, tel: 041 9839 411 or fax: 041 time position in Galway City. Please tion would be desirable. secretary: +44 (0) 151 6047047 9836 444 reply to Box no 119 Benefits include Pension, VHI fax: +44 (0) 151 6047152 and bonus package. e-mail: [email protected]

Solicitor D2 €46K Top legal firm requires an Northern Ireland solicitors. Will experienced solicitor to work advise and undertake NI-related mat- in the Investments Funds dep. ters. All areas corporate/private. Relevant financial experience Agency or full referral of cases as pre- is essential. Benefits: Pen- ferred. Consultations in Dublin or elsewhere if required. Fee sharing WILLSEARCH MISSING sion, VHI, travel allowance, subsidised restaurant and envisaged. Donnelly Neary & bonus scheme. Donnelly, 1 Downshire Road, Newry, HEIRS TRACED Co Down, tel: 080 1693 64611, fax: 080 1693 67000. Contact KJ Neary Call Roisin now for an appt. Tel: 01 663 5901 Fax: 01 662 8662 Personal injury claims, employ- Title Research [email protected] ment, family, criminal and property law specialists in England and Wales. +44 (0)20 7549 0900 More excellent job Offices in London (Wood Green, Fax: +44 (0)20 7549 0949 • DX: 53347 Clerkenwell opportunities at Camden Town and Stratford), Email: [email protected] • www.title-research.com www.marybcremin.ie Birmingham and Cardiff. ‘No win, no fee’ available for accident and

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Open a CRO account • The firm’s offices are within half an hour of London To register a Form C1 completed via the web, practitioners Waterloo station and within a short travel from both must have a CRO deposit account. This account can also be Gatwick and Heathrow airports, with easy access from used to facilitate payment for other submissions to the CRO. the London orbital M25 motorway Additional information • No win, no fee arrangements are available in Practitioners wishing to avail of the on-line services can appropriate cases visit the CRO website at www.cro.ie or contact Electronic Filing Section at 01 804 5355 or 01 804 PHONE NOW FOR A BROCHURE 5310. Westminster House 12 The Broadway, Woking, Surrey GU21 5AU England Fax: +44 (0)1483 725807 Parnell House, 14 Parnell Square, Dublin 1 Tel: 01 804 5200 Outside 01 area Tel: 1890 220 226 Email: [email protected] www.fearonlaw.com Fax: 01 804 5222 Email: [email protected] LITIGATION PROPERTY PROBATE Martin Williams John Phillips Francesca Nash www.cro.ie Tel: +44 (0)1483 776539 Tel: +44 (0)1483 747250 Tel: +44 (0)1483 765634 LEAVE IT TO THE EXPERTS!

F R O BE M E M A

P

U

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G E IC T C A PR IN L TERNATIONA

COMPANYCOMPANY SPANISH LAWYERS RAFAEL BERDAGUER ABOGADOS FORMATIONFORMATION PROFILE: FIELD OF PRACTICES: panish Lawyers Firm focussed eneral Practice, Administra- Son serving the need of the for- Gtive Law, Civil and Commercial eign investors, whether in compa- Law, Company Law, Banking and ny or property transactions and all Foreign Investments in Spain, attendant legalities such as ques- Arbitration, Taxation, Family Law, tions of immigration-naturalisa- International Law, Immigration tion, inheritance, taxation, and Naturalisation, Litigation in all THE LAW SOCIETY’S COMPANY SERVICE, accounting and bookkeeping, Courts. planning, land use and litigation in BLACKHALL PLACE, DUBLIN 7 all Courts. FAST • FRIENDLY • EFFICIENT • COMPETITIVE PRICES • MEMBERS OF EXPRESS SERVICE

