Law s ociety Gazette • Vol 107 No 10 Price of everythinG how to sUcceeD a shaw thinG Solicitors need to be The EU Regulation on New Law Society aware of the ‘black art’ Succession Law has created President John P Shaw of property valuation certain ambiguities outlines his plans Law Society Law GazetteGazette€4.00 December 2013 D ece MB er 2013

a Giant steP? Law Society of Ireland The IDA’s CPO powers have been used for the first time Two new criminal titles from

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Law Society Annual Conference Dromoland Castle, Co Clare

Book online: www.lawsociety.ie/annual-conference 2 contents Law Society Gazette www.gazette.ie December 2013

Law Society Gazette Volume 107, number 10 Subscriptions: €60/€90

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

Commercial advertising: Seán Ó hOisín, tel: 086 811 7116, RegularS email: [email protected] 59 Legislation update: 8 October – For professional notice rates (wills, title deeds, 4 News employment, miscellaneous), see page 61. 11 November 2013 60 Eurlegal: The Construction Products Published at Blackhall Place, Dublin 7, 12 Analysis 12 News feature: The new Guide to Good Regulation; recent developments in tel: 01 672 4828, fax: 01 672 4801. European law Email: [email protected] Professional Conduct Website: www.gazette.ie 14 News feature: A recent conference examined Ireland’s changed legal and 62 Professional notices Printing: Turner’s Printing Company Ltd, commercial landscape Longford 63 Recruitment advertising Editorial board: Michael Kealey (chairman), 17 Comment Mark McDermott (secretary), Mairéad Cashman, 17 Letters 64 Captain’s blawg Paul Egan, Hilary Forde, Richard Hammond, 18 Viewpoint: Progress on the Child Mary Keane, Aisling Kelly, Teri Kelly, Tracy Lyne, Patrick J McGonagle, Aisling Meehan, Care Law Reporting Project Heather Murphy, Ken Murphy, Andrew Sheridan 20 Viewpoint: Transforming the role of the Parole Board The Law Society of Ireland can accept no responsibility for the accuracy of 44 People and places contributed articles or statements appearing in this magazine, and any views or opinions 48 Parchment ceremonies expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress 50 Books occasioned to any person acting or refraining 50 Book review: An Island’s Law: A from acting as a result of the material in Bibliographical Guide to Ireland’s this publication can be accepted by the Legal Past authors, contributors, editor or publishers. The 50 Reading room: Updates from the editor reserves the right to make publishing Law Society Library decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial 51 Briefing material as seems appropriate to him. 51 Council report: 8 November 2013 Professional legal advice should always be 52 Practice notes sought in relation to any specific matter. 57 Regulation: Solicitors Disciplinary Tribunal 64 FSC independently certified wood and paper products used by the Law Society Gazette come from ecologically managed forests. Visit: www.fsc.org

PEFC certifies that wood and paper products used by the Law Society Gazette are sourced by suppliers from sustainable, managed forests. Visit: www.pefc.org

The Law Society Gazette is a full participating member of the Press Council of Ireland and M supports the Office of the Press Ombudsman. R e s c ne This scheme, in addition to defending the free- ycl azi e Mag dom of the press, offers readers a quick, fair and free method of dealing with complaints that they may have in relation to articles that appear on our pages. To contact the Office of the Press Ombudsman go to: www.pressom- budsman.ie or www.presscouncil.ie. 46 47 Law Society Gazette www.gazette.ie December 2013 contents 3

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a shaw thinG to sUcceeD New Law Society how President John P Shaw The EU Regulation on outlines his plans Law society Gazette • Vol 107 No 10 Price of everythinG Succession Law has created Solicitors need to be certain ambiguities aware of the ‘black art’ of property valuation

€4.00 December 2013 Law Society GazetteLaw cover story 22 And now for something DeceMBer 2013 completely different The IDA recently decided to exercise its compulsory purchase powers in the vicinity of the M4 a Giant steP? corridor. Judicial review proceedings Law Society of Ireland The IDA’s CPO powers have followed in the High Court, with been used for the first time the action failing on all counts. The 36 Supreme Court awaits. Nora Pat Stewart explains features 28 A Shaw thing 36 Manufacturing consent The Law Society’s new president The Construction Contracts Act 2013 will talks to Mark McDermott about the apply after such day as the Minister for balancing act between regulation Public Expenditure and Reform appoints. and representation, and the Troika’s A number of steps must first be taken overinflated opinions on legal costs by Government before then, as Anthony Hussey points out 32 Succession slalom The ‘Brussels IV’ Regulation is relevant 40 Value judgements to wills that could come into effect In Ireland, valuations can be a ‘black after August 2015. Aileen Keogan art’, leading to obvious problems down tackles the black slopes of succession the line. Maggie Armstrong assesses planning her options 32

HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. Get more at gazette.ie Gazette readers can access back issues of the Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] magazine as far back as Jan/Feb 1997, right up PROFESSIONAL notices: send small advert details, with payment, to: Gazette to the current issue at lawsociety.ie. You can also check out: Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. • Current news All cheques should be made payable to: Law Society of Ireland. • Forthcoming events, including a lecture on the International Criminal Court with Justice Susan COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, Denham in the Royal Irish Academy, Dawson St tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] on 16 December. HAVE YOU MOVED? Members of the profession should send change-of-address details to: • Employment opportunities • The latest CPD courses IT Section, Blackhall Place, Dublin 7, or to: [email protected] … as well as lots of other useful information 4 news Law Society Gazette www.gazette.ie December 2013 Nationwide Compiled by Kevin O’Higgins Kevin O’Higgins is the Law Jazzing it Society’s senior Having a ball at Rathsallagh vice-president up for Judge wicklow The Wicklow Bar Association reception, followed by a delicious Lyster (WBA) held a very successful meal and live music entertainment. roscommon biannual ball recently, Damian WBA president Paddy McNeice Conroy tells me. The black- thanked special guests Judge In the north-west, colleagues tie dinner-dance was held at Patrick McCartan and county came together to honour popular the beautiful location of the registrar Mary Delehanty. A floral colleague William Lyster, who City of the Rathsallagh House Hotel. The night bouquet was presented to organiser has since gone on to greater began with a champagne cocktail Maria Byrne (CJ Louth Solicitors). things. Mary Rose McNally Tribes’ family (Padraig Kelly Solicitors) tells me that the Roscommon Bar gathering Association hosted a function to galway mark the appointment of William as a judge of the insolvency A CPD event has been courts. organised to take place on Says Mary Rose: “Over 60 Friday 13 December 2013 at practitioners from Roscommon, 2pm in Galway Courthouse Leitrim, Longford and Sligo (three hours’ general and one bar associations, as well as from hour of regulatory). Those Roscommon’s Courts Service presenting will include the offices, enjoyed a wonderful Law Society’s Family Law dinner that concluded with a jazz Committee and Lowes Legal session into the small hours.” Costs Accountants. This will Judge Lyster was joined be followed by the Galway Bar by his wife Mary and his two Association annual general daughters, Ita and Helen, both meeting (to include the of whom are practising solicitors. president’s report, treasurer’s At the recent biannual ball of the Wicklow Bar Association were (back, Presentations were made on l to r): Barry Kenny (secretary), Maria Byrne (committee member) and report and the election of the behalf of the bar association to new committee). Paddy McNeice (president); (front, l to r): Mary Delehanty (county registrar) and Judge Patrick McCartan (Circuit Court) both Judge Lyster and Mary. Meanwhile, a Mass was held on 20 November 2013 at Galway Cathedral for the Retail deceased members of Galway’s Fundraiser for Robert legal profession, the judiciary revolution in and the Courts Service. dublin The Council of the Dublin world, based in Chicago. Robert Donegal Solicitors’ Bar Association and was born perfectly healthy. donegal Cabinet guest many of its past presidents However, at nine days old, he met last week at a social event contracted Strep B septicaemia The Donegal Bar Association’s CPD at Mount to commend John Glynn and meningitis. coordinator, Alison Parke, reports following his dedicated year as He has undergone 17 life- that the association held a useful Falcon president. His successor, Keith saving operations. As a result seminar at the Radisson Blu Hotel, Letterkenny, on 22 November 2013. mayo Walsh, and his new council are of all the trauma he endured in gearing up for the challenges the first seven months of his life, A total of 25 lawyers attended the All roads will most certainly be ahead, particularly with the he sustained a stroke on his left session by Sinead Travers (Law leading to Mayo this week for the impending Legal Services side, is brain blind, suffers from Society) on the topic of information, Mayo Solicitors’ Bar Association Regulation Bill. epilepsy and is developmentally the retail revolution, how some dinner, which is being held in A recent fundraiser was delayed. law firms are responding, and the the beautiful Mount Falcon near held in Marlay Park in aid Unfortunately, the treatment proposed Court of Appeal. Karl Foxford. Charlie Gilmartin and of Robert Montgomery, the is very expensive, €75,000 for Dowling BL provided an update his team are expecting a great three-year-old son of Denise a three-month stay. Therefore, on probate, Daragh O’Sullivan night. Not to be outdone by his and Nicholas Montgomery fundraising needs to begin (managing partner from Lowes Legal predecessor, he will be presenting (a Dublin solicitor). The aim straight away. Anyone wishing Cost Accountants) tackled taxation someone of eminence who also of the fundraiser was to help to assist should contact me or and legal costs, while Rochford sits at the Cabinet table as guest bring Robert to one of the Julie Doyle, and we will put you Brady focused on the topic of law- of honour! leading therapy centres in the in touch. searching services. G Law Society Gazette www.gazette.ie December 2013 news 5 LAW SOCIETY GAZETTE • Vol 101 No 9 VolNo 101 • LAWGAZETTE SOCIETY l a

W sO c I ety Gazette • Vol 107 No 7 BROWN-BaGGING It FulsOme pRIsON Blues BReaKING Bad? COMMITTED TO FINDING LAW SOCIETY Are ‘plain packaging’ A court has held the State The downturn has led to proposals the start of a liable for injuries sustained in higher numbers seeking Time to tweet THE RIGHT PERSON slippery trademark slope? a prisoner-on-prisoner assault to exercise break clauses

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Law Society Professional Training Society Law Legal Manager, Dublin €90k plus Corporate/Banking, Dublin €Negotiable Our client, one of the worlds largest privately owned commercial aircraft leasing Our client, with a strong domestic and international focus are looking to recruit €4.00 aug/sept 2013 organisation require a legal manager. Reporting to the CEO, the role will concentrate on corporate and banking lawyers at associate level. You will have gained experience lease related matters. It will involve the project management of lease, sale and from a mid size or leading firm. Most importantly you will have the desire to Gazette purchase transactions as well as managing compliance issues. You will have excellent develop your career with a leading corporate. Highly attractive salary to attract legal and commercial abilities with a flexibility and willingness to travel. Ref: 17131 the best candidates. Ref: 17840 has launched five new online ‘how In-house Comm Prop Lawyer, Dublin €Negotiable Commercial Property, Dublin €85k plus Our client a leading property developer require an associate lawyer to join the team. Our client is a boutique firm with an excellent reputation among its clients. Reporting to the Head of Legal, you will get involved in complex commercial property They are looking to recruit a commercial property lawyer at associate level. transactions and advise on commercial leases, property development and investment Experience in residential and commercial development, leases, tax, lending and and planning law. Most importantly, you will be energetic with aspirations to play an landlord is desirable. Excellent opportunity for career progression within a integral part in shaping the development of the team. Ref: 17687 growing practice. Ref: 16262 to’ guides to enable members Please contact: Portia White Tel: +353 (0) 1 477 3063 Email: [email protected] Harcourt Centre, Harcourt Road, Dublin. 2 Tel: +353 (0) 1 402 9400 Fax: +353 (0) 1 402 9590 November 2007 November Search for positions online at www.laurencesimons.com engage fully with social media LONDON HONG KONG PARIS DUBLIN SYDNEY AMSTERDAM DUBAI BRUSSELS FRANKFURT CHICAGO au G /sept 2013 platforms. Each course deals with Lawyer Dublin Office setting up online profiles through One of the world’s leading IT companies, Hewlett Packard operates in more than 170 countries serving nearly one billion customers from small to medium businesses to data centres and large global enterprises. As part of its growth strategy, HP is now seeking a commercial lawyer to join its highly regarded in-house legal team. Working closely with country and regional management, you will be involved to using the most popular social in a wide range of activities across multiple jurisdictions including drafting and negotiating commercial contracts, providing general legal advice and supporting business initiatives. Already working at commercial associate level you should have exposure to the IT sector and strong drafting and contract negotiation skills. Experience in data protection, employment, regulatory and compliance issues would also be an advantage. Self-confident and with good inter-personal skills, media tools to promote solicitors’ you will display the ability to work both independently and as part of a close-knit team. STORMWATCH This is an excellent opportunity to work in a dynamic environment and the company is offering a highly attractive salary and benefits package to attract the best candidate. Law Society of Ireland of Society Law What will an economic downturn aNONymOus?

To hear more, please contact Portia White at Laurence Simons International on +353 1 4773063 Law Society of Ireland businesses. or e-mail [email protected] mean for solicitors? How the courts can Harcourt Centre, Harcourt Road, Dublin. 2 Tel: +353 (0) 1 402 9400 Fax: +353 (0) 1 402 9590 Search for positions online at www.laurencesimons.com unmask internet users Completing each courses allows LONDON HONG KONG PARIS DUBLIN SYDNEY AMSTERDAM DUBAI BRUSSELS FRANKFURT CHICAGO INSIDE: AD CAMPAIGN SURVEY • IBA CONFERENCE • COUNTY FOCUS – KERRY • PEOPLE AND PLACES members to claim five hours of management and professional development skills. The course New Year rings in changes at the Gazette include: The Gazette is getting a facelift from each story, to suggest developments – and to provide our • Tablet devices for business and from the January/February 2014 relevant articles, submit letters readers with the digital formats lifestyle, issue, writes Mark McDermott. As by email or make submissions to they require to stay informed while • Twitter for lawyers, part of the redesign, the electronic the Society’s committees in the on the move. Finally, during 2014, • LinkedIn for lawyers, and version of the magazine, available at ‘Representation’ section. keep an eye out for the launch of • Facebook for lawyers. www.gazette.ie, will be significantly the Gazette app. revamped. Social media We’ll be looking for readers’ Prices range from €55 to €136. Expect to see a more user- In addition, readers will be able feedback on all of these Find out more by contacting the friendly, searchable digital to order annual subscriptions, developments, to ensure that the Professional Training team on magazine that will feature individual copies of the Gazette Gazette continues to deliver the [email protected]. responsive design – meaning that as well as magazine folders, using information – how, where and whether you’re viewing the Gazette the online shopping-cart, while when you want it. Email: gazette@ on a tablet, smartphone, laptop or advertisers will be able to avail lawsociety.ie or tweet your desktop, it’ll look great, regardless of added-value features that will comments to @edlawgazette. of the medium. The printed version make their ads more interactive. will reflect the same exciting design While both the hardcopy and changes. All members will continue digital versions will look the same In separate news, the Gazette to receive their hard copy as usual. – the interactivity of the online has once again been shortlisted version is sure to prove popular in this year’s Magazines Ireland Handy features with tech-savvy readers. In due awards – the national awards For the first time, the digital course, additional material, such for consumer and business-to- version will offer useful hyperlinks as radio and TV interviews with business publishers. For the DFA for wherever website or email the president and director general fourth year running, the Gazette addresses are included in articles. will be added. The Gazette will has been nominated in the Chief Justice This will be a handy reference also start using social media to ‘Best Business-to-business’ and Chief Justice Susan Denham was feature, for instance, when flag significant news and Gazette- ‘Best cover’ categories. (The conferred with a Distinguished seeking to link to judgments or related topics. The magazine’s magazine won the award in Fellowship Award on 13 November legislation referred to in articles quirky style will also continue to 2010.) Congratulations, too, to 2013 by Griffith College at its Or indeed, our occasional music feature, of course! the DSBA’s Parchment, which annual graduation ceremony. themed cross-heads. Readers will The Gazette is making these has been nominated in several Candidates are selected for the be able to email their comments changes to ensure that it keeps up categories. award based on “their contribution on articles to the editor directly to date with the latest publishing to making Ireland a better society”. President of Griffith College, Prof Diarmuid Hegarty, The Companies Bill – be prepared commented: “In her work and life, As the Companies Bill 2012 moves 10 January 2014, in Dublin Castle. • Getting to grips with the balance Chief Justice Denham has always to report stage in the Dáil – and is Key matters for consideration will of mandatory and default rules been a steadfast flag-bearer in expected to be enacted in the course include: for corporate governance in the the cause of justice and ensuring of 2014 – a conference of the Irish • The company form options under Companies Bill. that our system of justice protects Corporate Law Forum will focus on the the Companies Bill 2012, the basic human rights of our practical ramifications of changes to • Obligations for existing private The conference is designed around citizens.” the structure and internal governance companies and the consequences expert panel-based discussion and Past recipients of the award of private companies. of failing to take action, a practical learning format in order include Peter Sutherland, ‘Preparing private companies for • The implications of ‘Table A’ model to maximise the benefits for legal President Mary McAleese and the Companies Bill: new company articles being withdrawn, practitioners and company secretaries. Nobel Laureates John Hume and forms and drafting company • Best practice considerations in Further details of this CPD event Seamus Heaney. constitutions’ will be held on Friday, drafting a new constitution, and are available on www.iclf.ie. Combine racing with an opportunity to collect CPD points

cheltenham 11 – 14 March 2014 Medicine for Lawyers Three-hour evening seminar

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Frank Glennon Ltd trading as “Glennon” and “Glennon Insurances” is regulated by the Central Bank of Ireland Law Society Gazette www.gazette.ie December 2013 news 7 John P Shaw elected Society President for 2013/14 P ic : L ensmen hotographic A gency John P Shaw began his term as president of the Law Society from 8 November 2013. He is joined at executive level by senior vice- president Kevin O’Higgins and junior vice-president Michael Quinlan. John (54) is a partner in the Ennis law firm Michael Houlihan & Partners. Upon his election, Mr Shaw said: “During my term in office, I will oversee the implementation of many of the recommendations of the Future of the Law Society Task Force Report. This will include improvements in how the Society represents its members. Of course, the Society will continue to uphold the profession’s core values, namely honesty, integrity, independence, confidentiality and the avoidance of conflicts of interest.” (See profile, p28). Law Society president John P Shaw, with senior vice-president Kevin O’Higgins (left) and junior vice-president Michael Quinlan

council election 2013 Survey The scrutineers’ report of the Appointments to the results of the Law Society’s on career annual election to the Council Circuit and District Courts shows that the following assistance candidates were provisionally The Society’s Support Services declared elected. The number of section will be carrying out a votes received by each candidate survey of solicitors who are less appears after their names: Paul than six years’ qualified in the Egan (1,662), Stuart Gilhooly coming weeks. The aim is to (1,632), Kevin D O’Higgins discover what these members (1,627), Valerie Peart (1,440), require from the Society in James Cahill (1,396), James B terms of career development McCourt (1,355), Liam Kennedy and networking assistance. They (1,323), Paul Keane (1,253), will also be asked to indicate Michele O’Boyle (1,250), William how they prefer to receive Aylmer (1,222), Catherine Tarrant communication from the Society (1,219), Aisling Kelly (1,175), – whether by email, LinkedIn, Bernadette Cahill (1,157), Justine Twitter, Facebook or the website. Carty (1,149), Alan Gannon Judge Catherine A Murphy Deirdre Gearty, solicitor As this survey will be (1,108), Martin G Lawlor (1,058) electronic, anyone wishing to The Government has nominated and Company, Dublin, from 1981 take part should ensure that the Judge Catherine A Murphy for to 1994. She was appointed a Society has their most up-to-date appointment by the President judge of the District Court in 1996 email details. The survey is short Financing to the Circuit Court and Deirdre and has served in the Civil Court, and will take only a few minutes Gearty, solicitor, for appointment Family Law Court, Child Care Court, to complete. Its success depends scheme by the President to the District Drugs Court, Juvenile Criminal on members’ participation. The Law Society has partnered with Court. The vacancies arise from Court and Criminal Court. Members are encouraged not Bank of Ireland Group to provide this the retirements of Judge Patrick Deirdre Gearty was enrolled as to miss out on this opportunity annual financing scheme for 2013 Moran from the Circuit Court and a solicitor in 1983. She practised to advise the Society of what professional indemnity insurance of Judge Patrick McMahon from with FJ Gearty & Co, Longford.She they require in terms of career premia and 2014 practising the District Court. has been a member of the Free development and networking certificate fees.The rate is an Judge Murphy was enrolled as Legal Aid Centre since 1995 and assistance. attractive 6.74% APR repayable a solicitor in 1973. She was a became an accredited mediator For further information, over 12 months. Further details at partner in the firm of JG O’Connor in 2010. contact Sinead Travers at www.lawsociety.ie s.travers@lawsociety. 8 news Law Society Gazette www.gazette.ie December 2013 Local Property Tax – ‘first-time buyer’ exemption explained The Finance (Local Property exemption or pay their liability: Tax) Act 2012 (as amended) • Those who bought on or provides for two different after 1 January 2013 and exemptions from the payment before 1 May 2013 and may of local property tax (LPT) for have wrongly paid the 2013 residential properties that are LPT, and who will not have purchased from 1 January 2013, a liability for 2014, 2015 or writes Vivienne Dempsey (Local 2016, and Property Tax project manager at • Those who bought after 1 May the Revenue Commissioners). The and before 1 November 2013, qualifying purchase period ends who will not have a liability on either 31 December 2013 or for 2014, 2015 or 2016 (the 31 October 2016, depending on vendor in these cases would whether the property is second- have been liable to the 2013 hand or new, respectively. These charge), exemptions are described below. • Those who bought in the Properties purchased from a period on or after 1 January builder or a property developer: 2013 and before 1 May 2013, Section 9 of the Finance but did not file a LPT1 return (Local Property Tax) Act 2012 • The qualifying purchase period for the exemption, a purchaser or pay the LPT and are now (as amended) provides for a ends on 31 December 2013, of a second-hand property must obliged to do so (in these temporary exemption from the • To retain the exemption, the have concluded the purchase cases, the purchaser will either payment of LPT for new and purchaser must occupy the of the property and be entitled claim an exemption or pay the unused residential properties that property as his or her sole or to occupy it on or before 31 liability for 2013 and 2014, are purchased from a builder or a main residence (and continue December 2013. depending on whether they are property developer in the period to do so), and entitled to claim the exemption 1 January 2013 to 31 October • If the property is subsequently Refunds of LPT under section 8), 2016. Where such a property resold in the period between Revenue are engaged in the • Those who bought after is purchased and subsequently 1 January 2014 and before process of identifying purchasers 1 November 2013 and on or re-sold in this period, the new the end of the first valuation who may be impacted by this, before 31 December 2013 will owner also qualifies for the period – that is, on or before and we will be writing to these either claim an exemption or exemption. Therefore, as new 31 October 2016 – the individuals shortly to advise pay the liability for 2015 and and unused properties held by exemption does not pass to them that they may qualify for 2016. The vendor in these builders/property developers the new owner. an exemption, subject to meeting cases will be liable for the on the introduction of LPT are the conditions of the exemption. 2014 charge. already exempt, the exemption It was intended that this The purchaser must make a applies for the duration of the exemption would be restricted claim for the exemption under Solicitors may wish to bring first LPT valuation period, that to ‘first-time buyers’, as is clear section 8, and we will be detailing to their clients’ attention that is, from 1 July 2013 up to the end from the head note to section 8 these requirements in our only properties purchased in of 2016. (‘exemption for first-time buyers’) correspondence to them. the period 1 January 2013 to Properties purchased by ‘first- and the explanatory memorandum We have concentrated 31 December 2013 and occupied time buyers’: Section 8 of the to the Finance (Local Property on trying to identify certain as the purchasers’ sole or Finance (Local Property Tax) Act Tax) Act 2012. However, read groups of people in order to main residence qualify for the 2012 (as amended) provides literally, the exemption applies contact them and give them the exemption under section 8 of for a temporary exemption to any purchaser and not just a opportunity to either claim the the legislation. from the payment of LPT for first-time buyer. Having reviewed any residential property that is the legislation, Revenue has purchased in the period 1 January concluded that, notwithstanding 2013 to 31 December 2013. The the fact that the intention was Law firm launches blawg exemption does not distinguish clear, the legislation does not between new and second-hand impose a liability to LPT on a to discuss online liability properties. However, in view non-first-time buyer of a second- Matheson has launched a new Alistair Payne (head of the firm’s of the exemption for new and hand house. blawg (legal blog) dedicated to intellectual property group) unused properties purchased It is important to note that online legal and liability issues. and John O’Connor (head of the from a builder or a property Revenue regards a property as Crossfire, which went live on technology and data protection). developer, this exemption having been purchased when the 14 October, aims to be a forum The duo is encouraging comment effectively applies to second- new owner is entitled to actually for discussing the latest legal and ‘lively debate’ on online legal hand properties. This exemption occupy the property, and not at developments in the online developments. differs from the exemption for any earlier stage in the purchase world. The blawg can be found at new and unused properties in process, such as the exchange of Contributors will include crossfire.matheson.com. three respects, that is: contracts. Therefore, to qualify Law Society Gazette www.gazette.ie December 2013 news 9 ‘Highly competitive market for legal costs’ in Ireland In a series of broadcast interviews have collapsed – have almost in November, director general completely disappeared – and Ken Murphy insisted that legal other forms of commercial costs had declined hugely due to transactions have also declined the recession and were a product greatly.” of a market he described as ‘cut- “There’s undoubtedly been a throat’. significant drop in the cost of legal In addition, he dismissed media services,” he added. “Whether commentary that the Law Society that can continue or not is really was somehow responsible for the for market forces.” Government’s lengthy delay in In a separate radio interview, the passage of the Legal Services on Saturday With Brian Dowling Regulation Bill, as “baseless” and on 23 November, he made his the product of “journalistic quip about “journalistic paranoia” paranoia”. and put it clearly on the record He explained to viewers of that “the Law Society has been as Prime Time on 7 November that Murphy: media commentary ‘baseless’ and the product of ‘journalistic paranoia’ frustrated as everybody else that “the legal fees that are paid in the bill has not been moving Ireland are a matter of negotiation delaying the reforms planned in Drivetime that “there was a time forward”. and agreement between clients the bill, Murphy’s exasperation when maybe, in years gone by, it He was pleased to note that and their solicitors in a highly found expression: “We can’t was suggested that the solicitors’ another contributor to the competitive market with 2,200 pass legislation,” he pointed out. profession was somehow immune programme, Charlie Flanagan firms seeking the work. It was “Only the Oireachtas and the to recession, but that’s certainly TD, had the same information highly competitive before the Government can pass legislation, not the case now. The profession he had, namely that the minister’s recession came. It’s been cut- and it’s really a matter for them suffered a collapse in income amendments would be published throat ever since.” now to progress this bill to over the last four or five years. before Christmas and the Dáil On the same programme, completion.” Mainstays of the profession’s committee stage of the bill responding to a journalist’s claim Earlier the same day, he told income, such as residential would resume on 15 January that legal-profession lobbying was Mary Wilson on RTÉ radio’s and commercial conveyancing, 2014. Moya retires undefeated after 45 years of electoral success The remarkable Moya Quinlan one who knows her would bet “From time to time, I have the decided this year – at the age of against her running again then experience of showing visiting 93 – that she would not present – or against her being elected representatives of law societies herself for re-election to the again by a profession, the great and bar associations from all Council of the Law Society. majority of whom were not over the world around Blackhall She was re-elected comfortably born when she first entered Place. They are usually green for yet another two-year term the Council Chamber, which with envy that the solicitors’ in 2011, so no one saw her seat in those days was in the Four profession in Ireland has such as being in even the slightest Courts. an extraordinarily beautiful danger. building as its home. However, independent- Key figure “I show them the portrait minded as ever, she simply She was first elected to of Moya Quinlan, mention chose not to go forward this the Council in 1968 and is her age, and inform them not time. In doing so, she has credited, along with the late only that she is a currently ended something utterly Peter Prentice, with being a elected Council member, extraordinary – an unbroken key figure in the acquisition of but that her interventions in Law firm launches blawg 45 years as an elected member the Blackhall Place premises Council debates reveal her as to discuss online liability of the Council. in 1970. incisive and passionate about Moya’s voice, experience Moya often remarks that the Moya Quinlan with the inaugural the profession as ever. They ‘Lifetime Achievement Award’, which and wisdom will not be lost reason she originally joined are utterly astonished. I am she received in 2012 to the Council, however. Like the Council was “for the satisfied, from many enquiries, all former presidents (she students – they were scattered that there is no one at was elected the Society’s first everywhere”. The acquisition the inaugural ‘Lifetime anything approaching Moya’s female president in 1980), she of Blackhall Place and the Achievement Award’ at the age anywhere in the world is entitled to attend and speak creation of the Society’s Law Irish Law Awards. As with who continues to serve for three years after she ceases School put an end to that sorry Peter Prentice, her portrait the legal profession on its to be elected. After that, if she state of affairs. hangs in the Council Chamber governing Council. She is so chooses at the age of 96, she In 2012, Moya was in Blackhall Place. Director utterly unique and we are can run for election again. No honoured with receipt of general Ken Murphy observes: privileged to have her.” 10 news Law Society Gazette www.gazette.ie December 2013 Welfare of the child is paramount in groundbreaking case The recent judgment of Mr While section 6(4) of the had allowed the children to be Justice Henry Abbott in MR v Guardianship of Infants Act 1964 brought up by the applicant at SB is a very important precedent provides that, where the mother his expense, and in circumstances for those practising in the area of a child has not married the where the respondent had failed of guardianship law, write Yvonne child’s father, she, while living, to satisfy the court that she Walsh (O’Leary Maher Solicitors) shall alone be the guardian of was a fit and proper person to and Dónall Ó Laoire BL. the child, attention was also have custody, the judge decided The judgment paves the way drawn to the other provisions of to make the applicant and the for a man with no biological the act of 1964, which dealt with respondent joint guardians. connection to a child, but acting the circumstances under which a The court, he found, had in loco parentis, to be given court could decide not to return an implied power to appoint guardianship of a child in certain a child to a parent. another appropriate person as ‘exceptional’ circumstances – Section 16 of the 1964 act a guardian where the court had despite the opposition of the provides that where a parent has: decided that it should not return natural unmarried mother – in “(a) Abandoned or deserted an the children to the mother. proceedings held in courts of Mr Justice Henry Abbott: seminal infant, or (b) Allowed an infant This implied power arose under local and limited jurisdiction. judgment in MR v SB to be brought up by another section 16 of the 1964 act The respondent, SB, was the person at that person’s expense, “having regard to the general natural mother of two children, undertakings by the applicant and or to be provided with assistance imperative of the Guardianship of J (aged 14) and C (11). The respondent relating to the return by a health authority under Infants Act 1964 that the welfare children had two different of the children from England to section 55 of the Health Act of the child shall be paramount. fathers, neither of whom was Ireland in 2010, including that 1953, for such a length of time The circumstances in which the married to the mother and the children, who were Irish and under such circumstances court refuses to make an order neither of whom had sought citizens, would not be removed as to satisfy the court that the for delivery of the infant must guardianship or exercised access from the jurisdiction without the parent was unmindful of his be looked at and considered in to their child. consent of the applicant. parental duties, the court shall the context of this imperative The applicant, MR, who was not make an order for the … The person who has resisted not the biological father of either Parental duties delivery of the infant to the an application for delivery child, sought to be appointed The application for guardianship parent unless the parent has under section 16ff is, in effect, guardian of both children, of in the High Court followed satisfied the court that he is a fit the parent of such a child and whom he had been held to be in separate proceedings seeking person to have the custody of it would be a dereliction of the loco parentis by the District Court similar orders in the District the infant.” duty of the courts not to treat and had custody by reason of Court, the latter giving rise to him as such to the detriment of orders of both the District Court concern that the District Court Implied power the interests of the child.” and – under Hague proceedings did not have jurisdiction to Finding that the children – the courts of England and grant the orders sought by the had been abandoned by the Desired consequences Wales. The latter incorporated applicant. respondent, that the respondent In making its decision, the court found that, although an order for custody might be framed so as to give a person all the powers and rights of a guardian, Solicitor appointed to PIP complaints panel in practice such a custody order when produced to various Bill Holohan, of Holohan A PIP Complaints Committee organisations, for example, Solicitors and Notaries Public, will only be convened if and schools, passports offices and has been appointed by the office when the Insolvency Service hospitals, among others, might of the Minister for Justice to of Ireland (ISI) appoints an not bring about the desired the panel from which Personal inspector, under section consequences in the interests Insolvency Practitioners 180(1)(b) of the Personal of the child. That being so, Complaints Committees will be Insolvency Act 2012, to carry an order for guardianship was convened. out an investigation into alleged appropriate. The appointment is for a improper conduct by a PIP. By reason of its determination period of five years until 31 Following the appointment that this order arose by December 2018. Under the act, of an inspector, the ISI will implication of the act, the court at least seven people must be request the minister to appoint then found that it is an order appointed to the panel, at least a complaints committee from that could, in future, be made one of whom must be a solicitor the panel to consider the by any court of local and limited and at least one of whom must be constituted to consider any inspector’s investigation of the jurisdiction where exceptional be a barrister. individual complaint will have to PIP concerned and to make a circumstances, such as those Every committee that will include a solicitor or a barrister. determination. that existed in the present case, warranted it. Law Society Gazette www.gazette.ie December 2013 representation 11 news from the law society’s committees and task forces Appeal Commissioners’ reform taxation committee The Law Society welcomes Finance seeking reform. and appeals from the Appeal Minister Michael Noonan’s A consultative document Commissioners. announcement in relation (Reform of the Appeal System The Taxation Committee to reform of the tax appeals for Tax Matters) has now been intends to make a detailed system in his budget speech. published by the Department of submission in relation to the Comments or observations This is a matter on which the Finance. This contains a number reform proposals and would should be emailed as soon Taxation Committee has carried of reform proposals with regard welcome any comments or as possible to the Taxation out considerable work and on to the appointment, structure, observations from practitioners. Committee secretary, Rachael which it has made a number of operation and jurisdiction of The closing date for the Hession, at: r.hession@ submissions to the Department of the Appeal Commissioners, submission is 16 January 2014. lawsociety.ie.

