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his is my last president’s message and, of course, I write it with some regret that my year is now coming to an end. It is a great honour to have served as president of the Law Society of Ireland, albeit at a Tparticularly difficult and demanding time. This time last year, we had what can only be described as an upheaval in relation to the professional indemnity insurance (PII) market and the continuing economic difficulties. The matter of PII did ultimately proceed and, while insurance was resonates for both of our professions. available to most, it was at a significantly increased premium. The task force dealing with commercial undertakings has We are now undergoing the process again, and it is hoped that completed its work, and new regulations will come into force the matter will be somewhat smoother, although it must be on 1 December 2010. These will place an almost complete understood that the market remains fragile. In view of the large prohibition on the giving of commercial undertakings. The number of claims, it is unlikely that there will be any decrease in same firm cannot now act for both the borrower and lender. premium levels. During the year, the question of conflict arose as a result of At this time last year, while the economy was at a low ebb, our deliberations on the matter of commercial undertakings. it was hoped that there would have been some At each of the bar associations I attended, it was increase in economic activity in the second half the one issue that was common to all. Arising out of 2010. Regrettably, this has not happened. We “At the most of this, at the most recent meeting of the Council, must hope that next year will be better. it was decided to establish a task force to examine recent meeting the question of the solicitor acting for both sides Characteristics of professionalism of the Council, in conveyancing transactions. It is hoped that the Presiding at my final parchment ceremony, I task force will complete its deliberations during the was particularly fortunate to have as one of my it was decided lifetime of the next Council. guest speakers Professor Ailish McGovern, to establish a president of the Royal College of Surgeons. Great privilege She spoke at some length about the concept of task force to With the director general, Ken Murphy, I attended professionalism and the characteristics common examine the bar association meetings all over the country in to both professions. To quote her: 2010. While they elicited, on occasions, difficult “To both of us, the concept of being part question of the and demanding questions, I was treated with the of a profession is critically important. We solicitor acting utmost courtesy and hospitality wherever I went. know that our professions arose from the At the annual conference of the International guilds of medicine, law and divinity. Typical for both sides Institute of Law Association Chief Executives characteristics of the professions are that each in conveyancing (IILACE) in Vancouver from 30 September to is a monopoly or single discipline, associated 2 October, Ken Murphy was elected IILACE with specialised knowledge, skills and expertise. transactions” president. He will hold this post for two years. It is There is the concept of altruism – that our gratifying that Ireland should produce a president actions are for the benefit of the client – and of such a significant international organisation, and trustworthiness, because the client may not be able to assess our I wish Ken well during his term of office. skills. Descriptors such as independence, impartiality of advice Finally, I would like to thank my business partner, Paul and objectivity of service resonate with us. The erosion of trust O’Reilly, who carried a heavy burden during my year in office. in our professions largely arose from unprofessional behaviour by In addition, I wish my successor John Costello a successful members of our respective professions.” presidential term. It has been my great privilege to serve as More importantly, Prof McGovern spoke of issues that president. G should be highlighted: ethical behaviour, demonstrating respect, compassion and integrity, and responsiveness to the needs of the Gerard Doherty patient/client and society that precedes self-interest. Her speech President

www.lawsocietygazette.ie 1 Law Society Gazette NOVEMBER 2010 contents Law Society Gazette • Vol 104 No 9 Law Society O n the cover LAW S O C I E T Y M usic piracy has little to

Gazette€3.75 November 2010 do with salty dogs and crusty old seamen, but can the buccaneers be broadsided? Gazette

NoVember 2010 Gazette

pic : rex features/gazette studio November 2010

pirateS’ paraDiSe: emi v upc – a treasure trove for music freebooters? Law Society of ireland

Volume 104, number 9 iNSiDe: Nama – aN iNSiDer’S View • crimiNaL proceDure • arbitratioN act 2010 • your LetterS Subscriptions: €57 Regulars 1 President’s message 4 News Analysis 10 10 Human rights watch: the Leaving Cert and flagging special accommodations 10 One to watch: Akzo Nobel Chemicals and Akcros Chemicals v European Commission 14 News feature: Arbitration Act spells radical changes 16 News feature: videoconferencing in the courts

16 Comment 18 18 Letters 22 Viewpoint: new law on begging 44 People and places Book review 47 National Asset Management Agency Act 2009: Annotations and Commentary Briefing 48 48 Council report 49 Practice notes 55 Legislation update: 11 September – 11 October 2010 57 Solicitors Disciplinary Tribunal 18 58 Justis update 60 Eurlegal: public procurement – commission consultation on concessions 62 Professional notices 64 Recruitment advertising

E ditor: Mark McDermott FIIC. Deputy editor: Dr Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell, Peter Downey. For professional notice rates (wills, title deeds, employment, miscellaneous), see page 63. Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 01 837 5018, fax: 01 884 4626, mobile: 086 811 7116, email: [email protected]. Printing: Turner’s Printing Company Ltd, Longford. Editorial board: Michael Kealey (chairman), Mark McDermott (secretary), Paul Egan, Richard Hammond, Simon Hannigan, Mary Keane, Aisling Kelly, Patrick J McGonagle, 45 Aaron McKenna, Ken Murphy.

2 www.lawsocietygazette.ie contents Law Society Gazette NOVEMBER 2010

Get more at lawsociety.ie PROFESSIONAL notices: send small advert details, with payment, to: Gazette Office,B lackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Gazette readers can access back issues of the All cheques should be made payable to: Law Society of Ireland. magazine as far back as Jan/Feb 1997, right up COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, to the current issue at lawsociety.ie. tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] You can also check out: • Current news HAVE YOU MOVED? Members of the profession should send change-of-address • Forthcoming events, including the IHRC’s details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] annual human rights Cconference entitled HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. ‘Emerging human rights issues’ on Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] 20 November in Blackhall Place • employment opportunities FSC independently-certified wood and paper products used by the Law Society Gazette • the latest CPD courses come from ecologically-managed forests. Visit: www.fsc.org

… as well as lots of other useful information PEFC certifies that wood and paper products used by the Law Society Gazette are sourced by suppliers from sustainable, managed forests. Visit: www.pefc.org features CR OVE StorY: 24 Pirates’ paradise Music pirates got their hands on some unexpected booty following the judgment in the recent EMI v UPC case. Iain McDonald goes aloft to scan the horizon from the crow’s nest

A rose by any other NAMA... 28 Following the establishment of NAMA in December 2009, Aideen O’Reilly gives us an insider’s view of the agency, its tasks, and how it has gone about appointing specialist legal services

Balancing act? 32 The Criminal Procedure Act 2010 was passed into law on 1 September 2010 and institutes far-reaching changes to our criminal justice system. Orla Keenan wonders whether the seismic changes it heralds amount to a step too far in favour of the victim 28 Full to capacity 36 A finding that a person lacks capacity may result in the restriction of their fundamental rights at the most basic and practical levels. A solicitor faces particular demands in advising a client whose capacity is at issue, writes Margaret Walsh

The right note 40 Sometimes described as the third arm of the legal profession, the office of the notary public is the oldest surviving branch of the legal profession. Eamonn Hall traces the history, current functions and duties of the office, and tells how to become a notary

The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter. Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Email: [email protected] Website: www.lawsocietygazette.ie 36

www.lawsocietygazette.ie 3 Law Society Gazette NOVEMBER 2010 news nationwide

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

cork Eamon Murray, president of the SLA, tells a tale of 12 frazzled solicitors emerging from the River Lee Hotel recently, having spent the preceding five days in a CEDR mediation course. The course, which was extremely intensive and challenging, was universally regarded as being most worthwhile by the participants. Eamon also sheepishly tells me that the SLA’s golfing society (SLAGS) enjoyed a two-day M embers of the Waterford Law Society attended a Waterford Institute of Technology sponsored Canadian/Irish event in Killarney recently, at family law conference at Carton House Hotel, Maynooth, Co Kildare on 8 October 2010. Pictured are (front, which the Captain’s Prize was l to r): Deirdre Adams (law lecturer, WIT), Roisin O’Shea (conference organiser, WIT), Madam Justice Geraldine won by none other than himself. Waldman (Ontario Court of Justice), Elizabeth O’Dea (Law Centre, Waterford) and Dr Sinead Conneely (law Mercifully, his own President’s lecturer, WIT); (back, l to r): Mr Justice Henry Abbott, Elizabeth Walsh (president, Limerick Bar Association), Jackie Ellis (Canadian embassy), Judge Olive Buttimer, Mr Justice George Czutrin (Ontario Superior Court), Prize was won by Willis Walshe Mr Justice Liam McKechnie, Judge Thomas Trent Lewis (Los Angeles Superior Court), Sean Ormonde (solicitor), SC. The 40 or so participants Dr Michael Howlett (head of Department of Applied Arts, WIT), Deirdre Treacy (solicitor), Morette Kinsella had a great time. (solicitor), Bernadette Cahill (president, Waterford Law Society) and Kathrine Murphy (JP, England and Wales) The now annual ecumenical service of morning prayer, forms and navigating the dublin kilkenny organised by the SLA, was held renewal process, emphasising the The bar association has held a Bar association president Owen in St Francis’s Church on 4 importance of risk management. number of practice management O’Mahony is pleased to confirm October, the first day of term. Registrar of Solicitors John Elliot seminars in recent weeks. As a that the refurbished and extend- The event was attended by gave an interesting presentation follow-on to the free seminar ed Kilkenny Courthouse re- Bishop John Buckley, Deacon on what insurers expect from on the PII market in late July, a opened for business on 1 Octo- Bantry White and members of solicitors’ firms. It was apparent further meeting was convened ber 2010. It was officially opened the judiciary, an Garda Síochána, that solicitors in Donegal still by president John O’Malley by Minister for Justice Dermot the Prison Service, solicitors have serious concerns about the in conjunction with the Law Ahern and Chief Justice John and barristers. The homily on following matters: Society, at which President of the Murray on Friday 15 October. Christianity and the law was • Why PII is dealt with on Law Society Gerard Doherty, The courthouse now given by Father Gerard Garrett. a claims-made basis at director general Ken Murphy comprises four courtrooms, two international level, and chairman of the Commercial of which have jury facilities. donegal • Why one renewal date of Undertakings Task Force John The High Court will be Recently, the Donegal Bar 1 December each year is Shaw gave excellent accounts returning to Kilkenny after a Association held a successful considered in the best interests as to where matters stand, three-year absence for personal CPD seminar on professional of the profession, both on the PII issue and the injuries cases for a two-week indemnity insurance (PII) • Why a master policy similar pending regulations prohibiting sitting in the latter half of and financial management. to that operated in Northern commercial undertakings and November. Owen has asked Alison Parke, with Geraldine Ireland cannot be put in place other current issues. A useful and that practitioners would note Conaghan of the Inishowen Bar by the Law Society. lively exchange followed. that there are adequate and Association, organised the event, The DSBA conference to comfortable facilities now which included a presentation Máirín McCartney tells me that Istanbul was a huge success, available in the courthouse for from Dermot Doherty and Paul the next event planned by the with plenty to see and a very High Court non-jury litigation Sherry of Murray & Spelman Donegal Bar Association will be worthwhile and stimulating also, for much of the year. G insurance brokers. The speakers the bi-annual dinner dance, due business session in which our gave a detailed overview of the to take place at the beautiful Solis very own William Aylmer ‘Nationwide’ is compiled by Kevin PII marketplace for solicitors and Lough Eske Castle Hotel on 27 and Aine Hynes were the star O’Higgins, principal of the Dublin advised on completing proposal November 2010. performers. law firm Kevin O’Higgins.

4 www.lawsocietygazette.ie news Law Society Gazette NOVEMBER 2010 S olicitor Disciplinary Search Criminal legal aid to allows for full transparency be reformed olicitor Disciplinary he system of criminal ‘SSearch’ is a new service Tlegal aid is to be reformed from the Law Society that will – and responsibility for its allow members of the public – administration will be transferred and members of the profession to the Legal Aid Board, – to search the disciplinary according to Minister for Justice records of solicitors. The Law and Law Reform Dermot Ahern. Society believes that it is in the The minister announced that public interest, and also in the he would shortly be bringing interests of the profession, that proposals on the matter before full transparency be provided government. in relation to findings of Speaking at a conference misconduct against solicitors. celebrating the 30th anniversary The service, available at www. of the Legal Aid Board, lawsociety.ie/disciplinarysearch, Minister Ahern expressed includes a facility to search confidence in the Legal Aid against the names of individual Board’s capacity to take on this solicitors in order to view new role, but acknowledged disciplinary records. The that the board would need to database contains all findings enquire. Visitors can scroll by the High Court. be appropriately resourced for of misconduct made by the through searched results. Since 2004, it has been the task. Solicitors Disciplinary Tribunal To view more details for a the policy of the Law Society The conference theme was that have been published in the particular record, they can click to publish all findings of ‘Access to justice and legal aid: Law Society Gazette on or after on the ‘show details’ link. It misconduct made by the learning from the past, looking 1 January 2004 – the date when should be noted that, by law, Solicitors Disciplinary Tribunal to the future’. Among the guest such reports first appeared in findings of misconduct are made in the Law Society Gazette. speakers who addressed the the Gazette. against individual solicitors – These findings of misconduct, topic were President Mary not against firms of solicitors. as published in the Gazette, have McAleese and Chief Justice Search by name In cases where the finding been available to the public John L Murray. Now, in addition to these of misconduct has been sent from Eason’s newsagents. In The President acknowledged records, website visitors can forward to the High Court to addition, the magazine is also the role of the board in providing search by surname and/or make a decision on sanction, accessible in the public area of access to justice that enabled practice address of the solicitor the database includes details the Law Society’s website and at citizens with legal problems to about whom they wish to of the decision on sanction www.gazette.ie. address their difficulties in an appropriate manner. She spoke strongly in favour of alternative dispute resolution mechanisms IAMPORT NT NOTICE TO ALL SOLICITORS’ FIRMS as a means of resolving legal issues, particularly in family-law PROFESSIONAL INDEMNITY INSURANCE disputes. The Chief Justice congratulated the board on its Notification of claims by work over the past 30 years. He 30 November 2010 indicated that the mediation of disputes as an alternative All claims made against your firm inclusive) must be notified by of any claim first made against to litigation before the courts and circumstances that may give 30 November 2010. Special care your firm on or before should be given greater emphasis rise to such a claim should be will be needed in the weeks and 30 November 2010 and only in the future. notified to your firm’s insurer as days approaching 30 November notified after 30 November 2010. Legal Aid Board chairperson soon as possible. and on the day itself in case the In addition, your firm should Anne Colley, Dr Maurice Hayes In addition, claims made deadline is missed. comply with any notification and Patricia Rickard Clarke of between 1 December 2009 and Your firm’s insurer will be requirements set out in the the Law Reform Commission 30 November 2010 (both dates entitled to deny cover in respect insurance policy. also spoke on the theme of ‘Access to Justice’.

www.lawsocietygazette.ie 5 RYL-210x297 [AD]-ARTWORK:DISCLOSURE-LAYOUT 13/10/2010 14:40 Page 1

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How to oRDER Round Hall, 43 Fitzwilliam Place, Dublin 2 T: 01 662 5301 F: 01 662 5302 E: [email protected] W: www.roundhall.ie RYL-210x297 [AD]-ARTWORK:DISCLOSURE-LAYOUT 13/10/2010 14:40 Page 1

news Law Society Gazette NOVEMBER 2010

REFUEL YOUR LIBRARY Ireland’s director general to lead WITH OUR NEW EDITIONS world body of law association chiefs OF ESSENTIAL TITLES ow does the legal Hprofession deal with ‘this issue’ or ‘that problem’ in other jurisdictions around the REUTERS/Michaela Rehle world? What can we learn from the insight and experience of LAND LAW IN IRELAND – 3RD EDITION others? ANDREW LYALL If the Law Society of Ireland’s director general, Ken Murphy, Updated and fully revised to take account of Irish land law after a vast array of amending legislation including: The Land doesn’t already know the and Conveyancing Law Reform Act 2009 • The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 answers to such questions, he is • The Registration of Deeds and Title Act 2006 • The Residential Tenancies Act 2004. now in an excellent position to find out. Price: €140 (Paperback) €295 (Limited edition hardback) Publishing November 2010 He has just been elected by his peers – the chief executives of law societies and bar BANKRUPTCY LAW AND PRACTICE – 2ND EDITION associations across the globe MARK SANFEY AND BILL HOLOHAN – to a two-year term as the president of the International New to the 2nd Edition: The EC Insolvency Regulation 2000 is examined in an extensive chapter; The EU Commission Paper Institute of Law Association of 2007 on Bankruptcy; The Law Reform Commission’s September 2009 Consultation Paper on Personal Debt Management Chief Executives (IILACE). and the May 2010 Interim Report on Personal Debt; Numerous practical precedents are also provided; The proposed reforms The body, now in its 12th All smiles from the newly elected members of the executive at the end of the IILACE AGM (front, l to r): of the 1988 Act under the Civil Law (Miscellaneous Provisions) Bill 2010; The effects of the Land and Conveyancing Law Jan Martin (new IILACE vice-president, Law Society of South Australia), Ken Murphy (new IILACE president) Reform Act 2009, particularly in relation to secured creditors and pre-bankruptcy dispositions. year, comprises only chief executives of law societies and and Retha Steinmann (Law Society of Namibia); (back, l to r): Tim McGee (Law Society of British Columbia), Cord Brugmann (German Bar Association), John Hoyles (IILACE immediate past-president, Canadian Bar Price: €345 Publishing November 2010 bar associations. The CEOs Association) and Don Deya (East Africa Law Society) actively involved in IILACE are from more than 60 jurisdictions under pressure everywhere from interests of their members and that my peers from around the THE OFFENCES HANDBOOK 2010 across the globe and represent a variety of challenges, including in the public interest,” Murphy world have entrusted me with law societies and bar associations over-reaching governments remarked. the presidency of IILACE for NEW EDITION OF THIS POPULAR AND HANDY GUIDE! that number, between them, well and sometimes excessive “Legal professional bodies the next two years,” Murphy over one million lawyers. Among commercialism), the growing are complex organisations, and said. “Ireland is a relatively The Offences Handbook 2010 is a fully indexed guide of the most up-to-date offences extracted from Consolidated Road Traffic Legislation and Consolidated Criminal Legislation. Over 1000 offences listed and each offence listing contains the following: the new members attending this divide between large and small they face complex challenges. small jurisdiction on the world Enabling provision; Description of the offence; The penalty for the offence. year’s conference in Vancouver firms, strategic planning in law To be in regular communication stage. Many IILACE members were, for the first time, societies and bar associations, with a network of contacts – for example, the CEOs of Price: €95 Publishing November 2010 CEOs from such very diverse the challenge of communicating doing essentially the same the American Bar Association, jurisdictions as Wisconsin, effectively with members and, of job, in different cultures and the German Bar Association, Malawi, Queensland and China. course, the impact of the global conditions, in different parts of the Law Society of England ADMINISTRATIVE LAW – 4TH EDITION Murphy previously was financial and economic crisis the world – able and experienced and Wales, and the All China GERARD HOGAN AND DAVID GWYNN MORGAN president for four years of the on the profession. A subset of individuals to bounce ideas off – Lawyers Association – have 26-strong European CEOs the latter issue concentrated on is very helpful,” he added. memberships in the hundreds of This new edition is a comprehensive restatement of this vastly important area of law that impacts on all areas of legal practice body CEEBA (Chief Executives the problems of the different thousands,” he continued. and good governance Administrative Law – 4th edition also deals with practical problems that are encountered on a day-to-day of European Bar Associations). models, around the world, Powerful forces “It’s my objective that basis, e.g. advice on procedure at meetings; the services provided by all types of public bodies, such as the Property Registration On his initiative last year, of professional indemnity He observed that many of IILACE will not only continue Authority, An Bórd Pleanála or the Director of Corporate enforcement; and disciplinary matters throughout the public service. IILACE and CEEBA held insurance for lawyers. the powerful forces at work, to grow in membership, but Price: €425 Publishing November 2010 a special joint conference, “CEOs of law societies and both on and within the legal that the already cutting-edge attended by 50 CEOs, in Dublin bar associations have a unique profession, are global in nature. analysis of the challenges facing (see Gazette, November 2009, perspective. Not only must The problems tend to be the the legal profession around the pages 12 and 13). they provide continuity and same everywhere. Comparing world will lead to ever better Round Hall, 43 Fitzwilliam Place, Dublin 2 high-quality advice on policy what works or does not work and more practical solutions How to oRDER Core values matters to the elected leaders of in addressing them is always of to these problems. We seek T: 01 662 5301 F: 01 662 5302 E: [email protected] W: www.roundhall.ie Among the questions under their professional bodies, they interest. practical solutions which can consideration by IILACE in must also practically, effectively “It is a great honour for be applied to the benefit of the Vancouver were the core values and efficiently manage their me and also, in a way, for the profession and the public in of the profession (which are organisations in the best solicitors’ profession in Ireland every jurisdiction.”