PHONE CARMEL OR RITA ON 01 672 4914/6, (FAX: 672 4915) Avda. Ricardo Soriano, 29, or e-mail: [email protected] Edificio Azahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain • Private limited company – ten days, €278 • Guarantee company – ten days, from €215 Tel: 00-34-952823085 Fax: 00-34-952824246 • Single member company – ten days, €278 e-mail: [email protected] • New companies, using complete nominees – five days, €330 Professional information employment claims, legal aid for fam- Full ordinary seven-day intoxicat- they hold a superior interest in the Thornton intend to submit an appli- ily and criminal cases. Contact ing liquor licence required. Please aforesaid property is called upon to cation to the county registrar for the Levenes Solicitors at Ashley House, contact Jane O’Connor, Solicitor, furnish evidence of title to the afore- county/city of Dublin, for the acqui- 235-239 High Road, Wood Green, Sweeney McGann, 67 O’Connell mentioned premises to the below sition of the freehold interest in the London N22 8HF, tel: 0044 20 8881 Street, Limerick, tel: 061 317 named within 21 days from the date aforesaid premises (or any of them) 7777. Alternatively e-mail us on 533/418 277 or fax: 061 319 496 of this notice. are called upon to furnish evidence of [email protected]. or visit our web- In default of any such notice being title to the aforementioned premises site at www.levenes.co.uk. received, Seamus and Eimer to the below named within 21 days TITLE DEEDS McNulty intends to proceed before from the date of this notice. 49-year-old solicitor with a sole the county registrar at the end of 21 In default of any such notice being practice in Belfast and newly admitted In the matter of the Landlord and days from the date of this notice and received the applicant intends to pro- to the Law Society’s roll of solicitors Tenant Acts, 1967-1994 and in the will apply to the county registrar for ceed with the application before the in the Republic of Ireland would be matter of the Landlord and Tenant the county of Donegal for direction county registrar at the end of 21 days keen to make contact with a firm in (Ground Rent) (No 2) Act, 1978: as may be appropriate on the basis from the date of this notice and will Dublin to explore the possibility of a Seamus McNulty and Eimer that the person or persons beneficial- apply to the county registrar for the mutually beneficial arrangement. If McNulty – applicants; successors in ly entitled to the superior interest in county/city of Dublin for directions interested please contact WJ Irwin title of Fletcher Moore – respondents the premises are unknown and as maybe appropriate on the basis LLB, Solicitor, Imperial Buildings, 72 Take notice that the above named unascertained. that the person or persons beneficial- High Street, Belfast BT1 2BBE, tel: applicants are applying to acquire the Date: 25 January 2002 ly entitled to the superior interest 028 9024 4042 or fax: 028 9024 4151 fee simple interest in the property Signed: F Hutchinson & Co, Triconnell including the freehold reversion in and home e-mail address: hereinafter described pursuant to the Street, Ballyshannon, Co Donegal, solici- each of the aforesaid premises are [email protected]. above acts. Further take notice that tors for the applicant unknown and unascertained. any person having an interest in the Date: 4 March 2002 Solicitor seeks to purchase small following property: part of the lands In the matter of the Landlord and Signed: Miley & Miley, solicitors for the general practice in Dublin area. comprised in indenture of lease dated Tenant Acts, 1967-1994 and in the applicants, 35 Molesworth Street, Will endeavour to be as flexible as 25 September 1889 and made matter of the Landlord and Tenant Dublin 2. REF: 7/DMCC possible regarding terms in