New land registration and registration of deeds rules The new Land Registration Rules www.attorneygeneral.ie/ Community, with the exception of judgment mortgages pursuant 2013 and the Registration of esi/SI389.pdf. of Denmark, that are recognised to section 116 of the Land and Deeds Rules 2013 have come These rules amend rule 46 of and enforceable pursuant to the Conveyancing Law Reform Act into operation. According to the the Land Registration Rules 2012 Brussels I Regulation, or as a 2009 to specifically include Property Registration Authority, on the acquisition of easements European enforcement order, and judgments of the Supreme Court, the effective date for these rules and profits by prescription. They for an amended form 60 and new and provide for the registration of is 1 November 2013. also amend the provisions for the forms 60A and 60B. judgment mortgages in execution They are published on the Irish registration of judgment mortgages, These rules also amend forms of judgments of the courts of Statute Book website, currently in pursuant to section 116 of the Land 3, 17, 37, 38, 39, 64, 84 and 96 member states of the European the ‘latest statutory instruments for and Conveyancing Law Reform in the Schedule of Forms of the Community, with the exception 2013’ section (please note that Act 2009, to specifically include Land Registration Rules 2012. of Denmark, that are recognised these have not yet been filed in judgments of the Supreme Court, (See SI 387 of 2013 – Registration and enforceable pursuant to the the relevant ‘year’ section). The provide for the registration of of Deeds Rules 2013 – at www. Brussels I Regulation, or as a link to the Attorney General’s judgment mortgages in execution attorneygeneral.ie/esi/SI387.pdf.) European enforcement order and for site for SI 389 of 2013 – Land of judgments of the courts of In addition, the new rules amend an amended form 16 and new forms Registration Rules 2013 is: member states of the European the provisions for the registration 16A and 16B.

Society’s website more ‘sticky’ than Spiderman! • Legal vacancies, where new jobs and are covered by professional are uploaded daily, indemnity insurance. In the first • The ‘find a firm’ search of firms two weeks since its launch, ‘find and organisations that employ a solicitor’ has been used over practising solicitors (this is 28,000 times – which augurs well updated daily), for the future. • Practice notes on a wide range What next? The web team is of areas, which are published currently updating the Society’s online every month, and website design, systems and • The ‘become a solicitor’ content structure, which is due section, which includes for release early in the New Year. information on the steps The site will be designed for involved in the training process. optimal viewing on smartphones and tablets to meet the increasing The Law Society website Society’s website, which represents ‘Find a solicitor’ goes live demand from those using continues to be an increasingly an 8% increase over the same To complement the ‘find a firm’ handheld devices. The revamped important channel of communi- period in 2012. and ‘find a mediator’ facilities, a site will include a new, more cation for the Society, its members, While the site is full of useful new ‘find a solicitor’ search service powerful search facility and a trainees and the public, writes information for solicitors, trainees went live on 1 November. The fresh, modern look. Carmel Kelly (web editor). In the and the general public, the most online service lists the contact Feedback or queries on the past year, there have been close visited sections during the past 12 details for solicitors who hold website should be emailed to to 7.5 million page views on the months have been: a current practising certificate [email protected]. 12 analysis Law Society Gazette www.gazette.ie December 2013

new professional conduct guide launched

Minister for Justice Alan Shatter says that the Guide to Good Professional Conduct for Solicitors contains the accepted principles of good conduct and practice for solicitors. Mark McDermott reports

Mark McDermott he third edition of A Guide not just the right advice, but will there, including Co-operative Legal is editor of the Law to Good Professional Conduct always act in their best interests”. Services, which runs an alternative Society Gazette Tfor Solicitors was launched Comparing the first and second business structure to provide legal at Blackhall Place on 4 November editions of the Guide to Professional advice and assistance. 2013, and the guest speaker was Conduct of Solicitors (published in 1988 “One thing that became absolutely Justice Minister Alan Shatter. and 2004 respectively), the minister clear is that, unless we embrace the Minister Shatter warmly welcomed commented that the third edition was possibility of alternative business the publication, saying the guide noticeably different, in that the title structures to deliver legal services, was “about ensuring that individual referred pointedly to good professional we are going to be substantially members of the profession behave in conduct for solicitors. left behind, and we need to further a manner that ensures the profession “Now, I assume that the first and embrace – and this might be another is in good standing with the general the second editions issue for your fourth public, that people feel that they can were about ‘good’ edition – the provision approach their solicitor with a sense professional conduct “The guide is of legal advice and of trust and confidence and a sense as well,” he said, “but assistance basically that their lawyer will give them, ‘good’ was missing about ensuring that through cyberspace. and, of course, it’s good individual members “There are now professional conduct of the profession virtual lawyers’ that is crucial to clients offices where people and to maintaining behave in a manner are operating and the reputation of the that ensures the providing advice profession.” through email and Looking to the profession is in talking to their clients future, he commented: good standing with through Skype. The “It may be that when expense of running an you come to write the general public” office isn’t incurred the fourth edition of when you have this particular book, niche approaches to you’re going to have to address individual areas of law. And this is some interesting issues. Are there where the future is going and it’s the some different or new principles to future that we need to embrace.” be prescribed for multidisciplinary On the issue of the Legal Services practices? How do we deal with Regulation Bill, he said that he limited liability partnerships? What expected that, by the end of might be the position when you have November, the committee stage of solicitor and barrister partnerships? the bill would recommence. “We Will we have the type of alternative will very shortly, in advance of that, business structures that are developing be publishing the impact assessment in Britain?” that you’ve been waiting anxiously to see. I don’t believe we’ll complete Cyberspace committee stage before Christmas. I The minister referred to a recent think it’ll travel into the New Year. visit to England, where he had been I hope the Society will see some of briefed by the Solicitors Regulatory the changes that we’ve already made Authority and other legal groups – and some of the changes we’re Law Society Gazette www.gazette.ie December 2013 analysis 13

At the launch of A Guide to Good Professional Conduct for Solicitors were (from l to r): Therese Clarke (secretary to the Guidance and Ethics Committee), Ken Murphy (director general), Justice Minister Alan Shatter, then President of the Law Society James McCourt and Brendan Dillon (committee chairman) making to the bill – as being fundamental changes to the morning ireland truly in the public interest and in new guide relates to the issue the interests of clients and in the of conflicts of interest,” he Speaking on RTé’S Morning Ireland dilemmas arise to make sure that interests of the profession.” said. The deliberations of on 5 November 2013 in relation the right thing is done.” the Conveyancing Conflicts to the launch of the Guide, Ken He said that the updated Ethical dilemmas Taskforce, he said, had brought Murphy said: “As members of the guide was “explaining again Guidance and Ethics Committee about important and much solicitors’ profession, solicitors to the solicitor’s profession the chairman Brendan needed change, have a series of obligations both principles that underpin good Dillon pointed introducing to their clients, to the courts conduct for solicitors in all of their out that the “One of the most very limited and to the public. And there are obligations”. guide detailed fundamental exceptions for complexities within this. But it’s This was a positive story, he the accepted solicitors acting normal for the legal profession in added: “This is talking about what principles of changes to the new on both sides of every country to have guides to solicitors do to uphold the best good conduct guide relates to the a conveyancing good conduct, to encourage people principles of the profession and the and practice for transaction. – a touchstone in many ways best interest of their clients and solicitors. While issue of conflicts of Switching where complexities arise or when the public.” the guide was interest” to the issue not a statement of solicitors’ of law, he said that it stood as a relationship with their clients, template set of terms and It was the committee’s earnest reminder to the profession about new material had been added, conditions, which is available hope, he concluded, that the the standards and ethics that he said, which dealt with the on the Society’s website. I guide would send a strong should govern how solicitors importance of solicitors issuing want to take this opportunity signal to the profession of the carried out their duties to clients, terms and conditions to their to urge all members of the importance of commitment to each other and to third parties clients on all instructed matters. profession to use these terms to the highest standards of on a daily basis. “The Guidance and Ethics and conditions on a consistent behaviour and ethics in the “One of the most Committee has published a basis,” he said. conduct of business. G 14 analysis Law Society Gazette www.gazette.ie December 2013

changing legal landscape

A recent conference focused on the changed legal and commercial landscape five years after the bank guarantee. Colin Murphy reports

o we want to go down the of loans” was “very well founded,” he place to repair the damage “will solve road of seeking to define suggested. In “far too many cases”, the last crisis rather than the next “Dsome form of criminally loans had been justified with arguments crisis”. He warned of the “sticking sanctioned obligation not to act in a such as “he’s the kind of guy that we plaster” approach to the law, where grossly incompetent or negligent way?” need to be lending money to” or “if we “we have the law, it’s seen not to work, So asked Mr Justice Frank Clarke during don’t lend it to him, the guys up the and someone goes away to think of a an engaging – if cautious – keynote road will”. solution to that issue without having Colin Murphy is speech at a conference hosted by Griffith In some cases, he said, the bank’s sole the time or inclination to consider a a journalist and College Law Faculty on 18 October. evidence that a borrower was a high more fundamental approach”. radio documentary “We have not traditionally in net-worth individual was a statement by However, he also cautioned (citing maker in Dublin, Ireland treated gross negligence in the the borrower himself. These statements the late Judge Declan Costello) against specialising in social management of institutions as a criminal had a “big round figure at the end”, letting the best be the enemy of the and cultural affairs matter,” he observed. “I’m not suggesting Judge Clarke said, but it was “not good. “New legislation will never get that it should, but perhaps it’s an issue particularly obvious” whether the bank everything right first time … See what that should be considered. had conducted any investigation of works, see where the teething marks “Our legal model to date has been whether the statement was true. are, and readdress it.” The aim should that, if you operate within the rules and Competition between the banks had be to get new law “good but not don’t break any specific rules, then the led to “very lax standards” in lending, perfect” and to be open to amending it fact that things go badly wrong does not Judge Clarke said. He speculated that in the light of experience. constitute a criminal wrong. Maybe that’s this might have been related to the something that just needs to be put into practice of awarding bonuses based Culture shift the debate.” on lending. While there was “broad Dr Mary Donnelly, a senior lecturer acceptance that the regulatory system in UCC, looked in more detail at Lax standards didn’t work”, that wasn’t the same as regulatory failure and, in particular, He proceeded to take a closer look at “understanding the its legacy for the the institution most identified with nuts and bolts of what “New legislation consumer. She noted gross incompetence or negligence in should have been done that the Central recent years: the banking sector. “The to make it better”. The will never get Bank’s mandate public perception of extremely lax risk in this situation was everything right contained a potential practice in assessing the creditworthiness that the model put in conflict between first time … See “the public interest” what works, see and “the interests of consumers” in cases where the teething where reductions in marks are, and costs for consumers could result in an readdress it” increase in the cost base for the banks – and therefore for the public purse. She cited the example of the putative basic payment account, a “cheap, basic account” designed to address financial exclusion. This had “disappeared off the agenda”, she said, because “for banks that have to make money in the public interest, it’s a loss leader, so it’s off the table”. She welcomed a change in culture in the Central Bank, with a “move away from the woolliness and Law Society Gazette www.gazette.ie December 2013 analysis 15

Mr Justice Frank Clarke: ‘The public perception of extremely lax practice in assessing the credit worthiness of loans was very well founded’ generality of principles, back to the people don’t have principles She cautioned on the need rules” that are “very distinct and that we run into trouble”. And she to maintain vigilance, however: very easy to enforce”. Though, as applauded the new approach to “Cultures change to become more she noted during a discussion later, enforcement, with a “huge jump” rigorous, but it could go the other “principles-based regulation isn’t in reviews and inspections since way.” necessarily a bad thing – it’s when the crisis. Prof Blanaid Clarke of Trinity suggested a change in corporate governance culture could be valuable. After the experience of Enron, she said, there had been Minister Brian Hayes: ‘Dáil needs to a shift in corporate governance assert its independence’ to emphasise independence on boards. “There was so much conflicts of interest, but it “didn’t focus on independence that we deal with independence of mind”. lost track of expertise”, she said. We need diversity on boards, “In a country as small as this, it she said, “not just in terms of is difficult to get independence.” gender diversity, but in terms Independence had typically been of background, knowledge, viewed as dealing with potential experience”.

need for dáil independence

As a junior minister in the executive needs to be far less done nothing to empower the Dáil, “exposed major weaknesses Department of Finance, Brian centralised in its approach to continuing to wield the legislative and failures in politics, public Hayes sits on the edge of the policy decisions.” He also called guillotine with abandon and administration and regulation,” executive: not a member of for the Dáil to be involved “more concentrating executive power he said. Many of our institutions cabinet, but with a high level directly in the budgetary process even further in the hands of the “were not fit for purpose”. of access to cabinet ministers, from start to finish”. Economic Management Council, “We made a serious mistake and firmly in the queue for when This was nothing radical. The provoking regular criticism from in Ireland when we gave so a place at the cabinet table Fine Gael/Labour Programme for the opposition benches as well much unfettered power to so becomes available. So when he Government set out this agenda: as from within their own ranks. many people and institutions,” makes a comment that could be “We believe that in recent years Hayes’s comments could be seen he said. Irish people were “too interpreted as a criticism of how an over-powerful executive has as adding to the pressure for more trusting, too loyal, too unwilling that executive conducts itself, it is turned the Dáil into an observer substantial parliamentary reform. to question”. Citizens had a worth noting. of the political process rather His comments came in an responsibility to “actively engage “The Dáil needs to assert its than a central player and that overview of the breakdown of trust in the civic and public life of independence over the executive,” this must be changed.” But, in that has afflicted Irish institutions our country” and to have a he told the conference, “and the practice, their government has in recent years. The crisis had “questioning attitude.” G Winner Outstanding Most Innovative Use Achievement of Technology Networks & Groups 2013 Irish Institute 2013 Irish Institute of Training & of Training & Development (IITD) Development (IITD) Awards Awards

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LSPT ad Gazette Dec 2013.indd 1 13/11/2013 10:43 Winner Outstanding Law Society Gazette www.gazette.ie December 2013 letters 17 Most Innovative Use Achievement of Technology Networks & Groups 2013 Irish Institute 2013 Irish Institute of Training & of Training & LPT anomalies need to be addressed Development (IITD) Development (IITD) Awards Awards From: Rory O’Halloran, solicitor, Thomas J O’Halloran Solicitors, Ashe Street, Tralee believe there is a consequence in the drafting I of the Local Property Tax legislation that affects members involved in conveyancing. The act has determined that the person who is the registered owner of a property on 1 November is liable for the LPT in the subsequent year. This affects any person who sells their property in November and December, as they must pay the tax for the subsequent year. Revenue will also not refund any person their LPT on the basis that they have paid the To view our full programme visit www.lawsociety.ie/Lspt LPT and sold their property. The Law Society published a DATE EVENT DISCOUNTED FULL FEE CPD HOURS practice note in June regarding FEE* the appropriate special condition 10 Dec How to use Blogging, Facebook, LinkedIn and Twitter in the legal €180 €240 7 Management & Professional Development Skills to be inserted in the contract sector. Places are limited – early booking advised (by Group Study) regarding payment of the LPT 11 Dec Efficient Reading Techniques - in collaboration with MaST Ireland. €165 €220 6 Management & Professional Development Skills by a vendor. Places are limited – early booking advised (by Group Study) Many councils in Britain 18 Dec Delegation and Feedback Skills for Professionals - in collaboration with €165 €220 6 Management & Professional Development Skills operate a system whereby a MaST Ireland. Places are limited – early booking advised (by Group Study) person who sells their property 2014 in a calendar year is entitled Commissioners. should be altered to 1 January. or, alternatively, to introduce to a refund of their council tax It is not clear why the Submissions should be made the common-sense approach of 6 & 7 Feb Certificate in English & Welsh Property Law and Practice €441 €588 9 General (by Group Study) for the remainder of the year. Government chose 1 November by the Law Society to the Britain. This will not apply in Ireland, as its valuation date and, in view Government to amend the act (Editor: see Revenue’s response Starting Certificate in Adjudication €960 €1,280 Full CPD Requirement for 2014 4 March (Law Society of Ireland Certified Adjudicator) (provided relevant sessions attended) according to the Revenue of anomalies now arising, it in relation to the valuation date on p8.) 8 Mar Judicial Review - Recent developments and challenges €102 €136 3 General (by Group Study)

Starting April Post-Graduate Certificate in Learning Teaching and Assessment in €960 €1,280 Full CPD Requirement for 2014 partnership with DIT and Law Society Skillnet (provided relevant sessions attended) Thanks to an ‘enormously supportive’ SMDF Starting April Diploma in Legal Practice & Risk Management €1,695 €2,260 Full CPD Requirement for 2014 From: Ken J Byrne, solicitor, I was insured by the SMDF insurance) would have been approximately 63% voting in (provided relevant sessions attended) Main Street, Blackrock, Co Dublin who, throughout, have been renounced by the reinsurers, favour, it did survive – those ONLINE COURSES: To Register for any of our online programmes OR for further information email: [email protected] have just completed the enormously supportive and thereby leaving all those insured voting ‘yes’ saving their many Online How to use an iPad for business and lifestyle €136 Approx. 5 hours M & PD Skills (by eLearning) harrowing experience of five I was, without doubt, saved by it (about one-third of the colleagues, such as me, from the I years of being a defendant in from serious financial difficulty profession) open to uninsured potential disaster of having to Online How to use a Samsung for business and lifestyle €136 Approx. 5 hours M & PD Skills (by eLearning) an action requiring the assistance by them, with my ability to claims. personally defend – uninsured – of my professional indemnity continue in practice and to earn I attended that meeting and claims of varying magnitude and Online Twitter for Lawyers €55 Approx. 5 hours M & PD Skills (by eLearning) insurer. a livelihood at risk. spoke, acknowledging that I cost. The case was settled recently I would firstly like to thank the was one of the many SMDF For that, I heartily thank those Online The LinkedIn Lawyer: The How To Guide €55 Approx. 5 hours M & PD Skills (by eLearning) after almost two weeks at hearing former directors of the SMDF members the subject of a claim. 63% of my colleagues for their in the High Court, with a further who stood firm and worked A vote of the members of the kind thoughtfulness. Online Facebook for Lawyers: The How to Guide €55 Approx. 5 hours M & PD Skills (by eLearning) four weeks to go had it run to endless hours to battle to save Law Society as to the future of I would also like to thank the

Online How to create an eNewsletter €90 Approx. 5 hours M & PD Skills (by eLearning) its conclusion. There were three the insurer. the SMDF was subsequently current officers of the SMDF defendants to the action – two A meeting of the profession taken, it having been indicated who have carried on and will Online eRegulation: New Terms of Business – Contract Precedent €45 Approx. One Hour Regulatory Matters (by eLearning) non legal professionals. was convened by the Law Society that, for the cost of €100 (net continue to carry on the work of Aside from the level of claim, and held in the City West Hotel of tax) per annum per solicitor winding down what was once a Online Legal Costs Seminar: Recent Decisions and Pending Legislation €55 Approx. 1 Hour General (By eLearning) the legal costs of four full legal three years ago. It was called for the next ensuing ten years, it proud organisation. teams can only be imagined. My to consider the future of the could survive. Finally, many thanks to all who Online Microsoft Word – all levels, Powerpoint – all levels. Touch Typing & Excel From €40 Approx. Up to 5 Hours M & PD Skills (by eLearning) ability to afford the legal costs SMDF (which was, by then, To my disappointment, as currently work for the SMDF from the outset to self-defend technically insolvent) and the high a proportion as 37% of the and from whom I, personally, would have been in serious fact that, were it to be liquidated, voting members voted against was shown so much courtesy in doubt. all reinsurance (90% of total saving the SMDF; but with difficult times. G For full details on all of these events visit webpage www.lawsociety.ie/Lspt or contact a member of the Law Society Professional Training team on: P: 01 881 5727 E: [email protected] F: 01 672 4890 *Applicable to Law Society Skillnet members. Please note FIVE hours on-line learning is the maximum that can be claimed in the 2013 CPD Cycle

LSPT ad Gazette Dec 2013.indd 1 13/11/2013 10:43 18 viewpoint Law Society Gazette www.gazette.ie December 2013

child CARE reporting project lifts SECRECY veil

Launched just over a year ago, there are now over 100 case reports on the Child Care Law Reporting Project website. Carol Anne Coolican assesses the project’s work

he Child Care Act 1991 imposes debate and inform policymakers, alcohol abuse and mental illness”. a duty on the HSE to promote • Make recommendations to address The chief justice noted that the Tthe welfare of children who any shortcomings in the child care interim report shines a light on these are not receiving adequate care and system identified by the research, problems and the distressing impact protection. There are provisions • Assist in the implementation of on children. whereby the gardaí and/or the HSE are these recommendations, and The report questions whether lack empowered to remove children who • Promote confidence in the child of education and material resources Carol Anne are at immediate risk. The legislation care system. further disadvantages vulnerable Coolican is further imposes an obligation on families. It points to possibly different chairman of the the HSE to apply for care orders for Chief Justice Susan Denham launched ideas of child-rearing by immigrant Law Society’s children who are or have been at risk the first interim report of the CCLRP families. In addition, in cases “where Family and Child of assault, ill treatment, on 5 November 2013, the issue of consent did arise, the Law Committee neglect, or sexual abuse, which she referred to parents consented to the order being and managing or where the child’s “The interim report as “a snapshot in time” sought in two-thirds of the cases”. solicitor at the Law health, development or and as providing an In 2011, there were nearly as many Centre, Tralee. The welfare is or has been seeks to encourage “opportunity to begin children in voluntary care (2,797) as views expressed are impaired or neglected. debate as to ‘how an informed debate were placed in care as a result of a personal and do not Cases under this to break the cycles about the difficult court order (3,358). However, there reflect those of the legislation have been matters in legal was a lack of court scrutiny of the Legal Aid Board or held in camera to of poverty, social proceedings where the services provided, care plans, or how the Law Society protect the privacy of exclusion, mental welfare of the child well-informed the consent was – or the parties and their is concerned”. This whether any legal advice was obtained children in these sad health problems is the real benefit of in such cases. cases. The Child Care and addictions that an evidence-based The use of guardians ad litem as (Amendment) Act 2007 report. Too often, documented in the interim report permitted the attendance are affecting some debate and discussion is considerable, but may not reflect and preparation of of our children.’ has occurred in the the position nationwide. The criteria reports in the child care wake of an inquiry or for appointment, the role and proceedings by specified Families and report following tragic qualifications are uncertain. The persons. However, it was society will pay the circumstances – after Chief Justice indicated that when not until 2012 that the the event. cooperation between “the HSE and regulations permitting cost unless this is Hearings were families, between families and lawyers, such attendance and addressed” attended primarily and between all in the professional reporting were made. in Dublin, and also arena and the court … is secured … Since then the Courts and Civil Law in Cork, Waterford, Letterkenny, an environment exists within which (Miscellaneous Provisions) Act 2013 Westport, Limerick, Galway, Tralee, the voice, concerns and wishes of provides for further amendments to Listowel, Navan, Drogheda, Clonmel a child can be heard and assessed”. the in camera rule, but this has yet to be and Wexford. Outside of Dublin, Judicial studies have commenced “and commenced. HSE cases can be heard on the same will be built upon” to develop judicial Minister for Children Frances day as other family law cases. It is too knowledge in hearing the voice of the Fitzgerald launched the Child Care early to draw any inferences about any child. Law Reporting Project (CCLRP) perceived differences in the conduct on 6 November 2012. The aims and or outcome of these cases between Further investigation objectives of the project are to: Dublin and the rest of the country. Some observations may require • Provide information to the public on In the majority of cases attended, further investigation, such as: child care proceedings in the courts, the “primary reason children are • The prevalence of mental illness or • Conduct research on these taken into care is neglect … often disability, proceedings in order to promote compounded by problems of drug and • The over-representation of African Law Society Gazette www.gazette.ie December 2013 viewpoint 19 child CARE reporting project lifts SECRECY veil