www.lawsocietygazette.ie 7 Law Society Gazette NOVEMBER 2010 news

Finance offer for members Judge McGuinness honoured he Law Society is pleased relationship manager. Tto advise that it has selected Finance decisions are made Allied Irish Banks plc as the quickly where all necessary provider of a finance facility information is available. In for members who wish to assessing a finance application, apply for funding for payment the following information may of preliminary tax, pension be requested, especially for non- contributions, professional AIB customers: indemnity insurance and • The latest set of audited practising certificate(s). AIB has accounts for the practice, a strong relationship with the • The asset/liability profile of Law Society of Ireland and the the applicant, profession. • Background details of the Judge Catherine McGuinness AIB’s short-term finance partnership and/or has received a ‘People of the products known as ‘insurance application by contacting AIB’s • Copy bank statements. Year Award. Judge McGuin- premium finance and prompt pay Customer Services Centre on ness received the award “for finance’ will enable you or your 1890 47 47 47, dialling ‘2’ for This is the normal, up-to-date her pioneering and vast con- firm to spread the cost of any business. information for any finance ap- tribution to Irish life in many large annual payment(s) over a If you are already an AIB plication and its availability will roles over a lengthy career”. term of up to 11 months, thereby customer and wish to apply for expedite any finance application. improving your business cash finance, you should contact Finance approved is subject to flow. your ‘relationship manager’ at AIB’s standard lending criteria. ‘At debt’s door’ If a member wishes to obtain your AIB branch. If you are not Once finance has been details of cost of credit, monthly an AIB customer and wish to approved and the finance – clarification repayment and APR for any apply for finance, simply contact document signed, AIB will In the article ‘At debt’s door’ particular amount, they can do your nearest AIB branch and arrange with the member for the in the October 2010 issue of so before submitting a finance make an application through a transfer of funds, either to the the Gazette (p28), attention member’s bank account or, in the was drawn to section 10 R epayments vary depending on amount borrowed. For example*: case of professional indemnity of the Conveyancing Act 1634. For the avoidance of Loan amount apr term in monthly total cost insurance, to the broker or months repayment of credit insurance company. doubt, the author, Patrick If you require any further Shee, wishes us to point €10,000 11.16% 11 €952.09 €536.48 information on this finance offer, out that this was included €20,000 9.25% 11 €1,893.94 €896.83 please contact your local AIB solely for its historical value. €30,000 9.02% 11 €2,840.91 €1,313.50 branch, tel: 1890 47 47 47, or Practitioners will be aware €50,000 8.84% 11 €4,734.85 €2,146.84 visit www.aib.ie. that this act was repealed by *Above rates are correct as at 7 October 2010 but rates/repayments can Terms and conditions apply. the Land and Conveyancing vary. Total cost of credit includes a documentation fee of €63.49, payable Law Reform Act 2009. with the first monthly instalment. Allied Irish Banks Plc is regulated by the Financial Regulator.

Notice to Practitioners: Criminal legal aid scheme R etention of name on Criminal Legal Aid Panel for the panel year 1 December 2010 – 30 November 2011 Criminal Justice (Legal Aid) (Tax Clearance Certificate) Regulations 1999 The Department of Justice and to have their name retained on districts are available on the for a tax clearance certificate do Law Reform has advised that a the Criminal Legal Aid Panel(s) Revenue’s website www.revenue. not apply to solicitors who are solicitor who wishes to have his/ for the panel year beginning on 1 ie. You should contact your local employees. her name retained on the legal December 2010, must apply to Revenue district office for an On receipt of your certificate, aid panel(s) beyond 30 November the Revenue Commissioners for a application form (TC1). it should be forwarded to the 2010 must submit to the relevant new TCC. relevant county registrar(s). county registrar(s) a tax clearance Applying for a TCC through NB: No fees under the Criminal certificate (TCC) with an expiry Applying for a TCC in writing Revenue’s online application Justice (Legal Aid) Regulations date later than 30 November Local Revenue districts now deal facility shall be payable to a solicitor who 2010. with the processing of written This facility is to be found at www. accepts an assignment to a case A solicitor whose TCC has applications for TCCs. The contact revenue.ie. The arrangements if his/her name is not, at the time an expiry date on or before 30 names, addresses and telephone which have been introduced to of assignment, on the relevant November 2010, and who wishes numbers of the relevant Revenue allow taxpayers to apply online solicitors’ panel.

8 www.lawsocietygazette.ie news Law Society Gazette NOVEMBER 2010 Thinking outside the career box he wide range of speakers included Hilkka Becker Topportunities that exist for (Immigrant Council of Ireland), solicitors outside the traditional Rose Wall (Mercy Law Resource practice of law was explored in Centre) and Eamonn Purcell a series of Society-sponsored (Legal Aid Board). information evenings in ‘Getting a job in the public September and October. The sector’ enjoyed the largest ‘Thinking outside the career turnout, with more than 60 box’ series kicked off with a attendees. They heard from new independent film on career Donal King about opportunities choices. A film discussion was for solicitors in the health sector facilitated by Barre Fitzpatrick of At the information evening that discussed setting up a business were and from Aisling Kelly about change consultancy firm, Stride. (l to r): David Bell, Gerard Maguire, Laura Monk, Law Society President how she used volunteering for The next information evening Gerard Doherty and Darragh McElligott a UN organisation to win her a discussed ‘Setting up a business’ role in the Office of the Director and was chaired by Law Society director general Mary Keane, and from Catherine Noone who of Public Prosecutions. President Gerard Doherty. speakers included Sylvia was recently elected in the local Patricia Cronin enthralled Gerard Maguire spoke about McNeece (Irish Pensions elections for Fine Gael. her audience with her career setting up a legal practice – and a Board), Colin Babe (Mercer) Brendan Dillon’s involvement story to date. She was followed quality wine shop. Laura Monk, and Michelle Geraghty (Ion in sport has dovetailed into by Gerard Murphy (Public who quite recently formed the Trading). his legal practice, leading Appointments Commission) legal partnership, Butler Monk, This was followed by into new and emerging work who provided valuable job- spoke about her experiences. presentations on working in opportunities. Two solicitors seeking advice. Collette Bennett David Bell discussed regulation by Peter Oakes from Cork, Bill Holohan and spoke about her transition from leveraging his legal knowledge (Compliance Ireland), Caroline Colin Carroll, spoke about their a role in corporate law into the to set up The HR Department. Murphy (formally of RSA wide-ranging experiences both Money and Budgeting Service Hannah Carney outlined her Insurance, now managing inside and outside the legal (MABS). experience of establishing her director of LegalWise) and Colm arena. The Society’s Career Support coaching and training business, Kincaid of the Central Bank. The issue of ‘Breaking service wishes to thank all those while Darragh McElligott talked Financial recruiter Dave Riordan into the not-for-profit sector’ who took part in its information about setting up The Training gave a market overview. was addressed by Noeline evenings’ initiative. Most talks Store. ‘Doing something additional Blackwell (FLAC), Colin were filmed and copies are Next in the series was to law’ looked at new territory, Daly (Northside Community available to interested members ‘Breaking into financial services’. and heard from Yvonne Nolan Law Centre) and Mary Forde on DVD. Requests should be Chaired by the Society’s deputy about playing rugby for Ireland, (Amnesty International). Other sent to [email protected].

Society website adds employment CPD – reminder! As year-end approaches, support options for solicitors you should check that you he ‘legal vacancies’ section The traditional option, where disclosed to them. In addition, are on target to complete the Ton the Society’s website, employers list opportunities employers can opt to update 2010 CPD requirement by www.lawsociety.ie, is popular free of charge and have all applicants on how a selection 31 December 2010. This among employers and is used applications routed directly to process is progressing – and requirement is 11 hours of extensively to recruit all types them, remains available. whether their application is still CPD, including the minimum of legal staff – at all levels of The new supports are being considered or not. three hours’ requirement of seniority. Now, a new range of structured to complement These service upgrades, management and professional options has been introduced. the traditional service and organised by the Society’s development skills, and the Employers are being offered to provide employers who Career Support service, have new one-hour regulatory an extended choice of supports, desire it an extended level of been introduced to assist matters requirement. such as candidate shortlisting and support. There are benefits employers in their recruitment For advice on the CPD other options. These additional for job-seekers too. The new searches – and to optimise work scheme generally, contact supports have been organised arrangements are structured opportunities for the Society’s the CPD scheme unit, by through an independent to ensure that no person’s membership. For information, tel: 01 672 4802, or email: candidate-screening company details go anywhere before the email: employersupport@ [email protected]. and priced very attractively. employer’s identity has been lawsociety.ie.

www.lawsocietygazette.ie 9 Law Society Gazette NOVEMBER 2010 analysis

L eaving Cert falls foul of test-score flagging A recent case upheld the ‘flagging’ of the results of Leaving Cert students who require particular accommodations, writes Joyce Mortimer

he provision of a student with dyslexia agreed with Ms Cahill and annotation of the appellant’s of reasonable who had received certain made an order directing the Leaving Certificate. The High accommodation accommodations in her Leaving Department of Education to Court upheld Minister Mary in education has Certificate examinations in pay compensation of €6,000 to Coughlan’s argument that always been a highly 2001. In October, Mr Justice her and another student (who the absence or deletion of the Tcontroversial issue. Concerns Eamon de Valera, in the High made a similar complaint). The annotation from Ms Cahill’s are continuously raised over Court, also made an order of Minister for Education was also transcript would amount to a the competing interests of costs against the applicant. directed to issue both students misrepresentation to employers ensuring equal educational Ms Kim with new Leaving or other persons who might rely opportunity while maintaining Cahill requested Certificates on the document, and would the integrity of examinations. and received “The practice without the also call the integrity of the Irish law mandates the provision accommodation of flagging non- annotations. exam into question. of reasonable accommodation in her Leaving Mr Justice de Valera stated in education by way of the Certificate standard test Integrity of the that a failure to make note of the Equal Status Act 2000. Testing examinations results has testing process “reasonable accommodation” accommodations involve in the form of a In 2007, the received by Ms Cahill would customising materials and waiver in relation developed in Minister for “adversely affect the integrity testing conditions to the to assessment response to Education of the testing process”, and candidate’s needs. of spelling and appealed the “essentially defeat the purpose The practice of ‘flagging’ grammar in concerns over decision to the of the exam in the first place”. non-standard test results has language subjects. illegitimate Circuit Court, Furthermore, he stated that the developed in response to When Ms Cahill which upheld the Leaving Certificate occupied concerns over illegitimate obtained her advantages and appeal. Ms Cahill “an important place in the Irish advantages and the integrity of exam results, the integrity of subsequently educational system and abroad” examinations. Flagging involves her transcript appealed to the and “must stand for something”. placing an asterisk beside the was annotated examinations” High Court, Justice de Valera opined that the result, with an accompanying to highlight the where Mr Leaving Certificate transcript footnote indicating that the test accommodations Justice Eamon was a record of the level of was not administered under received. The plaintiff claimed de Valera dismissed her appeal. achievement of a person at the standard conditions. In June the annotations and explanatory He ruled that the Department end of their secondary education 2010, the High Court upheld note on her certificate had of Education had acted at all and, if a person was not assessed the practice of annotating the effect of labelling her as times in accordance with best in spelling and grammar (flagging) the test scores disabled. The Equality Tribunal international practice in the elements of subjects, then that one to watch: recent judgment Akzo Nobel Chemicals and communications between a Commission and Britain’s General Court of the European Akcros Chemicals v European company-client and its employed Office of Fair Trading. During the Union, which also rejected their Commission (case C-550/07 P) in-house lawyers are not protected course of the investigation, the contention of privilege. The matter On 14 September 2010, the by legal professional privilege commission seized a number of was subsequently appealed to the European Court of Justice and are, therefore, not protected documents, including two emails European Court of Justice. issued judgment in the Akzo against disclosure in the context of with in-house counsel. In May Nobel case, refusing to extend EU competition law investigations. 2003, the commission rejected a Legal professional privilege legal professional privilege to In 2003, Akzo Chemical claim made by Akzo and Ackros in the EU internal company communications Limited and Ackros Chemicals that the emails were subject In AM & S Europe v Commission with in-house lawyers. The Limited were subjected to an to legal professional privilege. of European Communities ([1982] judgment confirms that written investigation by the European The companies appealed to the ECR 1575; case 155/79), the

10 www.lawsocietygazette.ie analysis Law Society Gazette NOVEMBER 2010 human rights watch Leaving Cert falls foul of test-score flagging

“should and must be reflected” in the resulting certificate. It was also necessary for the reputation of the exam to be preserved, and the Department of Education, in supervising the exam system, acted as “guarantor of fairness and equality to all candidates”. Mr Justice de Valera rejected Ms Cahill’s claim that the Leaving Certificate examination itself was inherently discriminatory. While acknowledging that it was a standardised exam, which he stated was “in fact its purpose”, the judge disagreed that it was an inflexible standardised examination or an unreasonably standardised one. He stated: “All candidates for the examination, including the appellant, have a legitimate interest in the uniform Testing time for students who request accommodations in the Leaving Cert application of the rules and procedures of the examination skill was affected by the granting other parties with a legitimate with the High Court decision to all candidates.” He said that of the accommodation. He interest in the fair and equitable to uphold the practice of test no legal system anywhere in concluded: “The contention administration of the Leaving score flagging. The Equality the world considered some advanced on the part of the Certificate examination.” Authority stated that it regrets form of accommodation appellant invites the court “that Leaving Certificates without some indication of the to embrace an unreasonable ‘Mortuary for the ethics of for students with dyslexia can accommodation having been definition of ‘reasonable hard work’ still be annotated for students made. The judge expressly accommodation’, which tips the The Equality Authority and who, despite their disability, relied on the fact that the balance too far in favour of the the Dyslexia Association have successfully sit the Leaving assessment of a fundamental appellant, to the detriment of expressed their disappointment Certificate examinations”.

ECJ ruled that the test for legal Therefore, as in-house lawyers of interest between their lawyer] to ignore the commercial professional privilege consists of are employees, the ECJ professional obligations and strategies pursued by his two requirements: concluded that communications the aims of their clients. The employer, and thereby affects his 1) That the communications are with in-house counsel fail to be fact that an employed lawyer ability to exercise professional made for the purpose of a protected by legal professional might be subject to ethical independence”. client’s rights of defence, and privilege. rules and standards was not On this basis, the court 2) The exchange must be between sufficient to satisfy the court of concluded that, “both from the a client and an “independent The Akzo judgment their independence. The court in-house lawyers’ economic lawyer, that is to say, one who According to the court, in- stated that the position of an dependence and the close ties is not bound to his client by a house lawyers are less able to employed lawyer, “by its very with his employer, that he does relationship of employment”. deal effectively with conflicts nature, does not allow [the not enjoy a level of professional

www.lawsocietygazette.ie 11 New Justice for a New Ireland Mediation in Ireland

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The chief executive of the distinguishable from students disabled students. Without the the College Board end the authority stated: “The authority who are simply slow learning. accommodation, the student practice of flagging. Two urges the tánaiste to take this The very essence of having a with a disability cannot compete weeks later, American College opportunity to review the learning disability is that the on an equal basis. The Equal Testing (ACT) made a similar practices in the department to person cannot learn in the Status Act gives these students an announcement. improve the accommodation of standard way. These individuals opportunity – not an advantage. people with disabilities.” are failed by the standardised In the American case of Accessibility In numerous jurisdictions, education system. They are Breimhorst v Educational Testing Universally accessible the practice of flagging has been denied equality Service, a student examinations are based utilised as a means of ensuring by being expected with a physical on the idea that exams the comparability of test results to conform to a “The very disability took should be constructed and of examinees provided with ‘one-size-fits-all’ essence the Graduate administered more flexibly accommodation and those not education system. Management so that accommodations are provided with accommodations. Second, of having Admission Test unnecessary. Just as building Some critics of learning to assert that a learning (GMAT) with codes now require wheelchair disability accommodations have accommodating accommodations. access ramps and other features suggested that easing academic such students disability is He sued to make them more accessible requirements merely rewards gives them an that the person Educational to people with disabilities, underachievers and weakens educational Testing Service examinations should be drawn academic standards. advantage is to cannot learn in (ETS) because up with everyone in mind. The Boston University president misinterpret the the standard his scores were Equal Status Act 2000 promotes Jon Westling has made several very purpose flagged. The equal educational opportunity public speeches voicing his behind the Equal way. These ETS settled the for individuals with disabilities. opinion that individuals with Status Act 2000. individuals case and agreed The focus needs to shift from learning disabilities could The act seeks to to stop flagging accommodating each student overcome their academic make the playing … are denied GMAT scores, on an individual basis to making difficulties “with concentrated field reasonably equality by as well as scores institutional changes. The act effort”. Westling blamed the level. Ensuring on two of their advances structural reform and learning disabled “movement” equal educational being expected other high- an expansive goal of equality. for creating a “mortuary for the opportunity under to conform to profile tests. The duty to make reasonable ethics of hard work, individual the ESA may The Scholastic accommodations in education responsibility, and pursuit of involve adapting a ‘one-size-fits- Assessment Tests should reflect a social model excellence”. existing academic all’ education (SATs) were of disability, acknowledging programmes owned by the that attitudinal and social Equality denied to the needs of system” College Board barriers compound individual Other critics have argued that persons with and so were impairments. The standardised granting accommodations disabilities, but not covered Leaving Certificate examination to individuals with learning it does not guarantee their by this lawsuit. Subsequently, is a socially constructed obstacle disabilities gives them an educational outcome. It does the College Board and preventing students with advantage over their non- not confer any advantage Disability Rights advocates disabilities from participating on disabled peers. These critics whatsoever. Their disabilities jointly convened a ‘Blue an equal footing with their non- misunderstand two fundamental remain. What the legislation Ribbon Panel on Flagging’ to disabled peers. G concepts. First, the learning does is to put the student with examine the appropriateness disabled are a classified group a disability on the starting of flagging SAT scores. The Joyce Mortimer is the Law Society’s protected by legislation, line with all the other non- majority recommended that human rights executive.

independence comparable to that AM & S Europe v Commission require in-house and external of whether they are subject of an external lawyer”. was delivered, to an extent that lawyers to be treated in the same to ethical standards. It is The ECJ considered the would justify a change in the case way as far as concerns legal noteworthy that the Akzo ruling contention that the evolution of law and recognition for in-house professional privilege”. only applies to enforcement member states’ legal systems lawyers of the benefit of legal The European Court of Justice proceedings by the European warranted a departure from professional privilege”. Regarding has confirmed the scope of Commission. National rules on the AM & S rule. Responding, Council Regulation 1/2003, the legal professional privilege legal professional privilege will the court held that “the legal ECJ held that legal professional protection in EU competition law remain applicable. G situation in the member states privilege is not “at all the subject- investigations. The judgment of the European Union has not matter of the regulation” and effectively excludes protection Joyce Mortimer is the Law evolved, since the judgment in therefore does not “aim to for in-house lawyers, regardless Society’s human rights executive.

www.lawsocietygazette.ie 13 Law Society Gazette NOVEMBER 2010 analysis Arbitration Act spells radical changes Some radical changes to the law and practice of arbitration have been introduced by the Arbitration Act 2010, writes Michael W Carrigan

he Arbitration Act 2010 came drafted is to adopt the model gives the parties autonomy the arbitration agreement) Tinto effect on 8 June and law (the text of which is set over a range of issues, which is empowered to rule will apply to all arbitrations – out in the first schedule to the include not only the arbitration on its own jurisdiction. both domestic and international act) in its entirety, and then to procedure but the powers to be A party may appeal the – commenced on or after that incorporate the amendments given to the arbitral tribunal determination of the arbitral date. It repeals the Arbitration in the text of the act itself, and the court. However, the tribunal to the High Court Acts 1954-1998, save in respect which makes the amendments act contains important default within 30 days. of arbitrations commenced to the model law more readily provisions where the parties 2) The High Court is before 8 June 2010. identifiable. This will be of have not directed otherwise designated as the relevant The new act adopts the considerable assistance to and, accordingly, when court for the purposes of UNCITRAL (United Nations people involved in international drafting an arbitration clause, the act and provides that the Commission on International arbitration who might be solicitors should give careful functions of the High Court Trade Law) model law, considering Ireland as the venue consideration to whether or not shall be performed by the subject to a few identifiable for the arbitration of their their clients are agreeable to the President of the High Court, amendments. The model law, disputes. Indeed, one of the default provisions that apply. or by such other judge of the which has no legislative force primary reasons for adopting While the act merits a High Court as the President on its own but is available to the model law was to assist thorough examination, solicitors of the High Court may countries that wish to adopt it, in the promotion of Ireland should note the following nominate. with or without amendment, as an attractive venue for provisions, which change the 3) Any determination by Ritz-Carlton Hotel, Powerscourt reflects a worldwide consensus international arbitration. existing laws in relation to the High Court of any on the principles and important domestic arbitration: application under the act is, aspects of international Arbitration autonomy 1) The arbitral tribunal (which in almost all cases, final and Co Wicklow arbitration practice. A particular feature of the may consist of one or more there is no right of appeal to The way the new act is Arbitration Act 2010 is that it arbitrators, depending on the Supreme Court.