order to between Fletcher Moore of no 12 (Ground Rents) (No 2) Act, 1978: an oblige, for example, a sole practition- Hume Street, Dublin, Barrister at application by Vincent Thornton In the matter of the Landlord and er seeking to retire. All replies treat- Law of the one part and James and Edward Thornton, 648 and Tenant Acts, 1967 and 1994 and in ed in the strictest confidence. No Monaghan of The Port, 650 (formerly 74 and 72) South the matter of the Landlord and confidential information sought at Ballyshannon, Co Donegal of the Circular Road, Dublin 8 Tenant (Ground Rents) (No 2) Act, this stage. Please send replies to Box other part being premises located at Take notice that any person having an 1978: an application by Stanley no 121 West Port, Town of Ballyshannon, interest in the freehold estate of the Faulkner of South Lotts Road, Barony of Tyrhugh and County of following property: the premises for- Dublin 4 Established solicitor’s practice for Donegal. merly known as 74 and 72 South To any person having any interest in sale in Co Donegal. Replies to Box Take notice that Seamus McNulty Circular Road, subsequently changed the freehold estate or any leasehold no 122 and Eimer McNulty intend to apply to 648 and 650 South Circular Road, estate in the following property: all to the county registrar of the county Kilmainham in the parish of St James that and those the premises being a Ordinary seven-day publican’s of Donegal for the acquisition of the and the county of the city of Dublin. portion of the premises described in a licence for sale. Contact Walter P freehold interest in the aforesaid Take notice that (the applicants) lease dated 5 August 1944 for the Toolan & Sons, Ballinamore, Co property, and any party asserting that Vincent Thornton and Edward period of 99 years from 29 September Leitrim, tel: 078 44004 or fax: 078 44788 Ordinary seven-day licence: reply NORTHERN DUBLIN SOLICITORS’ to Brian D Casey & Associates, J. DAVID O’BRIEN PRACTICE OFFERS Solicitors, Thomond House, High IRELAND Street, Ennis, Co Clare, tel: 065 682 SOLICITORS AGENCY WORK 0001 or fax: 065 682 3933 or e-mail: ATTORNEY AT LAW IN NORTHERN [email protected] 20 Vesey St, Suite 700 We will engage in, IRELAND New York, NY, 10007 and advise on, all Northern Ireland- Wanted: ordinary seven-day publi- Tel: 001212-571-6111 * All legal work undertaken can’s licence. Reply to Desmond J related matters, on an agency basis Houlihan & Company, Solicitors, Fax: 001212-571-6166 particularly personal * All communications to clients Salthouse Lane, Ennis, Co Clare, tel: Email: [email protected] injury litigation. through instructing solicitors * Consultations in Dublin if required 065 684 2244, fax: 065 684 2233 or e- ERSONAL NJURY CCIDENT Consultations where P I A Contact: Séamus Connolly mail: desmondjhoulihan@secure- CASES convenient. Moran & Ryan, Solicitors, mail.ie CONSTRUCTION Fee sharing Arran House, RAILROAD envisaged. 35/36 Arran Quay, Dublin 7. € Share for sale: 15,000. Sole practi- MARITIME tioner has share for sale in thriving AVIATION OLIVER M LOUGHRAN Tel: (01) 872 5622 business serving the legal profession. CAR/BUS/TRUCK Fax: (01) 872 5404 Minimum wage while earning €350 & COMPANY MEMBER AMERICAN AND NEW per week. Suit Dublin-based person e-mail: [email protected] YORK STATE TRIAL LAWYERS 9 HOLMVIEW TERRACE, interested in civil law costing. Please OMAGH, CO TYRONE or Bank Building, Hill Street ASSOCIATIONS reply to Box no 123 Phone (004428) 8224 1530 Newry, County Down. Enrolled as Solicitor Fax: (004428) 8224 9865 Tel: (0801693) 65311 Established solicitor’s practice for in Rep of Ireland, England e-mail: Fax: (0801693) 62096 sale in Co Louth. Excellent oppor- & Wales [email protected] E-mail: [email protected] tunity. Principals only. Please reply to Box no 125