“The very fact of the project’s existence – and the families – “20 times more • The high percentage of single promoted debate. reporting of 100 because of the likely” to be involved than parents (10.2% were married). The very fact of the complex nature other members of Irish society, project’s existence cases in its first of challenges • The high proportion of Statistics are not available in a – and the reporting year – assists in facing vulnerable children with special needs uniform or cohesive manner of 100 cases in its removing the veil children and (with the challenges of finding, at present. The Courts Service first year – assists in families. It training and supporting foster statistics document the number removing the veil of secrecy in these may be useful carers), of court events, not “the number of secrecy in these cases” to interlink • The lack of involvement of children or families involved”. cases. Promoting the causes of of foster carers in the The project will, hopefully, confidence in how vulnerability. The proceedings, even where the collect more meaningful data in these cases are dealt with and interim report seeks to encourage application relates to access to this regard. making recommendations that debate as to “how to break the the children in their care, can be implemented will be the cycles of poverty, social exclusion, • Supervision orders, including Dispelling myths next phase, when more evidence mental health problems and conditions obliging the parent’s The interim report of the has been garnered. addictions that are affecting some “to engage in treatments or CCLRP achieves the stated Attempting to identify of our children”. Families and to desist from certain aim of providing information in a primary cause for care society as a whole will pay the behaviour”, and child care cases. It has already proceedings may be problematic, cost unless this is addressed. G 20 viewpoint Law Society Gazette www.gazette.ie December 2013

transforming the role of the irish parole board

The prospect of transforming the Irish Parole Board from its current administrative status to a full statutory body has been on the horizon for many years. But there may be progress soon, says Shane McCarthy

arole has not been legally file to the Parole Board for review. a prisoner accepts the invitation to defined in Ireland and, due The minister generally considers participate in the review process, the Pto the current non-statutory the recommendations of the Parole Parole Board proceeds to assemble nature of the Parole Board, there is no Board for the first time in cases where a review dossier, which will include legislation to which practitioners can the prisoner has served either seven reports from the prison governor turn for guidance. In practical terms, years’ imprisonment or half of the and the Prison Review Committee. parole is the discretionary, conditional, sentence imposed upon them. As the The reports will generally detail Shane McCarthy supervised release of a prisoner. Parole Board is limited to considering the behaviour of the prisoner, their is a member of This discretionary release follows the cases of prisoners who have been disciplinary record, and the various the Council of the an examination of the prisoner’s sentenced to terms of imprisonment educational milestones that the prisoner Law Society and behaviour and conduct in excess of eight years, has achieved. The Probation Service is undertaking a while serving their this means that no will also often provide a report with doctorate on the role sentence, together with “In the event prisoner’s detention is the probation officer’s observations and function of the a risk assessment of of legal reviewed by the board on a prisoner, often including a risk Parole Board their case. The Parole until they have served a assessment analysis and a home Board has stated that, representation minimum of four years of circumstance report discussing where when formulating its being permitted their sentence. To enable the prisoner on temporary release recommendations the Parole Board to make would be able to live. The Psychology to the minister, its before a statutory recommendations in Service will, where appropriate, also paramount concern Parole Board, relation to the reviews provide reports setting out the progress is the potential risk of these prisoners, the of the prisoner in addressing their to members of the demands for a minister refers the offending behaviour. In each and every community posed by legal aid system prisoner’s file to the case considered by the Parole Board, the possible release of to fund such legal board approximately a report is also sought from An Garda the prisoner. 12 months before Síochána, requesting their views on the Parole should not be representation the prisoner’s review advisability of temporary release being confused with a pardon will inevitably date. In the event of granted. or commutation of a prisoner not being Once the reports (and any other sentence. Parolees are follow” released following their material) have been obtained, they are still considered to be parole review, their case assembled into a review dossier and a serving their sentences and may be is adjourned for further review for copy is sent under sealed cover to the returned to prison if they violate the a maximum period of three years, prisoner, who must sign a disclosure conditions attached to their parole. although many cases are adjourned for form to indicate that they have received a much shorter period of time. the dossier. On receipt of the dossier On parole from the Parole Board, all prisoners Currently, the granting of temporary Review process are afforded an opportunity to submit or early release to life-sentenced When a case is referred by the written comments on the content of the prisoners almost invariably takes place minister to the Parole Board, the review dossier to the board, as well as on foot of the recommendations of board contacts that prisoner and providing any other information that the Parole Board. In relation to such invites them to participate in the they may feel that the board should prisoners, the conditions attached to review process. The board will only consider. While prisoners are not their release remain active for the rest review the cases of those prisoners entitled to legal representation or legal of their lives. who accept this invitation. It is aid at their interviews, they on occasion The parole decision-making process worth noting that as many as 30% engage solicitors to make written comprises a number of distinct stages, of the prisoners who are invited to submissions on the dossier disclosed to the first of which is the minister partake in the parole process decline them, and the Parole Board have been referring the particular prisoner’s the invitation to participate. When quite cooperative in facilitating this, Law Society Gazette www.gazette.ie December 2013 viewpoint 21

“If the Parole Board becomes a decision-making body, it may be necessary to establish an appeals system for prisoners who often furnishing opportunity to draw Justice spoke of well-advanced eligibility criteria as to which a second copy of are dissatisfied to the attention of plans to transform the nature of prisoners (if not all) will be the dossier to the with the result the Parole Board the board. The placing of the able to participate in the parole prisoner to enable any positive features Parole Board on a statutory basis process. In this regard, it has also them to forward this of their review supporting their may utterly change the manner been suggested that the length to their solicitor. or indeed with case for temporary in which parole is processed of sentence a prisoner must be When the the conditions release. in Ireland. In the course of his serving before being eligible to be prisoner has Following the speech, the minister stated that considered by the Parole Board acknowledged attached to interview, a summary the issue of legal representation may be reduced from eight years receipt of the their temporary note of the interview at parole interviews before a to five years. review dossier is prepared, and statutory parole board is a matter Yet a further issue to be and submitted release” the prisoner has that is currently being considered considered is whether the their written an opportunity to by his department. It appears that Minister for Justice will retain the comments in respect of same, if comment on it. The next stage the likely change in nature of the power to grant release to prisoners necessary, arrangements are made is a meeting of the Parole Board Parole Board from an advisory who have not participated in for them to attend an informal where all of the members review body to a decision-making body the statutory parole process, or interview with two members of the dossier that had been prepared may necessitate this. indeed in respect of those who the Parole Board. It has always on the prisoner and discuss the are dissatisfied with the result of been Parole Board practice for interview that took place. At Appeals system the Parole Board process. It must there to be an interview for a first this stage, the board will agree a In the event of legal also be considered whether the review, and the board exercises recommendation to be provided to representation being permitted operation of such a parallel system its discretion as to whether or the Minister for Justice, who will before a statutory Parole Board, is advisable. not to have an interview on the ultimately take the decision on the demands for a legal aid system It is clear that there are occasion of subsequent reviews. file. The board’s role is advisory to fund such legal representation many issues that will require These interviews take place in the only and, even though the minister will inevitably follow. If the careful deliberation to ensure institution in which the prisoner accepts the vast majority of the Parole Board becomes a decision- that the implementation of any is detained. At the interview, the board’s recommendations, parole making body, it may be necessary proposed changes to the Parole prisoner has an opportunity to is a matter that remains within the to establish an appeals system Board will vindicate the rights make submissions in person to the minister’s discretion”. for prisoners who are dissatisfied of all interested parties. In this board, comment on the contents with the result of their review regard, the Department of of the dossier, and to also raise Statutory basis or indeed with the conditions Justice has invited submissions any queries or concerns they may At the First Annual Parole Board attached to their temporary and suggestions in relation to have regarding the parole process. lecture, hosted by the Law Society release. Furthermore, it will proposed developments in this The prisoner is also afforded the in October, the Minister for be necessary to set out clear area. G 22 cover story Law Society Gazette www.gazette.ie December 2013

And now for something completely different The IDA recently decided to invoke its compulsory purchase powers in the vicinity of the M4 corridor. Judicial review proceedings followed in the High Court, with the action failing on all counts. The Supreme Court awaits. Nora Pat Stewart explains

ome 25 years after the enactment of the Industrial Development Act 1986, which gave the Industrial Development Agency (IDA) the power to compulsorily acquire land where it considers industrial development will or is likely to occur, the relevant provisions have been invoked for the first Stime. This resulted in a compulsory purchase order being made Nora Pat Stewart for a historic family home – a protected structure dating back is a Dublin-based to 1760 in which the same family has lived for over a century – barrister. She together with 72 acres of surrounding farmland situated close to wishes to thank the so-called M4 corridor. The decision of the IDA was made James Connolly SC known on 23 November 2012. for reviewing this The validity of the decision was subsequently challenged by article way of judicial review proceedings in the High Court last June (Thomas Reid v The Industrial Development Agency). The applicant sought an order of certiorari quashing the IDA’s decision and also challenged the constitutionality of the legislation underlying the decision, contending that it was in breach of section 3 of the ECHR Act 2003. This was the first time that the powers and procedures for compulsory purchase orders have been tested through the prism of European convention rights. The action failed on all counts.

I wish to register a complaint Section 16 of the Industrial Development Act 1986, as amended, establishes that, for the purposes of providing or facilitating the provision of sites for the establishment, development or maintenance of an industrial undertaking, the IDA may, among other things, acquire land either by agreement or compulsorily, where it considers industrial development will or is likely to occur. This is not a stand-alone provision: the IDA must also be Law Society Gazette www.gazette.ie December 2013 cover story 23 different

Fast facts

> The relevant provisions relating to the IDA’s compulsory purchase order powers have been invoked for the first time, in a decision that was challenged in the High Court > The applicant sought>> an order of certiorari quashing the IDA’s decision and challenged the constitutionality of the legislation underlying the decision > The case is the first where the European Convention on Human Rights has been used to test the powers and procedures for compulsory purchase orders 24 cover story Law Society Gazette www.gazette.ie December 2013 satisfied that such an industrial undertaking 1986 act. Section 25(2) had no application in studies indicating the possibility of obtaining conforms, or will conform, to the criteria set relation to this power under the 1986 act, he zoning, as well as ecology and conservation out either in section 21(3) and (4) or section argued, but in order to satisfy the criteria set reports indicating there were no problems 25(2) of the 1986 act. out under section 21, the IDA had to know that in advancing towards acquisition, so be it, he While section 21(3) criteria include, for an industrial undertaking was going to occupy argued, but the evidence relied upon was not example, that the industrial undertaking will the land purchased. The applicant drew an sufficient to support the idea that development produce products for world markets and, in analogy specifically with section 213(3) of the was likely to occur. doing so, utilise local materials or agricultural 2000 act, which deals with acquisition of land In reply, Mr Justice Hedigan said that products, or produce advanced technological by local authorities for future use: if the local the IDA was an expert body nationally to products, or that it is a service industry, section authority has no purpose in mind at the time of determine whether industrial development is 21(4) criteria in essence provides that the purchase, it can buy land only by agreement – likely or not and that it must be a function of industrial undertaking must satisfy the IDA not compulsorily. its own enterprise. For the court to intervene, that the proposed investment is commercially The court responded that, on plain reading, it must be satisfied that there was no relevant viable and will provide new employment or the 1986 act was to be interpreted as meaning material before the IDA’s board when it made maintain employment in the State. Section that industrial development would likely occur its decision to acquire these lands, per O’Keeffe 25(2) sets out similar as a result of compulsory v An Bord Pleanála. Furthermore, section 16 conditions for an undertaking purchase – not the other and section 25 required substantial criteria to involving the service industry. “The powers of the way round. The inclusion of be fulfilled by the IDA before it could exercise IDA under the 1986 the word ‘likely’ supported its power of compulsory purchase. Life’s gristle the case that the power was The third argument raised by the applicant Unlike section 213 of the act are considerably not limited to circumstances was that the decision of the IDA was vitiated by Planning and Development Act more robust. The where a particular enterprise objective bias. This was based on the fact that 2000, which provides that, in had been identified. This the chairman of the IDA had taken part in the the event of local authorities IDA only has to interpretation supported original decision to acquire the site based on seeking to compulsorily satisfy itself that the broader meaning of the a selection process that had been carried out acquire land, An Bord Pleanála an acquisition is 1986 act and the strategy by a consulting firm of which he was a non- will hear arguments for the underlying it, the court held, executive director. acquisition as an independent necessary in order in that it allowed the IDA to In response to this argument, the court arbiter and will then either to proceed with compete successfully in the rehearsed the test for objective bias: the agree or refuse to grant a international marketplace to perception of likelihood of bias on the part of compulsory purchase order, purchase.” attract industrial enterprise to the reasonable person, as opposed to actual the powers of the IDA under Ireland. bias, as set out in Bula v Tara Mines. Applying the 1986 act are considerably more robust. The the test to the facts in this case, the applicant’s IDA only has to satisfy itself that an acquisition Always look on the bright side of life argument failed. is necessary in order to proceed with purchase. The applicant’s second argument was that Once it decides to acquire the lands, it finalises the IDA had failed to evaluate the site before Ello, ello, ello! its decision in a ‘record of decision’ and then deciding to acquire it. The site is adjacent to The fourth argument grounding the notifies the party concerned. Carton House and Rye Valley lies to its north, applicant’s submission was that the IDA had In this case, the applicant was approached which is designated a candidate special area of failed to give reasons for its decision. Among in 2011 with a view to selling his house and conservation. If the IDA had obtained expert the case law he relied upon was Meadows lands. Since he was not prepared to enter into negotiation, the IDA entered into the compulsory purchase process and served a notice of intention to acquire in March 2012. An inquiry was then established to look into the proposed acquisition by the IDA. Headed up by a senior counsel, the inquiry ran for five days and gave the applicant the opportunity to make representations. Two preliminary hearings were held in June 2012, and the substantive hearing then took place in July 2012, where the applicant was given the opportunity to raise objections and made representations. Notwithstanding such hearings, the IDA proceeded with its compulsory acquisition of the applicant’s house and lands.

Oh, it makes me mad In Reid v IDA, the applicant submitted that there should be positive evidence that there was going to be a development on the land before the IDA could move to acquire land compulsorily pursuant to section 16 of the Law Society Gazette www.gazette.ie December 2013 cover story 25

“In weighing the national interest against that of the applicant, the Rye Valley: a special ara of conservation national interest v Minister for Justice, where Murray J had legislation should provide for had to outweigh the no longer be in possession of commented: “An administrative decision a legitimate contradictor, the individual interest, his home. affecting the rights and obligations of applicant submitted. notwithstanding the The court responded persons should at least disclose the essential The applicant argued by first noting that the rationale on foot of which the decision is that, although the Supreme heavy loss that was onus lay on the applicant taken.” Court in O’Brien v Bord na to be borne by the to rebut the presumption Hedigan J held that, in light of all steps Mona in 1983 had held that of constitutionality. The taken by the IDA since 2011, including Bord na Mona’s power to applicant” power of the State to acquire a hearing where the applicant was fully compulsorily acquire bog land compulsorily had been represented, he had to have been fully land was constitutional because the decision put beyond doubt in O’Brien and that was aware of the reasons behind the decision to exercise it was administrative and not not in question here. It was the lack of an and furthermore he could not establish any judicial, and that the principle of nemo independent arbiter to evaluate the decision prejudice caused by the form of the decision. judex in causa sua did not prevent Bord na that was the issue. Mona from making a decision to purchase The court noted that the O’Brien Flying circus compulsorily, and so there was need for judgment had in fact addressed this Central to the applicant’s challenge was that a third party arbiter, the Oireachtas had very issue. The Turf Development Act the particular legislation provisions of the progressed since then. The applicant pointed 1946 gave Bord na Mona the power to 1986 act were constitutionally frail. The to the 2000 act, which makes an independent acquire compulsorily bog land if it was IDA’s power to compulsorily purchase sites arbiter mandatory for local authorities where in the common good, noted O’Higgins in such a manner breached articles 40.3, the issue of compulsory purchase orders CJ in O’Brien. Since this was deemed an 40.5 and 43 of the Constitution by allowing arise. administrative function, the obligation on the IDA to satisfy itself as to orders being In this case, the complete removal of the Bord na Mona was to act fairly and properly, made without judicial oversight. With no applicant’s home was at stake, he argued. but not necessarily be inhibited from independent arbiter, this made the IDA a The fact that he might later be able to appeal deciding whether to acquire bogland or not. judge in its own cause, thus offending against or object to any planning application was The task of acquiring land for industrial the principle nemo judex in causa sua. The inadequate, because at that stage he would development was also in the common good, diploma Centre

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Diploma ad full page Gazette Dec 2013.indd 1 26/11/2013 15:33 Law Society Gazette www.gazette.ie December 2013 cover story 27 held Hedigan J, and since the function of the agreed that the IDA’s decision-making It acknowledged the significance of the IDA was similar to that of Bord na Mona’s process could not be regarded as an house being a family home and the fact that under their respective legislative powers, the independent process in the context of article it was a historic and protected structure. IDA was also exercising an administrative 8 issues, as envisaged by the ECHR, because It noted that the applicant was to be fairly function, not a judicial one. Therefore, the IDA had its own particular interest in its compensated. The unlikelihood of industrial the IDA had an obligation to act with due perception of which land was most suitable in development as alleged by the applicant was fairness, with consideration for the rights of light of its industrial development policy. not something the court could consider, since the applicant, and from proper motives, and if As to whether a court of judicial the term ‘likely’ was the criterion, and that it did this the court could not intervene. No review had the jurisdiction to consider was something within the expertise of the diploma Centre right of appeal from the decision to acquire the reasonableness and proportionality IDA to assess. However, on the basis of what nor the absence of an external authority to of the IDA’s powers and procedures to had been put before it, the court could not confirm such a decision by the IDA therefore purchase compulsorily, Hedigan J made two intervene in the IDA’s decision. Continuing professional education for the way you learn constituted a breach of the applicant’s observations: first, following O’Brien, the constitutional rights, reasoned Mr Justice IDA was required to act with due fairness of Ministry of silly walks onsite, online or on the move… Hedigan. procedure for the rights of the Hedigan J then went on to assess the Irish The court concluded that applicant, and only in the event economy in terms of the importance of the IDA was fully aware and “Compulsory of not doing so could the court attracting foreign direct investment, noting fully committed to the fairest intervene. that, in order to do this, the IDA had to possible procedures, which acquisition of the Secondly, he noted that the compete at the highest level internationally. had allowed the applicant to applicant’s lands Supreme Court in Meadows had In weighing the national interest against that test the IDA’s rationale for held that the proportionality of the applicant, the court concluded that acquiring the land and also to was, therefore, of any decision that interfered the national interest had to outweigh the propose his own alternatives. proportionate with constitutional rights individual interest, notwithstanding the heavy The obligation to act fairly to the objective was something a court of loss that was to be borne by the applicant. encompassed an obligation judicial review could examine. Compulsory acquisition of the applicant’s to act proportionately. This sought” Drawing on the approach taken lands was, therefore, proportionate to the meant, the judge noted, that in Meadows in assessing the objective sought, having taken into account the IDA had to act for a proportionality of decisions, his property rights and article 8 ECHR legitimate purpose, that any interference Hedigan J posited the same questions rights. with rights had to be the minimum necessary referred to in Meadows, albeit in the context Costs were not awarded, on the basis that to achieve its purpose, and it must act in of compulsory purchase powers: this was the first time an examination of accordance with law. On the evidence before 1) Is the compulsory purchase provided for compulsory purchase powers pursuant to it, the court held that the IDA did act fairly by law and thus connected to the objective section 16 of the Industrial Development Act and for a legitimate purpose and that the of the legislation? Is it arbitrary, unfair or 1986 had come before the courts. The case interference with the applicant’s rights to based on irrational considerations? has been appealed to the Supreme Court. G his property was the minimum necessary 2) Are the applicant’s rights as little impaired to achieve its purpose. As to whether those as possible? actions were proportionate, Hedigan J left 3) Are the effects on his rights proportionate Look it up that issue to be dealt with when addressing to the objective? the applicant’s final argument: that the IDA’s Cases: powers and procedures under the 1986 act The court answered in the affirmative as • Bjedov v Croatia (ECtHR, application no were in breach of his rights under the ECHR. to all considerations that arose in the first 42150/09) question. The fact that the lands, in the view • Buckland v United Kingdom (ECtHR, Nobody expects the Spanish Inquisition of the IDA, had been most suited for the application no 40060/08) Section 3 of the ECHR Act 2003 provides purpose was a value judgement. However, it Spring 2014 programme Start date Fee • Bula Ltd v Tara Mines Ltd & Ors (No 6) 4 that, subject to any statutory provision or was a value judgement of an expert body and, IR 412 rule of law, every organ of state shall perform in that respect, the court could not interfere, Diploma in Employment Law (iPad) Friday 28 February €2,520 • Meadows v Minister for Justice, Equality its functions in a manner compatible with save for irrationality, which was plainly not and Law Reform [2010] 2 IR 701; [2010] Diploma in In-House Practice Wednesday 19 March €2,200 Ireland’s obligations under the provisions present. The decision had been made on IESC 3 of the ECHR. In his final submission, the the basis of ample evidence for and against; • O’Brien v Bord na Mona [1983] IR 255 applicant contended that the decision to therefore, it was neither arbitrary nor unfair. Certificate in Data Protection Practice (online) Thursday 30 January €1,200 • O’Keeffe v An Bord Pleanála [1993] 1 IR compulsorily acquire his lands was subject to In relation to the second question, Hedigan 39 the requirements of section 3. He asserted J held that the rights of the applicant had Certificate in Conveyancing and Property Law (new) Tuesday 11 February €1,200 • Thomas Reid v The Industrial Development that, in circumstances where a person is to been considered. He noted that, as an Agency (Ireland), Ireland and Attorney Certificate in Pension Law and Practice (new) Thursday 13 February €1,200 be deprived of his home, article 8 of the arrangement had been made to defer taking General [2013] no 16 JR ECHR requires that he has, in principle, the the house for a transitional period to be • Yordanova v Bulgaria (ECtHR, application Certificate in Child Law Wednesday 5 March €1,200 opportunity to have the proportionality and agreed, the IDA was attempting to minimise no 25446/06) reasonableness of the decision-making and the impact on the applicant’s rights in light Certificate in Commercial Contracts (iPad) Thursday 20 March €1,520 the decision determined by an independent of the ultimate objective, which was to take Legislation: tribunal. In support of this, the court was the lands. This was the most that could • ECHR Act 2003 referred to a number of ECHR cases, namely practicably be done to minimise the effects of • Industrial Development Act 1986 Yordana v Bulgaria, Bjedov v Croatia, and the compulsory purchase. • Planning and Development Act 2000 Buckland v United Kingdom. Thirdly, the court noted that it had to • Turf Development Act 1946 Contact details In response to this submission, the court consider the proportionality of the purchase. Email: [email protected] Tel: 01 672 4802 Fax: 01 672 4803 Web: www.lawsociety.ie/diplomas

Diploma ad full page Gazette Dec 2013.indd 1 26/11/2013 15:33 28 profile Law Society Gazette www.gazette.ie December 2013 A Shaw

Mark McDermott is editor of the Law thing Society Gazette John P Shaw, the Law Society’s new president, talks to Mark McDermott about the balancing act between regulation and representation, the removal of complaints handling from the Society, and the Troika’s overinflated opinions on legal costs

ohn P Shaw and Pope Francis may appear to be “One of the biggest problems we face, however, is poles apart – but they do share something communicating to the membership how much actually in common. It’s no secret that Pope Francis is goes on at Blackhall Place. And having chaired the trying to make the Catholic Future of the Law Society Task Force for Church less Vatican-centric – and “We’re facing a the last year-and-a-half and delivered our Jit could be argued that new Law report, I see that as one of our biggest Society President John Shaw is seeking to largely hostile challenges. make his Society somewhat less Blackhall- media that feels “There’s an element of re-presenting centric. He laughs at the analogy: “That’s what we do – presenting it better to the the first time I’ve ever been compared it’s not good members. I’m interested in looking at the with Francis – and probably the last!” news to promote level of service offered by the Society, He’s anxious to correct my initial which perhaps needs tweaking. observation. “I don’t think the focus solicitors. It’s Everybody who comes here – be it a during my presidential year is so much newsworthy if member, a student or member of the about making the Society less Blackhall- general public – should be treated as any centric, but more about communicating a solicitor does client would expect to be treated in a everything about the Society that’s something wrong, solicitor’s office. It’s a question of relevant and available to our members. getting that right.” This is something that we will definitely but it’s certainly address during my term.” not going to sell What does ‘better’ mean? Having served for 15 years on Council, Referring to the Millward Brown survey John knows the organisation inside out. newspapers if you that was carried out at the behest of the So what does he think of the Society? Is it are promoting Future of the Law Society Task Force, he vibrant or a dinosaur? solicitors in a focuses on one of its chief findings – that “I’ve always found it to be dynamic. the membership considered the Society There’s a huge amount going on. I positive light” to be too focused on the regulation of the mean, any day you come in here, there’s profession at the expense of representation. something relevant or interesting going on. People come “I think everybody is on board in terms of saying here on a daily basis to learn, to participate, to contribute ‘Let’s get better representation’. It’s just that I’m tired to what’s going on. of hearing it. When you ask people who say that they Law Society Gazette www.gazette.ie December 2013 profile 29 A Shaw