14 www.lawsocietygazette.ie analysis Law Society Gazette NOVEMBER 2010 Arbitration Act spells radical changes 4) Unless the parties agree under the new act only to are now to be determined by on institutions designated or otherwise, the arbitral “a contract for the sale of the arbitral tribunal. requested by the parties to tribunal is obliged to give land”. 9) The only method of appoint an arbitrator. reasons for its award. The 7) Parties are now at liberty, challenging an arbitral 12) An arbitration agreement is practice of many arbitrators whether before or after the award under the new act not binding on a consumer to date, and particularly in dispute has arisen, to agree is under the very limited where the claim is less than areas such as rent review, on how the costs of the grounds permitted by article €5,000, unless the consumer was not to include reasons arbitration shall be borne. 34 of the model law. An agrees to go to arbitration for their awards. Under section 30 of the arbitration award can no after the dispute has arisen 5) The High Court no longer Arbitration Act 1954, any longer be challenged on the or the agreement has been has power to make an order provision in an arbitration grounds of an error of law. individually negotiated. for security of costs unless agreement (except where the 10) The arbitral tribunal is now the parties agree. However, dispute had already arisen) given power to strike out To cater for the new act, the unless the parties agree that a party pay all or any arbitration proceedings for Rules of the Superior Courts have otherwise, the arbitral part of its own costs if the want of prosecution. This is been amended by statutory tribunal has power to make reference or the award was a power that was not given instrument no 361 of 2010 such an order. void. by the Arbitration Acts 1954- (Rules of the Superior Courts 6) The bar in section 26 of 8) The case-stated procedure, 1998. (Arbitration) 2010), which the Arbitration Act 1954 whereby questions of law 11) Immunity is conferred on amend order 11 and substitute a on the arbitral tribunal arising in the course of arbitrators for anything done new order 56 for orders 56 and making an award requiring an arbitration could be or omitted to be done in 56A of the existing rules. G specific performance of “a referred to the High Court the discharge or purported contract relating to land or for determination, has been discharge of their functions. Michael W Carrigan is a solicitor any interest in land” applies abolished. Questions of law Immunity is also conferred with Eugene F Collins.

D ate for your diary

Law Society Annual Conference 6th/7th May 2011

Ritz-Carlton Hotel, Powerscourt Co Wicklow

register online at www.lawsociety.ie

www.lawsocietygazette.ie 15 Law Society Gazette NOVEMBER 2010 analysis Trial by television The take-up of videoconferencing in criminal and civil trials has been disappointing. Kevin O’Neill encourages practitioners to embrace the savings that such technology brings

n January 2005, demonstrated that, with good Ithe Committee on videoconference scheduling, Videoconferencing, chaired by witnesses need not be Mrs Justice Denham, reported inconvenienced in this way. that “videoconferencing Using videoconferencing technology has a significant enables parties to secure the potential to improve the availability of a witness months efficiency and effectiveness of or even years earlier than that the conduct of criminal and civil same witness might be available trials”. to travel to give evidence in The benefits from availing person. This possibility may of videoconferencing facilities allow parties to apply for include significant cost savings, earlier trial dates than would better use of witnesses’ time, otherwise have been the case. and the possibility of earlier trial While the Courts Service dates and settlement of cases. only has anecdotal evidence of Court venues in 11 counties are its effectiveness, it seems that now equipped with combined the availability of such a witness videoconferencing and video- facilitates an earlier settlement display facilities, and a further of cases. The experience in seven can facilitate video display ‘Judge Judy’, but not as we know it… the High Court, for example, – but practitioners have, so far, has been that relatively few made little use of these facilities. Prison has proved to be a which will bring a newer, more of the applications made for This may well be because the particularly successful use of efficient approach to remand videoconferencing actually availability of this service is not videoconferencing. Instead and bail hearings. result in live evidence being widely known. of being The taken, as the cases tend to settle. The most obvious benefit of transported experience to videoconferencing is that the from the “Court venues in date in civil How to organise it witness need not be physically prison to the 11 counties are actions has been Practitioners must organise a present in the courtroom. court, a person equally positive. venue from which their witness Whether the witness is based in custody now equipped Unfortunately, can avail of videoconferencing in Ireland or on the other side now gives his with combined many facilities. Many hospitals, of the world – or indeed is in evidence from practitioners universities and large custody – the savings in cost a facility within videoconferencing will have corporations worldwide and time that can be made the prison. At and video-display encountered (including some in Ireland) using videoconferencing to all times, this delays in the have these facilities, enabling give evidence is immediately person has the facilities, and commencement expert witnesses to give apparent. Witnesses based opportunity a further seven of cases for evidence from their place of in Australia, Korea, the US, to consult, in a variety of work, live into a courtroom. England and mainland Europe, confidence, can facilitate reasons, with In other cases, private facilities to mention only a few locations, with his legal video display – the knock- have been hired out convenient have given evidence over a live representative on effect to a witness’s location. The TV link to the District, Circuit via a secure link. but practitioners of delaying permission of the appropriate or High Courts in criminal or The Courts have, so far, made witnesses. court to give evidence via that civil proceedings, with tangible Service and the Naturally, such medium must also be obtained. cost savings for both the state Irish Prison little use of these delays can Prior to the trial date, and for the parties. Service are facilities” make experts Courts Service staff will working closely reluctant to organise, through the Limerick pilot project with a view to agree to testify practitioners, a test call to A pilot project linking Limerick extending this project to include in certain venues. However, that location to ensure that Courthouse and Limerick other courthouses and prisons, the Courts Service has there are no technical issues

16 www.lawsocietygazette.ie analysis Law Society Gazette NOVEMBER 2010

BENEFITS OF VIDEOCONFERENCING • Saving of costs to parties, • Reduced costs to the state in transferring of prisoners to court Trial by television venues, • The saving of time for witnesses by not having to attend at courthouses, • The availability of expert witnesses to give evidence sooner than might otherwise have been the case, facilitating earlier trial dates, • Earlier settlement of cases.

with the connection. For that in the Circuit Courts in Cavan, years, but has also been used to DVD player, or laptop, it can reason, as well as to ensure Letterkenny, Galway, Kilkenny, display recordings in civil cases be displayed in the courtroom that the facilities are available Dundalk, Castlebar, Monaghan, such as personal injury actions. environment. when required, application to Tullamore and Nenagh. The equipment in the In addition to the video- court should be several days in courtroom can display DVDs or conferencing venues, video- advance of the hearing date. Video display videotapes. There is also a facility display equipment is available The procedure in the High Video display enables the playing for display from portable devices in Dublin in Richmond 50 and Court is set out in a practice of video and audio recordings such as a practitioner’s laptop or Dolphin House 49 and in Carlow, direction dated 3 May 2007 in the courtroom without the USB memory stick. It is always Cork, Tralee, Naas, Limerick, (see HC45, at www.courts.ie). need for practitioners to use wise to test CCTV in advance of Longford, Trim, Clonmel and Videoconferencing is or hire equipment themselves a trial date, as this medium can Bray. G available in the Four Courts, for that purpose. This has been come in many different formats. the Criminal Courts of Justice, an important aspect of many It is, however, safe to assume Kevin O’Neill is principal registrar Limerick District Court and criminal trials over the past few that if it works on a VCR, at the High Court.

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www.lawsocietygazette.ie 17 Law Society Gazette NOVEMBER 2010 comment letters

Send your letters to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected] People-power saves local courthouse P From: Keenan Johnson, Johnson ic meetings. This ensures that the : Pe

& Johnson, Solicitors, Ballymote, t whole community benefits from er

Co Sligo Mc the use of the premises. P

think your readers will be a It is to be hoped that the r la Courts Service will now allow Iinterested to know that, n

d in our current dire financial the courthouse and the court difficulties, there are some facilities in Ballymote to remain positive spin-offs. A particular in use. The cost to the Courts ‘goods news’ story is the effort Service of maintaining the court made by the community in facilities is minimal and only Ballymote, Co Sligo, to retain involves the travelling expenses its District Court. The Courts of the District Court clerk. The Service had indicated its heating and maintenance of intention to close the premises the courthouse will be paid for on the basis that it needed by the local community. Sligo upgrading, and it would be a County Council, the owner more efficient use of resources At the official opening of Ballymote Courthouse and Mediation Centre of the courthouse, was very to have the business of the court were (l to r): Paul Stephenson, Keenan Johnson, Eamon Óg Gallagher, supportive of the work. John Perry, Tom McSharry, Pat McGrath, Peter Mullin and Frank Brennan transferred to Sligo. The local On a general note, I believe community was determined to it is important that District retain the courthouse, as it was and the public. Accordingly, by Judge Kevin Kilrane, Courts are maintained in local felt that the removal of court the local community came the local judge, on Tuesday, areas, even if the amount of facilities to Sligo would be together under the auspices of 14 September 2010. The work is relatively small. There detrimental for the community. the local development company, rededication ceremony was is a socioeconomic benefit from It was also felt that, taking the Ballymote Community covered by the local media and maintaining District Courts, as greater picture into account, Enterprise Limited (BCE), by Eileen Magner of RTÉ. they allow the public to see the the state’s resources would be and with the legal profession The work done to date law in action. Furthermore, the much better utilised if the court to refurbish the courthouse. constitutes phase one of a existence of the local District were to remain in Ballymote, The refurbishment involved development plan for the Court acts as a deterrent to as it is the home to the garda the painting of the inside courthouse. Phase two involves small-time criminals. I firmly division of South Sligo and has and outside of the building, the installation of a family-law believe that the Law Society a compliment of in excess of 32 the revarnishing of court suite and the upgrading of should be fighting against the gardaí. If the court were moved furniture, the fitting of new toilet facilities and disability Courts Service policy of closing to Sligo, it would mean that the carpets, the installation of new access. The rededication smaller District Courts. The gardaí would have to travel into furniture, and the fitting of a of the courthouse involved removal of the District Court and out of Sligo to have their state-of-the-art public address its renaming as ‘Ballymote from local areas means that cases heard, and this would system, together with window Courthouse and Mediation justice is not ‘seen to be done’. have resulted in a considerable blinds. The total cost of the Centre’. It was considered Furthermore, the removal of increase in costs to the state refurbishment was €15,000 appropriate that the courthouse District Courts from local areas and a waste of valuable garda approximately, and this was should also double as a will remove the administration resources. funded by a substantial and mediation centre, given the of justice from the community, All of the stakeholders – such generous contribution from the promotion and growth in thereby diminishing respect as the community, the gardaí, local legal profession, the Sligo alternative dispute resolution. for law and order and the rule the legal profession and the Bar Association and BCE. Judge Kilrane remarked that of law. state solicitor – felt that the The courthouse, which mediation and alternative It is my sincere hope that closure of the courthouse would was originally built in 1813 dispute resolution were to be the example set by Ballymote be a retrograde step and result for the sum of £600, is one of encouraged. The refurbished will be followed in many other in considerable inconvenience the oldest courthouses in the courthouse will also double communities throughout the to court users, such as the gardaí country. It was rededicated up as a venue for lectures and country.

18 www.lawsocietygazette.ie comment Law Society Gazette NOVEMBER 2010

Clarifying the family law practice of the PRA From: Conveyancing Committee, The Conveyancing Committee family law documentation with Law Society of Ireland, Blackhall agreed that the Property each dealing, so that it would

comment Place, Dublin 7 Registration Authority’s proposal be kept in the Land Registry. Law Society Gazette aug/sept 2010 he Conveyancing Committee was a correct statement of This was also agreed by the letters

would like to refer to the the law. In the course of this PRA side. Send your letters to: Law Society Gazette, Blackhall T Place, Dublin 7, or email: [email protected] Property Registration Authority ‘cannot be serious’ From: Patricia McHugh, Richard letter from Patricia McHugh discussion, the Conveyancing It is, therefore, not H McDonnell Solicitors, Ardee note from a conveyancing Ipractice note in the spring title documents to vouch titles. In fact, section 31(1) of the 2010 edition of the Dublin declaration being lodged, there of Richard H McDonnell, Committee representatives made necessary for solicitors to Registration of Title Act 1964 Solicitors’ Bar Association is no way for a subsequent specifies that a purchaser for publication purchaser to be sure that any The Parchment value who becomes registered since the coming into force that, of prior deed of transfer is not as the new owner is not affected People-power saves local courthouse Solicitors, which was published the point that solicitors needed go behind the register. the Family Law Act 1995 voidable under the by anything that does not Family Law Property Registration Authority, the Acts without his/her solicitor appear on the register (other (PRA) will not require lodgement inspecting all dealings on a than the burdens mentioned in of a family home declaration folio from 1995 to the date section 72 of that act). Surely in the August/September issue of to rely on the conclusiveness Solicitors acting for in order to register a title. This upon which the current vendor there is a conflict between the being the case, the position is “You cannot be serious!” became registered to ensure that provisions of section 31(1) and that the practice of the PRA in either: of the 1995 act and the date the fact that it now appears registering titles without the 1) A family home declaration the current registered owner that the Property Registration of the register and not to purchasers are entitled necessity to lodge a family home was lodged with the Property the Gazette (see page 17). became registered? If it is the declaration puts the registry of Authority is entitled to register a case that, since 1995, registration Registration Authority, or deeds titles and land registry titles title without the requirement of was effected without the 2) Tracing the solicitors acting on the same footing – that is, as having to lodge an appropriate necessity of lodging a family for all previous owners In October 2008, have to enquire into previous to rely on the register solicitors, we do not need family family home declaration? home declaration then, in this in an attempt to procure If this is the position, then the home declarations for registration appropriate family home situation, a solicitor will have register cannot be conclusive purposes, but we do need them declarations from all previous to trace every Land Registry evidence of the owner’s title as for the purposes of investigating owners. representatives of the transactions. The PRA and may confine their dealing on that folio back appearing thereon, because if the title. Not to put too fine a to 1995 to ensure that there registration is effected without point on it – this is ridiculous. In the famous words of Mr are no voidable deeds under an appropriate family home I can understand the position the provisions of the John McEnroe, “You in relation to registry of deeds cannot Conveyancing Committee confirmed the position – that is, enquiries to the current Law Act 1995 Family serious!” be titles, where you have a bundle of . This is hugely onerous, time consuming and, Issues with risk management title documents from which every consequently, costly because, on single disposition/event on title Sonia McEntee (on behalf of the Sole the face of any given folio, there is apparent from the title deeds Practitioner Network), c/o McEntee met with representatives of the section 31 of the Registration of transaction. is no way of knowing what the not. Only where a practice furnished and, therefore, there is Solicitors, Dublin history of that title was without is considered to have imple- no difficulty satisfying oneself as physically trawling back through ith insurance renewal time mented good standards in risk to compliance with the provisions W all dealings on that folio going looming, a new risk-man- management consistently over agement industry has sprouted, Property Registration Authority Title Act 1964 continues to apply, The Conveyancing of the Family Law Acts a period of years is there a back to 1995. regard to the various dispositions with selling consultancy services to This simply cannot be, sibility that premia would bepos- on title since 1995. However, aid in reducing the cost of cover. and surely the Property reduced as a result. with Land Registry titles, the only From discussions with colleagues, Registration Authority should The attaining of ‘quality to discuss certain family law as does the judgment in Guckian Committee has issued a title document furnished is an up- a number of matters have not be registering any title marks’ will enhance our prac- to-date, sealed and certified copy become clear. without an appropriate family tices. It will not. The availabil- folio and filed plan. We are told this is ‘new’. It is home declaration being ity of multiple ‘standards’ will not. We have all implemented If it is the case, for example, lodged, particularly when only cause confusion. matters, including a proposal v Brennan. The register remains new practice note, which risk-management procedures that the current registered the whole purpose of the There is much that we can owner became registered, say, since we started in practice. property register is to provide do to help ourselves. Assess in 2007, how is any solicitor There may well be room for a register that is conclusive your practice objectively. supposed to know or find out improvement, but at least one from the PRA that they would conclusive. appears in this Gazette, evidence of the owner’s title Identify the issues. Do you what events on title occurred insurer has confirmed it will not as appearing thereon, and to need professional assistance? between the coming into force penalise practices that have not do away with the requirement Can you afford it? Advice paid engaged external advisors. of holding large bundles of for is of no benefit unless it is not check documentation The Conveyancing and which supplements ‘Engaging advisors will put into practice – which takes reduce your premium’. It will time. This is the minimum lodged with dealings concerning Committee representatives also the practice note investment necessary. www.lawsocietygazette.ie compliance with the various made the point that solicitors published in the May 17 pieces of family law legislation. would prefer to continue to lodge 2009 Gazette. ‘Architect’ debate continues From: John Graby, director, RIAI, attain. Article 49 provides for a article 46 and the requirements 8 Merrion Square, Dublin 2 derogation in the case of persons of the directive generally, in rian Montaut of the qualified before that date, even my view such a measure would BArchitects’ Alliance if their educational qualifications plainly be unlawful as contrary to complains that the Architects’ did not otherwise satisfy the requirements of EU law.” Alliance have been denied requirements of article 46. Brian Montaut appears automatic recognition under B) If enacted, the 2010 bill to find the regulation and the Building Control Act 2007. would, in effect, create a new legal protection of the title The reason that alliance category of persons entitled to be ‘architect’, which he refers members are not on the regarded as architects, even though to as “trademarking”, as an register is that they do not they might not otherwise have unusual concept. Out of 27 have the qualifications listed satisfied the requirements of article EU member states, 25 regulate in the legislation, that is, a As to the misuse of an EU 46 and would not be in a position to the title ‘architect’; some also qualification in architecture directive (PQD), as claimed do so, even though they did not hold regulate aspects of the function and a professional qualification, by Brian Montaut, the RIAI themselves out as architects prior to of an architect. Internationally, or, as a citizen of another has received an opinion from August 1987. the protection of the title EU state, a qualification Gerard Hogan SC (until C) But the PQD Directive ‘architect’ is commonplace and listed in the Professional recently, and now appointed to precludes – certainly by necessary usual. Mr Montaut also draws Qualifications Directive. There the High Court) on whether the implication – national legislation comparisons with doctors, is a ‘grandfather’ process in amendment to the act, proposed of this kind, since it sets out the nurses, lawyers, and so on, on the legislation for those not by John O’Donoghue TD, and requirements (pre and post-August the basis that the titles of their having qualifications that, in supported by the alliance, was 1987) for the recognition and profession are not protected. summary, requires ten years’ compatible with the Professional training of architects. Member However, he is missing the experience in the state working Qualifications Directive 2005/36/ states are not, in effect, free to point. These professions are at the level of an architect, and EC. His conclusions are create such a new category of regulated by law and those demonstration of compliance unambiguous. These are as persons, as, post-August 1987, included on a respected with the minimum EU follows: all Irish qualified architects must professional register have had standards for the formation “A) Article 46 of the directive be in a position to satisfy the their competence independently of an architect as set out in sets out the education standards requirements of article 46. As the assessed. article 46 of the Professional which architects who qualified in 2010 bill would allow Ireland to He also seeks to further Qualifications Directive (PQD). Ireland after August 1987 must circumvent the requirements of confuse matters by referring