47 Professional information

1943 subject to the annual rent of £25 the county registrar at the end of 21 tions which might be appropriate on In the matter of the Landlord and sterling between James J Horan of the days from the date of this notice and the basis that the person or persons Tenant (Ground Rents) Acts, 1967- one part and Sheila Goff and Evelyn will apply to the county registrar for beneficially entitled to the superior 1978 section 8: an application by Margaret de Podesta of the other part the city of Dublin for directions as interest, including the freehold rever- Bridget McDonald as legal person- being ‘all that and those that plot of may be appropriate on the basis that sion of the property unknown or al representative of Joseph land containing, by estimation, one the person or persons beneficially unascertained. Higgins, deceased rood and seven perches, three quar- entitled to the superior interest, Schedule: all that and those the Ta ke notice that any person having ters statute measure, by the same including the freehold reversion, in licensed house and premises no 159 any interest in the freehold estate of more or less situate on the north side the aforesaid property are unknown Phibsborough Road in the parish of the following property: all that and of Dublin and Kingstown Railway in and unascertained. Saint George in the city of Dublin those dwelling house and premises sit- the parish of St Mary’s Donnybrook Date: 7 February 2002 containing in front to Phibsborough uate at 10 Chapel Street, Tullamore in and county of the city of Dublin, on Signed: Clifford Sullivan & Company, Road aforesaid 26 feet six inches and the county of Offaly. which there now stand the house solicitors for the applicant, 31 Westland in depth from front to rear on the Take notice that Bridget number 14 Bath Avenue and part of Square, Dublin 2 north side 67 feet with the appurte- McDonald as legal personal represen- the house and premises numbers 2, 4, nances as the same are more particu- tative of Joseph Higgins, deceased, and 6 Bath Avenue Place’, which said In the matter of the Landlord and larly delineated on the map endorsed intends to submit an application to the premises are now known as 7-9 South Tenant Acts, 1976/1994 and in the on these presents and thereon county registrar for the county of Lotts Road in the county of the city of matter of the Landlord and Tenant coloured green commonly known as Offaly for the acquisition of the free- Dublin. (Ground Rents) (No 2) Act, 1978: ‘Mohans’ (formerly ‘The Hut’) hold interest in the aforesaid property Take notice that Stanley Faulkner application by Inver Inns Limited Particulars of lease: lease dated 14 and any party asserting that they hold intends to submit an application to Take notice that the applicant intends February 1896, and made between superior interest in the aforesaid the county registrar of the city of to submit an application to the county Thomas Dunphy of the one part and premises are called upon to furnish Dublin for the acquisition of the free- registrar for the city of Dublin for the Anne Farnworth of the other part evidence of title to the aforementioned hold premises in the aforesaid proper- acquisition of the freehold interest held thereunder for a term of 150 premises to the below named within ty and other party or parties asserting and all, if any, intermediate interest in years from 29 September 1895, and 21 days from the date of this notice. that they hold a superior interest into the premises described in the schedule subject to an annual rent of £60 there- In default of any such notice being the aforesaid property are called upon hereto and any person having an by reserved and to the convenants on received, Bridget McDonald intends to furnish evidence of title of the interest in the freehold estate of any the part of the lessee to be observed to proceed with the application before aforesaid property to the below intermediate interest or estate and the conditions therein contained. the county registrar at the end of 21 named within 21 days on the date of between the freehold and the lease- Take notice that Inver Inns days from the date of this notice and this notice. hold interest held by the applicant in Limited being a person entitled under will apply to the county registrar for In default of any such notice being the property are hereby called upon to sections 8, 9, and 10 of the Landlord the county of Offaly for directions as received, Stanley Faulkner intends to furnish evidence of their title to the and Tenant (Ground Rents) (No 2) Act, may be appropriate on the basis that proceed with the application before solicitors for the applicant within 21 1978, proposes to purchase the fee the person or persons beneficially days from this notice. simple and any and all intermediate entitled to the superior interests In default of any such notice being interests in the lands above described. including the freehold reversion are received, the applicant intends to pro- Date: 13 February 2002 unknown and unascertained. ceed with the application before the Signed: McAlinden & Gallagher, Date: 1 March 2002 county registrar at the end of 21 days Solicitors, Unit 2, Ashbourne Town Signed: O’Donovan & Cowen, solicitors

The Irish Legal Recruitment Specialists from the date of this notice and will Centre, Main Street, Ashbourne, Co for the applicant, William Street, apply to the county registrar for direc- Meath Tullamore, Co Offaly www.benasso.com

Benson & Associates is a niche consultancy, specialising in the www.lawsociety.ie recruitment of high calibre lawyers for he Law Society’s website contains a wealth of information for the private practice, Tpractising solicitor, including: commerce and industry. • Employment opportunities: updated services weekly • Gazette on-line: updated monthly Continuing Legal Education pro- Links to other legal sites on the net For information on the • • gramme Legislation updates: updated quar- services we provide as well • An overview and updates on the terly as current vacancies, please • visit our website or contact work of the society’s committees • Committee reports and publications Michael Benson (BCL) or • Contact names of Law Society per- • Forthcoming conferences and semi- Annaleen Sharkey (LLB) in sonnel nars: regularly updated strictest confidence, at: • Comprehensive index of member • What’s new: updated weekly

THE MEMBERS’ AREA of the website contains practical information for solicitors Carmichael House, 60 Lower Baggot Street, such as practice notes, policy documents, precedents for practice, professional Dublin 2, Ireland information, frequently asked questions and an interactive bulletin board T +353 (0) 1 670 3997 F +353 (0) 1 670 3998 E [email protected] Have you accessed the Law Society website yet?

48