Fast facts > Rebalancing the mix of regulation and representation > One of the biggest challenges facing the Society is how to effectively communicate to members what Blackhall Place does for them >> > Surprising outcomes from the Future of the Law Society Task Force report > His fears that removing complaints handling from the Society will see it suffer as a result > On the Troika’s opinion that legal costs in Ireland are inflated 30 profile Law Society Gazette www.gazette.ie December 2013 want better representation, what does “Neither was it about the practising of the perception. I am confident when ‘better’ mean? The survey indicated that certificate fee – perhaps 4% or 5% raised I say, however, that the actual handling there were no new ideas as to how better that in the quantitative survey – which was of complaints will not be improved by representation could be achieved.” quite surprising. A few people had been the transfer of the function to another When asked about what he understands making a lot of noise about costs, but that authority. I’m pretty sure of that, due to as ‘better representation’, he responds: “It’s didn’t turn out to be the overall view of those the rigour with which current complaints a combination of communicating to the who responded. In the face-to-face meetings are handled by the Society. I disagree that members what the Society is doing on their we had with the bar associations for over by removing complaints handling from behalf. For instance, the facilities we have two months, the outcome was to produce within this organisation that it’s going to here and that members can avail of – the a list of matters that they felt needed to be improve dramatically. I just don’t see that excellent committees, the library, member addressed. Although we had about 7,500 happening. The perception will be that services, career support – all of the help answers available to us, not one new idea it has improved, but I believe that actual that is at hand. The Law Society should be came out. Not one. complaints handling is likely to suffer. Is the first port of call for members who want “Now, while this was great from a that in the interest of the public? I don’t to improve their legal skills or to seek help verification point of view, it was somewhat think so.” with solving problems. disappointing from an “I’d like to see the committees – and I enlightenment perspective. Disparity hope I’m not being unfair here – becoming What it said to us was that the “I am confident He points out that around more responsive in alerting their services model wasn’t broken and so, when I say, €10 to €11 million is spent to our members. I’d like to see a service if it wasn’t broken, then we on regulation by the Society delivery programme being implemented simply needed to tweak it and however, that the – and another €3 million on also, to include response times and a address our members’ desires actual handling representation. written complaints procedure. I believe to improve representation. “If you take the result that when you put something like that in “A lot of money is spent by of complaints will of the Millward Brown place, even the very fact that it’s in place the Society on regulation – not be improved survey on board, I think says something about what you’re trying to quite rightly so – and I am a the profession was quite achieve for people. And I include the Law proponent of good regulation. by the transfer of surprised at the disparity School students in this. I would include all I agree with the attitude that the function to of the ratio between the of the members, members of the public and the best representation you two. Clearly, we have been complainants who contact us, to ensure that can give the profession is good another authority. focusing on regulation, all are treated in a proper fashion.” regulation. I don’t believe I’m pretty sure perhaps at the cost and that the Society has been in of that, due to expense of representation, Particular outcome? any way at fault in relation to whereby members of the Did he have any preconceived notions about regulation, and particularly the rigour with profession feel that they what the Future of the Law Society Task the handling of complaints.” which current are not being as sturdily, or Force Report would discover – and did John is in a strong forcefully, represented as they anything surprise him? position to comment on complaints are might like. “If I had any preconceived ideas, it wasn’t how complaints are handled handled by the “If you think about it, what we ended up with. That, in itself, by the Law Society – he members want biased was certainly an educational process for was a member of the Society” representation, which is me. I thought the drive towards reducing Complaints and Client extremely difficult to achieve! costs was going to be a major issue with Relations Committee for six years and A law society, however, can’t solely be on the membership at the time, but it wasn’t. chaired it for two. the side of its members. There’s a certain Members were more concerned with the “The public takes the view, the minister train of thought that what’s in the public quality of representation and the manner in takes a view that complaints-handling interest is in the members’ interest – and which they were being represented. That should be removed from the Society. So it’s not always easy to get that across. came across everywhere we went. be it. There’s nothing we can do in terms “Also, it’s not that easy just to go out and produce what our members would regard as ‘good representation’. We’re facing a slice of life largely hostile media that feels it’s not good John P Shaw began his presidential term on by Houlihan’s. He specialises in planning, news to promote solicitors. It’s newsworthy 8 November. He is a partner in Michael environmental and litigation matters. if a solicitor does something wrong, but it’s Houlihan & Partners in Ennis, Co Clare. John became a Council member in 1998. certainly not going to sell newspapers if you From Dundalk, he is the son of Austin and He has served on many of the Society’s most are promoting solicitors in a positive light. Kathleen Shaw and comes from a family of eight senior committees, including the Regulation of That will probably be one of the functions siblings. He is married to Mary Nolan, also a Practice, the Complaints and Client Relations, of the new director of representation solicitor, and they have three daughters, Hannah, the Professional Indemnity Insurance, and the and member services, Teri Kelly. She has Ellen and Julie. Finance Committees. represented IBRC, the successor to Anglo He graduated with a BCL from UCD. He is the current chairman of the Future of the Irish Bank. So if she can sell Anglo as a Apprenticed to Pearts, John qualified as a Law Society Task Force, which issued its report good news story, she can sell anybody as a solicitor in 1984. Since then, he has practised earlier this year and which will significantly good news story!” in Ennis, where he is county solicitor to Clare determine the future direction of the Society in In terms of the rebalancing exercise then, County Council, being contracted to them the years ahead. how much will be spent on representation? “The promise we’ve made is that we’ll Law Society Gazette www.gazette.ie December 2013 profile 31

“You can’t tell me that legal costs do it within budget and within the current competition that currently are too high, that John adds that criminal practising certificate fee structure. We have exists in the marketplace. legal aid fees have been the new director in place. There’ll be a small “The market is dictating,” solicitors are reduced to such a degree that increase – probably less than 25% of the he says, “and it’s starting to overcharging, it is now extremely difficult €3 million that’s currently being spent on hurt. In my own town, Ennis, for legal aid practitioners representation. This is about turning the four law firms have closed or that they to continue to run viable ship to try and rebalance the focus to some in the past 15 months. You aren’t feeling the practices solely on the degree. If we can start to redirect it, then it can’t tell me that legal costs sharp effects of proceeds of their legal aid will ultimately carry its own momentum in are too high, that solicitors work. “The top legal firms in the right direction.” are overcharging, or that they competition” the country might be doing aren’t feeling the sharp effects well, but rural practitioners Matter of public record of competition. are struggling to survive now. The bottom John is already on public record for “Also, the Government’s own public has fallen out of conveyancing, family law expressing very strong views on the Troika’s procurement process has seen a reduction and probate – traditionally the bread-and- opinion that legal costs in Ireland are of over 50% in the value of public contracts butter work of rural practices.” inflated. In fact, he believes that legal costs compared with what they were five years can’t get any cheaper, citing the cut-throat ago.” Impressive response Does anything scare him about the challenges he’ll be facing during his university of life presidential year? College life began for John in 1976 when off – John took to working as a chef while Mary “Maybe it’s a sign of ignorance, but he took Commerce in UCD – specifically waitressed in another restaurant! no. The main item that’s going to come Management Information Systems. “That “When applying for the job, the restaurant up is the implementation of the Legal bamboozled me! I thought I understood it but owner asked me to cut three steaks – of 13, Services Regulation Bill. I didn’t chair that decided ‘this isn’t for me’. So I switched over to 13-and-a-half, and 14 ounces. My dad was a particular Society task force but I’ve read law – I had done reasonably well in business butcher and I had always worked in the shop all the submissions that have been made. law in accountancy – and it progressed from at the weekends, so it was an easy ask. I was Certainly, the substantive response has there.” hired. It was as simple as that. I also told been impressive from the Society. Will it be He completed his law degree in 1980 and them that I had worked in the Swiss Chalet enacted during my year? Who knows?” headed for Blackhall Place. Restaurant – as a pot-washer – though I didn’t What does taking on the office of He had met his wife-to-be, Mary, during tell them that!” president mean to him? their second year in UCD. They started going After four months, they travelled to New “I think that anybody who gets involved out together, a relationship that continued into York. “At the time, I was offered $37,500 in the Council presumably does so to Blackhall Place and beyond. Impressively, he to stay as manager. Going home, I would be make a difference. I’ve been fortunate. still remembers their first date – 16 May 1979. working for IR£7,000 as a solicitor! We had a Put it this way: I got the driving licence (Who says that men don’t remember birthdays brief discussion overlooking a cliff outside San without having to do the test, courtesy of and wedding anniversaries?) Francisco – Mary won! I don’t think either of us the then Minister for Transport; I got into John was one of the first batch of trainee was all that enthusiastic about starting work the profession without doing the FE1s; solicitors to operate under the new traineeship as lawyers – although we’d spent a lot of time and I got the pleasure and privilege of scheme, which had just been introduced. He qualifying. I think it was probably the call of chairing a task force looking at the future was sent to Pearts to get practical experience. home in many ways. Mary also felt that I was of the profession for a year-and-a-half During the daytime, John did court deliveries becoming too American too quickly!” before I became president. So I’ve had a and attended the Four Courts. At the weekends, Is there anything he can bring to his lead-in during that time, thinking about he worked in the Swiss Chalet in Stillorgan. presidential role from his experience in the US and listening to people talking about what Having received their parchments in 1983, and the skills he learned at his father’s side as should be done within the profession. John and Mary headed for Atlantic City in the a butcher? “At times, I might feel a bit fazed by US on a J1 visa. All their legal expertise paid “I still have a steak knife!” he jokes. it, but there’s no point in worrying about issues that are out of your control.” G 32 succession Law Society Gazette www.gazette.ie December 2013 Succession

Aileen Keogan is a solicitor, tax slalom consultant, and Most of the ‘Brussels IV’ Regulation on Succession Law will not apply until August the author of the 2015. It is relevant now, however, for making wills that could come into effect after Law of CAT (ITI annual publication) that. Aileen Keogan tackles the black slopes of succession planning and The Law and Taxation of Trusts (Tottels 2007) s Irish solicitors, we can advise on Irish Union apply different PIL conflict-of-law rules for succession law while being conscious that succession purposes. Unfortunately though, it has the law of succession and the method of created ambiguities of its own. administering estates can be significantly different in other jurisdictions. Moveable feast Does this matter to us? It does if a The regulation seeks to apply a uniform system of Adeceased has cross-border connections, recognition of succession laws broadly whether he had personal connections based on the habitual residence of abroad or had assets abroad. “Unfortunately, the deceased, and with no distinction When cross-border issues arise between moveables and immoveables. in determining succession law, private it is not clear if The regulation will govern the PIL for international law (PIL) rules for each Ireland, Britain succession (testate and intestate) in the country are applied. These are known participating member states. All assets as conflict-of-law rules. Unfortunately, and Denmark are should, therefore, pass based on the PIL rules differ between jurisdictions. considered to succession laws of the member state in Some, like Ireland, use the concept of be a ‘third state’ which the deceased was habitually domicile as the basis of determining resident. which jurisdiction’s succession law under this part of Ireland, Britain and Denmark, applies. Others use the concept of the regulation. however, have opted out of the regulation, habitual residence, or the deceased’s somewhat frustrating its purpose. residence, or the deceased’s nationality. This leads to Nevertheless, the regulation is still very Some, like Ireland, distinguish uncertainty in relevant for Irish practitioners because between moveables and immoveables – a testator can elect to choose the law of others do not. Even if a state recognises relation to the his nationality to apply to the succession the law of another state, it may only impact of the of his assets, even if that state is not a recognise the internal and not the PIL of participating state. that state. The courts in one state might regulation on Therefore, it is possible for an Irish not recognise a decision made by the Ireland, Britain national to elect to apply Irish law for court of another state, or might consider the succession of his assets, which will be the other court to be more appropriate, and Denmark” binding on the EU signatory members of yet the other court might refuse to take the regulation. jurisdiction. While the regulation came into force on 17 August The EU Regulation on Succession Law (no 650/2012), 2012, most of it will not apply until 17 August 2015. also known as ‘Brussels IV’, seeks to resolve the concern Notwithstanding this delay, the regulation is relevant that, to date, different member states of the European for practitioners now, as clients have the opportunity to Law Society Gazette www.gazette.ie December 2013 succession 33

Fast facts

> When cross-border issues arise in determining succession law, private international law (PIL) rules for each country are applied > The EU Regulation on Succession Law seeks to resolve the concern>> that to date different member states apply different PIL conflict of law rules for succession Succession purposes > When dealing with cross-border estates, care will need to be taken to account for the Succession Regulation, as it will affect Irish practitioners in succession slalom planning

Slippery slope...

possible effects on irish private international law

Scenario 1 Irish law would apply to all the assets. Scenario 3 Deceased dies habitually resident in Ireland This doubt should be reduced if the Deceased dies domiciled and habitually resident holding a French domicile and nationality and deceased elected to apply the internal law of in Ireland, an Irish national holding Spanish holding French assets, both moveable and his nationality, where France would then apply immoveable property. Without a choice of law under immoveable. No choice of law. Ireland applies its law to the whole estate. Irish PIL rules, the Irish courts would apply the lex Irish PIL so that the lex domicilii (French) situs and seek for Spanish law to apply. applies to the moveables and the lex situs Scenario 2 Assuming Ireland is a third state, Spain must (French) to the immoveables. Deceased dies an Irish national, habitually accept the PIL of Ireland, as the deceased was French law, however, applies Irish law to resident and domiciled in Germany. Irish law habitually resident there – but this is not without all assets under the habitual residence rules. will apply to immoveables situate in Ireland, as doubt. Prior to the regulation applying, Ireland would If Ireland is a third state under the regulation, Ireland is not a party to the regulation. have considered accepting the renvoi from Spain, France would accept the renvoi (see page 25) However, Germany will account for that and so the regulation appears to provide an opposite to it under Irish PIL, and French succession law division in determining the administration of the outcome than before. A choice of Irish law would be would apply to all the assets. If Ireland is not assets worldwide under German law – that is, helpful here, whereby the choice would be for the a third state under the regulation, the internal the assets will be taken into account in dividing Irish internal law to apply to allow Ireland accept (not PIL) laws of Ireland should apply, so that up the remaining estate under German law. jurisdiction over Spanish immoveables. Are you a residential property owner?

If so, here are some things you’ll need to know about Local Property Tax.

Residential property owners are now receiving If you want to change your payment method Local Property Tax payment instructions from you can do so online on www.revenue.ie - Revenue. using your Property ID, PIN and PPS number Local Property Tax Exemption for Owner Occupiers - or via the LPT Helpline 1890 200 255. If you paid your 2013 LPT by phased of Properties Purchased in deduction2013 from your pay, your pension or direct If you believe you under-valued your property debit, or if you deferred the full charge, your in 2013, you can self-correct. This means that 2014 payments will continue as before. you can revise your valuation upwards, top-up However, if you paid your 2013 LPT in one your payment for 2013 and get it right for 2014 lump sum - by single debit authority, debit/ onwards, with no interest or penalties. Section 8 of the Finance (Local Property Tax) Act Revenuecredit card, is cheque/postalcurrently identifying order/cash property - or ifowners 2012 provides for an exemption for buyers of a whoyou madehave paidregular LPT payments and may by be cash, due you a refund. will We residential property in 2013, whether new or willneed be to in indicate contact how with you them are aspaying soon your as possible.2014 The most convenient way to do all of second-hand, where the property is occupied LPT. You can either return the completed form this is at www.revenue.ie. You can also You should advise your clients that, in order to as the buyer’s sole or main residence. by Thursday 7th of November, or complete access information via Aertel page 593, avail of the exemption, property sales must be the instruction online at www.revenue.ie by LPT Helpline 1890 200 255 and It was intended that this exemption would only completed i.e. purchaser actually entitled to November 28th. Citizens Information. apply to first time buyers in 2013, however, the occupy the property, before 1 January 2014. legislation does not have this effect. The Aertel exemption applies to any owner occupier www.revenue.ie LPT Helpline 1890 200 255 p593 Aertel page 593 Citizens Information who purchases a property in 2013.

www.revenue.ie www.revenue.ie

NOTICE

In the matter of the Landlord and Tenant Acts 1967-2005 And in the matter of the Landlord and Tenant(Ground Rents)(No 2) Act, 1978 And in the matter of ALL THAT AND THOSE that plot or piece of ground situate on the South side of Eyre Street in the town of Newbridge Barony of Connell and County of Kildare more commonly known as 6 Lower Eyre Street, Newbridge, Co. Kildare.

Preparing Private Companies for the Take Notice that Maurizio Riozzi Companies Bill: New Company Forms and Intends to submit an Application to the County Registrar for the County of Kildare for acquisition of the Freehold Interest in the aforesaid Drafting Company Constitutions properties and any party asserting that they hold a Superior Interest in the aforesaid premises (or any of them) are called upon to furnish Friday 7 February 2014, Dublin Castle evidence of Title to the aforementioned premises to the below named within 21 days from the date of this Notice. 3 CPD Points In default of any Notice being received the Applicant intends to proceed with the Application before The County Registrar at the end of 21 days Expert practitioner panels and a practical from the date of this notice and will apply to The County Registrar for the County of Kildare for directions as may be appropriate on the basis scenario-driven format examining: that the persons beneficially entitled to the Superior Interest including • Options and procedures for moving to new corporate forms the Freehold Reversion in each of the aforesaid premises are unknown • Steps to be taken during the Transition Period or unascertained. • Significance of the abolition of Table A model articles Dated the day of November 2013. • Drafting considerations for company constitutions Signed: Patrick J. Farrell & Co. For more details and to book, Applicant/Solicitor for Applicant see www.iclf.ie Newbridge, Co. Kildare CAN WE TALK?

There is nothing quite like talking to someone who has been there. LawCare has over Law Society Gazette www.gazette.ie December 2013 succession 35 Health Support and 100 volunteersmake who, wills now thatcollectively, could come into effect reviewinghave harmonisation dealt of withinheritance a broaheard ord on variety to another jurisdiction. of personal problems Advice for Lawyers on a death after 2015. tax, but this is still at an early stage). Where Irish courts have jurisdiction – Nonetheless, the impact of the regulation for example, the deceased died domiciled including alcoholism,Why are conflicts of addiction,law relevant? stresson where assets and are to pass depression. will inevitably in Ireland If or thereyou are Irish or immoveable someone you know 1800 991801 The determination of where a deceased’s impact on the tax payable. assets – the Irish courts, as the forum court, needs help thenestate call passes isus relevant in in determining:complete confidence. will apply Irish PIL in determining whether www.lawcare.ie • If forced heirship provisions are to apply, Choice of law Irish law or foreign law should apply. • If the matrimonial regime or survivorship When it comes to ascertaining When, following the provisions under a joint tenancy is to be which law should apply to the application of the Irish PIL accounted for, and estate of a deceased, different “The regulation rules, it is decided that a CAN WE TALK? • If the clawback provisions for gifts made jurisdictions look to different is still very foreign law governs the during a deceased person’s lifetime is connecting factors and apply matter, the decision is made There is nothing quite like talking to someone who has been there. LawCare has over applicable. their PIL rules accordingly. relevant for Irish by the Irish court as to The connecting factor for practitioners whetherHealth to apply Support the law and of 100 volunteers who, collectively, have dealt with a broad variety of personal problems ‘Forced heirship’ is the term used where Ireland is the domicile of the foreignAdvice country for Lawyers and send because a including alcoholism, addiction, stress and depression. If you or someone you know a state provides that specified persons the deceased. Irish law the matter1800 to that 991801 jurisdiction. automatically have rights to the succession provides that the lex domicilii testator can elect However, where the Irish needs help then call us in complete confidence. of a portion of a deceased’s estate, taking determines the succession of court www.lawcare.ieapplies the whole of the precedence over any will of the deceased. moveable property; whereas to choose the law law of the foreign country, We are already familiar with the Irish fixed the succession of immoveable of his nationality it also should apply that and discretionary based forced heirship property is determined by to apply to the country’s PIL. In such a case, provisions under section 111 of the Succession the law of the country where the foreign country’s rules of Act 1965, giving a spouse a right to elect to the property is situate (the succession of his conflict of laws may refer the take a legal right share; and under section lex situs). In contrast, the assets, even if matter back (renvoi) to the 117, which provides children with the right regulation provides that, law of Ireland. If so, the Irish to claim for a share. between the participating that state is not courts must decide whether to Succession should not be considered in member statesCAN generally, WE TALK?a participating accept the renvoi and so apply CAN WE TALK?

isolationLIVING to matrimonial property regimes. ONthe habitual residenceYOUR of KNEES?Irish internal law. Before applying any inheritanceThere rules is nothingto the quitethe deceased like talking will determine to someone state”who has been there. LawCareUnder the has regulation, over There is nothing quite like talking to someone who has been there. LawCare has over estateHealth of a deceased, Support and it is first100 necessary volunteers to who,the forumcollectively, that applies have the dealt with a broad variety of personalrenvoi is Healthabolishedproblems Support between and 100 volunteers who, collectively, have dealt with a broad variety of personal problems determineAdvice exactly for Lawyers what theincluding estate includes. alcoholism, succession addiction, law of that stress deceased. and depression. Ifparticipating you or someone member states.Advice you knowforIf the Lawyers 1800 991801 including alcoholism, addiction, stress and depression. If you or someone you know This process includes considerationneeds help of the then call However,us in complete the regulation confidence. recognises that applicable law is that of1800 a ‘third 991801 state’, the Alcoholism, chemicalwww.lawcare.ie dependence, stress and emotional problems areneeds help progressive then call us in complete confidence. Health Support and matrimonial property regime and joint a person may wish the law of his nationality PIL rules of that third statewww.lawcare.ie are included, LIVING ON YOUR KNEES? Advice for Lawyers tenancies where the asset may pass outside of to apply, even if the person has acquired insofar as they make a renvoi to the law of a illnesses. The theearlier succession under they matrimonial are contract detected a habitualCAN residence and WE in another TALK?treated state. The thparticipatinge easier member thestate or toroad the law of to recovery. If law or by survivorship. effect of a choice of law is that the internal another third state. There is nothing quite like talking to someone who has been there. LawCare has over Alcoholism, chemical dependence, stress and emotional problems are progressive Clawback provisions often feature in law of the nationality applies and not its Unfortunately,Health it is not Supportclear if Ireland, and 1800 991801 you or someone youHealth know Support and 100needs volunteers who, help collectively, then have dealt call with a broausd variety in of complpersonal problemsete confidence. Advice for Lawyers Advice for Lawyers forced heirship regimes. Theseincluding provide alcoholism,PIL, addiction, and so the stress national and depression. court should If you accept or someoneBritain you and know Denmark are considered to illnesses. The earlier they are detected and treated the easier the road to recovery. If 1800 991801 that, where a statutory heir is notneeds able help to then call usjurisdiction. in complete Irish confidence. practitioners with Irish be a ‘third state’ under this part of the www.lawcare.ie www.lawcare.ie received his correct share on the death of national clients who have cross-border regulation. This 1800leads to uncertainty 991801 in you or someone you know needs help then call us in complete confidence. the deceased because the assets are eroded, issues should therefore consider whether to relation to the impactwww.lawcare.ie of the regulation on assets given away during the deceased’s elect to apply Irish law to the entire estate Ireland, Britain and Denmark. lifetime can be brought back into account to avoid foreign forced heirship provisions for the purposes of calculating the share of LIVINGto apply in contrast ON (or possibly YOUR in addition) KNEES?Succession planning LIVING ON YOUR KNEES?

the statutory heir. We are familiar with this to Irish forced heirship provisions. When dealing with cross-border estates, Alcoholism, chemical dependence, stress and emotional problems are progressive in IrelandHealth Supportunder section and 121 of the Succession care will need to be takenHealth to Support account and for the Alcoholism, chemical dependence, stress and emotional problems are progressive Advice for Lawyers Act 1965. illnesses. The earlierDoctrine they of are renvoi detected and treated the easierSuccession the Regulationroad to ,recovery. evenAdvice though for Lawyers If Ireland illnesses. The earlier they are detected and treated the easier the road to recovery. If The1800 regulation 991801 only dealsyou with or assets someone LIVING youThe know doctrine needsON of renvoi helpYOUR occurs then incall KNEES?the us in compl isete not confidence. a party to it, as 1800it will affect991801 Irish you or someone you know needs help then call us in complete confidence. passingwww.lawcare.ie under a deceased person’s will process by which a court adopts the rules practitioners in successionwww.lawcare.ie planning. With Health Support and Alcoholism, chemical dependence, stress and emotional problems are progressive or intestacy, Adviceand so for Lawyersassets passingillnesses. by The earlierof they a foreign are detected jurisdiction and treated with respect the easier to the road tocareful recovery. planning If and the consideration survivorship 1800are still 991801 dealt withyou under or someone local youany know conflict needs ofhelp laws then that call arises. us in compl In someete confidence.of the use of the choice of law based on law. Nor doeswww.lawcare.ie the regulation affect the instances, the rules of the foreign state nationality, there may be opportunities to taxation that may arise in any member state might refer the matter back (‘renvoi’) to the minimise complications later. A valid choice on the death of a person (the EU is currently law of the forum where the case is being of law now will be effective in 2015. G STRESSED?

Are you balancing family and career? Struggling to reach unattainable targets? STRESSED?STRESSED? Health Support and STRESSED? STRESSED? Advice for Lawyers Working until late at night just to keep abreast of everything? LawCare can help you Health SupportHealth Support and and AreAre you you balancing family family and career? and career? Struggling Struggling to reach unat totainable reach targets? unat tainableHealth targets? Support and Are you balancing family and career? Struggling to reach unattainable targets? Advice forAdvice Lawyers for Lawyers WorkingWorking untiluntil late late at atnight night just tojust keep to abreast keep ofabreast everything? of everLawCareything? can help LawCare you 1800canAdvice help for991801 you Lawyers Workinghelp until yourself. late at night We just offerto keep aabreast free, of independent everything? LawCare and can completel help you y confidential service. 1800 991801 help yourself. We offer a free, independent and completely confidential service. 1800 991801www.lawcare.ie help yourself. We offer a free, independent and completely confidential service.www.lawcare.ie1800 991801 help yourself. We offer a free, independent and completely confidential service. Health Support and Are you balancingwww.lawcare.ie family and career? Struggling to reachwww.lawcare.ie unat tainable targets? Advice for Lawyers Working until late at night just to keep abreast of everything? LawCare can help you 1800 991801 help yourself. We offer a free, independent and completely confidential service. NEED A DRINK? www.lawcare.ie If the stress is getting to you, it’s understandable that y ou want to unwind. But alcohol Health Support and can create many more problemsNEED than it solves. IfA you DRINK? feel you need to cut down, or if Advice for Lawyers NEED A DRINK? 1800 991801 people are annoying you by complaining that you drink too much, why not call our free confidential helpline? www.lawcare.ie If the stress is getting to you, it’s understandable that y ou want to unwind. But alcohol If the stress is getting to you, it’s understandable that y ou want to unwind. But alcohol Health Support and can create many more problems than it solves. If you feel you need to cut down,Health Support or if and can create many more problems than it solves.NEED If you feel you A need DRINK?to cut down, or if Advice for Lawyers people are annoying you by complaining that you drink too much, why not callAdvice our for free Lawyers 1800 991801 1800 991801 people are annoying you by complaining that you drink too much, why not call our free www.lawcare.ie confidential helpline? www.lawcare.ie confidentialIf the helpline? stress is getting to you, it’s understandable that y ou want to unwind. But alcohol Health Support and can create many more problems than it solves. If you feel you need to cut down, or if Advice for Lawyers 1800 991801 people are annoying you by complaining that you drink too much, why not call our free www.lawcare.ie confidential helpline? NEED A DRINK?