www.lawsocietygazette.ie 19 

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

                                                   comment Law Society Gazette NOVEMBER 2010

to an Architects’ Council of way as to ensure its reliability of a register depends on were architects on the register Europe survey which showed as a test providing consumers independent assessment of in this state who have not been there were 2,500 members of with an appropriate level competence. No regulatory assessed to the EU minimum the RIAI and a further 1,000 of competence. Given that body could have other than standards, then the competence architects estimated to be in the the majority of clients buy grave concerns if a person were and access to EU markets of country. This survey was carried architectural services on a to be admitted to a register all Irish architects would be out in 2007, when there was no very infrequent basis, it is whose competence had not been called into question. This is registration system in operation, unreasonable to expect that the independently assessed and not a theoretical position, as when it was estimated that market would be in a position where relevant EU standards the competent authorities in there were some 400 architects to make a fully informed choice were to be ignored. Architects Germany and Britain have from the EU and around the without some form of additional on the register have sought and already raised questions. world working in Ireland regulations, such as registration. have been given briefings on Brian Montaut refers to because of the construction A Red C poll commissioned the implications of the Building vested interests. The only boom, 200 Irish architects by the RIAI in November Control (Amendment) Bill, which vested interest that the with qualifications and 2009 found that three- excludes any form of qualitative proposed amendment being several hundred architectural quarters of those surveyed assessment of competence or supported by the Architects’ graduates who were preparing believed the word ‘architect’ reference to minimum EU Alliance will serve are those for professional practice meant the person held formal standards. While the RIAI who, for whatever reason, are examinations. Market research qualifications. is engaged with government not prepared to have their indicates that there could be It is revealing that, in this on this matter, the RIAI is competence independently between 250 to 300 people debate, no mention is made not instructing or requiring assessed to EU minimum in the field of architecture of the original purpose of architects on the register to standards. who could benefit from the registration – namely consumer take any particular stance. If, Since 16 November 2009, ‘grandfather’ process as set out protection. This requires however, they have concerns, when the statutory register was in the act, not 1,000. that a common standard of then they have a democratic launched, it has been illegal to He also claims to represent competence be put in place and right to make these concerns use the title ‘architect’ either those who have “market requires that professions are known. alone or in combination with accreditation”. The market is independently assessed to that The RIAI, in its role as any other words or letters, not in a position to accredit standard. The issue of consumer a competent authority, has or name, title or description architects. To our cost, we protection is no academic responsibility to other EU – implying that the person is know the market is not a matter. member states to provide registered under section 18(i)(a) reliable test. Until now, the A regulatory body must evidence; this documentation of the Building Control Act 2007. architectural services market act in the public interest. is issued and accepted on the The register can be checked at was not regulated in such a The integrity and credibility basis of mutual trust. If there www.riai.ie. G

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1-4 page Diploma ad November Gazette.indd 1 14/10/2010 10:35 www.lawsocietygazette.ie 21 Law Society Gazette NOVEMBER 2010 comment Begging the question

The Criminal Justice (Public Order) Bill 2010 proposes restricting the activity of begging. Rose Wall and Michele O’Kelly argue that the bill suffers from vagueness and ambiguity, creating the possibility that it will be applied arbitrarily if enacted in its current form

he Criminal Justice (Public an offence only where it is exceeding €200 upon conviction. is already criminalised under TOrder) Bill 2010, currently accompanied by unacceptable The Mercy Law Resource pre-existing legislation. If there at select committee stage, behaviour, such as harassment, Centre has several concerns is no difference between the introduces new laws restricting intimidation, assault, threat or about the new bill. offences criminali ed under the the activity of begging. It is obstruction. Section 2 creates a Firstly, the new law as bill and pre-existing legislation, a response to the judgment summary offence that attracts established by the bill suffers then the bill is not necessary. of the High Court in Dillon a maximum fine of €400, a from similar defects of If there is a difference, then v DPP (2007), which found custodial sentence of up to one vagueness, arbitrariness and that difference needs to be that the previous law in month, or both. ambiguity as did the previous clearly spelt out, so that the this area, section 3 of the Section 3 gives new powers law, and is similarly open public at large knows what kind Vagrancy (Ireland) Act 1847, to the gardaí to to misuse by of behaviour constitutes this was unconstitutional. Section direct persons enforcement offence. In the absence of such 3 was found to constitute a begging within “People who authorities. clarity, the law suffers from prohibition against begging ten metres of an beg are highly The offences vagueness and ambiguity, which in any public place in all ATM, a dwelling, criminalised creates the possibility that it will circumstances. It was accepted or the entrance vulnerable by the bill are be applied arbitrarily. by the High Court that such an to a business individuals, the duplicated Secondly, the bill fails to unrestricted prohibition was in premises to move elsewhere, for take a holistic approach to breach of article 40.6.1, which on. Failure to great majority example, the the problem of begging and protects the right to freedom comply with of whom Offences Against associated behaviours. It focuses of expression. It was also found such directions the Person on enforcement to the exclusion that, because the offence of will also be an suffer from a Act 1861, the of rehabilitative intervention begging was “so arbitrary, so offence, and a combination of Criminal Justice and support. Research in Britain vague, so difficult to rebut” and person is liable, (Public Order) by Johnsen and Fitzpatrick “so ambiguous” in the way it on summary one or more of Act 1994 and has shown that enforcement was defined, it was considered conviction, to the problems of the Criminal alone tends only to displace and to be unconstitutional, violating a fine of up to Justice Act 2006. often exacerbate the problems, several articles, namely articles €300. homelessness, This raises the whereas enforcement as part of 34.1, 40.4.1, 40.1, and 40.3. Section 4 substance question as to an overall coordinated approach However, the High Court provides that why these new offering targeted intervention also made clear that the right a garda may addiction, offences are and support is more likely to be to freedom of expression can arrest, without mental illness, being created. successful in dealing with the be regulated in the interests of warrant, any The govern- problems and their underlying the common good, leaving open person whom he or a traumatic ment’s regulatory causes. A holistic approach is the possibility of making more or she suspects, childhood” impact analysis therefore in the interests of the clearly defined and nuanced upon reasonable justifies the public who seek protection from laws to control the location, grounds, of duplication problematic begging behaviour. manner and other circumstances having committed an offence on the grounds that, in the The research also confirms in which begging might take under sections 2 or 3, and may new legislation, “begging that people who beg are highly place. require the person arrested to is the activity which is itself vulnerable individuals, the great In light of the Dillon case, the give their name and address. being targeted”. However, majority of whom suffer from a aforementioned bill does not Failure to comply with begging itself is not the activity combination of one or more of seek to impose an overall ban this request or to give false criminalised by the bill; rather, it the problems of homelessness, on all forms of begging. Instead, information shall be an offence is the accompanying behaviour substance addiction, mental section 2 seeks to make begging and shall be liable to a fine not (harassment, and so on), which illness, or a traumatic childhood.

22 www.lawsocietygazette.ie comment Law Society Gazette NOVEMBER 2010 viewpoint Begging the question

If the needs of these highly However, a variety of factors can seekers who have limited social living, including adequate food, vulnerable people are to be cause people to find themselves assistance and who are ejected clothing and housing, and to taken into account, criminal in a situation where they have from their direct provision the continuous improvement of law enforcement must be to beg, and this is only likely to accommodation, represent a living conditions. integrated with intensive increase in the coming years in further group of people who are In conclusion, the bill is support interventions tailored light of the ongoing financial compelled to beg. ineffective, as it does not to the individual’s needs. The downturn. The assumption that there address the root causes of cost of imprisonment provided The impact of the habitual is no economic justification begging. Research needs to be for in the bill could be directed residence condition often for begging must therefore be carried out in consultation with towards such rehabilitative results in people not having questioned. It is incumbent on organisations working with intervention and support. any access to regular social the government to put in place people who beg so as to work Thirdly, the regulatory welfare entitlements. In a case adequate social protection for towards solutions that are just impact analysis that where a negative decision has people who have no alternative and effective. This may require accompanies the 2010 been appealed, a person often but to beg, in line with its changes in policy and practice bill states repeatedly that has no option but to beg in obligations under article 11 of rather than legislation. G begging cannot be justified order to remain in the state the International Covenant on on economic grounds due to long enough to vindicate their Economic, Social and Cultural Rose Wall is a solicitor at the Mercy the comprehensive range of rights on appeal. Rough sleepers Rights, which protects the right Law Resource Centre in Dublin, income supports, health care, who are unable to provide of everyone in this jurisdiction and Michele O’Kelly is a solicitor and housing supports available. proof of address, and asylum to an adequate standard of formerly employed by the centre.

www.lawsocietygazette.ie 23 Law Society Gazette NOVEMBER 2010 cover story P irates’ paradise Music pirates got their hands on some unexpected booty following the judgment in the recent EMI v UPC case. Iain McDonald goes aloft to scan the horizon from the crow’s nest

n 11 October, five major record contributed to this loss, the Irish Recorded Music companies failed in a High Court action Association (IRMA) maintains that illegal file-sharing aimed at compelling internet service is a key factor. provider UPC to take action to prevent However, it’s not just the ‘suits’ in the the practice of illegally downloading record companies who are feeling the pinch. In Omusic files across their network. circumstances where artists are not able to generate Mr Justice Charleton, while strongly critical of sales from album releases, Willie Kavanagh, UPC over its failure to act against music pirates, said chairman of EMI Ireland, has stated that the that the Copyright and Related Rights Act 2000 made no likelihood is that record companies will cease to provision for the blocking, diverting or interrupting invest in new music. of internet communications intent on breaching copyright. Shiver me timbers This judgment effectively prohibits record In EMI v Eircom Limited, Mr Justice Kelly made a companies in Ireland from compelling internet number of orders in favour of the record companies service providers (ISPs) from applying the ‘three- (who were also the plaintiffs in the UPC case), strikes’ rule against customers who illegally download compelling Eircom, as an ISP, to disclose the music. The three-strikes rule essentially meant that names of individual customers who were identified ISP customers detected illegally downloading media as illegally downloading music files. The record files received two warnings to stop this behaviour, companies successfully proved that their copyright before having their internet connection ‘throttled’ by had been infringed and had identified the IP the ISP. addresses of the subscribers responsible. In that case, While the defeat of the three-strikes rule may be it was held that, where a wrongful activity had been good news for poor students in dimly lit rooms, it is a committed by unknown persons, an order might be main points decision that has disappointed many in the Irish music made requiring a defendant to identify such persons • Music piracy and industry who regarded the rule as a vital weapon for the purposes of legal action. the EMI v UPC in their armoury in the fight against music piracy. However, the process of identifying and pursuing case It is also reputationally damaging for Ireland as a individuals through the courts on an ad hoc basis • The exclusive knowledge economy, if it is to pitch itself as a hub for for copyright infringement has been described as right to copy intellectual property. burdensome and, ultimately, futile as a potential work and make solution to the problem of internet piracy. it available Ahoy, me hearties In January 2009, in a similar action to the UPC • The economic In Ireland, it is estimated that nearly 700,000 case, Eircom settled in the course of the hearing and moral people are likely to be engaged in some form of before the High Court when it agreed to act in obligations of illegal downloading from time to time. In the UPC cooperation, month-by-month, with the recording ISPs versus the judgment, Mr Justice Charleton accepted that “a companies’ detection of internet piracy – first, by current legal substantial portion of [UPC’s] 150,000 customers warning their customers twice that what they were obligation are using the internet service provided by UPC to doing was illegal, and then by shutting them off from • Ireland not yet steal copyright material which is the property of the internet access upon a third infringement (the three- fully compliant recording companies”. strikes rule). with the Between 2005 and 2009, Irish record companies Eircom has an ‘acceptable usage contract’ with its E-Commerce have experienced a reduction of 40% in legal music customers, mandating termination for illegal internet Directive sales, which has translated into a loss of €64 million. use, and the three-strikes rule is merely a means of While there are a number of factors that may have enforcing this contractually agreed policy.

24 www.lawsocietygazette.ie cover story Law Society Gazette november 2010 Pirates’ paradise

www.lawsocietygazette.ie 25 Law Society Gazette NOVEMBER 2010 cover story

In settling the case with Eircom, the record of the creative community, and “this kind of theft is companies agreed to bring proceedings against the shameful”. other ISPs, including UPC. Interestingly, Mr Justice Charleton stated that ISPs have an “economic and moral obligation” to Hoist the jolly roger address the issue of music piracy, which, in his view, In the UPC case, five major record labels were seeking “constitutes a huge pilfering of the resources of an injunction requiring UPC to stop illegal music creative artists”. piracy from taking place over its network, and to However, the question to be considered was whether effectively enforce the three-strikes rule that had these economic and moral obligations of ISPs would previously been agreed between Eircom and the record translate to a legal obligation to prohibit such activity companies. on the UPC network. The record companies argued that UPC, despite The case ultimately turned on the interpretation having a customer-use policy that of the scope of section 40(4) of the prohibited illegal downloading, was Copyright and Related Rights Act. turning a blind eye to such activity on its “Music piracy Given the nature of traffic across network. not only the internet, while UPC is capable The claim for injunctive relief was of preventing the transmission of based on sections 37 and 40(4) of the undermines music files across its network, it has Copyright and Related Rights Act 2000. the record no means of removing these files from Section 37 of the act grants the copyright a peer-to-peer music-sharing system. owner (in this case, the record labels) the companies’ While the ability to remove infringing exclusive right to copy the work and to business, material could apply to a DVD library, make it available to the public. Section section 40(4) does not permit digital 40(4) provides that, where a person ‘but ruins the blocking or diverting stratagems, such facilitates the making available to the ability of a as throttling a subscriber’s internet public of a copyright work, that person connection. Essentially the ‘removal’ shall be liable for infringement if it “fails generation of of content is simply not possible in the to remove” the infringing material upon creative people context of a transient communication notice from the copyright owner. across ISPs. In defending the claim, UPC stated in Ireland, and It followed that blocking and that there should be no liability for elsewhere, to diverting mechanisms, as opposed to acting as a mere conduit for copyright any removal mechanism, such as in infringement, and that it neither establish a relation to hosting, is not available initiated the communication involved in viable living’” under section 40(4) of the act. piracy, chose the recipient, altered the In refusing the injunction sought information, nor condoned the activity. by the record companies, section 40(4) was compared with recent legislative provisions in Blow me down the United States and Britain, where they specifically The judgment of Mr Justice Charleton in the UPC provide for a remedy against hosting, allowing case was clearly sympathetic towards recording for a three-strikes policy and the disablement of companies in Ireland. He said that the “business of the transmissions involving copyright theft over the recording companies is being devastated by internet internet. The High Court was convinced that the piracy” and that music piracy not only undermines the absence of similar provisions in Irish law means that record companies’ business, but “ruins the ability of a legislative intervention is required if ISPs are to be generation of creative people in Ireland, and elsewhere, forced to effectively monitor and cut off subscribers to establish a viable living”. who illegally download music. He said that there was no doubt that copyright was being infringed on the UPC network and that a failure Pieces of eight to address this problem was not excusable. Music The refusal to grant the injunctive relief sought in the piracy constitutes the abuse of the economic interests UPC case is an undoubted blow to the music industry

look it up Cases: Communications Ireland Limited (2009 • EMI v Eircom Limited (2005) 4 IR 148 no 5472 P) • EMI Records (Ireland) Limited, Sony Music Entertainment Ireland Limited, Universal Legislation: Music Ireland Limited, Warner Music Ireland Limited • Copyright and Related Rights Act 2000 and Wea International Incorporated v UPC • E-Commerce Directive (2000/31/EC)

26 www.lawsocietygazette.ie cover story Law Society Gazette november 2010

Aaaargh, where did I leave me blasted laptop?

in Ireland. As the law stands, these companies have peer-to-peer technology. This should, arguably little, if any, effective remedy for policing music facilitate the introduction of robust copyright piracy in this jurisdiction. In circumstances where protection for the record companies, although the ISPs, such as UPC, refuse to fully enforce their decision may not be the last word on the potential customer-use policy against unauthorised users of data privacy issues involved. their service, any protection offered by these policies IRMA is currently considering whether to appeal is essentially rendered useless. to the Supreme Court or to lobby the government to However, since the record companies have no change the legislation. means of enforcing a three-strikes rule, any ISP that voluntarily chooses to implement such a rule Up the old sea dog will be placing itself at a competitive disadvantage Clearly the UPC decision is a blow to the Irish record to other ISPs who do not supervise unauthorised industry and, without better monitoring of online internet traffic. This is particularly worrying for the music theft, revenues generated from music sales will record industry amid reports that Eircom is seeking continue to be significantly undercut. The present legal advice as to whether it should continue with its regime for combating music piracy is clearly flawed, implementation of a three-strikes policy in the wake with its legislative basis ill-equipped to deal with the of the UPC judgment. problem that music piracy has become. However, there may be a small ray of light for However, with legislative intervention, ISPs the record companies arising from the judgment. may be mandated to prevent transmission of illegal Mr Justice Charleton has stated that, in failing to traffic across their systems, without the threat of provide legislative provisions for blocking, diverting losing market share to rivals if they implement and interrupting internet copyright theft, Ireland such a strategy. Such legislative intervention would is not yet fully in compliance with its obligations undoubtedly help protect the record companies and under the E-Commerce Directive. By highlighting the the artists they seek to promote. government’s failure to implement such legislative That just leaves us with the poor students in their reform, this decision has surely increased pressure dimly lit rooms, weighing up the unenviable decision on the Oireachtas to introduce a regime whereby of paying for music or losing their internet connection. ISPs are obligated to prevent transmission of illegally Maybe they’ll head out to a gig instead. G downloaded files. Additionally, the court held that there are no Iain McDonald is an associate in the entertainment and privacy or data-protection implications to detecting media group at Philip Lee. He would like to thank Anne unauthorised downloads of copyright material using Bateman, partner, for her advice.

www.lawsocietygazette.ie 27 Law Society Gazette NOVEMBER 2010 NAMA A rose by any other nama...