If the stress is getting to you, it’s understandable that y ou want to unwind. But alcohol Health Support and can create many more problems than it solves. If you feel you need to cut down, or if Advice for Lawyers 1800 991801 people are annoying you by complaining that you drink too much, why not call our free www.lawcare.ie confidential helpline? 36 Bannerconstruction law LawLaw SocietySociety Gazette www.gazette.ie December 2013

manufacturing

ConsentThe Construction Contracts Act 2013 will apply after such day as the Minister for Public Expenditure and Reform appoints. A number of steps must first be taken by Government before then however, as Anthony Hussey points out

he Construction Contracts Act 2013 gives statutory force to adjudication in relation to disputes in the construction industry. Adjudication requires disputes to be resolved within 28 days of the appointment of the adjudicator. The Tessence of adjudication is that, not only does it require Anthony Hussey that disputes be resolved extremely quickly, but the is a member of adjudicator’s determination is implemented immediately. the Alternative Therefore, if the adjudicator determines that a sum of Disputes Resolution money is payable by one party to the other, that sum Committee and is a of money must be paid immediately – partner in Hussey notwithstanding that the losing party is “It is unfortunate Fraser entitled to have the dispute determined finally by arbitration or litigation (depending that the Irish on the terms of the contract). Government saw Rough justice fit to impose a There is no limit on the complexity of a minimum contract dispute that can be referred to adjudication. The requirement that the dispute be dealt value of €10,000 mistakes will be glaringly obvious and with very quickly of necessity carries the risk given that the disastrous in their consequences for the of rough justice and of mistakes being made. losing party.” The courts in England have recognised primary purpose It is to be noted that the Irish act, under that, if the system is to work, the courts must of the legislation section 6(13), does allow the adjudicator to enforce the adjudicator’s award, even where was to help small correct his or her decision so as to remove it is clear that mistakes have been made a clerical or typographical error arising by by the adjudicator. In the case of Bouygues sub-contractors” accident or omission. UK Limited v Dahl-Jensen (UK) Limited ([1999] All ER (D) 1281) an obvious mistake on the part Opportunities for solicitors of the adjudicator led to a determination being made in The opportunities are twofold. Firstly, solicitors are favour of the wrong party. Nonetheless, the court held the eligible to be appointed as adjudicators. Secondly, determination to be valid. solicitors will be very much involved in preparing disputes Dyson J in that case stated that it is “inherent in the for, or defending disputes in, adjudication. scheme that injustices will occur because, from time to Section 8 of the act requires the minister to set time, adjudicators will make mistakes. Sometimes, those up a panel of adjudicators. Those eligible to become LawLaw SocietySociety Gazette www.gazette.ie December 2013 constructionBanner law 37 Consent

Once they cloned ZZ Top, there was no stopping them adjudicators include solicitors, although the As of now, it is unclear as to how arbit- Fast facts minister in making any appointment to the rators and others will become accredited panel must “have regard to their experience adjudicators. Obviously, some form of > The Construction Contracts Act 2013 gives and expertise in dispute resolution procedures training will be required. The issue is whether statutory force to adjudication in relation under construction contracts”. The minister the training will be provided by a central, to disputes in the construction industry may also appoint barristers, architects, recognised institution or whether each of the > Disputes that are adjudicated must be engineers and surveyors to the panel. professions will provide its own training for resolved within 28 days of the appointment The process of adjudication is more its own members. of the adjudicator >> similar to fast-track arbitration than to any Whereas adjudication does offer new > the adjudicator’s determination must be other form of dispute-resolution process. opportunities for solicitors, it will adversely implemented immediately It is thought that, initially, those appointed affect the number of arbitrations that take > there is no limit on the complexity of a to the panel will be arbitrators rather than place and, accordingly, will diminish another dispute that can be referred to adjudication conciliators or mediators, but that even source of work for solicitors. > Solicitors are eligible to be appointed arbitrators will have to receive some form of Adjudication has been available in Britain as adjudicators and will be very much accreditation in adjudication prior to being since 1998. As a result, the number of involved in preparing disputes for, or appointed to the panel. arbitrations in construction has been reduced defending disputes in, adjudication Christmas at Blackhall Place

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each card sold in packets of 50 costing €125 (including overprinting of your firm’s name). minimum order 50 cards. add €7.00 for postage and packaging for each packet of 50 cards. i wish to order pack(s) of card a @ €125, pack(s) of card b @ €125. text to be overprinted: Sample of overprinted teXt will be faXed for confirmation before printing. i enclose cheque for € payable to Santry printing ltd (€132 per pack). Send order form and cheque to: SBASBA Christmas Christmas Cards, Cards, Santry Santry PrintingPrinting Ltd, UnitUnit 5, 5, LilmarLilimar Indu Industrialstrial Estate, Estate, Coolock Coolock Lane, Lane, Dublin Dublin 9. t 9.el: Tel: 842 842 6444. 6444. contact: Contact: amanda Paul. Law Society Gazette www.gazette.ie December 2013 construction law 39

british procedure for adjudication in accordance with this section any dispute relating to payment In Britain, about 70% of disputes resolved the less likely it is that time will permit for a arising under the construction contract (in through adjudication are dealt with on a full hearing. It is to the credit of adjudicators this act referred to as a ‘payment dispute’).” documents-only basis. In cases reviewed by in Britain that not only do they manage to deal The legislation in Britain covers all the Glasgow Caledonian University, there with the disputes in a reasonably fair and disputes and is not confined to payment was a full hearing of the issue in only 11.5% thorough manner within the time allowed, but disputes. The definition provided by section of cases. they usually provide reasoned determinations 6(1) is extremely wide. Most commentators Obviously, the more complex the dispute, similar to an arbitrator’s award. anticipate that it will be interpreted widely by the courts, to the extent that even extension-of-time claims will be capable of by about 75%. In the vast majority of cases, involve sums of less than £100,000, and about being referred to adjudication, provided, as the parties accept the adjudicator’s decision on 10% of all adjudications involve sums of less is invariably the case, that some monetary the basis that there is no reason to believe that than £10,000. Given that the main purpose compensation is sought in respect of the they would fare any differently in arbitration. of the legislation is to improve cash flow by extension of time. In any event, once the losing party pays the allowing for an immediate dispute resolution Almost all disputes under construction amount determined, the dynamics are altered process in respect of monthly accounts, it contracts are related to payment. Disputes and the desire for arbitration or litigation is is not surprising that the average value of can arise, however, in relation to other diminished. disputes is relatively low. issues, such as the entitlement of the “Whereas It is unfortunate that the employer to appoint a particular person as The British experience Irish Government saw fit to the contract administrator in the event of the An interesting study was carried adjudication impose a minimum contract administrator appointed under the contract out by the Glasgow Caledonian does offer new value of €10,000, given that ceasing to act. University as to the state of the primary purpose of the adjudication in Britain in 2011. opportunities for legislation was to help small Constitutional implications In the early years, close to 2,000 solicitors, it will subcontractors – although it The courts in England have accepted that, appointments per annum were is to be noted that, while the provided that the principles of natural justice made. In recent years, this adversely affect minimum contract value is have been applied, and provided that the has dropped to about 1,200 the number of €10,000, no minimum value adjudicator has acted within jurisdiction, the appointments, according to the is set for the size of the claim. adjudicator’s awards must be upheld, even published statistics. arbitrations that Therefore, a claim for €2,000 where this involves an obvious injustice to a Part of the reason for the take place and, is covered by the act where the party. diminution in appointments contract value was in excess Without a written constitution, the courts is thought to be a change in accordingly, will of €10,000. The converse is had no option but to apply the law in this culture. The British legis- diminish another that a claim for €20,000 is way, as this would appear to have been what lation (and indeed the Irish source of work for not covered if the value of the was intended by Parliament. Whether the legislation) not only introduced contract out of which the claim Irish courts would take the same approach adjudication, but also intro- solicitors” arises was only €9,000. is open to debate. The majority view duced provisions whereby appears to be that the courts will adopt contractors and subcontractors (in particular) The time limit the same attitude as the English courts, must be paid promptly for the value of their The primary time limit provided by the notwithstanding the Constitution, on the work. It is not possible to contract out of legislation is 28 days. However, this can basis that the adjudicator’s award is not final these provisions. be extended to 42 days with the consent and can be overturned through litigation. Once contractors came to terms with the of the party who made the referral, and by Bearing in mind that it may prove fact that they were not going to be able to such longer period as the parties may agree. impossible to recover moneys paid on foot delay the entitlement of their subcontractors About 40% of determinations made in of an incorrect decision of an adjudicator, to payment in full, they tended to meet their Britain are made within the 28-day period, it could be argued that a decision of an obligations and, accordingly, a very large with another 35% made within 42 days. adjudicator is potentially more final in element of the cause for construction disputes its effect than decisions of the District or was removed. To a lesser extent, the same is Payment disputes Circuit Courts. Payment is not made on foot true in relation to disputes between employers Section 6(1) provides: “A party to a of decisions of the District or Circuit Courts and main contractors. construction contract has the right to refer if decisions are appealed. G

Contracts under €10,000 who will be appointed? There are a number of important differences between the British and Irish legislation. There is no minimum limit applicable in It is anticipated that most disputes referred to by quantity surveyors, it is likely that Britain. There is a minimum limit of €10,000 adjudication will relate to the contractor’s or adjudicators on these issues will be quantity applicable in Ireland – that is, adjudication subcontractor’s monthly account. The sum in surveyors. In larger disputes, where legal and does not apply where the contract value is less dispute in most cases will be relatively small complex issues are likely to arise, persons than €10,000. Initially, the Irish legislation and the exercise, in most cases, will largely be with legal expertise (although not necessarily anticipated a minimum contract value of one of number crunching. practising lawyers) are more likely to be €200,000. This would have been quite As monthly accounts are usually valued appointed. absurd. In Britain, the majority of disputes 40 valuations Law Society Gazette www.gazette.ie December 2013 Value judgements In Britain, most solicitors’ and insurance firms will only accept valuations from registered valuers. In Ireland, valuation can be more of a ‘black art’, leading to obvious problems down the road. Maggie Armstrong assesses her options

here is a memorable scene in the film Hibernian Way, she provides valuations of everything Maggie Armstrong A Streetcar Named Desire, when Stanley from jewellery with a sentimental or antiquity value, is a journalist roots through his sister-in-law Blanche’s to jewellery boxes containing up to 60 pieces. “I’m “treasure chest of a pirate” to find out just astounded by how much jewellery people have. where the family money has gone: Irish people like jewellery. It’s seen as a nice item to “Pearls! Ropes of them! What is this pass down. In some nations in Asia, however, it’s seen Tsister of yours, a deep-sea diver? Bracelets of solid gold, as bad luck!” she adds. too ... I have an acquaintance that works Clarke has seen an increasing in a jewellery store. I’ll have him in here number of women parting with their to make an appraisal of this.” If Blanche “Most jewellery cherished diamond rings. “For people had sought guidance as to the value of and art valuations who have lost their businesses or their her assets, the tragic heroine might have homes, jewellery might be the only been in a better position – and the same are undertaken for strong asset they have left, so they’re goes for us. insurance purposes, pushed to sell it. In the last two years, The recession has seen more and it’s got worse.” more people selling personal property but formal valuations People have to reduce their assets to pay off debts, which means it’s are also required in expectations if they want to sell but, a good time to buy pieces of second- says Clarke, “it’s an excellent time to hand jewellery or art. But a careful handling probate, buy big pieces second-hand. A ring purchaser might want that piece inheritance and gifts, might be valued at €30,000 and we’re professionally valued before committing. selling it for €12,000.” Most jewellery and art valuations are and in some family undertaken for insurance purposes, but division and divorce Crusade formal valuations are also required in cases” Clarke, who charges between €50 handling probate matters, inheritance and €300 for the service, says she is and gifts, and in some family division and on a “crusade” to have the valuation divorce cases. The Gazette sought the views of jewellery profession recognised in Ireland. “In Britain, most and art valuers about what drives and underpins their solicitors’ and insurance firms will only accept work in the current difficult market. valuations from registered valuers,” she says. Here, Carol Clarke is a goldsmith and member of Britain’s anyone working in the jewellery trade can call National Association of Goldsmiths’ Institute of themselves a valuer, and jewellery is often casually Registered Valuers (IRV). In her shop in the Royal valued. Law Society Gazette www.gazette.ie December 2013 valuations 41

Fast facts

> A recession is often a good time to buy pieces of second-hand jewellery or art > Careful purchasers should get pieces professionally valued before committing to a purchase > Most jewellery and art>> valuations are undertaken for insurance purposes. Formal Tennis Courts in May, Kenilworth Square, Dublin, valuations are also required in handling 1944 by Louis le Broquy, probate matters, inheritance and gifts, and which failed to sell recently in some family division and divorce cases 42 valuations Law Society Gazette www.gazette.ie December 2013

here, even Louis le Brocquy’s works have fallen by up to 60% in value. In November, a Christie’s auction of NAMA-seized paintings saw a le Brocquy valued at Stg£30,000 compared with Stg£60,000 in 2011. Whyte’s value everything from notes, coins and medals to antiquarian books and rock memorabilia, but their major area is art. Their more prominent clients include NAMA and the Revenue Commissioners but, with regard to private clients, these days Whyte’s are busy with retired couples downsizing their homes, people raising money to pay off debts, and collectors selling off paintings they have tired of. “As tastes change in music, it’s very similar [in art],” says Whyte. A valuer who takes a long-term view and understands the primary market (of living artists) can have a very positive effect on a client’s fortunes. So who are the artists to watch, if one was of a mind to invest? ‘I have an acquaintance that works in a jewellery store. I’ll have him in here to make an appraisal of this’ Whyte doesn’t believe there are any. “There are very few in the last ten years whom you could say are stand-out artists. So why should we seek a registered Modern enhancements carried out on There’s lots of good talent, but it’s not valuer? With property, if a building is jewellery will lessen an item’s value. “It’s like extraordinary. In Britain, the most stand-out unique or ‘period’, its owner is advised cosmetic surgery,” says Clarke. Because of artist is this chap Banksy. So you’re looking to have it valued, and this applies to all the dramatic increase in the price of gold, for another Banksy, another Francis Bacon, jewellery. An IRV member has gemmological Clarke includes the current price of gold another Damien Hirst.” He cites Sean Scully and diamond-grading qualifications and, in a valuation, so that people can watch the as the Irish artist of the moment, and anyone without this training, subtleties are lost. market themselves. with a Gerard Dillon, Dan O’Neill, or a When Clarke draws up a valuation, ring Basil Blackshaw stashed away should fear details including dimensions, shank width Life is a rollercoaster not. and mount height determine the figure she It is more challenging to monitor movements arrives at. in the art world. Ian Whyte, of Whyte’s on Conflicting values “One of the biggest problems is Molesworth Street, says the past few years have The valuer is often presented with a gemstones. Unless you’ve studied the been a “rollercoaster” for the Irish art market. difficulty in divorce cases, when two valuers subject, you don’t know if they are real, “Art prices tend to follow property have been engaged. A couple could have a synthetic or imitation. So a number of prices, especially in this country. So when vast amount of property with conflicting people valuing jewellery out there call the property boom ended in 2007, the art values described on two inventories. something red a ruby, even though it might boom also ended,” he told the Gazette. The O’Halloran advises both parties to agree on not be a ruby.” international art market is booming, but one valuer, as valuations are, by their nature,

guiding patterns

Valuing art and antiques is a broad specialty able to say, look, I don’t know – we need to ask there’s suddenly been a demand,” says Whyte, and, while there are rules and guiding patterns, somebody else.” who has been doing this since he was 15. the basis for valuations is still mysterious. With the value at the whim of a volatile The word ‘integrity’ comes up a lot in the According to James O’Halloran of Adam’s market, experience is needed to enable sound valuations world. In the winding up of an estate, Art Auctioneers (who handled the infamous judgement. Most art valuers have studied art a pliable valuer could help a person avoid €150,000 Anglo Irish Bank auction in August): history and have been accredited as chartered a heavy tax bill by keeping the figure down. “It’s not a science, it’s more of a dark art.” The surveyors. Total immersion in the art world is O’Halloran says that ethical standards are kept collections they value reflect what he calls needed too. Because an auctioneer takes a high, not least so the valuation holds up in court. the “catholic tastes” of the Irish and include percentage of what is fetched for one client, there “You might find people trying to influence antique furniture, silver, china, vintage wine, could appear to be a conflict of interest in the us on occasions, particularly if it’s a probate and paintings. Each piece is valued on the basis prescribing of values for another, but there is also valuation. We can be told: ‘It would be great if of comparables, on the sum fetched by the last no more qualified individual than an auctioneer you kept this low’. But it goes in one ear and similar example. With a painting, the quality, to provide valuations. They will have a close eye out the other. You never know when you might its size, where it’s been exhibited, the condition on developments. “If I value a painting today at have to justify a particular valuation, whether it’s in and its provenance are all considered. €50,000 and a similar one in my next auction that’s in front of a judge or with the Revenue But, O’Halloran adds: “You also need to know goes for €70,000, I’ll phone up the client and tell Commissioners. We don’t buckle when somebody what you don’t know. That’s very important, to be them I have changed the value on that, because wants us to do anything.” Law Society Gazette www.gazette.ie December 2013 valuations 43

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‘A wall is a very big weapon. It’s one of the nastiest things you can hit someone with’ – Banksy subjective. “You’re better off just having one market crash so spectacularly, one might residential valuations at Sherry FitzGerald valuer, one figure and one fee. At the end of legitimately ask what has happened to the (a role created in 2007 due to demand) says the day, things often get sold and the market valuer’s authority. Barry Smyth of deVere the main considerations are location (a prime decides what they are worth. And if they’re Whyte and Smyth believes that things got house in a poor location is referred to in the not going to get sold, what’s the point in out of hand when banks trade as a ‘Rolls Royce badly fighting over values that are notional?” asked borrowers to handle parked’), accommodation Ian Whyte suggests that, in a family their own valuations. “You never know (number of beds), division of valuables, a fair system is to put “A lot of subprime lenders presentation, garden and the a value on each picture, piece of furniture got very cheap valuations when you might have way it faces, and amenities or tea set, and let each member of the done. It can come back to to justify a particular (in some areas, strong prices family take their pick. That allows for equal haunt you. That’s frankly are paid due to proximity to division. part of the reason we’re value, whether that’s a particular school). He adds that public auction is better in the trouble we’re in. in front of a judge Smyth’s interaction with than private auction for estate handling, Valuation is complicated, or with the Revenue the legal profession includes because there is a public consensus of price. insofar as a valuer is only as a steady stream of family law “Everyone can see it’s fair and square. You good as his job on that last Commissioners. We and probate cases, which can’t say it was sold for too little.” parcel of land. A lot of those don’t buckle when throw up capital gains tax A client must also be aware that insurance values were unsustainable.” and capital acquisitions tax replacement value will be considerably In the case of most somebody wants us issues. Since the market higher than market value. To ‘replace’ a residential property, however, to do anything” turned upwards in 2012, painting takes account of going to a dealer, he acknowledges that “the valuations are often being who will charge base price, VAT, profit and grapevine and the local sought in situations where overheads. gossip often give people a guide as to what a people want to transfer property to children The legal profession has, perhaps, greater house is worth”. in order to keep within CAT thresholds. “At day-to-day familiarity with the valuation of In those instances where a professional the moment, there are an awful lot of people land and buildings. Having seen the property valuation is needed, Colin Smyth, head of out there with cash to buy,” he concludes. G 44 people and places Law Society Gazette www.gazette.ie December 2013 Monaghan CPD event attracts stellar line-up Monaghan Bar Association ran a highly successful CPD event on 11 October 2013, in the Glencarn Hotel, Castleblayney. The organisers were Justine Carty (Barry Healy & Co) and Lynda Smyth (Coyle Kennedy McCormack). Over 250 solicitors from all over the country attended. The impressive line-up of speakers included Director of Public Prosecutions Claire Loftus, who spoke about her role as DPP; Brendan Watchorn SC on the registration of rights of way, buying property from a receiver, judgment mortgages and receivers, and the Multi Unit Development Act 2011; Ross Aylward BL who addressed the issue of the relocation of children from one country to another, as well as a general update on family law; James E Finn (registrar of wards of court) who dealt with enduring powers of Rossa Fanning BL, Lynda Smyth (Coyle Kennedy MacCormack), Simon McAleese (Simon McAleese & Co), Justine Carty attorney and the new Capacity Bill (Barry Healy & Co), Ross Aylward BL, Ken Connolly BL, Judge Sean McBride, Judge John O’Hagan and Dermot Lavery 2013; Dublin-based criminal lawyer (Dermot Lavery & Co) Dara Robinson, who provided an update on developments in criminal law; Charlie Bird (former chief RTÉ news correspondent, who spoke passionately on his experiences in Cyril’s country solicitor observations the courts in relation to defamation cases; Simon McAleese, a solicitor and expert in defamation law; Declan O’Neill (taxing master) on the taxation of costs and legal costs in 2013; local District Court judge, Sean McBride, who gave an excellent presentation on indictable offences in the District Court; and high-profile commercial lawyer Rossa Fanning BL, who dealt with recent cases on the enforcement of personal guarantees and voluntary transfers between spouses and children. Each speaker gave of their time freely to travel to Castleblayney and all profits from the event were donated to the Solicitors’ Benevolent Fund. MC for the day was Dundalk solicitor Doc Lavery. Dinner followed afterwards, with There was a great turnout at the recent Kildare Bar Association (KBA) biannual dinner in the Keadeen Hotel, dancing to country and western Newbridge, writes Helen Coughlan. It was a special occasion for veteran Athy solicitor Cyril Osborne, to whom star Johnny Brady later on. Most a presentation was made by Law Society President John P Shaw (pictured above) to mark his years of service speakers stayed on to mingle with as a solicitor. Cyril qualified in 1965 and still practises in Athy, Co Kildare, in the family firm, RA Osborne & local solicitors and barristers. Others Son, which was founded by his father Robert. The tradition continues with Cyril’s son David also in the practice. David is honorary secretary of the KBA. Cyril, in his usual gentlemanly fashion, had the audience enraptured with attending the dinner included Circuit his observations on changes in the life of a country solicitor from the time he started as an apprentice, to the Court judge John O’Hagan, barristers present day. Mr John P Shaw, newly elected President of the Law Society, was warmly welcomed to one of his Frank Martin, Ken Connolly and first official functions in his capacity as president. Kildare Bar Association president Sharon Murphy welcomed Oliver Costello, and the county all attendees and paid special tribute to husband and wife duo, Andrew Cody and Eva O’Brien, for their hard work registrar for Cavan/Monaghan, Joe and dedication to the local bar association Smith. Law Society Gazette www.gazette.ie December 2013 people and places 45 Rachel heads for pastures new after three years with IRLI Previous Law Society President James McCourt hosted a dinner in October for members of Irish Rule of Law International (IRLI) to thank Rachel Power for her hard work and commitment during her three years as IRLI coordinator. During this time IRLI became a registered charity and expanded its interventions to include, among others, an access to justice project in Malawi and a visit to Vietnam where Irish solicitors provided workshops on clinical legal education. Rachel is now working for the Public Interest Law Alliance, a project of FLAC. Emma Dwyer assumed the role of charity coordinator in August. IRLI is a joint initiative of the Law Society of Ireland and the Bar Council of Ireland and seeks to use the skills of Irish lawyers to programme, which is undertaken disadvantaged communities Placements were undertaken this promote and strengthen the rule of in partnership with the Law undertake placements in Irish year in Matheson, Whitney Moore law in developing countries. Projects Society of South Africa. South firms to gain skills and experience and McDowell Purcell Solicitors include a commercial law training African lawyers from historically in the practice of corporate law. in Dublin.

Educate together! Four law societies collaborate P ic : C ianredmond . com

The Law Society hosted the Joint Legal Education Forum 2013 on 4 November. This brings together representatives of the law societies of Ireland, Northern Ireland and Scotland with the English Solicitors’ Regulatory Authority to discuss educational developments and issues of common concern. Present were (from l to r): Valerie Peart (vice- chair, Education Committee, TP Kennedy (director of education), Geoffrey Shannon (deputy director of education), Carol Plunkett (chair, curriculum development unit), Simon Murphy (chair, Education Committee), Rob Marrs (senior policy and development manager, Law Society of Scotland), Liz Campbell (director of education and training policy, Law Society of Scotland), David Meighan (accreditation officer, Law Society of Scotland), Richard Henderson (member, Education and Training Committee, Law Society of Scotland), Brian Speers (chair, Education Review Working Group, Law Society of Northern Ireland), Julie Brannan (director of education and training, Solicitors’ Regulatory Authority), Anne Devlin (assistant secretary, Law Society of Northern Ireland), Christina McLintock (convenor, Education and Training Committee, Law Society of Scotland) 46 people anD places Law Society Gazette www.gazette.ie December 2013 IWLA honours newly appointed Supreme Court judges Two Supreme Court judges were Council. HRM Recruit’s legal honoured by the Irish Women selection practice sponsored a Lawyers’ Association (IWLA) welcome reception. at its annual gala dinner on 16 One of IWLA’s founder November. Honorary lifetime members, Judge Patricia membership of IWLA was McNamara, represented the conferred on Ms Justice Mary President of the District Court Laffoy and Ms Justice Elizabeth on the evening and made a Dunne by IWLA’s president, Ms presentation to both Supreme Justice Maureen Clark. Court judges on behalf of the The IWLA’s annual ‘Women members of the District Court Celebrating Women Lawyers’ bench. (Front, l to r): Ms Justice Mary Laffoy (Honoree), Ms Justice Maureen Clark gala dinner in the Presidents’ Keynote speaker on the night (president, IWLA) and Ms Justice Elizabeth Dunne (Honoree). (Back, l to r): Hall at Blackhall Place was was Dearbhail McDonald, Maura Butler (chairperson, IWLA) and keynote speaker Dearbhail McDonald held in collaboration with Law associate editor and legal editor (associate editor and legal editor, Irish Independent) Society Skillnets and the Bar of the Irish Independent. Special guests included the Attorney General Máire Whelan SC, Judge of the European Court of Human Rights Judge Ann Power- Forde, Director of Public Prosecutions Claire Loftus and former judge of the Supreme Court, Mrs Justice Catherine McGuinness – all of whom are existing IWLA honorary members. Collaborations for the 2014 gala dinner are already afoot, together with plans for delivering the association’s calendar of networking and educational events.

Calcutta Run raises €120,000 for worthy causes On 6 November, the Calcutta Run’s legal fundraising committee handed over €120,000 shared between its two nominated charities, the Peter McVerry Trust and Goal. The reception was hosted by the event’s main sponsor, Bank of Ireland. Pat Doyle, CEO of the Peter McVerry Trust, explained that the funds would go towards making extra beds available to homeless people in the Dublin area when the temperatures drop during the winter months. Foldable beds would be set up in their accommodation facilities to make sure that as many people as possible would be taken off the officer of Goal, who will use the sanitary hygiene units for firms who had signed up as streets. funds to provide child-minding children living in the slums. supporters of the initiative. Next The funds raised will go a long services for the children of Then President of the year’s Calcutta Run will take way in Calcutta, according to sex workers, and will also go Law Society James McCourt place on 17 May. Save the date Jonathan Edgar, chief operations towards providing water and extended his thanks to all the in your diary! Law Society Gazette www.gazette.ie December 2013 PEOPLE AND PLACES 47 Marathons 4 Muireann a major success

Muireann sports her dad’s Dublin marathon Declan (foreground) taking part in the Dublin marathon – his fourth in two days medal

Following our article in the Jill Foundation and the Brothers of Marathons 4 Muireann: Fergal Lorna Kennedy (partner, Dillon October Gazette on the efforts Charity. Logan (solicitor, Logan & Eustace), Maura Dineen (Mason, of Declan O’Flaherty (Tormey’s, Speaking to the Gazette, Corry, Omagh), David Dunning Hayes & Curran), Brian McMullin Athlone) to raise funds for three Declan O’Flaherty said: “We (Behan & Associates, legal costs (partner, VP McMullin, Donegal), nominated charities that care for are enormously grateful for accountants), Niall Collins (partner, Avril Birmingham and Barbara children with severe special needs, the support we have received Mason Hayes & Curran), Victoria Conway (legal executives, Byrne we are delighted to report that from all branches of the legal Cummins BL, Alexis Mina BL, Wallace), Patrick Flynn (legal costs ‘Marathons 4 Muireann’ received profession. The entire experience Peter Bland SC, John P Shortt SC, accountant, Athlone) and Rob a significant level of support has shown the legal profession is Niall Flynn BL, Elaine Hanniffy Lowe BL. from both branches of the legal populated with many decent and BL, Sarah Phelan BL, Dermot The following ran the Dublin profession – both in terms of hardworking people who freely Hewson BL, Elaine Finneran marathon on 28 October 2013 fundraising and participants along give of their time and money to BL, Shane Geraghty BL, Sandra in support of the cause: Richard the route of the four marathons. support others when called upon. Carroll and Emer Kilroy (both Stapleton (Smyth Stapleton & Readers will remember that The entire experience was really solicitors with EC Gearty in Co, Tullamore), Aoife Byrne (Law Declan’s two-and-a-half-year old quite humbling.” Longford), Rory Hannify BL, Centre Cork) and Kate Sexton daughter Muireann suffers from For the record, the following Hugh Mohan SC (and his wife (legal executive, TK Madden & an extremely rare neurological ran a half marathon in aid of Sinead Mohan), Ross Maguire SC, Co, Longford). disorder and she is unable to walk, talk or feed herself. She and the family receive vital support from all Calcutta Run raises €120,000 for worthy causes three charities. International Financial Services Law The main running event for solicitors and barristers took place from Tyrrellspass, Co Westmeath, to Kinnegad on Sunday 27 October 2013. Conditions were atrocious but that did not deter the 19 hardy souls who covered that half- marathon distance with Declan, who was engaged in completing four marathons in two days. In addition, solicitors from as far apart as Tyrone and Donegal in the north, to Cork in the south, ran with Declan on other half- marathon legs, while others took part in the Dublin marathon on 28 October 2013 – all contributing funds to help meet the target of €100,000. In fact, Marathons 4 Pictured at the conferring ceremony for the UCD and Law Society Finuas Network Post-Graduate Diploma in International Financial Services Law, held in Newman House on 22 October, were (from l to r): Vivion Gill (former director of the Muireann far exceeded expectations Commercial Law Centre, UCD), Michelle Nolan (Law Society Finuas Network), graduates Ciara Daly (Central Bank) and by raising more than €175,000 Julia Carmichael (Aviva Insurance), Attracta O’Regan (head of Law Society Professional Training), Brian Hutchinson for Temple Street Children’s (director, Commercial Law Centre UCD) and Professor Colin Scott (Dean of the Sutherland School of Law, UCD) University Hospital, The Jack and 48 parchment ceremonies Law Society Gazette www.gazette.ie December 2013

parchments on 4 July 2013 Newly qualified solicitors at the presentation of their Andrew Sherlock, Orla Shevlin, Sarah Sreehan, Regina Szymanska, Emma Thompson, Sinead Treacy, Garry Wynne (All photos: Jason Clarke Photography) Garry Wynne Andrew Sherlock, Orla Shevlin, Sarah Sreehan, Regina Szymanska, Emma Thompson, Sinead Treacy, Laura Lee O’Driscoll, Karina O’Leary, Louise Phelan, Maria Phelan, Allison Quinn, Nicola Quinn, Conor Quinn, Laura Rattigan, Stephen Reilly, Fiona Reynolds, Monica Rowley, Eoin Ryan, Fiona Reynolds, Monica Rowley, Louise Phelan, Maria Allison Quinn, Nicola Conor Laura Rattigan, Stephen Reilly, Laura Lee O’Driscoll, Karina O’Leary, Claire Gormley, William Hanly, Maeve Sharpley, Rachel Harvey, Jaella Henry-Robinson, Elizabeth Herron, Liam Heylin, Laura Hurley, Brian Johnston, Paddy Jones, Susan Joyce, Angela Keane, Jaella Henry-Robinson, Elizabeth Herron, Liam Heylin, Laura Hurley, Rachel Harvey, Maeve Sharpley, Hanly, William Claire Gormley, Daniel Moore, Emer Murphy, Aisling Murphy, Helen Murphy, Niamh Murphy, Cillian O’Boyle, Mairin O’Boyle Finnegan, Karen O’Brien, Catherine O’Callaghan, Aoife O’Callaghan, Shane O’Doherty, Cillian O’Boyle, Mairin O’Boyle Finnegan, Karen O’Brien, Catherine O’Callaghan, Aoife Shane O’Doherty, Niamh Murphy, Helen Murphy, Aisling Murphy, Daniel Moore, Emer Murphy, Kelly Ann Keegan, Allan Kennedy, Karen Kilgallen, Róisín Magee, Deborah McConway, Aimee McCumisky, Niamh McDermott, Aisling McGowan, Amy McMahon, Eimear McNamara, Claire McQuillan, Aimee McCumisky, Karen Kilgallen, Róisín Magee, Deborah McConway, Kelly Ann Keegan, Allan Kennedy, Ruairi Culleton, Laura Daly, Jennifer Darcy, Sharon Devereux, Brian Dolan, Hazel Doyle, Niall Doyle, Sarah Duffy, Patrick FitzGerald, Karen Gallagher, Thomas Gillespie, Aileen Gittens, Maebh Gogarty, Thomas Gillespie, Aileen Gittens, Maebh Gogarty, Patrick FitzGerald, Karen Gallagher, Sharon Devereux, Brian Dolan, Hazel Doyle, Niall Sarah Duffy, Jennifer Darcy, Ruairi Culleton, Laura Daly, Niall Collins TD, President of the High Court Nicholas Kearns, Law Society James McCourt and Ken Murphy (director gen eral) were guests honour at parchment ceremony for newly qualified solicitors on 4 July 2013: Neil Bourke, Caoimhe Boyce, Martin Brennan, Olivia Browne, Eimear Buckley, Katie Callinan, Paul Canavan, Kevin Cassidy, Angela Cleary, Jenny Colfer, Edel Corry, Stephanie Corry, Stephanie Corry, Edel Corry, Jenny Colfer, Angela Cleary, Katie Callinan, Paul Canavan, Kevin Cassidy, solicitors on 4 July 2013: Neil Bourke, Caoimhe Boyce, Martin Brennan, Olivia Browne, Eimear Buckley, Law Society Gazette www.gazette.ie December 2013 parchment ceremonies 49