Following the establishment of NAMA in December 2009, Aideen O’Reilly gives us an insider’s view of the agency, its tasks, and how it has gone about appointing specialist legal services

ollowing the government decision to adopt an asset relief scheme based on an asset transfer and management model, the National Asset Management Agency Bill was developed and published as a draft in July 2009. The National Asset Management Agency Act 2009 completed its passageF through the Oireachtas in November 2009. NAMA was established and its board appointed in December 2009. EU state-aid approval for the NAMA scheme was received in February 2010, and the transfer of the first tranche of loans commenced in March 2010. Tranche 2 was completed in August 2010, and Tranche 3 will be completed during October and November. NAMA originally had a target portfolio of €81 billion of eligible bank assets, which would be acquired from the five participating institutions in tranches. The objective was to have all the eligible bank assets acquired by the end of February 2011. However, the finance minister, in his statement of 30 September 2010, made a number of important decisions that will materially affect how NAMA will acquire the assets. Firstly, the threshold for exposures that are to be transferred to NAMA from AIB and Bank of Ireland was increased from €5 million to €20 million. Secondly, in the interests of financial stability, it was decided that NAMA would acquire all of the residual eligible bank assets of Anglo Irish Bank, amounting to €16 billion by the end of October 2010, based main points on a NAMA estimated discount of 67%. Anglo Irish Bank will be required • The National to submit full due diligence to NAMA on an ex post basis. Accordingly, the Asset detailed valuation will be conducted following acquisition, and any required Management balancing adjustment in the acquisition value will be made. Thirdly, AIB Agency’s target and Bank of Ireland agreed that they would make every effort to deliver the portfolio required due diligence in order to transfer their residual eligible bank assets • NAMA and the to NAMA by the end of 2010. acquisition of At the conclusion of the asset transfers, NAMA is expected to have a assets loan portfolio of just over €70 billion, representing 10,000 loans and 850 • Specialist legal borrowers. The expected overall NAMA discount will be approximately 58%. services Once a loan has been acquired, NAMA assumes control over the • Portfolio borrower relationship. The five banks participating in the NAMA scheme management provide loan administration services to NAMA. The larger borrowers

28 www.lawsocietygazette.ie NAMA Law Society Gazette NOVEMBER 2010 A rose by any other nama...

enforcement. It is intended that the panel will remain in place until 2014. Two service categories were specified in the request for applications, which was published on the government tenders website, www.etenders.gov.ie: 1) Enforcement of any security, guarantee, indemnity or surety held by NAMA in respect of assets that will be acquired, including but not limited to (a) the requirements of and options under the (those with total exposure of €50 million or more) act, (b) insolvency law, (c) litigation, (d) land and are directly managed by NAMA. This part of the conveyancing law in Ireland, Britain and other portfolio amounts to €55 billion. Borrowers with jurisdictions, and (e) banking and commercial law. total exposure to all of the participating banks below 2) Finance restructuring, the provision of credit €50 million will typically be managed by the legacy facilities, and taking of security in respect of assets banks under delegated authority from the board that will be acquired by NAMA, including but of NAMA and subject to ongoing monitoring and not limited to (a) the requirements of and options supervision by NAMA. This part of the portfolio under the act, (b) banking, commercial and tax law, amounts to €16 billion. and (c) insolvency law.

Specialist legal services The competition invited applications for four panels: Arising from the acquisition of the loan portfolio, • Group 1 Ireland – highly complex borrowers/ NAMA will require specialist legal services, primarily transactions/large exposures, in Ireland and Britain, in connection with the • Group 2 Ireland – less complex borrowers/ ongoing management of the loan portfolio. transactions/exposures, Accordingly, in March 2010, NAMA sought • Group 1 UK – highly complex borrowers/ applications from legal firms in Ireland and transactions/large exposures, Britain for the provision of legal services in • Group 2 UK – less complex borrowers/ connection with financing, restructuring and transactions/exposures.

www.lawsocietygazette.ie 29 Law Society Gazette NOVEMBER 2010 nama

The panels have been appointed, and all firms The NAMA portfolio across the five participating appointed have completed the pre-appointment institutions will be: conditions, which include provision of a current

€ billion tax-clearance certificate, evidence of professional indemnity insurance of at least €20 million, and Anglo Irish Bank 35.0 a declaration that the applicant will comply with Allied Irish Bank 16.0 the provisions of section 45 of the act regarding Bank of Ireland 10.0 professional standards, conflicts of interest and audit INBS 8.5 (see panel, below). EBS 0.9 Total 70.4 Portfolio management Following the transfer of their loans, NAMA contacts Some 500 applications were received. Applications each borrower and begins a process of engagement with were evaluated by reference to the qualifications, them and their advisers. The borrower is requested experience and expertise of the key personnel to provide a business plan that sets out the borrower’s proposed for the performance of the services; the current situation; levels of debt; assets and liabilities; experience of the firm in providing similar services; and short, medium and long-term business objectives, fees; and a statement of key legal risks that identi fies including assets requiring working capital and the main legal risks facing NAMA in the relevant development finance. The ultimate beneficial owner jurisdiction, demonstrates an understanding of the (UBO) is requested to provide a sworn statement of statutory scheme within which NAMA operates, and affairs, which includes a statement of assets transferred demonstrates how the expertise and experience of the by him or her to third parties, whether connected or firm will assist NAMA in managing these risks. unconnected in the past five years.

APPOINTMENTS TO PANELS FOR THE PROVISION OF CERTAIN LEGAL SERVICES TO NAMA P rovisional panel – Ireland Enforcement Group 1 – Denton Wilde Sapte – DLA Piper – Dundas & Wilson A&L Goodbody – Arthur Cox – Byrne Wallace – – Herbert Smith – John McKee & Son – Lovells LLP – Eugene F Collins – Eversheds O’Donnell Sweeney – Simmons & Simmons – Taylor Wessing – Tods Murray Gartlan Furey – Maples and Calder – Matheson Ormsby LLP – Tughans Prentice – McCann FitzGerald – Whitney Moore – William Fry Provisional panel – UK Enforcement Group 2 A&L Goodbody – Allen & Overy – Arthur Cox – Brodies Provisional panel – Ireland Enforcement Group 2 – Burness – C&H Jefferson – Carson McDowell – A&L Goodbody – Arthur Cox – Byrne Wallace – Eugene Denton Wilde Sapte – DLA Piper – Dundas & Wilson F Collins – Eversheds O’Donnell Sweeney – Gartlan – Eversheds – John McKee & Son – Lovells LLP – Furey – Hayes Solicitors – Lavelle Coleman – LK Shields MacFarlanes LLP – Nabarro – Simmons & Simmons – Maples and Calder – Matheson Ormsby Prentice – – Taylor Wessing – Tods Murray LLP – Tughans – Wragge McCann FitzGerald – McDowell Purcell – Ronan Daly & Co LLP Jermyn – Whitney Moore – William Fry Provisional panel – UK Refinancing Group 1 Provisional panel – Ireland Refinancing Group 1 A&L Goodbody – Allen & Overy – Arthur Cox – Brodies – A&L Goodbody – Arthur Cox – Byrne Wallace – Eugene F Burges Salmon – Burness – Carson McDowell – Clifford Collins – Eversheds O’Donnell Sweeney – Gartlan Furey Chance – Denton Wilde Sapte – DLA Piper – Dundas & – Matheson Ormsby Prentice – McCann FitzGerald – Wilson – Eversheds – Herbert Smith – John McKee & William Fry Son – Lovells LLP – Nabarro – Olswang – Simmons & Simmons – Slaughter and May – Taylor Wessing – Tods Provisional panel – Ireland Refinancing Group 2 Murray LLP – Tughans A&L Goodbody – Arthur Cox – Beauchamps Solicitors – Byrne Wallace – Eugene F Collins – Eversheds O’Donnell Provisional Panel – UK Refinancing Group 2 Sweeney – Gartlan Furey – Mason Hayes & Curran A&L Goodbody – Allen & Overy – Arthur Cox – Brodies – – Matheson Ormsby Prentice – McCann FitzGerald – Burges Salmon – Burness – Carson McDowell – Clifford McDowell Purcell – Ronan Daly Jermyn – William Fry Chance – Denton Wilde Sapte – DLA Piper – Dundas & Wilson – DWF LLP – Eversheds – John McKee & Son Provisional panel – UK Enforcement Group 1 – Lovells LLP – MacFarlanes LLP – Nabarro – Olswang A&L Goodbody – Allen & Overy – Arthur Cox – Ashurst – – Simmons & Simmons – Taylor Wessing – Tods Murray Brodies – Burness – C&H Jefferson – Carson McDowell LLP – Tughans – Wragge & Company

30 www.lawsocietygazette.ie nama Law Society Gazette NOVEMBER 2010

Each borrower business plan is reviewed by NAMA and, in certain cases, a business plan may be rejected by NAMA if it is considered to be inadequate in terms of data provided, or to be unrealistic. Where a business plan is rejected, NAMA will expect the borrower to improve upon the plan and submit a reworked plan. Once the final business plan is received, NAMA carries out a full review and its portfolio management, lending, and credit and risk divisions make recommendations to the NAMA Credit Committee. Decisions concerning the resolution of borrower exposures – whether consensual workout, restructuring, or enforcement – are made by the NAMA board, the NAMA Credit Committee or senior NAMA executives, depending on the quantum of the borrower exposure.

NAMA strategy The board of NAMA has taken a number of strategic decisions, and these are set out in the NAMA business plan, which was published on 30 June 2010: • All debts and borrowers will be pursued to the Approximately 67% of the underlying security is greatest extent possible – this includes personal located in Ireland, with an additional 6% located guarantees, in Northern Ireland. Of the remaining 27%, 21% • Targets have been set for debt is located in Britain, with smaller reduction, as follows: concentrations in the US and • 25% 2013 “At the throughout Europe. • 40% 2015 conclusion NAMA is expected to have a life of • 80% 2017 ten years and, during that time, it has • 95% 2018 of the asset been mandated to deal expeditiously • 100% 2019 transfers, NAMA with the acquired bank assets, to • NAMA will work with borrowers protect or otherwise enhance the where it takes the view that this is is expected value of those assets in the interest the optimal commercial strategy in to have a loan of the state, and to obtain the best the circumstances, and where the achievable financial return for the borrower is fully cooperative, makes portfolio of just state. full disclosure, and is realistic in terms over €70 billion, NAMA will require the services of of asset-funding and of the lifestyle a wide range of service providers in implications for them of NAMA representing order to achieve its statutory objective support, 10,000 loans of obtaining the best achievable • Borrowers who are supported by financial return to the state. The NAMA must accept close monitoring and 850 board of NAMA is very conscious of of their activities, borrowers. the need to retain top-quality legal • While new money is available, it is a services, and for such services to be scarce resource and will be advanced The expected delivered for the best price possible. only when it enhances NAMA’s overall NAMA There has been a long debate financial position, about whether NAMA represents • Where the borrower or its discount will be the right policy response, but that management is not adding value and approximately debate ended when the legislation the borrower is in default, NAMA was enacted by the Oireachtas. will, where appropriate, seek to take 58%” Since establishment, the board and control of secured assets, NAMA’s senior executive team have • NAMA will restructure and simplify concentrated on delivering NAMA’s existing structures and utilise NAMA’s own legal commercial objectives, and NAMA will pursue what documentation to standardise and consolidate loans, it believes to be the best possible outcome for the • NAMA will pursue all personal guarantees to the state in each case. G greatest extent feasible, • NAMA will pursue recovery of assets transferred to Aideen O’Reilly is head of legal and tax at the National third parties. Asset Management Agency.

www.lawsocietygazette.ie 31 Law Society Gazette NOVEMBER 2010 criminal law

Balan cing act?

The Criminal Procedure Act 2010 was passed into law on 1 September 2010 and institutes far-reaching changes to our criminal justice system. Orla Keenan wonders whether the seismic changes it heralds amount to a step too far in favour of the victim

he Criminal Procedure Act 2010 was passed into law on 1 September 2010. The act institutes far-reaching changes to our criminal justice system and introduces a radically altered landscape for an accused. The act has largely been welcomed by advocates of a more ‘victim- centred’ approach, but others have argued that the act goes too far in Teroding traditional due-process values. Part 2 of the act reforms the law relating to victim impact evidence. The act limits the application of this section to the victims of sexual offences and offences involving violence, or the threat of violence. Under the Criminal Justice Act 1993, the sentencing court was only entitled to take into account the effect of the offence in question on the direct victim, and the entitlement to make oral submissions to the court, commonly known as a ‘victim impact statement’, was similarly circumscribed. The new act expands the concept of ‘victim’ to include family members of a victim who has died, is ill or otherwise incapacitated – an omission from the 1993 act that proved to be highly controversial. The act makes it clear that the purpose of such evidence is to assist the court in reaching an appropriate sentence for the convicted offender. This expansion arguably runs uneasily alongside the well-hallowed principles of sentencing, which emphasise the role of the court as an objective and detached adjudicator, functioning on behalf of the state and focusing on the

32 www.lawsocietygazette.ie criminal law Law Society Gazette NOVEMBER 2010

Balan cing act?

gravity of the offence and the personal circumstances an application to the Court of Criminal Appeal for a of the offender to reach a just punishment removed retrial order for a person who is acquitted of an offence from any suggestion of vengeance or personal on the grounds of “new and compelling evidence” retaliation. Critics of this new development may that emerges post-acquittal, or where an acquittal is argue that this widening of the concept of victim may “tainted” by an offence against the administration of introduce a risk of inconsistency and unfairness where, justice. In both instances, the court must be satisfied the more popular or well-loved the victim appears, a that an order for retrial is in the public interest and in person is punished more harshly. the interests of justice, having regard to: An alternative view of the new regime is that any • The likelihood that any retrial could be conducted such statement from a family member is simply a fairly, specific illustration of the general impact of the offence • The time that has passed since the commission of on the wider community, which the court can validly the offence, and objectively consider in deciding a just penalty. • The interests of the victim, and Furthermore, supporters contend that this section of • Any other matters the court considers relevant. the act is a welcome improvement to the position of families of victims who can often feel excluded in the ‘New and compelling evidence’ is defined as evidence trial process. that was not and could not, with the exercise of Under section 4, provision is made for a parent, due diligence, have been adduced in the previous guardian or family member to make the victim proceedings. It must be reliable, of significant impact statement on behalf of a child or person with probative value, and be such that, taken with all the a mental disorder – but this does not preclude such other evidence, a jury might reasonably be satisfied persons from making a submission or giving evidence beyond a reasonable doubt of the person’s guilt. themselves, and this can be done by video-link or ‘Fresh evidence’ appeals can only be taken in through an intermediary. Under section 4(5) the respect of certain specified serious offences; however, court may, in the interests of justice, prohibit the an application by the DPP for a retrial order where broadcasting or publication of all or part of any victim the previous acquittal was ‘tainted’ can be made in impact statement. This is a welcome safeguard and respect of any trial on indictment. In both instances, should go some way to protecting the integrity of the the relevant sections are to have prospective application court process and ensuring the rights of the convicted only, and the DPP can make only one application for main points offender. a retrial order under each section. Under section 14, • Criminal a further appeal may be possible to the Supreme Court Procedure Act Double jeopardy in limited circumstances. 2010 Perhaps the most fundamental change in criminal This radical legislation is compatible with the state’s • how it affects procedure introduced by the act is contained in part 3, obligations under the European Convention on Human the accused which amends the rule against double jeopardy or the Rights and, in particular, article 4 of protocol 7, which • Victim impact principle that, once a person has been acquitted of an provides that a person should not be tried again for evidence offence, that acquittal is to be regarded as irrevocable. an offence for which he or she “has already been • double jeopardy Under sections 8 and 9, the rule is modified by finally acquitted or convicted” – except where there is modifications entitling the Director of Public Prosecutions to make evidence of “new or newly discovered facts” or where

www.lawsocietygazette.ie 33 Law Society Professional Training Programme • November – December 2010 Date eVent Discounted Full training Hours Fee* Fee 11 Nov undertakings – tips and traps (Ennis) €99 €165 2 General by group study PLUS 1 regulatory matters**

16 Nov revenue seminar (Dublin) €84 €112 2 General by group study 19 Nov Tactical negotiation skills workshop (Dublin) €126 €168 3 Management and professional development skills 25 Nov Annual family law conference 2010 (Dublin and via video-link to Cork) €231 €308 5.5 General by group study 26 Nov Annual in-house and public sector solicitors’ conference (Dublin) €126 €168 2 Management and professional development skills by group study PLUS 1 regulatory matters** 2 Dec Legal issues in wind farm development €168/€84 €224/€112 1 – 4 General by group study – depending of number of sessions attended 10 Dec Tactical negotiation skills workshop (Cork) €126 €168 3 Management and professional development skills

For full details on all of these events, visit www.lawsociety.ie or contact a member of the Law Society Professional Training team on: P: 01 672 4802 F: 01 672 4890 E: [email protected] W: www.lawsociety.ie

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Law Society Professional Training Programme • November – December 2010 Date eVent (including speaker’s FEE*) Discounted Full training Hours Fee 6 Nov International financial services law – regulatory capital requirements €298 €397 2 General by group study and credit institutions – Basel II and the capital requirements directive. Robert Cain – partner, Arthur Cox (10am – 12pm) 13 Nov International financial services law – what financial services lawyers €298 €397 2 General by group study should know about derivatives. Ed Murray – partner, Allen and Overy, London (10am – 12pm) 20 Nov International financial services law – international bond markets. €298 €397 2 General by group study Colin Bamford – barrister-at-law, London (10am – 12pm)

27 Nov International financial services law – debt securitisation and its €298 €397 2 General by group study role in the post-credit crisis world. Kevin Ingram – partner, Clifford Chance, London (10am – 12pm) 4 Dec International financial services law – principles of Islamic finance. Farmidi Bi – partner, Norton Rose, London (10am – 12pm) €298 €397 2 General by group study 11 Dec International financial services law – double taxation treaties and €298 €397 2 General by group study Ireland’s network. Pat Wall – partner, PricewaterhouseCoopers, Dublin (10am – 12pm)

All of the lectures will be held in the National College of Ireland, International Financial Services Centre, Dublin 1. For full details on all of these events, visit www.lawsociety.ie/lspt or contact the Law Society Finuas team on: P: 01 672 4802 F: 01 672 4890 E: [email protected] W: www.lawsociety.ie *Law Society Finuas members

The Law Society Finuas Network is funded by member companies and the Finuas Networks Programme. This programme is managed by Skillnets Ltd and funded from the National Training Fund through the Department of Education and Skills criminal law Law Society Gazette NOVEMBER 2010