Dara O’Loghlin, Hayley Purcell, Áine Quigley, David Stafford, Siobhan Tighe, Clíodhna Walsh David Stafford, Siobhan Tighe, Dara O’Loghlin, Hayley Purcell, Áine Quigley, parchments on 26 September 2013 Eoghan McCarthy, Patrick McCormack, Claire McGinn, Aoife Mitchell, Derek Nolan, Kyle Daniel Deirdre O’Hanlon, Eoghan McCarthy, Newly qualified solicitors at the presentation of their Oliver Holohan, Graeme Hughes, Daniel Kelly, Thelma Kelly, John Kennedy, Garreth Kennedy, Eibhlinn Kerr, Caitriona Lawlor, Bill Lonergan, Gráinne Loughnane, David Lynch, Afreen Malik, Michelle Martin, Bill Lonergan, Gráinne Loughnane, David Lynch, Caitriona Lawlor, Eibhlinn Kerr, Garreth Kennedy, John Kennedy, Thelma Kelly, Oliver Holohan, Graeme Hughes, Daniel Kelly, Mr Justice Michael Peart, David Nolan SC (chairman of the Bar Council), Law Society President James McCourt and Ken Murphy (dir ector general) were guests honour at parchment ceremony for newly qualified solicitors on 26 September 2013: Linda Anderson, David Barry, Christopher Boylan, Alison Brennan, Peter Brennan, Sarah Bruen, Catherine Canavan, Eoin Carroll, William (Billy) Casserly, Iseult Cody, Iseult Cody, (Billy) Casserly, Christopher Boylan, Alison Brennan, Peter Sarah Bruen, Catherine Canavan, Eoin Carroll, William qualified solicitors on 26 September 2013: Linda Anderson, David Barry, Louise Cresham, Thomas Dalton, Leona Divilly, Ciaran Doyle, Charlotte Egan, Catherine Fahy, Andrea Gleasure, Katherine Glynn, Mark Gorman, Fergal Hand, Susan Harrison, Martin Hayden, Jennifer Heffernan, Ciaran Doyle, Charlotte Egan, Catherine Fahy, Louise Cresham, Thomas Dalton, Leona Divilly, 50 books Law Society Gazette www.gazette.ie December 2013

THOMSON REUTERS TM An Island’s Law: A Bibliographical ROUND HALL Guide to Ireland’s Legal Past WN Osborough. Four Courts Press (2013), www.fourcourtspress.ie. ISBN: 978-1-84682-416-6. Price: €35.

REUTERS/ Carlos Barria Carlos REUTERS/ At the Courts complex) during the Civil War in inaugural 1922. In an emerging postcolonial society, meeting of the fact that much of Ireland’s legal history is the Irish the history of English law in Ireland may also Legal History have negatively impacted on scholarship until Society in recent times. As Osborough notes, “it may 1988, its still be a difficult matter to arouse enthusiasm progenitor, and money for the expenditure of time and Prof WN effort on recapturing an indubitable portion of COMMENTARY Osborough, the cultural heritage which risks nonetheless said that being dismissed – by some, if not by the more ON WESTLAW IE its aim discerning – as the unfortunate legacy of an would be “to seek to alien imposition”. Contract Law in Ireland – 7th Edition preserve a little longer from total oblivion the Ironically, research into Irish legislation Just published in October 2013 NEW memory of the legal past of this island”. The between the 12th and 20th centuries has been Robert Clark fact that the society has spectacularly delivered greatly enhanced by an important recent Discovery and Disclosure – 2nd Edition DEC on this objective and that Irish legal history has initiative aimed at repealing all of it. Attorney William Abrahamson, James B. Dwyer 2013 become a growth sector in academic research General Rory Brady launched a wide-ranging and Andrew Fitzpatrick has much to do with Osborough’s efforts. statute law revision programme aimed at This slim but indispensable volume has been AVAILABLE NOW conferring democratic legitimacy on the Irish published to commemorate the 25th anniversary statute book by cataloguing and repealing tens Banking Law – 3rd Edition 2013 John Breslin of the foundation of the society. It catalogues, of thousands of pre-independence statutes. Civil Procedure in the Superior Courts in a very accessible manner, the scale and depth That commendable project continues, despite 3rd Edition 2012 The Brehon Library of research in the area. It will also undoubtedly Mr Brady’s premature death. Hilary Delany and Declan McGrath assist the work of researchers into Ireland’s Major advances in chronicling Ireland’s The Law of Credit and Security – 1st Edition 2010 legal past for generations to come. legal history have been made over the last Mary Donnelly The book comprises three bibliographical quarter of a century. Osborough’s extensive Administrative Law in Ireland essays by the indefatigable Osborough, which bibliographical research highlights this 4th Edition The Brehon Library Gerard Hogan and David Gwynn Morgan together form a complete bibliography of this progress and is an essential guide for anyone G Employment Equality Law – 1st Edition 2012 island’s legal history. The task of documenting wishing to learn more about our legal past. Marguerite Bolger, Claire Bruton Irish legal history has been severely hampered and Clíona Kimber by the disastrous destruction of the main Brian Murphy has recently submitted his PhD Insurance Law – 3rd Edition 2012 depository of the country’s legal records (at thesis in the School of History and Archives, Austin J. Buckley the Dublin Public Records Office in the Four University College Dublin. The Law of Personal Injuries – 1st Edition 2010 Colin Jennings, Barry Scannell and Dermot Francis Sheehan reading room The Criminal Process – 1st Edition 2009 Thomas O’Malley New books available to borrow from the library COMPLETING • Christou, Richard, Drafting Commercial to Mark 25 Years of the Irish Legal History THE PICTURE. Agreements (5th ed; Sweet & Maxwell, 2013) Society (Four Courts Press, 2013) • Clarke, Robert, Contract Law in Ireland (7th • Mathijsen, PSRF, A Guide to European Union ed; Round Hall, 2013) Law (11th ed; Sweet & Maxwell, 2013) CALL: 1800 50 90 34 • King, Jeff et al, Current Legal Problems 2013 • O’Nolan, Caroline, The Irish District Court: a EMAIL: [email protected] (OUP, 2013) Social Portrait (Cork University Press, 2013) • Forde, Michael and David Leonard, • Round Hall, Offences Handbook 2013: VISIT: westlaw.ie Constitutional Law of Ireland (3rd ed; Criminal and Road Traffic (Round Hall, 2013) Bloomsbury Professional, 2013) • Tolaney, Sonia et al, Key Authorities in • Galligan, Eamon and Michael McGrath, Banking Law 2011-2012 (Sweet & Maxwell, Compulsory Purchase and Compensation in 2013) Ireland (2nd ed; Bloomsbury Professional, • Waters, Malcolm, Retail Mortgages: Law 2013) Regulation and Procedure (Sweet & Maxwell, • Hogan, Daire and Colum Kenny (eds), 2013) Changes in Practice and Law: a Selection of • Woodroffe & Lowe, Consumer Law and Essays by Members of the Legal Profession Practice (9th ed; Sweet & Maxwell, 2013) Law Society Gazette www.gazette.ie December 2013 council report 51 briefing Law Society Council meeting 8 November 2013

The president extended a warm plomacy and good humour that the ‘double trigger’ provisions so 15 and 17 of the proposed bill for welcome to all of the newly elect- he had brought to the role. He that specific rules would apply to client confidentiality. ed and newly nominated Council had worked tirelessly to a very the notification of claims where members – Justine Carty, Paul demanding schedule and had set a firm had continuous cover with District Court Rules Keane, Aisling Kelly, Catherine a very high standard for his suc- the same insurer. Stuart Gilhooly briefed the Tarrant, Peter Groarke and Aine cessor. Mr Shaw looked forward Council on a meeting of Society Hynes. to working with the incoming Motion: Solicitors (Compensa- representatives with the District vice-presidents, Kevin O’Higgins tion Fund) Regulations 2013 Court Rules Committee to discuss Taking of office and Michael Quinlan, and with “That this Council approves the So- amendments to the rules arising Outgoing President James Ken Murphy and the staff of the licitors (Compensation Fund) from the impending increased McCourt thanked the Council for Law Society to progress the rec- Regulations 2013.” jurisdiction of the District Court, their unstinting support and en- ommendations of the report of Proposed: Martin Lawlor including a meaningful review of couragement during the previous the Future of the Law Society Seconded: Christopher Callan the District Court scales to reflect 12 months. He noted that the past Task Force. He welcomed the The Council approved the draft the increased complexity involved number of years had been difficult new members of the Council and regulations, which prescribe the in cases of a much higher jurisdic- for the profession, although there urged them to participate fully time limit and appropriate appli- tion. might now be some positive and in the work of the Society. He cation form where a claim is being hopeful signs of renewal. Never- thanked the Council for nomi- made on the Society’s compensa- AGM and annual report theless, issues in relation to PII, nating him as president, and he tion fund. The Council discussed a num- financial institutions, and aspects promised to do all in his power ber of initiatives to increase the of the Legal Services Regulation to ensure that their trust was not Motion: Solicitors (Delivery of level of attendance at the AGM Bill would remain on the Coun- misplaced. Documents) Regulations 2013 and the level of voting in Coun- cil’s agenda. The implementation Senior vice-president Kevin “That this Council approves the So- cil elections. Feedback in relation of the report of the Future of the O’Higgins and junior vice-presi- licitors (Delivery of Documents) to the online annual report for Law Society Task Force had com- dent Michael Quinlan then took Regulations 2013.” 2012/2013 suggested that it had menced, and he welcomed the office and expressed their com- Proposed: Martin Lawlor been received positively by the recent appointment of the new di- mitment to the Council and the Seconded: Christopher Callan profession and should be devel- rector of representation and mem- president for the coming year. The Council approved the draft oped further for future years. ber services, Teri Kelly. regulations, which prescribe the Mr McCourt thanked vice- Motion: PII (Amendment) form of notice to be used when Pay-and-file deadline presidents John P Shaw and Regulations 2013 the Society requires a solicitor to The Council noted the Govern- Stuart Gilhooly for their assistance “That this Council approves the So- deliver up the files and documents ment proposal that the pay-and- and support. He also thanked the licitors Acts 1954 to 2011 (Pro- of his/her practice. file deadline for the self-employed director general and all the staff of fessional Indemnity Insurance) should be brought forward from the Society for their courtesy and (Amendment) Regulations 2013.” Legal Services Regulation Bill 31 October to either June or Sep- kindness throughout the year. He Proposed: Stuart Gilhooly 2011 tember. The Council agreed that wished the incoming president Seconded: Michael Quinlan The Council noted the speech the change would have a devastat- and officers every success for the The Council approved the draft given by the minister at the launch ing economic impact on self-em- coming 12 months. He recorded regulations, which had been circu- of the Guide to Good Professional ployed solicitors, who would have his particular appreciation for lated. The purpose of the regula- Conduct on Monday 4 November to pay tax several months in ad- the support and commitment of tions was to (a) to amend a num- and his indication that the bill vance of receipt of payment from his wife Barbara and his children ber of definitions for clarification would resume committee stage clients, thereby impacting cash Lucy, Ally and Jeff. purposes, (b) ensure that solici- before the end of November. flow in what is a very tight lending John P Shaw was then for- tors acting as personal insolvency The Council also noted, with ap- environment. It was agreed that mally appointed as president. practitioners could avail of the proval, a submission to the minis- the Society should make an urgent He paid tribute to Mr McCourt existing PII of their firm to carry ter expressing concerns about the submission in opposition to the for the enthusiasm, energy, di- out such services, and (c) amend negative implications of sections proposal. G

Law Society Library services Wifi is Book loans • Online catalogue plus app • Enquiry service available in the Precedent service • Document delivery • Judgments alerter library. Ask at the desk for log-in Further details on any of these services are available by contacting details. the library on tel: 01 672 4843/4, email: [email protected]. 52 practice notes Law Society Gazette www.gazette.ie December 2013 briefing Practice notes Practising certificate 2014: notice to all practising solicitors It is professional misconduct and dated 1 January of that year and legal services before that date, are each solicitor’s practice already a criminal offence for a solicitor thereby operate as a qualification advised to make an application to completed. Such information will (other than a solicitor in the full- to practise from the commence- the President of the High Court include the relevant fees due by time service of the State) to prac- ment of the year. It is therefore a to have their practising certificates each solicitor, including allowance tise without a practising certifi- legal requirement for a practising backdated to 1 January 2014. for solicitors of 70 years or over, cate. A solicitor shall be deemed solicitor to deliver, or cause to be The Regulation of Practice as they will not be covered under to practise as a solicitor if he or delivered, to the Registrar of So- Committee is the regulatory com- the provisions of the Solicitors’ she engages in the provision of licitors, on or before 1 February mittee of the Society that has re- Group Life Scheme. legal services. ‘Legal services’ are 2014, an application in the pre- sponsibility for supervising com- services of a legal or financial na- scribed form correctly completed pliance with practising certificate Payment by electronic funds ture provided by a solicitor arising and signed by the applicant solici- requirements. A special meeting transfer (EFT) from that solicitor’s practice as a tor personally, together with the of the committee will be held on All practising certificate applica- solicitor. appropriate fee. The onus is on a date after 1 February 2014, to be tion forms sent out will include an It should be noted that, as set each solicitor to ensure that his decided at a later date, to consider EFT payment form. Any solicitor out in the practice note ‘Prohi- or her application form and fee is any late or unresolved applications wishing to pay the practising cer- bition on practising as a solici- delivered on or before 1 February for practising certificates. At this tificate fee by EFT must complete tor without a practising certifi- 2013. Applications should be de- meeting, any practising solicitors and return the EFT payment form cate: solicitors cannot be “legal livered to the Regulation Depart- who have not applied by the date with their practising certificate executives” or “paralegals”’, as ment of the Society at George’s of the meeting for a practising application form. Failure to do so published in the Gazette in July Court, George’s Lane, Dublin 7; certificate will be considered for will result in the application form 2009 and again in February 2012, DX 1025. referral forthwith to the Solicitors being returned as incomplete. it is not permissible for a firm to It should be noted that 1 Febru- Disciplinary Tribunal and will be Each EFT payment must have classify a solicitor employed by a ary 2014 falls on a Saturday. informed that the Society reserves an easily identifiable specific ref- firm as a ‘legal executive’ or ‘pa- Please note that any incorrectly the right to take proceedings for erence, such as the firm or com- ralegal’ with a view to avoiding completed application forms or an order under section 18 of the pany name, the solicitor’s name, the requirement to hold a prac- applications without full pay- Solicitors (Amendment) Act 2002 to or the solicitor’s number. General tising certificate, if the solicitor is ment will be considered to be in- prevent them from practising il- references such as ‘Law Society’ engaged in the provision of legal complete applications, cannot be legally. or ‘practising certificate’ will not services. processed, and will be returned. be accepted and may result in a The actions that can be taken Therefore, solicitors are strongly If you are an employed solicitor significant delay in the issuing against a solicitor found to be advised to read and take full ac- Solicitors who are employed of the practising certificate. The practising without a practising count of the practising certificate should note that it is the statutory payment reference used must be certificate include a referral to application form guidelines when obligation of every solicitor who included in the EFT form. Failure the Solicitors Disciplinary Tribu- completing the form. requires a practising certificate to to include this information will re- nal, an application to the High ensure that he or she has a prac- sult in the application form being Court, and a report to An Garda What happens if you apply late? tising certificate in force from the returned as incomplete. Síochána. Any applications for practising commencement of the year. Em- certificates that are received after ployed solicitors cannot absolve Law Directory 2014 Practising certificate 1 February 2014 will result in the themselves from this responsibil- It is intended that the Law Direc- application forms practising certificate being dated ity by relying on their employers tory 2014 will note all solicitors Application forms for solicitors in the date of actual receipt by the to procure their practising certifi- who have been issued with a prac- private practice will be forwarded Registrar of Solicitors, rather than cates. However, it is the Society’s tising certificate by 21 February to the principal or the managing 1 January 2014. There is no legal recommendation that all employ- 2014. Practising certificates can partner in each practice, rather power to allow any period of grace ers should pay for the practising only be issued following receipt of than each solicitor. Please note under any circumstances whatso- certificate of solicitors employed a properly completed application that practising certificate applica- ever. by them. It should be noted that form together with full payment, tion forms and the practising cer- Please note that, as mentioned the practising certificate remains with no outstanding queries raised tificate fees will not be available above, you cannot provide le- the property of the solicitor, re- thereon. It should be noted that until after 17 December 2013, as gal services as a solicitor without gardless of who has paid for the only those solicitors with practis- both must be approved by Coun- a practising certificate in force. practising certificate. ing certificates issued by 21 Feb- cil at its December meeting. Therefore, solicitors whose prac- ruary 2014 will be included in the tising certificate application forms Some of your details are already Law Directory, not every solicitor When you must apply are received after 1 February 2014 on the application form who has submitted an application A practising certificate must be and whose practising certificates The practising certificate appli- form by 21 February 2014. applied for on or before 1 Feb- are therefore dated after 1 Feb- cation forms will be issued with Therefore, in order to ensure ruary in each year in order to be ruary 2014, who have provided certain information relating to that your practising certificate is- Law Society Gazette www.gazette.ie December 2013 practice notes 53 briefing sues by 21 February 2014 to en- soon after 17 December 2013, tions, you should notify the So- notified the Society in writing, able you to be included in the Law which can be completed online ciety in writing with the relevant you must do so immediately, Directory, you should ensure that prior to printing a copy for sign- details before 1 February 2014: in accordance with the provi- the application form you return to ing and returning to the Soci- • You recently ceased practice or sions of section 81 of the Solici- the Society is completed correctly ety with the appropriate fee. This are intending to cease practice tors Act 1954. You should include and includes full payment of fees area is accessible using your user- in the coming year, the date you left your former due. If the form is not completed name and password. • You will not be practising in practice and the date you joined correctly, or fees have not been If you require assistance, please 2014 for any reason, including your new firm, together with the paid in full, it will be necessary visit www.lawsociety.ie/help. In unemployment, career break, name and address of the new for the Society to return the form, addition, you may request a form change of career, emigration, firm. which may result in delaying the to be emailed to you by emailing sick leave or maternity leave, Failure to provide this informa- issue of your practising certificate, [email protected]. • You will not be providing legal tion before 17 December 2013 despite the fact that you had ap- services – and will therefore may result in your practising cer- plied for the practising certificate If you did not hold a practising not be applying for a practising tificate application and informa- prior to 21 February 2014. certificate for 2013 certificate – until after 1 Feb- tion being sent to your former The details of any solicitor If you did not hold a practising ruary 2014 for any reason, in- practice, as the Society will not whose practising certificate issues certificate for 2013 and apply for a cluding unemployment, career have your up-to-date contact in- after 21 February 2014 will not practising certificate in 2014, you break, sick leave and maternity formation. be included in the Law Directory, may be required to make a ‘sec- leave. but will be included in the ‘find tion 61’ application, in accordance Acknowledgment of applications a solicitor’ search facility on the with section 49 of the Solicitors Act You should provide the Society Please note that it is not the So- Society’s website, provided the 1954 as substituted by section 61 with a current correspondence ciety’s policy to acknowledge re- solicitor is a practising solicitor. of the Solicitors (Amendment) Act address and email address to al- ceipt of application forms. If in A practising solicitor is a solici- 1994, setting out in writing how low the Society to communicate doubt that your application form tor with a current practising cer- you have kept up to date with le- with you while you are not prac- will arrive on time, or at all, send tificate and either professional gal matters since you were last is- tising. by recorded post, tracked DX or indemnity insurance in place or sued with a practising certificate. If there is any change in your courier. an exemption from holding pro- Further information on section practising status during the year, fessional indemnity insurance as a 61 applications will be available in you should immediately notify Duplicate practising certificate solicitor employee of a non-solic- the practising certificate applica- the Society in writing with the Please note that there is a fee of itor employer. tion guidance notes. relevant information to ensure €50 in respect of each duplicate that your practising status is up practising certificate issued for What can you access on the Change of practising status to date. any purpose. website (www.lawsociety.ie)? If you held a practising certifi- A blank, editable application form cate in 2013 and do not intend to Change of practice John Elliot, will be available in the members’ practise for some or all of 2014, If you have changed firms during Registrar of Solicitors and Director of area of the Law Society’s website including the following situa- the year and have not previously Regulation