‘WITH PREJUDICE’ APPEALS Part 4 of the Criminal Procedure Act 2010 provides stood, the criminal justice system was continuously the DPP and the attorney general with a right of reviewing potentially flawed convictions, scrutinising appeal to the Supreme Court on a ‘with prejudice’ and adjusting the rules to reduce the likelihood of basis against an acquittal, which arises from an erroneous convictions in the future. This provision erroneous ruling by the trial judge on a point of law now introduces a comparable process with respect arising during the trial. to correcting rules that are conducive to mistaken Critics, such as the Irish Council for Civil Liberties, acquittals, thus addressing an unwarranted and have argued that a natural corollary to the article unjustifiable imbalance in the system. 38.5 guarantee that “no person shall be charged on Section 23(2) of the act also allows the DPP or any criminal charge without a jury” is the assurance attorney general a right of appeal against a decision Modifications to the that a judge cannot overturn the decision of a jury. of the Court of Criminal Appeal not to order a retrial rule of double jeopardy However, it can also be asserted that, as matters following the quashing of a conviction. are, perhaps, the most fundamental change in criminal procedure there has been a “fundamental defect” in the previous at present, the subject of a constitutional challenge. proceedings. Similarly, this fundamental break with The final substantial reform introduced by the tradition can be said to be constitutionally sound. In act concerns the amendment of the Criminal Justice Considine v Shannon Fisheries Board, the Supreme Court (Evidence) Act 1924, which relates to the giving of ruled that statutory exceptions to the protection against evidence relating to the bad character or previous double jeopardy were permissible, provided that they convictions of an accused. The 1924 act precludes were expressed in clear terms. an accused being cross-examined as to bad character Proponents of the traditional double-jeopardy rule except in very limited circumstances, which include, will point to the necessity of finality for the accused, among others, when he or she has given evidence the need to encourage efficient investigation and, most of his own good character, has questioned a witness importantly, the increased risk of a wrongful conviction for the prosecution with a view to establishing his in a second trial. In this regard, it has been argued that or her good character, or has made imputations the chance that a particular defendant will be perversely against a prosecution witness. The rationale behind convicted must increase if she or he is tried more these restrictions is that such evidence may be than once. Furthermore, on a second prosecution, the disproportionally prejudicial and may thus undermine strategy of the accused and the version of events they the principle of the presumption of innocence and the will advance is known, and this fact may enable the burden of proof. prosecution to unfairly mend their hand by making superficial changes to their approach, which might Character evidence nonetheless increase the likelihood of conviction. Section 33(a) of the act expands the situations On the other hand, supporters of the reform in when the ‘shield’ may be dropped to include the law in this area see the asymmetry and bias in the circumstances where the defence leads evidence old system, which insulates an acquittal from review from a defence witness about the accused’s good no matter how flawed, but provides for a number of character, or a defence witness makes imputations safeguards against a wrongful conviction through the against a prosecution witness. Furthermore, if an appeal process. It should be noted, however, that the accused gives evidence or leads evidence from any impact of this provision may be more symbolic than witness, leading to allegations as to the character of look it up actual, given the British experience, where, in the seven a deceased or incapacitated victim, the shield may Cases: years since the equivalent law was similarly reformed, also be lost. Again, this controversial amendment • Considine v Shannon only two applications for a retrial after an acquittal have can be seen as a significant weakening of an accused’s Fisheries Board been made. position at trial. (1997) 2 IR 404 The framers of the legislation have cast the act Expert evidence as a further step in the recalibration of the justice Legislation: Another novel introduction of the new act is system, from the interests of accused persons in • Bunreacht na contained in section 34, where an accused is no favour of victims of crime. While certain provisions hÉireann longer entitled, as of right, to call an expert witness in the act address very obvious lacunae in the • Criminal Justice Act or adduce expert evidence, and must be given leave to criminal justice system, it remains to be seen 1993 do so by the court. The defence must generally give whether the seismic changes instituted by the act • Criminal Justice the prosecution ten days’ notice of their intention to amount to a step too far. G (Evidence) Act 1924 call such a witness. • Criminal Procedure While the prosecution is obliged to give an accused Orla Keenan is a solicitor at Garrett Sheehan and Partners. Act 2010 notice of expert evidence they intend to adduce, they The author is grateful for the advice of Dara Robinson, a • European Convention do not require the leave of the court to do so. This partner in Garrett Sheehan and Partners and chairman of on Human Rights imbalance between the prosecution and the defence is, the Criminal Law Committee of the Law Society.

www.lawsocietygazette.ie 35 Law Society Gazette NOVEMBER 2010 professional ethics

A finding that a person lacks capacity may result in the restriction of their fundamental rights at the most basic and practical levels. A solicitor faces particular demands in advising a client whose capacity is at issue, writes Margaret Walsh Full to ca pacity

egal capacity and mental capacity are two “A solicitor or other professional person does not fulfil different creatures. In the legal context, his obligation to his client … by simply doing what ‘capacity’ is the ability to enter into a he is instructed to do. He owes such person a duty to transaction or to exercise rights that may exercise his professional skill and judgement and he have consequences for other people, such does not fulfil that duty blithely following instructions Las making a will, a gift, a contract, an enduring power without stopping to consider whether to do so is of attorney, or being able to manage one’s property appropriate. Having done so, he must then give and affairs. Incapacity generally arises by reason advice as to whether or not what is required of him is of an inability to make a decision through ‘mental appropriate.” incapacity’ or by operation of law such as applies to legal minors and children. A finding that a person Models of capacity lacks legal capacity may result in the restriction – even In Ireland, we have no generally applicable definition removal – of their fundamental rights at the most of capacity at common law or statute. There are basic and practical levels: where and with whom they essentially three capacity models: live, their ability to make financial decisions and to • The ‘status approach’, used in the wards of court deal with their assets. system and for enduring powers of attorney (made A solicitor faces particular demands in taking pursuant to the Powers of Attorney Act 1996), instructions from and advising a client whose capacity assesses a person’s legal capacity based on the is at issue. To quote Barron J in Carroll v Carroll: presence or absence of certain characteristics. It is an across-the-board assessment, based on disability.

main points • Legal capacity and mental capacity • Assessing capacity • Guidelines for solicitors advising clients

36 www.lawsocietygazette.ie professional ethics Law Society Gazette NOVEMBER 2010

Full to ca pacity

• In the ‘outcome approach’, the assessment is will be aware that medical evidence is essential determined by the individual’s decision, which, if in wardship applications and on the creation and it does not conform to societal values or those of registration of enduring powers of attorney. However, the assessor, might be deemed to be evidence of the desirability of obtaining medical evidence in incapacity. relation to capacity as a matter of good practice, such • The ‘functional approach’ is now generally as when drawing up a will for a client who may be accepted as the most appropriate. It focuses on elderly, vulnerable, or both, has been well reviewed the person’s cognitive ability to understand the and affirmed by the courts. Where this is necessary, nature and consequences of a decision, based on the solicitor should provide the doctor with all the choices available. Capacity is assessed on an necessary background information and details of the issue-specific basis, such as the capacity to make a relevant legal test to be applied. will, a gift, marry, or consent to medical treatment. Different levels of understanding are required of Confirmation that a person lacks capacity in the client for different transactions, such as making a relation to one issue will not necessarily carry will, separation and divorce, making a gift, creating an through into another. This model has the benefit enduring power of attorney, entering into a contract, of minimum interference with an individual’s and many others. Different information will be decision-making autonomy, as capacity is not relevant when a solicitor is enquiring whether or not a fixed for all time but is time and issue specific. client is incapable of managing his or her own affairs, The HSE has adopted the functional model in its as opposed to whether a client is capable of making a Patients’ Private Property Guidelines and for doctors valid will or entering into a contract. It has been said providing mental capacity reports in the Nursing that the highest level of capacity is that required to Home Support Scheme. make a will. In Park v Park, a man of advanced years who married and executed a will on the same day was Irish law presumes capacity – found to have had the capacity to marry, but not to a presumption that may make the will. be displaced by a person seeking to establish Assessing capacity lack of capacity. In For the solicitor, capacity is not an exact science. A the legal context, the client who is unwell may have lucid intervals. The assessment of capacity guidelines to assist with assessment of capacity set out is ultimately a judicial below, reproduced from the Law Society’s recently rather than a medical updated guidelines Drafting Wills for the Elderly Client, decision. The doctor’s are based on those in Tolley’s/STEP Finance and Law role is as expert witness. for the Older Client: While courts do attach 1) The party assessing capacity should understand weight to the evidence of the nature and effect of the transaction involved, medical practitioners, they making sure that they have all the relevant will not always prefer the documentation and background information. doctor’s opinion. Solicitors 2) Corroborative information should be obtained

www.lawsocietygazette.ie 37 Law Society Gazette NOVEMBER 2010 professional ethics

look it up Cases: Assessment of Capacity • Banks v Goodfellow [1870] LR 5 QB 549 • Law Reform Commission, Report on Vulnerable • Carroll v Carroll [1999] 4 IR 241 Adults and the Law (LRC CP83-2006) • M v M (High Court, judgment of Hedigan J, • Law Society, Drafting Wills for the Elderly Client 30/10/2009) • Scheme of Mental Capacity Bill 2008 • Park v Park [1953] 2 AER 408 • Tolley’s/STEP Finance and Law for the Older • Powell v Powell [1900] 1 Chapter 243 Client • Schtukaturov v Russia (EctHR 2008) Legislation: Literature: • Lunacy Regulation Ireland Act 1871 • Health Service Executive, Nursing Home Support • Mental Health Act 2001 Scheme – Guidance Document of the Functional • Powers of Attorney Act 1996

where necessary, and this may include a diagnostic to the needs or issues of a third party. Transactions assessment of the client (medical advice). that will trigger particular concern for the person 3) Medical evidence that has assessed the client’s whose capacity is in doubt include wills, joint cognitive skills should be regarded as a supplement accounts, enduring powers of attorney, gifts/voluntary to, not a substitute for, the legal test for capacity. disposals, and particularly so where some person is in 4) Be fully aware of the legal test (if there is one) for a dominant position over the client. assessing the capacity required and The solicitor should be aware of its particular context. the future needs of the client and alert 5) All information relevant to making “The solicitor to the possibility of undue influence, the decision or the nature and should be the improvident or unconscionable effect of the transaction should be bargain, conflict of interest or duress. As explained to the client in broad aware of the Farwell J stated in Powell v Powell, it is terms and simple language. future needs the duty of the solicitor “to protect the 6) After a reasonable time span, the donor against himself and not merely client should be able to paraphrase of the client against the person in influence of the roughly the explanation he or she and alert to donor”. If a solicitor is not satisfied has been given. that his client is free from improper 7) Avoid questions that are likely to the possibility influence due to vulnerability arising produce the answers ‘yes’ or ‘no’. of undue from a lack of capacity, then there is a 8) Don’t be misled by the client’s duty to advise the client not to enter preserved social skills into believing influence, the into the transaction or to refuse to that they have the requisite capacity improvident or act. As a minimum, a solicitor might to enter into a particular transaction consider setting out clearly in writing or make a particular decision. unconscionable the reasons for the advice and what 9) Assessment of capacity or the lack of bargain, action or inaction is believed to be in it is, on the balance of probabilities, the best interests of the client. Careful not beyond reasonable doubt. conflict of and contemporaneous notes should be 10) Consider whether to repeat the interest or recorded where the client lacks capacity assessment of capacity within a day and the solicitor concludes it is not or two. duress” possible to obtain instructions. Likewise, 11) An individual does not lack capacity where there is a doubt, but the solicitor merely because he/she makes a opts to proceed, very careful and decision that seems imprudent or eccentric. detailed notes should be made regarding the taking of 12) Always make immediate and comprehensive notes. instructions and the execution of any documentation.

Although it can be difficult, such as when someone Reform of the law is introduced by a family member, it is important at The Law Reform Commission published three the outset that a solicitor establishes which person is documents in this area between 2003 and 2006, the client and whether that person wishes to retain the last being its Report on Vulnerable Adults and the him. Instructions should be obtained solely from the Law. The commission recommended that the law client – seen alone – and not from a third party. The emphasise capacity rather than lack of capacity, be benefit of the solicitor’s full and independent advice as enabling rather than restrictive, and reflect the shift to whether what the client proposes is appropriate for from the medical model of disability towards a rights- their circumstances should be given without reference based model affirming the dignity of the individual.

38 www.lawsocietygazette.ie professional ethics Law Society Gazette NOVEMBER 2010

It recommended a predominately functional approach considerations for practitioners. Does an involuntary to the issue of legal capacity. This is proposed in the patient have the capacity to properly instruct their scheme of the Mental Capacity Bill 2008. This scheme solicitor at a tribunal hearing, or consent to the envisages that the mental capacity legislation will re- release of hospital records, or give instructions for enact the Powers of Attorney Act 1996 and update it an appeal? However, it is important here to note in line with best practice. It will replace the existing the distinction between mental health and mental wards of court structure (see the Lunacy Regulation capacity. A person with a mental disorder may have Ireland Act 1871 and the Rules of the Superior Courts) ‘capacity’ to make a decision. with the creation of the Office of Public Guardian, Statistics from the Alzheimer’s Society of Ireland who will supervise both the new court-appointed indicate that approximately 40,000 new cases of personal guardians and donees of enduring powers dementia are diagnosed in Ireland every year – more of attorney (EPAs). EPAs will be expanded in scope than 100 people a day. Reform of the law in this area to permit healthcare decisions for the donor, the is well overdue. G exceptions being the withdrawal of artificial life sustaining treatment, organ donation, and non- Margaret Walsh is a partner in Sheil Solicitors, therapeutic sterilisation. (Currently, EPAs can only Dublin. She is a member of the Law Society’s Probate, provide for personal care decisions.) Administration and Trusts Committee and the sub- The Mental Health Act 2001, in its definition of committee of the Guidance and Ethics Committee mental disorder in section 3, may give rise to capacity addressing the financial abuse of the elderly.

www.lawsocietygazette.ie 39 Law Society Gazette NOVEMBER 2010 legal profession The right note Sometimes described as the third arm of the legal profession, the office of the notary public is the oldest surviving branch of the legal profession. Eamonn Hall traces the history, current functions and duties of the office, and tells how to become a notary

riginally described by the title of ‘public In Lambeth Palace Library, I discovered a notarial notary’, the present day office of the instrument of 16 February 1395, in which Art notary public is the oldest surviving MacMurrough and other leading Irish chiefs at branch of the legal profession – and is Ballygory, near Carlow, in the presence of Thomas sometimes described as the third arm of Earl of Nottingham, Marshal of England, took oaths Othat profession. In non-contentious legal business, the of allegiance to King Richard II, and certain other notary has a comparable standing to that of a solicitor oaths to observe covenants in an indenture. There are or barrister and has a unique place in international statements in notarial instruments in Ireland around business affairs. this time that King Richard II (who spent seven The profession of notary traces its origins to months in Ireland between October 1394 and May the scribes in ancient Egyptian civilisation and 1395) and the party to the instrument “requested the the tabelliones of Rome. The tabelliones, a class of notary to make the agreements public instruments”. professionals who transacted legal business, became The Reformation affected the appointment prominent in Rome between the second and of notaries in Ireland as in England. Henry VIII third century AD. The influences of the East, the (1509-1547) denied the Pope any authority in the importance of commerce in the Roman Empire, appointment of notaries and the Archbishop of and the necessity to have written legal documents Canterbury became the ‘civil’ appointing authority in governing transactions all fostered the development England. (Today, in England and Wales, the candidate of the profession of notary. A significant evolution notary receives his or her faculty from the Archbishop of the notary was when notarii became secretaries to of Canterbury.) In Ireland, the Archbishop of Armagh the authorities – principally the emperor and leading and the Court of Faculties, later to become the Court ecclesiastics. of Prerogative and Faculties, were constituted as the The emperor and the Pope appointed notaries, appointing authorities for the notary public. The Lord and the status of the notary subsequently flourished Chancellor exercised the power to appoint notaries on mainland Europe. In the days of Charlemagne from 1871 until 1924, when, under the Courts of Justice (742-814), whose empire united most of Western Act of that year, the po wer was transferred to the Chief Europe, instruments drafted by notaries on the Justice of Ireland. Since 1924 (confirmed by the Courts main points continent of Europe acquired the same status and (Supplemental Provisions) Act 1961), the Chief Justice • the office of effect as a conclusive judgment. Such is the same has been and remains the appointing authority. notary public today on mainland Europe with the notary’s authentic • Functions and instrument. Christopher Columbus took a notary with Regulation of notaries powers him on his epic voyage to America to certify the truth The principal statute regulating notaries public • admission to the of what he saw and to take possession of the land. in Ireland is the Public Notaries (Ireland) Act 1821, profession The notary came to some prominence in Ireland which, though obsolete for the most part, remains after the Norman invasion and later English conquest. part of applicable law. This statute does not set out

40 www.lawsocietygazette.ie legal profession Law Society Gazette NOVEMBER 2010 The right note

the powers, functions and duties of a notary public, provision for striking the notary “off the roll of but section 1 provides (with criminal sanctions) that faculties”. The Chief Justice exercises regulatory “no person may act as a public notary, or use and control over the notary, pursuant to directions issued exercise the office of a notary public, or do a notarial under the Rules of the Superior Courts. act, unless such person shall have been duly sworn, admitted, and enrolled”. Other provisions of the Functions and powers 1821 act relate to apprenticeship, and the appointing The functions of the notary public in Ireland today authority for notaries is specified to be the Court of are intertwined with the history of Ireland and its Faculties and “the Lord Archbishop of Armagh”, as legal inheritance from the United Kingdom of Great referred to above. There is also provision for certain Britain and Ireland. Article 73 of the Constitution of the disciplinary sanction against the notary, including Irish Free State (1922) provided that “laws in force”

www.lawsocietygazette.ie 41 Law Society Gazette NOVEMBER 2010 legal profession

case law to the contrary.) I set out the background to Halsbury because it is partly being relied upon here for convenience as a statement on the functions and powers of notaries, about which there appears to be some confusion expressed from time to time. The opening words of the title on notaries in Halsbury (1912) comprise a succinct statement of the notary’s functions. A notary public is stated to be a duly appointed officer whose public office it is, among other matters, to draw, attest or certify, usually under his official seal: • Deeds and other documents, including conveyances of real and personal property, • Powers of attorney relating to real and personal property situate (domestically) or in foreign countries, • Note or certify transactions relating to negotiable instruments, • Prepare wills or other testamentary documents, and • Draw up protests or other formal papers relating to occurrences on the voyages of ships and their navigation, as well as the carriage of cargo in ships.

The functions set out above are specifically repeated at the coming into effect of the constitution “shall and expanded upon under the heading ‘Functions’ in continue to be of full force and effect” to the extent the Halsbury title on notaries, prefaced by the words that they are not inconsistent with the constitution “a notary is entitled to prepare deeds, agreements and until repealed or amended by enactment of the and wills relating to real and personal property”, and Oireachtas. the list of functions above is effectively repeated. The laws of Ireland (as part of the United Kingdom Among the functions expanded upon in this section of Britain and Ireland) prior to the foundation of the of Halsbury is the well-known function of verifying, state in 1922 may be found principally in statute law authenticating and attesting the execution of deeds and the various manifestations of the common law. or other documents, and powers of attorney. There There is no specific statute that sets out the functions is also a specific reference to the notary’s function in of the notary public. This is not surprising, as there protesting bills of exchange. There is also a reference is no definitive statement of law as to the specific to the noting and drawing up of ships’ protests. powers, functions and duties statute of a solicitor, Halsbury concluded the section on the functions of the barrister or medical doctor. The powers, functions notary by noting that “from an early period”, notaries and duties of the regulated professions evolved over have exercised the right of administering oaths and time. taking declarations. As in many other matters, where there is no I am fortified as to the correctness of my specific statute setting out the law, we depend on description of the functions of the notary set out a statement of the law set out in judicial decisions above by provisions in the Solicitors Acts. Section 58 or in the textbooks of legal scholars. Apart from of the Solicitors Act 1954 as inserted by section 77(a) statutes and judicial case law, the most authoritative of the Solicitors (Amendment) Act 1994 prohibits statement of the law in Ireland immediately prior to unqualified persons from drawing or preparing a the dissolution of the political entity of the United document relating to real or personal estate or any Kingdom of Great Britain and Ireland in 1922 may legal proceedings, land registration matters and be gleaned from the celebrated Laws of England with probate and letters of administration. The penalties its subtitle A Complete Statement of the Whole Law of specified include fines on conviction on indictment England by the Earl of Halsbury, then a former Lord and summarily. However, section 58(3) of the Chancellor of Great Britain, and other lawyers. The Solicitors Act 1954 provides for an exemption from the edition to which I refer is the first edition of 1907, strictures above in relation to acts done by a barrister with the title of ‘Notaries’ published in volume 21 in practising in the state or by a notary public as such. 1912. The aim of the work known as Halsbury was to supply a consolidation or complete statement of the Admission to the profession law of England and to set out “the whole living law” The rules relating to admission to the profession are relating to the subject in question. (In 1922, the law set out in the Notaries Public Examination Regulations of England was the same as the law in Ireland, unless 2007-2010. These regulations may be found on there was some particular Irish statute law or judicial the website of the Faculty of Notaries Public in

42 www.lawsocietygazette.ie legal profession Law Society Gazette NOVEMBER 2010

look it up Literature: Office), www.courts.ie (see under ‘Appointment of • O’Connor, The Irish Notary (1987) notaries public/practice directions/notary public • Hall and O’Connor, Supplement to The Irish Notary petition document/certificates of authentication’) (2007) • Website of the United Kingdom and Ireland Notarial • Website of Faculty of Notaries Public in Ireland, Forum, www.ukinf.org.uk www.notarypublic.ie • Website of the International Union of Notaries, • Website of the Supreme Court (Business of the www.uinl.org