Practising certificate fee waiver for solicitors participating in Skillnet, JobBridge or WPP schemes Solicitors providing legal ser- er to the Society and must meet • They are receiving no salary, tion Department and the Career vices through a work experience the following criteria: wage or other remuneration Support service of the Society initiatives, such as Skillnet, Job- • They are registered with the from the firm or organisation in writing with immediate ef- Bridge or WPP schemes, are Law Society’s Career Support providing the work experience, fect, and is liable to pay the due required to hold a current prac- service as participating in a other than that prescribed by amounts pro rata for the practis- tising certificate, just as any so- Skillnet, JobBridge or WPP the Department of Social Pro- ing certificate for the remainder licitor employed on a paid basis scheme, tection, and of the practice year. Any practis- is required. However, the Law • They are providing legal ser- • They have no contract of em- ing certificate granted under the Society has put in place an ar- vices by participating in the ployment with the firm or or- scheme must be returned at the rangement whereby solicitors Skillnet, JobBridge or WPP ganisation providing the work end of the placement. on formalised work experience scheme, experience. Solicitors seeking to avail of this schemes will be provided with • They are providing legal ser- waiver under one of the approved a practising certificate free of vices to and for the firm or The waiver, if granted, shall ap- schemes listed above should con- charge for the duration of the organisation providing the ply only so long as all of the above tact the Society’s Regulation Dep- placement. work experience through the provisions continue to apply to artment at [email protected]. The Solicitors applying for such a Skillnet, JobBridge or WPP the solicitor. If any of these provi- application for the waiver is avail- waiver must complete and return scheme only, and not to any sions cease to apply, the solicitor able for download from the mem- the relevant application for waiv- other third party, is required to notify the Regula- bers’ area of the Society’s website. 54 practice notes Law Society Gazette www.gazette.ie December 2013 briefing Succeeding practice rule professional indemnity insurance committee The purpose of this practice note that conducted the ceased prac- the principals are identical to tion or family law files, or all the is to provide guidance to the pro- tice, the principals of any partnership files of a branch office, depending fession on the succeeding practice 3) The practice is conducted by a that conducted the preceding on the context and structure of rule for the 2013/2014 indemnity sole practitioner who was the practice would be considered a the practice. However, this is not period. This information is in- sole practitioner conducting the succeeding practice. Under the an exhaustive list. Therefore, the tended as general guidance and ceased practice, previous definition, a majority, preceding practice could be bro- does not constitute a definitive 4) The practice is conducted by a rather than half or more, of the ken into a number of succeeding statement of law. sole practitioner who was one principals were required to be practices holding themselves out of the principals conducting the identical. as specific parts of the preceding Ceasing firms ceased practice, 4) The succeeding practice defi- practice. Where a firm ceases practice, valid 5) The practice is conducted by a nition was amended to include It should be noted that firms professional indemnity insurance partnership in which the sole any firm being conducted by a may take on the files of a ceased (PII) claims made against the firm practitioner conducting the sole practitioner who was one practice without being deemed to are covered in one of two ways: ceased practice is a partner and of the principals conducting the be a succeeding practice so long as 1) If the ceased firm has a succeed- where no other person has been preceding practice as a succeed- they do not meet any of the condi- ing practice or succeeding prac- held out as a successor to the ing practice. This type of firm tions in the definition of succeed- tices, the insurance of any suc- ceased practice, did not fall under the previous ing practice, including holding ceeding practice(s) covers the 6) The partnership that, or sole definition of succeeding prac- themselves out as a successor to all risk. practitioner who, conducts the tice. or part of the ceased practice. 2) If the ceased firm does not have practice has assumed the liabili- a succeeding practice or suc- ties of the ceased practice. Any firm that ceases practice on Determination of whether a firm ceeding practices, the firm en- or after 1 December 2013 will be is a succeeding practice ters the Run-off Fund, which Notwithstanding the foregoing, subject to the 2013 regulations, in- It is clear from the definition of covers the risk. a practice shall not be treated as cluding the new definition of suc- succeeding practice that the de- a succeeding practice pursuant to ceeding practice. termination of whether a firm is Whether or not a firm is a preced- conditions 2 to 6 above if another Any firm that ceased practice on or will be a succeeding practice ing practice or a succeeding prac- practice is or was held out by the or before 30 November 2013 will depends on the particular circum- tice in relation to any other firm owner of that other practice as the fall under the previous definition stances in question. While the will depend on a detailed analysis succeeding practice. of succeeding practice as set out Society will seek to assist firms in taking account of the facts of the in the 2011 regulations. Further the general definition of preceding particular case. No generalised Regulation amendments information on this definition of and succeeding practices, the So- practice guidance can be given, In the Solicitors Acts 1954 to 2011 succeeding practice can be found ciety will not and cannot provide and each case must be individually (Professional Indemnity Insurance) in the ‘other PII resources’ section advice, declaration, or ruling as to examined with reference to the (Amendment) Regulations 2013, the on the Society website at www. whether a firm would be consid- definitions of preceding and suc- definitions of succeeding practice lawsociety.ie/PII/. ered to be a succeeding practice. ceeding practice as set out in the and preceding practice have been The Society would also consider regulations. changed from the definitions set Multiple succeeding practices that it is best practice for the rel- out in the Solicitors Acts 1954 to Depending on the precise circum- evant firm to liaise with its broker Definitions 2008 (Professional Indemnity Insur- stances, more than one firm can and/or insurer with a view to as- ‘Preceding practice’ means a prac- ance) Regulations 2011 as follows: be a succeeding practice, and a certaining its views on whether the tice that has ceased and has a suc- 1) The definition of preceding number of factors may need to be firm would be considered to be a ceeding practice or succeeding practice was amended to clarify taken into account to identify the succeeding practice and to discuss practices. that a preceding practice must succeeding practices that meet the generally the impact on its PII. ‘Succeeding practice’ means a be a ceased firm. definition in the regulations. practice that satisfies any one or 2) The succeeding practice defini- For example, the definition of Further information more of the following conditions tion was amended to state that a succeeding practice refers to the Further information on the suc- in relation to another practice practice held out as being a suc- practice being held out as being a ceeding practice rule, including (with such other practice being a cessor to the ceased practice, or successor to the ceased practice or guidance on when a firm is not a preceding practice for these pur- part thereof, would be consid- any part thereof. In this context, succeeding practice, liability for poses): ered to be a succeeding practice. the ‘part’ of the practice that the files taken over, what is meant by 1) The practice is held out as being Under the previous definition, succeeding practice is being held a practice being ‘held out’ as a suc- a successor to the ceased prac- the practice had to ‘expressly’ out as a successor of may mean a cessor and how to avoid this, and tice, or part thereof, hold itself out as a successor. recognisable part of the practice, what to say to clients of the ceased 2) The practice is conducted by a 3) The succeeding practice defini- such as all the conveyancing or firm can be found in the Run-off partnership where half or more tion was amended to state that litigation or probate files, or all Fund Guidelines (2013/2014) on of the principals are identical to any firm conducted by a part- of the residential conveyancing the Society’s website at www.law- the principals of any partnership nership where half or more of or personal injury or debt collec- society.ie/PII/. Law Society Gazette www.gazette.ie December 2013 practice notes 55 briefing VAT treatment of party and party costs taxation committee The VAT treatment of party and contract or by legal aid under raise the query whether or not incurring costs that were related party costs in litigation has been a statute. If by agreement or court the winner is correctly seeking to the business and the business cause of confusion to some practi- order one side bears the other VAT recovery, and Revenue staff was entitled to full VAT recovery, tioners. This practice note is de- side’s costs, the sum involved is a should stand aside from any dis- VAT on such costs may be recov- signed, without setting out the stat- financial transaction between the putes of this nature.” ered in the normal way, notwith- utory references, to outline the VAT parties and it is not liable to VAT. • “If by agreement or court or- standing that the business has position via bullet points. The ‘winning’ solicitor will issue, der one side bears the other ceased. • Plaintiff (P) v Defendant (D). in the normal way, an invoice to side’s costs, the sum involved is • P successful in action. his own client for the value of his a financial transaction between The above summary is perhaps best • P recovering costs from D. services and the ‘losing’ solicitor the parties and it is not liable to illustrated by an example. Take the • D to pay same to P. will do likewise in relation to his VAT” that is, the payment by D scenario of P v D, where P is suc- • P’s solicitor should issue VAT in- client. If both clients are registered to P of P’s costs is seen by Rev- cessful, is awarded costs, and D is voice for services supplied to P, for VAT and the action concerned enue as a financial transaction, covered by an insurer including and accounts to Revenue for VAT a business matter, for example, a and P will not charge VAT to D indemnity for D’s legal costs. The on fees invoiced to P. disputed trade debt, each client on same. insurer instructs the solicitors who • D’s solicitor should issue VAT in- may claim input VAT invoiced • It does not mean the services act for D. P is entitled to recover voice for services supplied to D, to him on his solicitor’s services. supplied by P’s solicitors are not VAT in full on his legal costs. In this and accounts to Revenue for VAT The winner’s solicitor will have liable to VAT. scenario, P’s solicitor issues a VAT on fees invoiced to P. performed no service whatever • If D is indemnified by an insurer invoice to P and accounts for VAT • Assuming P is registered for VAT, for the loser and there can be no for P’s costs, the position re- on same. P recovers the VAT on this and the costs incurred by P relate question of the loser claiming on mains as outlined above. invoice. Thus the net cost to P is the to his VATable business, P is enti- his VAT returns for VAT other • Where a person is indemnified VAT exclusive amount invoiced by tled to recover this VAT. than that correctly invoiced to under a policy of insurance in P’s solicitor. The solicitor instructed • P should pay the VAT invoiced to him. If the ‘winning’ client is reg- respect of any amount payable in by the insurer issues a VAT invoice him to his solicitor and recover istered for VAT purposes and his respect of services of a solicitor, to D, not to the insurer, and accounts same in his VAT return. solicitor’s services are supplied for those services are deemed for the for VAT on same. VAT recovery by • D must cover the VAT exclusive business purposes, he will be able purposes of VAT legislation to D depends on whether the expense cost to P on the basis that this to claim the VAT payable to his be supplied to such person and relates to D’s VATable activities or is the actual cost to P, as P can solicitor and, in this event, there not the insurer. not. P recovers his net costs from recover the VAT on these costs should be no recovery of this VAT • It might be noted that, in the D/D’s insurer. The payment of this from Revenue. from the losing side. It is a matter context of business litigation, amount by D/D’s insurer to P has • P’s solicitor gets paid the VAT on for the losing or paying party to if a business has ceased prior to no VAT consequences. his/her fees by P and remits same to Revenue in the normal way. • However, just because P is regis- tered for VAT does not automati- Deposit moneys in conveyancing transactions cally mean P is entitled to recover Where deposit moneys in the nor- (2nd edition), “a stakeholder is a end through rescission or other- all or any of the VAT on to his mal course of a conveyancing trans- person whose duty it is to hold wise, or the deposit is forfeited solicitor’s fees. action are paid by a purchaser to a money in his hands not for one by the vendor in accordance with • The costs must relate to a VAT- vendor’s solicitor, those funds are or other of the parties to a trans- the terms of the contract. able business activity for P to be held by the vendor’s solicitor: action, but for both, until some entitled to deduct same. 1) As a trustee for the purchaser event occurs upon the happening Until a conveyancing transaction • If P is not entitled to deduct VAT pending the coming into being of of which it becomes his duty to has actually completed, it is not cer- on such costs, then the VAT a binding contract for sale (where hand over the money to one or tain that it will complete, or when thereon is a cost to P and should so requested by the purchaser). other of the parties, [for exam- it might complete, or who the ul- be recoverable from D, to be paid While holding the deposit in trust ple] to the vendor if the sale goes timate owner of deposit moneys over to P’s solicitor as part of the for the purchaser, a vendor’s solic- through or to the purchaser if it (held by a solicitor in trust or as costs. itor, as trustee for the purchaser, does not. Pending that event, he stakeholder) will be. It is therefore • P’s solicitor should clarify with cannot pay the deposit monies to must hold onto the money and never permissible for a solicitor to his/her client the position as re- the vendor or to any other party must not release it to one of the deduct fees prior to completion of gards the recoverability of VAT without the consent of the pur- parties without the consent of the a sale from deposit monies held by on costs by his/her client. chaser. other.” It is clear, therefore, that a the solicitor in any of those capaci- • The Revenue Commissioners 2) When a binding contract for vendor’s solicitor, as stakeholder ties, whether or not so authorised have commented as follows: “A sale has come into being, as for both vendor and purchaser, by the solicitor’s client. practising solicitor is remuner- stakeholder for both the vendor cannot pay the money to either ated from two sources only, that and the purchaser. According to party until the contract proceeds John Elliot, Registrar of Solicitors and is, either by his own client under Wylie’s Irish Conveyancing Law to completion, or it comes to an Director of Regulation 56 practiCe notes Law Society Gazette www.gazette.ie December 2013 briefing Registration of trusts and settlements conveyancing committee The Conveyancing Committee re- Property Registration Authority Committee would like to draw the practice direction was updated ceives many queries from practitio- (PRA). With thanks to the PRA for attention of the profession to the to include these flowcharts. ners indicating uncertainty about giving permission to republish their two flowcharts below. The ‘legal practices and proce- the procedures and forms necessary flowcharts, and acknowledging The PRA has confirmed that dures’ link on the home page to register trusts and settlements in the work of the staff of the PRA’s these charts are accessible on their will bring practitioners into the the Land Registry. The committee Training and Development Unit in website, www.prai.ie, in the practice ‘practice directions’ and ‘legal has taken the matter up with the producing them, the Conveyancing direction on trusts of lands. That office notices’.

application for registration lodged prior to 1 december 2009 (If lodged on or after 1 December 2009, see other chart) The rules and forms below are those set out in the Land Registration Rules 1972-2009

Settlement or trust Transfer or Application for Application for Application created inter vivos transmission to registration of cesser of limited for removal of or by transmission minor/infant trustees (trust for ownership description of on death where sale, charitable or ‘infant’ or ‘minor’ there is person with other trustees) the powers of life Register the minor Rule 100 tenant as full owner with Evidence prescribed the description Register trustees by rule 153 ‘infant’ or ‘minor’ as full owners with Form 64 or form 65 Register limited owner inhibition, (if such inhibition applied for) Section 101 of the Registration of Title Act 1964

application for registration lodged POST 1 december 2009 (If lodged prior to 1 December 2009, see other chart) The rules and forms below are those set out in the Land Registration Rules 2012

Transmission Transfer to Where a limited Where a limited Conversion Termination Application creating a trustees on owner is owner was of legal fee of trust where for removal trust creation of trust registered prior registered prior to tail under trustees have of description of property to 1 December 1 December 2009, section 13(3) been registered ‘infant’ or 2009 trust determines of Land and as owners ‘minor’ on vesting of Conveyancing (for example, Rule 86 Rules 52, 67 remainder in Law Reform Act ultimate and 69 Trustees can possession, 2009 remainder Evidence apply to be provided that there vested in prescribed by Forms 35 and 37 registered as are no immediate possession or rule 143 or 39 full owners estates/interests Rule 93 minor attains 18 Form 29 years of age)

Application by Rule 66 Form 45 or 46 See rules 49, remainder man Transfer from adapted 69 and 128 trustees to and form 77 person now re inhibition if Form 86 Rule 93 entitled required

Form 45 or 46 Law Society Gazette www.gazette.ie December 2013 regulation 57 briefing Solicitors Disciplinary Tribunal Notice: the high court Record no 2013 no 85 SA October 2013, it was ordered that Reports of the outcomes of Solicitors Disciplinary Tribunal In the matter of Mark Cronin, a the name of Mark Cronin, solicitor, inquiries are published by the Law Society of Ireland as provided solicitor, and in the matter of the be struck off the Roll of Solicitors. for in section 23 (as amended by section 17 of the Solicitors Solicitors Acts 1954-2011 John Elliot, (Amendment) Act 2002) of the Solicitors (Amendment) Act 1994 Take notice that, by order of the Registrar of Solicitors, High Court made on Monday 14 25 November 2013 In the matter of Brendan transaction in relation to an- MacNamara, solicitor, for- other named client in a manner merly practising as a partner that fell so far below what could a) Failed to comply expeditiously, the President of the High Court in the practice of Devitt Door- be regarded as prudent standard or within a reasonable time, or ordered that: ley MacNamara, The Valley, conveyancing practice that his at all with an undertaking given a) The respondent solicitor Roscrea, Co Tipperary, and in client obtained no title to the by him to KBC Homeloans, should be suspended from the matter of the Solicitors Acts property. b) Failed to respond adequately or practising as a solicitor until 1954-2011 [10447/DT44/10 at all to the complainant’s cor- further order, and High Court record no 2011 The tribunal made an order that respondence and, in particu- b) The respondent solicitor do 86 SA] the respondent solicitor: lar, letters dated 10 October pay to the Society the whole of Law Society of Ireland (applicant) a) Do stand censured, 2008, 3 February 2009, 27 the costs of the Society, to be Brendan MacNamara (respon- b) Pay a sum of €12,000 to the April 2009, 30 July 2009, 12 taxed in default of agreement. dent solicitor) compensation fund, November 2009, 25 February On 21 July 2011, the Solicitors c) Pay the whole of the costs of the 2010, 9 March 2010, 14 May The solicitor was subsequently Disciplinary Tribunal found the Society, including witness ex- 2010 and 10 June 2010, struck off the Roll of Solicitors on respondent solicitor guilty of mis- penses, as taxed by a taxing mas- c) Failed to respond adequately 8 July 2013 in High Court pro- conduct in his practice as a solici- ter of the High Court in default or at all to the Society’s corres- ceedings 2013 no 59SA. tor in that he: of agreement. pondence and, in particular, a) Conducted a conveyancing letters dated 21 June 2010, 12 In the matter of Adam A Suzin, transaction in relation to a The matter on appeal came before July 2010, 26 July 2010 and 17 a solicitor previously practising named client in a manner that the President of the High Court December 2010, as Adam A Suzin & Company, fell so far below what could be on 21 January 2013. The President d) Failed to respond to the Solicitors, at 6 Keons Terrace, regarded as prudent standard acceded to the Society’s appeal and Society’s correspondence, re- Longford, Co Longford, and conveyancing practice that his ordered that: sulting in the committee di- in the matter of the Solicitors client obtained no title to the 1) The name of the respondent so- recting the Society to make an Acts 1954-2008 [10064/DT168/ property, licitor be struck off the Roll of application to the High Court 10] b) Breached his solicitor’s under- Solicitors, pursuant to section 10A of the Law Society of Ireland (applicant) taking to Roscrea Credit Union, 2) The order of the tribunal cen- Solicitors (Amendment) Act 1994 Adam A Suzin (respondent c) Left his client with a liability suring the respondent solicitor (as amended by substitution), solicitor) to repay a loan and interest to and directing him to pay a sum e) Failed to comply with a direc- On 1 November 2012, the Roscrea Credit Union, notwith- of €12,000 to the compensation tion of the committee meeting Solicitors Disciplinary Tribunal standing that he obtained no fund of the Society be rescinded, of 7 September 2010, whereby found the respondent solicitor title to the property that was the 3) The respondent solicitor pay to he was directed to pay the sum guilty of misconduct in his prac- subject matter of the loan from the Society the costs of the tri- of €450 as a contribution to the tice as a solicitor in that he: the credit union, bunal and the High Court pro- Society’s costs of the investiga- a) Failed to ensure that there d) Conducted a conveyancing ceedings, to be taxed in default tion due to his failure to corre- was furnished to the Society transaction in relation to an- of agreement. spond to the Society, an accountant’s report for other named client in a manner f) Failed to attend a meeting of the year ended 31 December that fell so far below what could In the matter of Adam A Suzin, the committee on 14 December 2009 within six months of that be regarded as prudent standard a solicitor previously practising 2010, despite being required to date, in breach of regulation conveyancing practice that his as Adam A Suzin & Company, do so, 21(1) of the Solicitors’ Accounts client obtained no title to the Solicitors, at 6 Keons Terrace, g) Failed to attend a meeting of Regulations 2001 (SI 421 of property, Longford, Co Longford, and in the committee on 16 February 2001), e) Breached his solicitor’s under- the matter of the Solicitors Acts 2011, despite being required to b) Through his conduct, showed taking to Bank of Ireland in re- 1954-2008 [10064/DT102/11] do so. disregard for his statutory ob- spect of a loan of €170,000, Law Society of Ireland (applicant) ligations to comply with the f) Left his client with a liability to Adam A Suzin (respondent solici- The tribunal recommended that Solicitors’ Accounts Regulations repay a loan and interest to Bank tor) the matter be sent forward to the and showed disregard for the of Ireland, notwithstanding that On 1 November 2012, the President of the High Court and Society’s statutory obligation he obtained no title to the prop- Solicitors Disciplinary Tribunal accordingly, on 15 April 2013, in to monitor compliance with the erty that was the subject matter found the respondent solicitor High Court proceedings entitled Solicitors’ Accounts Regulations for of the loan from the bank, guilty of misconduct in his practice record no 2013 no 16 SA, Law the protection of clients and the g) Conducted a conveyancing as a solicitor in that he: Society of Ireland v Adam A Suzin, public. 58 regulation Law Society Gazette www.gazette.ie December 2013 briefing The tribunal recommended that by a taxing master of the High found the respondent solicitor The tribunal ordered that the re- the matter be sent forward to the Court in default of agreement. guilty of professional misconduct spondent solicitor: President of the High Court and in his practice as a solicitor in that a) Do stand censured, accordingly, on 15 April 2013, in In the matter of James he: b) Pay a sum of €500 to the com- High Court proceedings entitled O’Mahony, a solicitor previously a) Failed to comply with an un- pensation fund, record no 2013 no 16 SA, Law practising as James O’Mahony, dertaking furnished to a named c) Pay the whole of the costs of Society of Ireland v Adam A Suzin, Solicitors, at 16 Stoneybatter, bank, dated 23 September 2008, the Society, as taxed by a tax- the President of the High Court Dublin 7, and in the matter of in respect of his named clients ing master of the High Court ordered that: the Solicitors Acts 1954-2008 and property at Ashbourne, Co in default of agreement. a) The respondent solicitor should [4831/DT06/12] Meath, in a timely manner or at be suspended from practising as Law Society of Ireland (applicant) all, In the matter of James a solicitor until further order, James O’Mahony (respondent so- b) Failed to respond to the O’Mahony, a solicitor pre- b) The respondent solicitor do pay licitor) Society’s correspondence in a viously practising as James to the Society the whole of the On 12 March 2013 and 30 May timely manner or at all and, in O’Mahony, Solicitors, at 16 costs of the Society, to be taxed 2013, the Solicitors Disciplinary particular, the Society’s letters Stoneybatter, Dublin 7, and in in default of agreement. Tribunal sat to consider a case of 10 June 2011, 7 July 2011, the matter of the Solicitors Acts against the respondent solicitor. 19 August 2011 and 20 1954-2008 [4831/DT09/12] The solicitor was subsequently On 30 May 2013, the tribunal September 2011. Law Society of Ireland (appli- struck off the Roll of Solicitors on found the respondent solicitor cant) 8 July 2013 in High Court pro- guilty of professional misconduct The tribunal ordered that the re- James O’Mahony (respondent ceedings 2013 no 59SA. in his practice as a solicitor in that spondent solicitor: solicitor) he: a) Do stand censured, On 12 March 2013 and 30 May In the matter of James a) Failed to comply with an un- b) Pay a sum of €500 to the com- 2013, the Solicitors Disciplinary O’Mahony, a solicitor pre- dertaking furnished to a named pensation fund, Tribunal sat to consider a case viously practising as James bank, dated 5 October 2000, in c) Pay the whole of the costs of against the respondent solicitor. O’Mahony, Solicitors, at 16 respect of his named clients and the Society, as taxed by a taxing On 30 May 2013, the tribunal Stoneybatter, Dublin 7, and in property at Cabra, Dublin 7, in master of the High Court in de- found the respondent solicitor the matter of the Solicitors Acts a timely manner or at all, fault of agreement. guilty of professional misconduct 1954-2008 [4831/DT05/12] b) Failed to respond to the in his practice as a solicitor in that Law Society of Ireland (applicant) Society’s correspondence in a In the matter of James he: James O’Mahony (respondent timely manner or at all and, in O’Mahony, a solicitor previously a) Failed to comply with an un- solicitor) particular, the Society’s letters practising as James O’Mahony, dertaking furnished to a named On 12 March 2013 and 30 May of 10 June 2011, 7 July 2011, Solicitors, at 16 Stoneybatter, bank, dated 9 January 2003, in 2013, the Solicitors Disciplinary 19 August 2011 and 20 Dublin 7, and in the matter of respect of his named clients and Tribunal sat to consider a case September 2011. the Solicitors Acts 1954-2008 property at Inchicore, Dublin against the respondent solicitor. [4831/DT08/12] 8, in a timely manner or at all, On 30 May 2013, the tribunal The tribunal ordered that the re- Law Society of Ireland (applicant) b) Failed to respond to the found the respondent solicitor spondent solicitor: James O’Mahony (respondent so- Society’s correspondence in a guilty of professional misconduct a) Do stand censured, licitor) timely manner or at all and, in in that he: b) Pay a sum of €500 to the com- On 12 March 2013 and 30 May particular, the Society’s letters a) Failed to comply with an under- pensation fund, 2013, the Solicitors Disciplinary of 10 June 2011, 7 July 2011, taking furnished to a complain- c) Pay the whole of the costs of Tribunal sat to consider a case 19 August 2011 and 20 ant, dated 8 November 2007, in the Society, as taxed by a taxing against the respondent solicitor. September 2011. respect of his named clients and master of the High Court in de- On 30 May 2013, the tribunal property in Glasnevin, Dublin fault of agreement. found the respondent solicitor The tribunal ordered that the 9, in a timely manner or at all, guilty of professional misconduct respondent solicitor: b) Failed to respond to the In the matter of James in his practice as a solicitor in that a) Do stand censured, Society’s correspondence in a O’Mahony, a solicitor previously he: b) Pay a sum of €500 to the com- timely manner or at all and, in practising as James O’Mahony, a) Failed to comply with an un- pensation fund, particular, the Society’s letters Solicitors, at 16 Stoneybatter, dertaking furnished to a named c) Pay the whole of the costs of of 10 June 2011, 7 July 2011, 19 Dublin 7, and in the matter of bank, dated 16 June 2006, in the Society, as taxed by a tax- August 2011 and 20 September the Solicitors Acts 1954-2008 respect of his named clients ing master of the High Court 2011. [4831/DT07/12] and property in Dublin 15 in a in default of agreement. Law Society of Ireland (applicant) timely manner or at all, The tribunal ordered that the James O’Mahony (respondent b) Failed to respond to the In the matter of James respondent solicitor: solicitor) Society’s correspondence in a O’Mahony, a solicitor pre- a) Do stand censured, On 12 March 2013 and 30 May timely manner or at all and, in viously practising as James b) Pay a sum of €500 to the com- 2013, the Solicitors Disciplinary particular, the Society’s letters O’Mahony, Solicitors, at 16 pensation fund, Tribunal sat to consider a case of 10 June 2011, 7 July 2011, Stoneybatter, Dublin 7, and in c) Pay the whole of the costs of the against the respondent solicitor. 19 August 2011 and 20 the matter of the Solicitors Acts Law Society of Ireland, as taxed On 30 May 2013, the tribunal September 2011. 1954-2008 [4831/DT10/12] Law Society Gazette www.gazette.ie December 2013 regulation/legislation update 59 briefing Law Society of Ireland (applicant) Customs House Harbour, IFSC, Society, as taxed by a taxing mas- Tribunal sat to consider a case James O’Mahony (respondent Dublin 1, in a timely manner or ter of the High Court in default against the respondent solicitor. solicitor) at all, of agreement. On 24 July 2013, the tribunal On 12 March 2013 and 30 May b) Failed to respond to the found the respondent solicitor 2013, the Solicitors Disciplinary Society’s correspondence in a In the matter of Jeremy Paul guilty of misconduct in his prac- Tribunal sat to consider a case timely manner or at all and, in O’Reilly, a solicitor previously tice as a solicitor in that he failed against the respondent solicitor. particular, the Society’s letters practising as JP O’Reilly & to ensure there was furnished On 30 May 2013, the tribunal of 10 June 2011, 7 July 2011, Company, Solicitors, Church to the Society a closing ac- found the respondent solicitor 19 August 2011 and 20 Street, Ballyconnell, Co Cavan, countant’s report as required by guilty of professional misconduct September 2011. and in the matter of the So- regulation 26(2) of the Solicitors’ in his practice as a solicitor in that licitors Acts 1954-2011 [10298/ Accounts Regulations 2001 (SI no he: The tribunal ordered that the re- DT139/12] 421 of 2001) in a timely manner a) Failed to comply with an un- spondent solicitor: Law Society of Ireland (applicant) or at all, having closed his prac- dertaking furnished to Bank of a) Do stand censured, Jeremy Paul O’Reilly (respondent tice on 16 March 2010. Ireland Mortgages, dated 23 b) Pay a sum of €500 to the com- solicitor) The tribunal ordered that the January 2007, in respect of his pensation fund, On 14 March 2013 and 24 July respondent solicitor do stand ad- named clients and property at c) Pay the whole of the costs of the 2013, the Solicitors Disciplinary vised and admonished. G

Legislation update 8 October – 11 November 2013 Details of all bills, acts and statutory instruments since 1997 Commencement: Commence- words – that is, where the lyricist are on the library catalogue – www.lawsociety.ie (members’ and ment order(s) to be made as per and the composer are different s1(2) of the act. persons. students’ areas) – with updated information on the current stage a Commencement: 1/11/2013 bill has reached and the commencement date(s) of each act. All selected statutory recent bills and acts (full text in PDF) are on www.oireachtas.ie instruments Rules of the Superior Courts and recent statutory instruments are on a link to electronic European Union (Term of (Winding-up of Companies: statutory instruments from www.irishstatutebook.ie Protection of Copyright and Forms) 2013 Certain Related Rights) Number: SI 395/2013 Industrial Development Ireland) 2003, amends the Science (Directive 2011/77/EC) Substitutes forms 3 and 4 in ap- (Science Foundation Ireland) and Technology Act 1987, amends Number: SI 411/2013 pendix M (petition by unpaid (Amendment) Act 2013 the Industrial Development Act Transposes Directive 2011/77/ creditor on simple contract debt Number: 36/2013 1993, amends the Industrial De- EU, amending Directive 2006/ and petition for order where the To extend the remit of Science velopment Act 1986, amends the 116 by extending the term of powers of the directors are being Foundation Ireland to enable it Freedom of Information Act 1997, copyright for performers and for exercised in a manner oppressive to fund applied research in addi- and provides for connected mat- producers of sound recordings to a member, respectively) to in- tion to its existing remit to fund ters. from 50 to 70 years. Introduces corporate in those forms a full oriented basic research. Oriented Commencement: Commence- new measures to benefit per- listing of the recitals required to basic research is an internation- ment order(s) to be made as per formers in sound recordings in facilitate the operation of Coun- ally recognised category of re- s11(3) of the act. the later stages of their career, cil Regulation 1346/2000 on in- search and is defined as research such as a 20% fund for session solvency proceedings. that is carried out with the ex- Taxi Regulation Act 2013 musicians to obtain additional Commencement: 11/11/2013 pectation that it will produce a Number: 37/2013 payments during the extended 20 broad base of knowledge likely Provides for the revision of the year term; a provision whereby Rules of the Superior Courts to form the basis of the solution regulation of the small pub- performers can reclaim their (Payments into Court) 2013 to recognised or expected cur- lic service vehicle industry and rights from producers if, in the Number: SI 396/2013 rent or future problems or possi- for those purposes provides for extended period, a record com- Amends order 22, rule 7 and rule bilities. Applied research, on the mandatory disqualification for pany does not market a record- 14(3) of the Rules of the Superior other hand, is research directed drivers of small public service ing; and a ‘clean slate’ provision, Courts to remove the need for primarily towards a specific prac- vehicles convicted of certain of- whereby producers will not be reference in a defence or replying tical aim or objective. Also makes fences and a demerit scheme re- entitled to make deductions from affidavit to a payment into court provision for a new function to lating to drivers of small public the contractual royalties due to having been made and applying enable the foundation to pro- service vehicles, repeals the Taxi featured performers during the such provisions to a tender offer mote and support awareness and Regulation Act 2003 and section extended term of protection. as they apply to a lodgment. understanding of science, tech- 84 of the Road Traffic Act 1961, The regulations also implement Commencement: 11/11/2013 G nology, engineering and math- amends part 3 of the Road Traf- harmonised rules governing the ematics. Amends the Industrial fic Act 2010, and provides for re- term of protection of copyright Prepared by the Development (Science Foundation lated matters. in musical compositions with Law Society Library 60 eurlegal Law Society Gazette www.gazette.ie December 2013 briefing Eurlegal Edited by TP Kennedy, Director of Education Making its mark: the Construction Products Regulation The EU Construction Products Reg- ulation (CPR), which became fully operational on 1 July 2013, aims to lay down harmonised conditions for the marketing of construction products in the EU. It repeals the Construction Products Directive (CPD) (89/106/EEC), which had the same aims of overcoming tech- nical barriers to trade that arise where different countries have dif- ferent standards and approaches to the same products. The CPR has replaced the CPD in order to simplify and clarify the framework put in place by the CPD and to im- prove the transparency and effec- tiveness of the existing measures. The CPR aims to do this by using four key instruments: • A system of harmonised techni- cal specifications, • An agreed system of conformity assessment, • A framework of notified bodies, and • The use of the CE marking. Where a product is not covered by a hEN, this may lead to an ETA for that product

While these instruments are not Organisation for Technical Ap- Conformity assessment laboratories approved by member new, the CPR introduces some provals, which may lead to the The system of assessment and states for these purposes and then new requirements that will create issue of a European technical as- verification of constancy of per- notified to the commission and new obligations for manufacturers, sessment (ETA) for that product. formance will involve third par- other member states. importers and distributors when Both hENs and ETAs will form ties assessing the conformity of placing a construction product on the basis for harmonised technical a product to the relevant techni- CE marking the market. It also has implica- specifications. cal specification. The system(s) From 1 July 2013, all construc- tions for designers, specifiers and The harmonised technical will be agreed collectively by the tion products placed on the in- builders, as they must understand specifications provide EU-wide member states and the commis- ternal market that are covered the new requirements and marking methods of assessing and declar- sion, and this will be decided on by a hEN or an ETA (subject to regime in order to assess whether ing all the performance character- the basis of the implications of the certain exceptions) must be ac- certain products are appropriate istics that affect the ability of con- product on health and safety and companied by a declaration of for their intended use. struction products to meet seven on the particular nature and pro- performance (DOP) and have the basic requirements: duction process for the product. CE marking. Harmonised specifications • Mechanical resistance and A DOP is produced by the man- Under the CPR, harmonised stan- stability, Notified bodies ufacturer and provides informa- dards will be established (hENs), • Safety in case of fire, Notified bodies are those bodies tion about the essential character- which will provide the methods • Hygiene, health and that are considered competent istics of the product based on the and the criteria for assessing the environment, to carry out the conformity as- relevant technical specification(s). performance of construction prod- • Safety and accessibility in use, sessment tasks under an agreed In making a DOP, the manufac- ucts in relation to their essential • Protection against noise, system of assessment and verifica- turer assumes legal responsibility characteristics. Where a product • Energy economy and heat tion of constancy of performance. for the conformity of the product is not covered by a hEN, Euro- retention, and These can include product certi- with its declared performance. pean assessment documents may • Sustainable use of natural fication bodies, factory produc- Once the CE mark is affixed to be produced by the European resources. tion control certifiers, and testing the product, this indicates that Law Society Gazette www.gazette.ie December 2013 eurlegal 61 briefing the product is consistent with its Health and safety signed and constructed so that they as such, end users such as construc- DOP. It is important to note that In the context of the CPR, it is can be used safely and without risk tion professionals and contractors the CE mark is not a quality mark, worth highlighting section 16 of to health at work. Further, suppliers should be cognisant that their du- and it does not necessarily mean the Safety, Health and Welfare at must provide relevant information ties remain in respect of the specifi- that the product will be suitable Work Act 2005. This creates gen- to the person to whom the product cation, application and use of con- for end uses in all member states. eral duties for all designers, manu- is supplied, which must include in- struction products. Member states Member states are free to set facturers, importers, and suppli- formation on safe installation, use, are free to set their own minimum their own minimum requirements ers of articles and substances and maintenance, cleaning, dismantling requirements on the performance on the performance of building makes specific reference to the and disposing of the product. of building works and construction works and construction products obligation to comply with any The CPR will entail new obliga- products incorporated into such incorporated into such works. relevant EC directives. Notwith- tions for manufacturers and suppli- works, and end users must ensure Therefore, the responsibility for standing the provisions of the ers in relation to the information that construction products comply ensuring that a particular product CPR, designers, manufacturers, supplied with construction products with these requirements. has the correct characteristics for importers and suppliers of con- and in respect of CE marking. The a particular application rests with struction products in Ireland will fundamental tenet of the CPR is to Martin Cooney is an associate with the designers, contractors, and lo- have to ensure that they are, so far remove barriers to trade for such the Construction and Engineering cal buildings authorities. as is reasonably practicable, de- products within the EU market and, Group of Arthur Cox. Recent developments in European law litigation case. Shortly afterwards, Lami- were all dismissed. Laminorul Such an interpretation would al- Case C-59/12, Salzgitter Man- norul initiated new proceedings then sought to enforce this judg- low the court in the member state nesmann Handel GmbH v SC against Salzgitter before the same ment in Germany. in which recognition is sought to Laminorul SA, 26 September court for the same cause of action. Article 34(4) of the Brussels I substitute its own assessment for 2013 Proceedings were served on its le- Regulation precludes the enforce- that of the court in the member Laminorul is established in Roma- gal representative, whose author- ment of two irreconcilable judg- state of origin. Choosing which nia. It brought an action against ity to act for the company had ments. The CJEU was asked to judgment to enforce amounts Salzgitter (a German company) been limited, according to Sal- rule whether it could apply to to reviewing the substance of a seeking payment for a delivery of zgitter, to the first proceedings. two irreconcilable judgments judgment – this is expressly ex- steel products in the Romanian No one appeared on Salzgitter’s given by courts of the same mem- cluded by article 45(2) of the courts. Salzgitter argued that suit behalf before the local court and ber state. It held that to interpret regulation. Such a possibility of should have been brought against Laminorul obtained a judgment article 34(4) as applying to irrec- review as to the substance would the actual party to the contract, in default for €188,330. Salzgit- oncilable judgments given in the be an additional means of redress Salzgitter Mannesmann, rather ter made a number of applications same member state is inconsis- against a judgment that has be- than against it. On this basis, the in Romania to review or set aside tent with the principle of mutual come final in the member state Romanian court dismissed the the second judgment, and these trust between EU member states. of origin. G

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Contact us at 1800 882 231 and mention “LAWSOC” for a 30-day trial. 62 Professional notices Law Society Gazette www.gazette.ie December 2013 notices

wills Rates Boosey, Betty (deceased), late of Keernaun, Headford, Co Galway, Professional notice rates who died on 4 February 2004. rates in the Professional notices section are as follows: Would any person having knowl- edge of a will made by the above- • Wills – €147 (incl VAT at 23%) named deceased or if any firm is • Title deeds – €294 per deed (incl VAT at 23%) holding same, please contact Hig- • Employment/miscellaneous – €147 (incl VAT at 23%) gins Chambers & Flanagan, So- licitors, Headford, Co Galway; tel: Highlight your notice by putting a box around it – €33 extra 093 35656, fax: 093 35741, email: [email protected] All notices must be paid for prior to publication. Cheques should be made payable to Law Society of Ireland. Deadline for Jan/Feb 2014 Gazette: 22 Jan 2014. For Carey, Patrick (deceased), late of further information, contact the Gazette office on tel: 01 672 4828 (fax: 01 672 4877) 36 Convent Street, Listowel, Co Kerry, who died on 29 November 1987. Would any person having Tipperary; tel: 0505 22155/22747, Jennings, Stephen Noel (de- low. Would any person having knowledge of a will made by the fax: 0505 22747, email: law@ ceased), late of 8 Dufferin Ave- knowledge of a will made by the above-named deceased please con- mjbreensolicitors.ie nue, South Circular Road, Dublin above-named deceased, who died tact Maura E Hennessy & Co, 12 8, formerly of 4 Roseville Terrace, on 3 September 2013, please con- Edward Street, Tralee, Co Kerry Hooks, James Francis (deceased), Dundrum, Dublin 14, and also tact Pauline O’Toole & Co, So- (ref: MH/1739); tel: 066 712 8700, late of Knockfarnaught, otherwise formerly of 39 Merville Avenue, licitors, Main Street, Carnew, Co fax: 066 712 7541, email info@ Cashel, Lahardane, Ballina, Co Stillorgan, Co Dublin, who died Wicklow; tel: 053 942 3596, fax: hennessysolicitors.ie Mayo. Would any person having any on 25 August 2013. Would any 053 942 3598, email: info@otoole knowledge of the whereabouts of person having knowledge of any solicitors.com Greene, Laurence P (deceased), any will made by the above-named will executed by the above-named late of Ivy Nook, Roscrea, Co Tip- James Francis Hooks, who died on 8 deceased please contact Patrick J Purdue, Francis (deceased), late perary. Would any person having July 2012, please contact Mr James Neilan and Sons, Solicitors, Golf of 34 Watermill Park, St Anne’s, knowledge of any will made by Cahill, Cahill & Cahill, Solicitors, Links Road, Roscommon; DX Raheny, Dublin 5. Would any the above-named deceased, who Ellison Street, Castlebar, Co Mayo; 90 004 Roscommon; tel: 090 662 person having knowledge of a will died on 3 September 2013, please DX 33002 Castlebar; tel: 094 902 6115, fax: 090 662 6990, email: made by the above-named de- contact Michael J Breen & Co, So- 5500, fax: 094 902 5511, email: [email protected] ceased, who died on 13 September licitors, Main Street, Roscrea, Co [email protected] 2009, please contact Gwen Bowen Kelly, Michael (deceased), late of Bowen & Co, Solicitors, Pound of Clooncallow, Ballymahon, Co Street, Sixmilebridge, Co Clare; Longford, who died on 29 July tel: 061 713 767, email: gwen@ 2013. Would any person hav- legalsupportservices.ie solicitorlink ing knowledge of a will made by this deceased please contact NJ Roberts, Daniel (deceased), late Downes & Co, Solicitors, Domi- of Charter Road, Corrig, Stradbal- nick Street, Mullingar, Co West- ly, Co Laois. Would any solicitor meath; tel: 044 93 48646, fax: holding or having knowledge of 044 93 43447, email: jwallace@ a will made by the above-named njdownes.ie deceased, who died on 20 October 2013, please contact Rollestons, Killen, Patricia, (deceased), late Solicitors, 4 Wesley Terrace, Port- of 9 Seafield Court, Malahide, Co Dublin. Would any person having Free, online Solicitor Link knowledge of any will made by Is your client interested forum for solicitors to: the above-named deceased, who in selling or buying a • Advertise anonymously their interest died on 16 February 2000, please in buying, selling, merging practice or contact Devaney & Partners, So- 7-day liquor licence? sharing overheads. licitors, Main Street, Malahide, • Browse the entries of registered members. Co Dublin; DX 107003 Malahide; If so, contact Liquor • Contact colleagues by email who have listed tel: 01 845 1212, fax: 01 845 2880, Licence Transfers something of interest. email: [email protected] Contact Visit www.lawsociety.ie/solicitorlink Nolan, Marie (deceased), late 0404 42832 of Mill Lane, Carnew, Co Wick- Law Society Gazette www.gazette.ie December 2013 Professional notices 63 notices

laoise, Co Laois; tel: 057 862 1329, 2) Act 1978 and in the matter of of lease dated 13 March 1935 and email: [email protected] an application by Sheila Norton made between Esther Barron of the Dublin West/Northwest Re: nos 4 and 4A Rosedale Terrrace, one part and Patrick J Bermingham Solicitor’s practice Wall, John Joseph (deceased), Lower Clanbrassil Street, Dublin 8, of the other part for a term of 200 for Sale late of Clatterstown, Garristown, and no 7 Rosedale Terrace, Lower years from 24 June 1871, subject to Co Dublin. Would any person Clanbrassil Street, Dublin 8, and the yearly rent of £20 thereby re- Located less than ten having knowledge of the where- which said application is being served, should give notice of their minutes from the M50. abouts of any will made by the made on behalf of Sheila Norton interest to the undersigned. General practice, with above-named deceased, who died of Tinode, Main Street, Blessington, Further take notice that the ap- plaintiff personal injury on 12 November 2013, please Co Wicklow. plicant intends submitting an ap- litigation, conveyancing, contact Smyth & Son, Solicitors, Take notice that any person hav- plication to the county registrar wills and probate. All Rope Walk, Drogheda, Co Louth; ing any interest in the freehold es- for the city of Dublin for acquisi- applications of interest will ref: PRS/SS/OBR039/001; email: tate of the properties now known as tion of the freehold interest in the be treated in the utmost [email protected] no 4 (comprising 4 and 4A) and no aforesaid properties, and any party confidence. 7 Rosedale Terrace, Lower Clan- asserting that they hold a supe- miscellaneous brassil Street, Dublin 8, being part rior interest in such properties are Please reply to box Westside Bookkeeping Services of the premises more particularly called upon to furnish evidence of no 01/12/13 Need a bookkeeping/accounting described as “all that and those the the title to the same to the below Service? Check out our website, seven dwellinghouses with gardens signed within 21 days from the date ate on the basis that the person or www.westsidebookkeeping.ie. attached thereto, six in rear and one of this notice. persons beneficially entitled to the Specialising in all aspects of in front thereof, situate on the east In default of notice as referred to superior interests including the solicitors’ book-keeping/accounts/ side of Lower Clanbrassil Street above being received, the applicant freehold reversionary in the said payroll. Experienced person- (formerly New Street) in the par- intends to proceed with the appli- premises are unknown or unascer- nel available on a contract basis ish of St Peter and barony of St cation before the county registrar tained. – on site. Excellent references Sepulchres, formerly in the county at the expiry of the said period of Date: 6 December 2013. available. Contact Michelle but now in the city of Dublin, num- 21 days and will apply to the county Signed: Joe Clancy Solicitors (solicitors Ridge; tel: 087 293 0347, email: bered in the said street respectively registrar for the city of Dublin for for the applicant), Main Street, Rath- [email protected] twenty eight and a half, twenty such directions as may be appropri- farnham, Dublin 14 nine thereof, thirty one, thirty two, Considering retirement or go- thirty three, and thirty four (late recruitment ing part time? If you are interest- sixty eight, sixty nine, seventy, sev- ed in selling your practice, please enty one, seventy two and seventy NOTICE TO THOSE PLACING RECRUITMENT contact sconnolly@moranryan. three New Street) with the passage ADVERTISEMENTS IN THE LAW SOCIETY GAZETTE com in strictest confidence to the rear of said houses adjoin- Please note that, as and from the August/September 2006 issue ing the said house number twenty of the Law Society Gazette, NO recruitment advertisements will title deeds nine Lower Clanbrassil Street (late be published that include references to years of post-qualification In the matter of the Landlord in New Street)”, in the parish of St experience (PQE). The Gazette Editorial Board has taken this and Tenant Acts 1967-2005 and Peter and barony of St Sepulchres decision based on legal advice, which indicates that such references in the matter of the Landlord and city of Dublin, being part of the may be in breach of the Employment Equality Acts 1998 and 2004. and Tenant (Ground Rents) (No premises described by indenture job-seekers’ legal register vacancies For Law Society members seeking a solicitor position, For Law Society members to advertise for all their full-time, part-time or as a locum legal staff requirements, not just qualified solicitors Log in to the members’ register of the Law Society Visit the employment section on the Law Society website, www.lawsociety.ie, to upload your website, www.lawsociety.ie, to place an ad or CV to the self-maintained job seekers contact employer support by email on register within the employment [email protected] section or contact career or tel: 01 672 4891. You support by email on can also log in to the members’ [email protected] or area to view the job seekers tel: 01 881 5772. register. 64 captain’s blawg Law Society Gazette www.gazette.ie December 2013

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

Man banned from every pub in city

A man has been banned from every pub in Dublin after running into a bar while trying to avoid gardaí, reports the Evening Herald. David Lee (30) struck a pursuing garda over the head with an object he picked up off a bar table. He knocked over tables and stools after he and a garda got into a struggle. Lee was ordered by a judge to stay out of every pub in the Dublin area for the next 12 months. Judge Alan Mitchell also imposed a four-month Man alive! The walking dead appear in court sentence suspended for one An Ohio judge has ruled that a However, Judge Allan Davis said But the three-year time limit year. Lee admitted before man who appeared in court is Miller is still legally dead because on the death ruling is clear, Swords District Court to legally dead, TheCourier.com reports. a death ruling cannot be changed Davis said. “I don’t know where threatening and abusive Donald Miller Jr was declared after three years have passed. that leaves you, but you’re still behaviour and assaulting the dead in 1994, eight years after he Miller’s former wife opposed his deceased as far as the law is garda. disappeared from his home. application. She has been receiving concerned.” Miller, 61, told the court he was social security death benefits for an alcoholic and left town because her children and says she can’t he lost his job and was unsure what afford to repay the money. Calling Captain Justice! to do. He wants to reverse the “We’ve got the obvious here,” In a recent case in Tennessee, Accused should be referred to death ruling so he can get a driver’s said the judge. “A man sitting in assistant district attorney general primarily as the ‘Defender of license and reinstate his social the courtroom, he appears to be Tammy Rettig asked the judge to the Innocent’. This title seems security number. in good health.” make the defence attorney stop particularly appropriate, because calling her ‘the government’, every Citizen Accused is presumed claiming that the term was innocent. Alternatively, counsel derogatory and prejudicial. She would also accept the designation Mistaken identity pays off suggested the alternative title of ‘Guardian of the Realm’. In 2008, Kimberly Fossen was told and wearing prison garb. ‘General Rettig’. “Further, the Citizen that she had been a victim of identity Fossen was released a few In a formal written motion, Accused humbly requests an theft by an officer from the Clackamas hours after her arraignment. She defence lawyer Drew Justice appropriate military title for his County sheriff’s office: a woman brought a false imprisonment civil (really) responded with alternate own representative, to match arrested in Las Vegas had a Florida suit against the county and was acceptable terms for their side. that of the opposing counsel. driver’s license in Fossen’s name. awarded $105,000. First, the defendant should be Whenever addressed by name, But in 2009, police came to her referred to by his full name. the name ‘Captain Justice’ will be home again, to arrest her on a New “Alternatively, he may be called appropriate. While less impressive York warrant charging her with theft. simply ‘the Citizen Accused’. This than ‘General’, still, the more Knowing that her identity had been latter title sounds more respectable humble term seems suitable. stolen, Fossen asked the officers to than the criminal ‘defendant’. The After all, the Captain represents run her fingerprints to confirm that designation ‘that innocent man’ only a Citizen Accused, whereas she was not the woman they sought, would also be acceptable. the General represents an The Oregonian reports. Instead, “Moreover, defence counsel entire state.” they took her to jail, where she does not wish to be referred to as Read more at www. spent the night before being publicly a ‘lawyer’, or a ‘defence attorney’. loweringthebar.net/2013/11/ arraigned the next day, shackled Rather, counsel for the Citizen captain-justice.html. G

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Recognising talent’s one thing...

Recognisingfinding the truly talent’s successful one thing... findingfit is another the truly successful fit is another Talk to the Irish Legal Recruitment Specialists

Talk to the Irish Legal Recruitment Specialists A SELECTION OF POSITIONS FOR NOVEMBER 2008

PRIVATE PRACTICE € Asset Finance - Associate to SeniorA SELECTION Associate OF to € 100kPOSITIONS J00351 Pensions FOR – NOVEMBER Senior Associate to Partner 2008 level Neg J00183 A firstnew rate year solicitor beckons is being sought and forwe the have large andsignificant successful Asset fresh Finance CommercialOur client, Property:one of Ireland’s Senior leading Associate law firms, to Partner is seeking level an experienced PRIVATEGroup of this PRACTICE Big 5 firm. The Group has unrivalled expertise in asset finance, A leadingPensions Dublin Solicitor based to join lawan expanding firm is team.seeking As parta very of theexperienced pensions team you opportunitiesspecialising in aircraft for and practitioners big ticket leasing across matters. many The Grouppractice has an will be involved in general advisory work for companies and trustees and Commercial Property solicitor. 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Finance You Ourand client, draft onecomplex of Ireland’s documentation leading and,law duefirms, to youris seeking previous an experience, experienced will and personality to market the firm’s services to existing and Groupfollowingwill ofcurrently this Big be are5 workingfirm. examples The in Groupasset financehasof theunrivalled or rolesin general expertise our banking clients in asset or commercial finance,are Pensionsrequire Solicitorlimited supervision. to join an expanding This opportunity team. As is parta very of client-facingthe pensions role team with you lots potential clients whilst leveraging their own contacts/clients. specialisingseekinglaw and ininterested toaircraft fill. and in Please developingbig ticket make leasingan expersure matters.tise to invisit Thethis Groupourarea. hasAttractive an willof be responsibility involved in generaland excellent advisory career work forprospects. companies First-rate and trustees remuneration and extensiveremuneration and enviable package domestic on offer. and international client base, including foreign pensionspackage, support commensurate in corporate with transactions. experience. You will be required to advise on website for other positions. and draft complex documentation and, due to your previous experience, will and domestic aircraft owners, lessors and a range of financial institutions. You Insolvency:Projects – Associate to to Senior Senior Associate Associate level to €100k J00288 Commercial Litigation/Professional Indemnity – require limited supervision. This opportunity is a very client-facing role with lots will currently be working in asset finance or in general banking or €commercial OurThis client’s top-flight restructuring Dublin law firm team seeks works to recruit with aa widesolicitor client to join base its expanding Associate to Senior Associate Neg J00292 of responsibility and excellent career prospects. First-rate remuneration law Thisand highly interested regarded in UKdeveloping law firm recently an exper openedtise anin office this inarea. Dublin’s Attractive City Centre includingProjects debtors,Team. The financial work in theinstitutions, group is challenging,secured creditors, multi-disciplinary and Banking/Financial Services: Recently Qualified to package, commensurate with experience. remunerationand is now packageseeking an on experienced offer. Litigator to join the team. The team handles unsecuredvaried, and creditors, as a member investor of the committees,team, you will provide insolvency legal services to project Assistant level Commercialdefence ofLitigation/Professional all types of claims againstIndemnity professionals – of various disciplines practitioners,Projectssponsors, – Associate contractors, equity to holders Senior funders Associateand and management. other financial Theinstitutions. toteam €100k You J00288will be a AssociateOurincluding client to accountants,Senior is a top-flight Associate engineers, Dublin architects, law firm. surveyors, Candidates financial€Neg will advisors J00292need and advisesThisbright, top-flight on ambitious all Dublin sizes solicitorlaw and firm complexities withseeks a tokeen recruit ofinterest engagements. a solicitor in this topractice join You its expandingarea. Highly Thistosolicitors, highly exhibit regarded mainlyexcellent UK over law academics contractualfirm recently anddisputes opened communication anand office allegations in Dublin’s skills. of City professional Centre willProjectscompetitive have Team. strong salary The exposure workand benefits in tothe restructuring grouppackage. is challenging, issues coupledmulti-disciplinary and Applicants must have strong exposure to Banking/Financial varied, and as a member of the team, you will provide legal services to project andnegligence. is now seeking You anwill experienced have solid Litigatorlitigation toexperience, join the team. ideally The with team exposure handles to withSenior good Tax negotiating Practitioner skills. €Neg J00291 sponsors, contractors, funders and other financial institutions. You will be a defenceservicesinsurance, of all work construction types during of claims and their ADR. againsttraining You willprofessionals contract. also have good of various communication disciplines skills An opportunity has arisen for an ambitious practitioner to establish a Tax bright, ambitious solicitor with a keen interest in this practice area. Highly includingand commercial accountants, awareness engineers, as architects, well as surveyors,the ability financialto work advisorsunder minimal and Department at this highly successful Dublin-based law firm. You will advise solicitors,Corporate/Commercial:supervision. mainly Competitive over contractual remuneration,Recently disputes Qualified andcommensurate allegations to Assistant ofwith professional experience. level Commercialcompetitive salary Litigation: and benefits Associate package. to Senior Associate level Weclients have ona number a broad range of openings of issues, for including high calibre stamp solicitorsduty planning, required corporate negligence.Our client You is will a leading have solid Irish litigation legal practiceexperience, with ideally a first with classexposure€ client to Seniortax planning, Tax Practitioner compliance and advisory services for Irish and€Neg international J00291 Energy – Associate to Senior Associate Neg J00195 for leading practices whose client bases range from individuals insurance,base.This top-flight Inconstruction addition Dublin to andlaw high ADR.firm calibre seeks You will toacademics, alsorecruit have a goodsolicitor applicants communication to join willits expanding have skills Ancompanies, opportunity hascorporate arisen forfinance, an ambitious corporate practitioner restructuring, to establish mergers, a Tax and domestic financial institutions to international plcs. andtrainedEnergy commercial Department. with aawareness firm You recognised willas bewell advising asfor theits on abilityexpertise significant to workin energy this under field.projects minimal in the Departmentdemergers, at acquisitions, this highly successful joint ventures, Dublin-based MBOs, floatations, law firm. securitiesYou will advise issues supervision.Irish market Competitive and in legal andremuneration, regulatory issues commensurate relevant to the with energy experience. sector. You Candidatesclientsand equityon a broad mustofferings, range be working revenue of issues, withlitigation including a highly and stamp settlement regarded duty planning, negotiations law firm corporate and tax EnergyCommercialwill have – Associate experience Property: to Seniorof dealing Assistant Associate with all levelaspects of energy law €fromNeg exploration, J00195 andtaxplanning planning,have experience and compliance advisory of services anddealing advisory relating with services ato variety cross borderfor of challengingIrish transactions. and international and You will ThisAdevelopment top-flighttop ranked Dublin and law production,law firm firm requiresseeks through to recruit one,to refining possiblya solicitor and two,sales. to join AssistantPrevious its expanding exposure complexcompanies,also be commercial responsible corporate for litigation recruitmentfinance, cases corporate and in management the Commercialrestructuring, of a team Court. mergers,to develop EnergySolicitorsto projects Department. towork deal will You with be will an high beadvantage. advising quality on FirstCommercial significant rate salary energy Propertyand benefits projects work package. in on the demergers,the taxation acquisitions, function. jointThe ventures,successful MBOs, candidate floatations, will have securities gained issues strong andexperience equity offerings, at a top-end revenue legal litigation or accountancy and settlement firm. negotiations and tax IrishbehalfIntellectual market of and an Property in established legal and – Associate regulatory suite toof issues Seniorclients. relevant Associate Candidates to the energy to must€100k sector. have J00321 You Regulatory/Compliance(Banking/Financial Services): planning and advisory services relating to cross border transactions. You will will priorAhave leading experience Dublin offirm ofdealing challengingseeks with to allrecruit aspects Commercial an ofadditional energy Property lawIP fromSolicitor matters. exploration, to join its AssociateTrust & Estate to Senior Planning Associate –Senior Associate €Neg J00286 also be responsible for recruitment and management of a team to develop developmentYouexpanding will advise anddepartment. production, on all aspectsYou through will dealof to property refiningwith an and interestingwork, sales. including Previous mix of exposurelandlordwork, both OurThis client top flightis a topDublin law law firm. firm seeksCandidates an experienced will already Trust andpossess Estate Planning the taxation function. The successful candidate will have gained strong to projectsandcontentious tenant, work and willinvestments, non-contentiousbe an advantage. acquisitions including First rate copyright, and salary disposals. and trademarks, benefits package. passing off, extensivesolicitor. experienceYou will deal mainlyin this with practice high net area. worth You individuals, will be providing advising advice on experience at a top-end legal or accountancy firm. Intellectualpatent disputes Property and – Associatedomain name to Senior disputes. Associate Clients include to €100k manufacturers, J00321 intertax alia planning, on the trusts practical administration implications as wellof new as standardregulatory wills and probate A leadingPrivateretailers, Dublin Client/Commercialdesigners, firm seeks publishers to recruit (Munster): of anbooks, additional magazines IP Solicitor and tonewspapers, join its developmentsTrustmatters. & Estate You Planning willand have keeping excellent –Senior abreast Associatecommunication of all regulatory and interpersonal matters€Neg skills J00286 as well as a proven track record of business development. Highly competitive salary expandingAssociateadvertising department. toagencies Senior andYou Associate websitewill deal owners. with an The interesting successful mix candidate of work, will both have thatThis mighttop flight affect Dublin the law firm’s firm seeks client an base.experienced Trust and Estate Planning contentiousprevious andexposure non-contentious to IP and includinggeneral copyright,commercial trademarks, work from passinga recognised off, solicitor.and benefits You will package.deal mainly with high net worth individuals, providing advice on patentpractice disputes together and withdomain sound name academics. disputes. Clients include manufacturers, tax planning, trusts administration as well as standard wills and probate retailers, designers, publishers of books, magazines and newspapers, matters. You will have excellent communication and interpersonal skills as well advertising agencies and website owners. The successful candidate will have as a proven track record of business development. Highly competitive salary previousFor moreexposure information to IP and general on these commercial and other work vacancies,from a recognised please visitand benefits package. practiceour websitetogether with or soundcontact academics. Michael Benson bcl solr. in strict confidence at: Benson & Associates, Suite 113, The Capel Building, St. Mary’s Abbey, Dublin 7. For more information on these and other vacancies, please visit T +353 (0) 1 670 3997 E [email protected] Legal Recruitment Specialists ourwww.benasso.com website or contact Michael Benson bcl solr. in strict confidence at: Benson & Associates, Suite 113, The Capel Building, St. Mary’s Abbey, Dublin 7. T +353 (0) 1 670 3997 E [email protected] Legal Recruitment Specialists 2503 Publication: Law Society Gazette Inside Back Page Insertion date: November 08 Size: Full Page Colour Draft 6

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