Ireland, www.notarypublic.ie, under ‘Admission to Candidate notaries are referred to specific sections the profession’. At the time of writing, there is no of O’Connor, and Hall and O’Connor, mentioned specified course of education at a university that the above and papers published on the faculty website aspiring notary must pursue. This is in contrast to for guidance. (A candidate may use any other England and Wales, where a barrister, solicitor or relevant textbook.) other legally qualified person with training approved The requirement for a candidate notary to show by the Master of the Faculties (Faculty Office of an immediate need for his or her appointment the Archbishop of Canterbury) must pursue and was dispensed with by the Chief Justice by pass a two-year, part-time, postgraduate diploma direction dated 25 January 2006. The candidate in notarial law and practice from the notary applies by way of petition University of Cambridge – the only to the Chief Justice in open court institution in England and Wales referring, among other things, to his authorised to provide that course of or her certificate of the result of the study. “Christopher faculty examination. In Ireland, a person must pass Columbus took the faculty examination set by Independent branch the Faculty of Notaries Public in a notary with The office of notary public is Ireland. To be eligible to sit the him on his an independent branch of the faculty examination (held in May of legal profession in Ireland with each year), an applicant “must be a epic voyage significant legal functions. The practising solicitor or barrister in to America to ‘Celtic Tiger’ and the influx of good standing who on the date of his immigrants to Ireland breathed or her application to sit the faculty certify the truth life into the profession of notary in examination, has not less than five of what he saw Ireland. The Faculty of Notaries years’ post-qualification experience in Public in Ireland (and its governing the general practice of law (at least two and to take council, which, in part, regulates consecutive years of which shall be in possession of the office of notary in Ireland) has the period immediately preceding the been reinvigorated in recent times application)”. The syllabus is set out the land” and plays its role in international in the Examination Regulations stated affairs by being a full member of above and comprises the following: the United Kingdom and Ireland • History of the notary public in Notarial Forum, which meets Ireland, quarterly in the domestic capitals. The faculty • Ethics for the notary public, also played a significant role in the inauguration • Private international law, in Dun Laoghaire, Dublin, of the World • Roman law, Organisation of Notaries in March 2010, intended • Aspects of company law and practice, to represent the interests of notaries public • Bills of exchange, including noting and protesting worldwide, especially in common law jurisdictions. for non-acceptance/non payment, The faculty has also taken a keen interest in • Ships’ protests, the development of e-notarisation and the • The Hague Convention of 5 October 1961 and forthcoming extension of the e-apostille pursuant relevant EU conventions, to the relevant Hague Convention. G • Powers of attorney, including enduring powers, • Intercountry adoption, Dr Eamonn G Hall is a notary public, director of • Money-laundering legislation, education with the Faculty of Notaries Public in • Notarial practice, including oaths: substance Ireland, a member of its governing council and an form and procedure; attestation, authentication associate member of the International Union of and certification of documents, deeds and Latin Notaries. This article is written in a personal transactions. capacity.

www.lawsocietygazette.ie 43 Law Society Gazette NOVEMBER 2010 people and places

Portrait of a lady – Society honours Moya Quinlan

(Front, l to r): Michael Quinlan (Chair, Regulation of Practice Committee), John L Murray (Chief Justice), Moya Quinlan (Past-President of the Law Society, 1980-1981), Gerard Doherty (President of the Law Society) and Brendan Quinlan. (Back, l to r): Richard Johnson (retired President of the High Court), Mary Keane (deputy director general), Fr Martin Clarke (solicitor), Frank Murphy (solicitor), Ken Murphy (director general), Frank O’Donnell (Circuit Court judge and Past-President of the Law Society, 1983-1984), Maurice Gaffney (SC) and John Costello (senior vice-president)

very special dinner was held by the to be elected to that office in the 170 or so A Law Society recently for a very special years of its existence. lady. Earlier this year, Moya Quinlan The guests at the dinner in her honour celebrated her 90th birthday. She has been were chosen by her. It was appropriate that an elected member of the Council of the they should be photographed beforehand Law Society continuously for more than 40 under the portrait of Moya that hangs in years. She was president of the Law Society the Society’s Council Chamber at Blackhall exactly 30 years ago – the first woman ever Place. P ic : Len s men

The Society invited a group of recently-qualified solicitors to Blackhall Place on 21 September to discuss matters of interest. At the meeting were (front, l to r): Melanie Evans, Tracey Lyne, Moya stands in front Ellie Dunne, Gerard Doherty (president, Law Society) Gemma Neylon, Susan Roe and Carol of her portrait by David Eager. (Back, l to r): Emma Brogan, Mary Keane (deputy director general), John Costello Hone, which hangs in the (senior vice-president), Eamonn Freyne, Keith O’Malley and Ken Murphy (director general) Council Chamber

44 www.lawsocietygazette.ie people and places Law Society Gazette NOVEMBER 2010 P ic : Co lli n s P h o t o A g en cy

In his last days as President of the Dublin Solicitors’ Bar Association, Mr Justice Gerard Hogan has been appointed to the High Court by John O’Malley kept the best wine till last. In recognition of the 75th President Mary McAleese. Mr Hogan graduated in law from UCD in 1979, anniversary of the DSBA, John was invited to afternoon tea with the was called to the Bar in 1984 and fills a vacancy arising from the President of Ireland, Mrs Mary McAleese, at Áras an Uachtaráin. promotion of Mr Justice Liam McKechnie to the Supreme Court. Accompanying him were past-presidents of the DSBA and present and past Celebrating on 15 October after a ceremony in the Supreme Court council members. To mark the occasion, John presented the President with were (l to r): his son Hugh, wife Karen, son Emmet and a beautifully inscribed silver salver on behalf of the association daughter Hilary P ic : Len s men

Attending the recent annual advanced advocacy course run by Law Society Professional Training were (back, l to r): Stephen Walsh, Joanne Kangley, Mike Dale (NITA), Paul Kelly, Rory O’Boyle, Donagh McGowan, Sandra Johnson (NITA), Colette Reid, John O’Keefe and Bo McDowell. (Front, l to r): Carol Sinnott, Rachael Hession (course manager), Judge Carroll Moran, Gerard Doherty (Law Society president), Attracta O’Regan (head of Law Society Professional Training) and Sylvia McNeece

At the launch of the LLM (Practitioner) course, a collaboration between University College Cork and the Law Society’s diploma programme, were (l to r): Past-President of the Law Society James MacGuill, Freda Grealy Celebrating the launch of Landlord and Tenant Law – The Residential (diploma manager), Rory O’Boyle (diploma co-ordinator), TP Kennedy (director Sector at King’s Inns on 14 October were (l to r): Jennifer Ring (solicitor of education) and Professor Steve Hedley (dean of the Faculty of Law, UCC) and author), Ms Justice Mary Laffoy and Úna Cassidy BL (author)

www.lawsocietygazette.ie 45 Before

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Turners Printing Co. Ltd., Earl Street, Longford, Co. Longford Telephone: + 353 (0)43 3350500 Email: [email protected] BOOK REVIEW Law Society Gazette NOVEMBER 2010 books National Asset Management Agency Act 2009: Annotations and Commentary Hugh B Byrne and Louis McEntagart. Bloomsbury Professional (2010), www.bloomsburyprofessional.com. ISBN: 978-1-84766-504-1. Price: €95.

s Mr Justice Finnegan is that each of the words or One small omission is the Asays in the foreword to phrases in italics are all terms absence of commentary on this extremely useful work, the that are defined in section 4 of the provisions contained in NAMA Act “will be a feature the act. In NAMA-speak, even the schedules to the NAMA of the economic, social and a short sentence can import a Act. Schedule 3, part 1, for legal landscape of Ireland for multitude of precise, clearly example, which amended the many years to come”. Running defined statutory meanings, and Building Societies Act 1989, was to 241 sections in 14 parts and it is against that background the legislative basis for the issue with three schedules – schedule that this book is an essential of special investment shares 3 having 11 parts amending tool for practitioners seeking a in INBS and EBS Building other enactments – the NAMA path through the legislation. Society that, when issued to Act is a formidable piece of In its treatment of each the Minister for Finance, gave complex legislation that has provision in the act, the book him effective control over those also spawned several statutory carefully points out (in a societies. instruments (also reproduced ‘definitions’ section) those No commentary is provided in this book). No act of the terms that are defined and on these and other changes Oireachtas has received more carry a meaning under the to the Companies Acts, Finance publicity or sustained media act that is additional to their Act, landlord and tenant commentary than the NAMA ordinary dictionary meaning. diligence and effort that one legislation, and so on, set out in Act, so it is entirely appropriate And within each annotated would expect the banks to have the schedules. However, while that it should be the subject of section, this is repeated, put into the making of those such commentary would make this monograph, published soon prompting the authors to point loans and the taking of security this book more comprehensive, after its enactment. out that, while this may appear for them is simply not available it is accepted that they are The purpose of the act is to to be unnecessarily duplicated, to NAMA. Accordingly, the peripheral to the main purposes address the serious threat to the “it is hoped that their inclusion NAMA Act facilitates the of the NAMA Act, and the economy and the stability of will be of assistance, particularly effective and efficient transfer foregoing observation is more credit institutions in the state to readers who are only of loans to NAMA by providing in the nature of a quibble than generally, and the need for the interested in specific sections”. a statutory mechanism a gripe. maintenance and stabilisation The authors’ decision in this whereby ownership transfers In producing and publishing of the financial system in the respect was, to my mind, by operation of law and also by this book so quickly, Mr Byrne state, and to address a number undoubtedly correct. Few disapplying certain laws that and Mr McEntagart could of other compelling needs, people will have cause to sit might otherwise operate to taint not include any developments including facilitating the down and read this book from or impair NAMA’s ownership in the interpretation of the availability of credit, resolving cover to cover; many will, on of an acquired loan and its provisions of the act, whether problems created by the the other hand, have reason to security. One such provision by the courts or in its practical financial crisis expeditiously examine particular provisions, is section 218, which provides application. This is unavoidable and efficiently, and protecting most likely in great detail, and that “an acquired bank asset is where a book comes to market the interests of the state and it is a great advantage to such not invalidated or rendered void so quickly and, given that taxpayers. readers that they can obtain a or voidable as against NAMA NAMA is likely to be around The primary means of comprehensive analysis in each or a NAMA group entity or for many years to come, any achieving those purposes was to provision. their successors in title – (a) by developments or omissions in establish NAMA as a statutory One of the main purposes of section 60, 99, 100, 111, 286 or this work might well be picked corporation and mandate it the NAMA Act is to transfer to 288 of the Companies Act 1963, up in a second edition. to acquire eligible bank assets NAMA the ownership of loans (b) by section 29, 31 or 139 of For anyone and everyone (primarily credit facilities of and other credit facilities from the Companies Act 1990...” Here, affected by NAMA, whether as debtors and related debtors and the participating institutions the book is superb in saving borrower, banker or advisor, this the security (including charges) (banks and building societies) its readers a trek through the book is a must. G for such credit facilities) from that originated those loans Companies Acts, as it reproduces participating institutions. The in return for their long-term each of the foregoing provisions Dr Thomas B Courtney is a reason for the parentheses economic value. The same time, as amended. partner in Arthur Cox.

www.lawsocietygazette.ie 47 ) G RA

S licitors licitors o S thority ( thority u A gulation gulation The Council noted that 80% that noted Council The he he director general reported e that the judicial review proceed- review judicial the that to relation in Society the by ings the recognition of Irish solici- tors’ qualifications for transfer been had Wales and to England stayed on consent on particu- lar terms, pending consultation between the SRA and the Law Ireland. of Society 2010 election Council The Council discussed the fact that there had not been a con- tested election for the Council in 2010, which wasedented. It was agreed that this unprec- probablyreflectionwasthea of commercial pressures encountered being by practitioners and the fact that many solici- tors did not have the time to devote to involvement with the Society. Nevertheless, it a was disappointing development, and it was agreed that the So- ciety should examine why par- ticipation in the work of Society the was so unattractive to members,including issuessuch as workload, ment, time and the perception commit- that it was difficult for new Council members to be elected. R T of of litigation was conducted by solicitors in the District Court, and it was at models in ance with established complete vari- solicitors that jurisdictions other from a be should judi- excluded Con- of nature. this council cial cern was also expressed about the lack of openness and trans- of heads the in proposed parency bill in of respect the of conduct business and the publication of council. judicial the of findings of review Judicial nister for nister i M ade and and ade r T eting with with eting ads of bill to establish a establish to bill of ads The letter addressed The the letter addressed So- terprise, terprise, e novation e n n H M E I judicial council judicial The Council noted that heads of bill the to establish a ju- dicial council specifically ex- cluded the involvement of the practising profession. Councilagreedaccord-that, in The ance with its policy on the matter, the Soci- long-standing ety should seek a provision in the bill that would provide the legal profession with a right of nomination to the board of the judicial council. The president briefed the Coun- the briefed president The Minis- the with meeting a on cil In- and Trade Enterprise, for ter contents the to discuss novation of a Forfás report on the costs in- in Ireland, business of doing Council The costs. legal cluding compre- a of contents the noted hensive letter from the director general to the minister, which points principal the summarised meeting. the at raised ciety’s position in relation to costs in the economy generally, the fact that the had Society no to solici- to in role play relation response the Society’s fees, tors’ to the Forfás report, interna- tional legal costs comparisons, the economic reality for solici- a sug- present, at Ireland in tors gestion that solicitors should display price for legal services, the Competition Authority re- port of 2006, business disputes in- and the resolution, Society’s engage constructively to tention Office Statistics Central the with to devise an improved basis for of levels on data of collection the Ireland. in fees legal Land Land Eamon Harrington Eamon Stuart Gilhooly Stuart ” 2010 . . The Council approved a . escriptive easements escriptive ohibition on commercial commercial on ohibition r r P undertakings John Past-president Shaw con- firmed that would Force the Task Undertakings Commercial issue precedent documentation to and the it shortly, profession was important that practition- ers would not sign certificates of title that did not adhere the by to recommended format the Society. P a dif- outlined O’Higgins Kevin ficulty that had been identified by the Commit- Conveyancing tee in relation the of to 8 part and prescriptive easements and Conveyancing Law Reform Act Act Reform Law Conveyancing and 2009 draft letter to the Department of Justice seeking a legislative amendment to rectify the dif- ficulty. Proposed: Proposed: Seconded: ance) (Amendment) Regulations Regulations (Amendment) ance) 2010 Eamon Harrington noted that the underlying policy in rela- tion to the already been regulations approved by had the Council in its adoption of the of recommendations and report Force. In the addition PII Task to the draft statutory ment, instru- draft qualified insurers agreement, and the proposed changes to the minimum terms and conditions, he referred the Council to a clarifying two matters in memorandum rela- tion to the meaning of a ‘de- faulting run-off firm’ and the time limit for making an plication ap- to join the The ARP. reg- draft the approved Council ulations and other documenta- tion that had been circulated. NOVEMBER Law Society Council meeting, meeting, Council Society Law 2010 24 September report regulations

James Cahill Cahill James Brendan Twomey Brendan II P tion: tion: Liam Liam Kennedy said that the o o www.lawsocietygazette.ie M “That “That this Council approves the Solicitors Acts 1954 to (Professional Indemnity 2008 Insur- motion motion sought to a address sig- nificant issue of public interest. did guidelines the that noted He could solicitor a that suggest not not act at all in circumstances vulnerable. was party one where in that, suggested guidelines The those a circumstances, solicitor The sides. both on act not could guidelines the approved Council and agreed that they should be issued to the profession in the note. practice a of form M clients on vulnerable guidelines tion: guide- approves Council this “That lines for solicitors when acting for trans- property in clients vulnerable attached.” form the in actions Proposed: Seconded: Brendan outlined Twomey the background to the motion and made to reference case relevant law where the expressed judiciary concerns had about in parties so- both for acting licitors property transactions, particu- larly where one party might be regarded as vulnerable. He ac- cepted that there were difficul- constituted what defining in ties ‘vulnerable’ and he noted that do to seek not did guidelines the ‘sign- a practitioners gave but so, post’ towards those factors that circumstances, in might, certain constitute vulnerability. Keith Walsh expressed concern that the could be guidelines used by in cir- a solicitor against a client cumstances where the solicitor vulnerabil- the of aware not was of provision the of time the at ity advice. legal council Law Society Gazette Gazette Society Law briefing 48 briefing 49

2010 OR (which (which loans’ Commer- F issued on or or on issued s 2010 TR A ER de de minimis NOVEMBER cember 2010 will be be will 2010 cember e B D notes

ting in breach of this pro- this of breach in ting , acting , for acting both borrower www.lawsocietygazette.ie y-to-let’ residential property residential y-to-let’ c ) newal deadlines for insurers for deadlines newal EM u A 75,000 75,000 (intended for loans II e B P Commercial Commercial 1 after covered. be will and permitted Commercial undertakings for so-called ‘ 2010 2010 will not be covered. be not will and permitted ‘ All All references to a matter with a limit of liability of up to to up of liability of limit a with € three- for small too considered way closings) will be permit- covered. be will and ted R provided for in the C s

• • are available at www.lawsociety. at available are ie/ covered. be not will hibition Insurers will be required to pro- vide proposal forms at least 21 days in advance of the renewal date and to respond to properly completed proposal forms within receipt. of days working ten A Regulations Property cial or guarantor or indemnifier security or provider and financial institution in connection with a commercial property tion, where the financial institu- transac- tion provides financial the with accom- in connection modation transaction, will not be permit- ted. continue to transactions be clas- sified as commercial transactions. property being covered by indemnity professional insurance mat- a to or references are ‘covered’ simply by professional covered ter being indemnity insurance under conditions. and terms minimum the 2. DE REGULATIONS

) ) is- E 1 s C cember cember TR e A D your firm your firm f ING f I I Law Society Gazette Gazette Society Law

C practice ur firm must notify notify must firm ur o Y INSURAN aims aims made’ basis means l Y OMMEN C tional tional cover in respect of any renewed. is undertakings such did did not, in fact, give any com- mercial undertakings between 30 and No- 2009 1 December vember 2010 inclusive, there is no need for any additional undertak- commercial for cover ings your firm may have taken renewed. be to out (ex- undertakings Commercial cluding commercial sued on or after 1 gave gave any commercial under- takings between 1 December 2010 30 and November 2009 inclusive, due to the ‘claims made’ com- basis for cover additional cover, of insurance mercial undertakings should be renewed for at years after the last least such com- six given. was undertaking mercial ‘ to the any insurer claim made during an indemnity before the end of that indem- period nity your period; firm’s insurer will be entitled to deny cover in respect of any claim made your against firm first during an indemnity period and only notified after the end of that indemnity period. Important Important note: that the insurance policy that will meet a claim is the policy claim the when place in is that is made and notified to or the that is policy in insurer, the is the noti- when insurer place may that circumstances of fied give rise to a claim – not nec- essarily in the policy in place when the alleged negligence occurred.

• • C ), ), s R ) ) is- ) is- ) is- s s s R R R vember vember o N e e changes INDEMNIT PERIOD h

T Y e e sued sued on or after 1 December 2009 are permitted, but are not covered unless additional obtained. been has cover 2009 December 1 before sued were permitted and from a if not covered resulting will be omission, or act wrongful sued on or after 1 December 2009 but before 1 December 2010 are permitted, but will not be covered unless addi- Commercial Commercial undertakings (in- cluding commercial AT Commercial undertakings (in- cluding commercial AT Commercial Commercial undertakings (in- cluding commercial AT R sidential be permitted and undertakings will be cov- will indemnity professional by ered insurance, R sidential permitted and are covered undertakings by are professional indemnity insur- ance, Commercial including commercial account- undertakings, able trust receipts (AT issued issued before 1 2009 were permitted and are December from a if not covered resulting omission, or act wrongful w position: position: w isting position: position: isting ESSIONAL e

x N are in bold. in are E 2010) 2010) and the new position (for 2010/2011 period the indemnity commencing on are for 2010) set com- out below 1 December parative purposes. tors, the existing position (for the (for position the existing tors, current 2009/2010 period indemnity ending on 30 • • • • • • F INDEMNIT PRO

TO

2010/2011 2010/2011

HANGES

he he Council of the Law Soci- ety has approved changes For For the assistance of solici- THE C 1. Commercial undertakings Commercial 1. The concept of ‘commercial un- dertaking’ refers to certain com- undertak- solicitors’ of types mon institutions to financial given ings in commercial property transac- effect is given The concept tions. un- ‘relevant of definition the by to dertaking’ and related provisions in terms the and minimum condi- tions. The definition of ‘relevant undertaking’ is being slightly to changed clear up some ambi- guities and difficulties that have been observed in practice. From applicable the 2010, December 1 out set is apply will that definition in the amending regulations. In should of cases reference doubt, be to made the of text the defini- the in definitions ancillary and tion minimum terms and conditions the and 7.16 in clause contained in provisions operative applicable clause 7.15, both as set out in regulations. amending the to to the insurance professional regulations indemnity (including the minimum terms and condi- tions) to take effect for the next on period indemnity commencing amending The 2010. December 1 are at regulations available www. lawsociety.ie/PII. This practice note is intended as a guide the important to practical changes. changes technical other are There existing the improve and clarify to regulations and minimum terms note practice This conditions. and in- or statement definitive a not is law. the of terpretation T Cormack Cormack 8.50 p&p p&p 8.50 c M € regulations regulations

I I ther ther s E instated instated cover will e helpline helpline for solicitors 21.57 plus 21.57

R I I € Diary for review the s68 letter at regular intervals during the case or transaction, to check if unforeseen no is letter first the that mean complexities correct. longer first the if s68 revised a Issue Purchase Purchase stocks of the client information leaflet from the Law Society (100 per pack, price – contact Society). Law the at Always include a clause lowing for al- a revised s68 let- ter if complexities unforeseen arise. that the client receives all that the the receives client the by required as information legislation. exclude any exclude claims or circum- of aware was firm the stances the in which the period during unpaid. was premium Insurers Insurers will be required reinstate to run-off cover back- dated to date of cancellation arrears. in made is payment if Sixty days will be allowed to pay the premium to reinstate cover.

• • • • • 6. 6. Failure to cooperate with in- surers The will regulations be amended are insurers that clear it make to to complaints to make permitted the the about princi- Law Society cooper- to failure for firms of pals claims. with dealing in ate duty stamp pay to Failure 7. The will regulations be amended to make it clear are that permitted to inform the insurers Law by firms failure regarding Society duty. stamp pay to Further information: relating to the queries P should be to addressed the Law Society P at 01 879 8790 or piihelpline@ lawsociety.ie. n- P I R 68 levy P R TION C SE in the public area for any claims. It is P R F arges O s h nly if the premium is paid (as (as paid is premium the if nly

ormation ormation in Relation to Legal C U junction e the with client leaflet an in con- appropriate s68 letter to the client, so Inform Inform the client if you intend asking for money or up for the discharge front, of costs and/or outlays at intervals, prior to the conclusion of the transaction. or case Check out the precedent s68 letters on the members’ area of the Law Society website, www.lawsociety.ie. Check out the client Law information Society leaflet f of the Law Society website – ‘consumer www.lawsociety.ie, interest’. will will be provided by the A o for compliant firms). Default- ing firms and their principals indemnify fully to liable be will the A the policy of the Law Society to seek High Court orders for firms defaulting of closure the voluntarily. close not do that The The former principals of the firm will have a legal obliga- tion to pay the run-off cover and premium the Law Society will be able to compel Courtto High the seek from orders the former principals to pay and premium, the Insurers Insurers are required to pro- vide 20 working days’ notice to the of cover of cancellation Law Society and the insured firm,

• • • • will will not to be introduced for the period. indemnity 2010/2011 5. Cancellation of run-off cover premium of non-payment for The right of insurers to run-off cancel cover for non-payment of premium remains in place with changes: following the The The previously planned A • • TS ’ . P R DON

should be P R AND T.

A V , , the A P P R R DOS If If this is not practical and possible, give the basis of charge, If the basis of charge being used, give the is client details of how they will be charged in their particular case, If time is charge, time records must the basis be must and maintained be of available for inspection in dispute. a of event the If If this is not practical and estimate, an give possible,

P P P

R R R 2010 This will result in cover for the the for cover in result will This rata. pro reduced being claim A firms closed – firms closed may and market, the in only cover obtaining reopen by A unlimited, main re- these – costs defence A covered in the first indemnity defaulting firms period will be of is premium the defaulting not or whether status run-off paid. Thereafter, cover If If a qualified insurer experi- ences an insolvency the event, other qualified insurers are not required to close the insolvent the up take and gap insurer’s share of the A An An A schedule will be – published as it is all expected that cases in the sub- a by rates market premium exceed premium will the given and margin, pricing stantial significantly reduced cover in the A regarded in all as not resortand cases last of place as a an alternative to cover in the market, − − − Always Always include information in to relation this if amount, actual the Give possible: and practical is − organisation on their behalf. their on organisation

• • • • • The The following points (which are not changes) may be noted for clarity: of purposes • • THE ), ), P 1.5 1.5 R € NOVEMBER ol o P premium, P sks sks Pool (A i R R sks sks i R cceeding practices cceeding signed s u e e x re re information on the suc- There There will be defaulting firm status for A of payment firms for non- There There will be an limit for aggregate all claims of million, All claims by financial institu- tions (regardless of whether the financial institution is a client of the firm) will be ex- cluded, S A E plain fees that and any money charges that will include be paid to another person or In In all cases, give the information in client writing in rela- tion to legal charges that will be incurred in their case transaction. or R need clients all that to cognise budget for all expenditure in relation to their legal busi- ness. R ance cognise with that all aspects strict of s68 compli- protects both consumers and cli- the manages and solicitors expectations. ent’s o

e which which is the safety net for firms mar- the in cover obtain to unable ket, will be reintroduced for the period on indemnity 2010/2011 terms: modified following the M 3. 3. rule is available practice ceeding www.lawsociety.ie/PII. at 4. The succeeding firm The and succeeding preced- ing firm will be allowed to elect run-offwhether cover or the suc- in apply will rule practice ceeding make to decide they If case. their an election, such election must be made prior to merger or ac- quisition taking place. If they do not make an election, then the default position will be that the rule applies. practice succeeding The The Assigned • • • • • • • S charges legal about ction writing 68(1) – information in Do: www.lawsocietygazette.ie Law Society Gazette Gazette Society Law briefing 50 briefing 51 has 2010 A R mmittee mmittee mmittee accepts o o o A C C C R Guidance and and Guidance hics hics t E NOVEMBER Litigation Litigation nveyancing nveyancing o C I form of undertaking, it www.lawsocietygazette.ie H V award or settlement, except in in except settlement, or award cases. collection debt Answer Answer any questions the cli- have. may ent Discuss the matter with the and client try to resolve all is- sues. If the matter is not resolved, write to the taxed bill client the have explaining to right their or to to make a the complaint Society. Law 8(8) – disputes about bills about disputes – 8(8) fective office systems office fective

6 f S Do: • • • Have Have a good office place, system whether manual in or elec- tronic, which will trigger compli- ance with all parts of s68 auto- matically. E the declarations the along declarations with deal- ings when lodged. The P confirmed confirmed it will publish a legal office notice to remind its staff that it has declarations. these of lodgement agreed to accept note and recommends that solici- that recommends and note tors insist that the P is strongly recommended clients that are made fully aware of its implications and that solici- tors ensure that clients provide a signed acknowledgement their ofunderstanding of its impli- cations. ations place solicitors in a very difficult position and, in instanc- es where solicitors decide that there is no option but the to sign TITLE

I H V hi v Law Society Gazette Gazette Society Law to has confirmed A T. R A gistry dealings and gistry dealings V e I is refusing to cover R H V REGISTERED nd nd . . The P a : L Charge a professional fee that that fee professional a Charge is reasonable, and bill. the in state separately it State the charges for general expenses, such as stationery postage. or State the charges for people or organisations such as gov- experts. or agencies ernment the State Give a summary of the legal client. the for done work Give the of amount total mon- ey, if any, recovered from the side. other Give details of any side. other the from recovered charges Don’t state the professional fee as a percentage of any The The committee reiterates the The Society is aware that ction ction 68(6) and s68(2) –

e S litigation or matters contentious bills for Do: other • • • • • • • • Don’t: stresses stresses the importance of con- usu- the in them lodge to tinuing al way that that staff, while no check- longer ing them, will continue to accept them.” content of its previous practice lodge lodge family law with declarations the proceeds of the claim than had been anticipated. some clients are pressuring so- licitors to give the undertaking because the subscriber treatment for unless the necessary undertak- ing is signed client or fears being because sued by thetheir treating hospital on foot of refusing to pay the hospital bill until the undertaking is signed. It is recognised that such situ- I – out UNDERTAKINGS H V . In recent LARATIONS I on behalf of . . The commit- C H V DE

Gazette itors’ c e e committee confirms h x T LAW Don’t make a unilateral deduc- unilateral a make Don’t tion from the client’s award or settlement in a or litigation other contentious matter without the client’s consent. written Get the client’s written author- written client’s the Get deduction. the make to ity E plain that the solicitor, with any the monies client’s that authority, formally undertook to pay to another party of the proceeds of out sale must be paid out, even if the client changes their mind when the in. comes settlement or award Ask the client if they are agree- are they if client the Ask able to any costs outstanding being deducted settlement. or award from their y y 2009 “ The committee refers practitio- refers committee The a

dealing with the client’s award or or award client’s the with dealing settlement Do: • • • • Don’t: tee’s tee’s clear was recommendation follows: as ners to its previous practice note note practice previous to its ners on this topic as in published the M that it is proper practice to ily ily law declaration as a require- registration. for ment the subscriber, has resulted in the subscriber/client receiving much less compensation out of note that tion this remains in force recommenda- times, there have ances where solicitors have been giv- inst- en the undertaking and only lat- er realised that the requirement that solicitors repay to of the proceeds that come into their hands and subject to any court order to the contrary – all monies paid by soli Y AMIL F gistration gistration e I issues to R H V ) ) staff members ard process. Spe- actitioners should A o gistry dealings and r e R B P R en en though a s68 letter v

E

intain intain your files in a way a e

ractitioners ractitioners will be aware of previous practice notes is- he he committee has had recently a number of calls from M B a aware that failure to issue revised letter, should when have this been done, viewed as is coming within the definition of “inadequate pro- of terms in services” fessional conduct. letter is no longer correct. longer no is letter ction ction 68(3), (4), and (5) – signed signed copy of an up-to-date

e • A may have been sent, in the event event the in sent, been have may to difficult be may it dispute, a of if it, received client the that prove file. on not is copy signed a that makes event the in check to easy s68(1) compliance regula- with accounts Society Law a of tion or inspection of a complaint Society. Law the to made being s68 s68 letter is the best solicitor’s defence in the event of a com- plaint. S that that the form of application fam- the list for not does registration are refusing to accept lodgement lodgement to accept are refusing of family law declarations along with Land members of the profession to the the to profession the of members effect that Property Authority Authority (P

P T practitionerscompletion,forand the Society recommended that solicitorsun-thesignshouldnot dertaking. cifically, cifically, members were advised of difficulties with the undertaking form of that sued by the Societythesuedby recommend- ing that solicitors do undertakings not give to while third the claim parties remains within the Injuries , F B ilding ilding u B mmittee

reement o g C A reement for nk, g , a A B B a a N nveyancing B a a u members who have u o QUOTED B B B (paragraph 4(a) – within F B C

B C S R B a l a a B Guidelines and ACC EB AI nk, B plc, ilding Society, nk of Ireland, B Ltd, nk of Scotland First (Ireland)Active plc, ICS K Irish ilding Society, nk, N tional Irish Permanent TS tionwide U ster nk Ltd. Delay in issuing AT deeds on ten working days where the lender has the deeds; possession or paragraph 4(b) of – within ten working days of the deeds coming possession into of the lender), the Delay in issuing redemption figures (paragraph the ofworkingdays withinten 5(b) – solicitor’swrittenrequest),or Delay in tors from their releasing undertakings (paragraph solici- 21(d) ten – working days of within the licitorfurnishing so- deeds tothe lender). Society, rticipating lenders: embers and as set out in the

a • • • • • • • • • • • • • • • m The I Residential Mortgage (2009 edition) are: Lending Any other lenders who use the Law Society’s certificate of title documentation with the consent of the Society have so agreed do on the same basis as toI documentation. agreed to beGuidelines and bound by the P such as: resolving delays on the part of the lenders may also be where there used are other breaches by lenders of obligations under the , w m- a O L IGURES F reement g Guidelines by follow- A restricts or delays in is- , R ese sample let- ATE h T C reement g A A udsman as agent of the b ful, the solicitor make a should complaint to the Financial Services client. ciety’s website V o postpones any remedy a so- licitoror a client of a solicitor may have against a where lender they reasonably lieve that failure to be-furnish a vacatemay result in financial loss to the solicitor client or or the which the may ability of affect either of them to fulfil their contractual ob- ligations to any thirdin respect of partythe property to which the outstanding vacate relates. It should be noted that noth- ing in the foregoing or in any other part of the and The committee has draftedsample letters to lenders for resolving delays in ing furnish- matters to solicitors agreed as under the certificate of title system for tial mortgage residen- lending (2009 edition). suing redemption figures, or delays in releasing solicitors from their undertakings. ters are members’ available area in of the the such as delays deeds on in AT issuing ing either the links Conveyancing for Committee the or for ‘precedent tion’. documenta- The have sample been drafted letters where for there use are lenders in furnishing delays vacated by mortgages, but they may be adapted and used as neces- sary where there are breaches by other lenders of their agreed obligations under the Guidelines and S

• • Practitioners should also that note the above procedure for REDEMPTION

n- de ISSUE o . In . o

C C le 2.46 le u OR R Guidelines , reement / g A HONOUR

reement AND g TO A

gulator), which is at the e as issued by the Financial R back of the and If the vacate or good rea- fur-not isdelay the for son nished within the second ten-day period, the solici- tor should initiate a cus- tomer complaint with the the see –lender procedure (of the sumer Protection If the vacate has not been received within the monthperiod, the solicitor one- should write to the lender, reminding it that the cate is overdue, va- Ifthe lender does not sup- ply the vacate or does not set out in writing a good reasondelaytheforwithin ten working days, the so- licitor should notifylender in writing of the so- the licitor’s intention to initi- ate a customer complaint to the lender, and the allow lender a furtherworking ten days to the vacate or furnisha good rea- son for the delay, If the lender automatically issues a vacate following redemption, the should vacate issue within month of receipt of one the re- demption monies, If the lender written requires request a for a cated va- mortgage, the cate va- should issue within one month of receipt the of solicitor’s written re- quest, If the customer complaint procedure is not success-

2010 6) 5) 3) 4) 1) 2) invoke it when necessary by specifically referring the rel- evant lender to the terms of the agreement and calling on the lender to comply with the Guidelinesand summary: AILURE r- o B inter ’ F NOVEMBER and its F (2009 edi- B rtgage, a re- o rrowerthatare proved Guide- o p M A B reement g A LENDERS , issuing vacates are to alia be resolved. should Practitioners selves familiarise with this procedure,and should them- ensure that they lease/discharge/vacate (as appropriate) will be furnished to the requestingwithin one month solicitor of receipt of payment or the whichever is later”. request, Paragraph 24 sets out detail of the how delays on part the of the lenders in, rower’s outstanding gagewrittenanda request to mort- release the available to the Lender.” Paragraph 23(a) that “on payment of the sum provides requested to redeem a Paragraph 5(d)“If, after completion, the re- provides: demption sum quoted by the Lender is found to be inade- quate to redeem the loan(s), the Lender shall hold the not release/discharge/ with- vacate (see paragraphbelow) but 23 shall be pursue free to any other againstthe remedies t has been attention brought of to the the committee

• • • I that, despite reached the with agreement the I members in 2009 as the part revised of certificate system, of some title lenders are honouring not redemption quoted by figuresthem and/or are not issuing vacated mortgages solicitors to who have the relied redemption figures on quoted and paid the requested to sums the relevant committee lenders. reminds The relevanttheofners terms the of practitio- Law Society lines and tion) (available in the members’ area of the Law Society website and in all residential mortgage lending solicitors’ packs) as fol- lows: www.lawsocietygazette.ie Law Society Gazette Gazette Society Law briefing 52 briefing 53 : 2010 mmittee o C issett B NOVEMBER nveyancing nveyancing MATTERS o

C Mary www.lawsocietygazette.ie b x If there is a financial condition condition financial a is there If E condition financial the clude from the certificate of title – of course, this would have to be specifically notified to the lender in advance by quali- drawdown of down/first draw- fying the undertaking to the or regard, this in lender O ceipt tain from for the client discharge a financial re- of the condition drawdown/first drawdown of before loan. the

• • ter – but, at least, all sides know know sides all least, at but, – ter that it is on the basis that the lender will monitor the payments interim and that the solicitor will obtain the final certificate of compliance before releasing the payment. stage final in the then permission, planning the solicitor would also need to either: The The above principle also applies in relation to respect of undertakings apartments and com- in property mercial of in course the construction. The requirement for the stage payment additional qualification should not arise in relation to apartments, because a loan stage-payment in relation to a new apartment should not practice. in arise TION st st o C M PLANNING

Law Society Gazette Gazette Society Law tle Guidelines Guidelines tle i

T (2009 edition). edition). (2009 ONSTRU reement F C rtificate of rtificate of g e a A C O The lender, on seeing the draft draft the seeing on lender, The Introduce Introduce a requirement pre- drawdown that the stage final the release not will solicitor payment to the client/builder until the or architect engineer produces the final certificate of compliance with planning regulations. building and M drawdown that down/first the ke it a condition of draw- that ensures there is solicitor evidence of planning permis- sion, etc, being in place for constructed. be to house any Arrange for to drawdown take cer- of foot on stages, in place compliance interim of tificates by an architect or also usually engineer, certificates which confirm the value of the work done at each stage. lenders deal directly with the client and the architect/engi- neer on these interim certifi- payments stage the but cates, usually come through the so- licitor.

REGARDING • • • stage stage payments – as set out in the and qualification to the undertaking, usually: will In this way, even a though In solici- this way, the undertaking, the qualifies tor lender, in effect, usually draws the solicitor back into the mat-

For bookings contact tel: 01 668 1806 plan- Court OURSE C Meet at the Four Courts to the effect that THE . The amount of the the of amount . The

before before drawdown (or IN

UNDERTAKINGS

There There may be a lack of coop- and client the between eration the solicitor, resulting in the client failing to attend to the procurement of the final cer- compliance. of tificate There There may be a lack of coop- and client the between eration result- the architect/engineer, ing in a certificate of compli- forthcoming, being not ance

• • In In the case solicitor a construction, of of course houses in the to undertaking the qualify should the lender first drawdown if it is a stage- loan) payment (s)he that undertake cannot (s)he will certify title as regards matters ning loan and the stated purpose of the loan will usually indicate to for is loan the whether solicitor a the purchase of the site or only, it is whether for the construction that site a on either – house a of the client already owns, or on a site that the client is ing. purchas- The solicitor bring should the then draft qualification the to attention of the lender the for purpose of agreeing it with the lender prior to In cases where it is drawdown. intended to issue the loan in the stages, so- insert to need the also will licitor standard qualification regarding TO

). ). HOUSES ATIONS C I vember vember 1990 and F o N nveyancing nveyancing Handbook

o in C

he he committee asked has to been again highlight The The standard solicitor’s cer- The house may be completed, completed, be may house The but may be in breach of the permission, planning The The house may not be com- all, at pleted QUALI

The The necessity of qualifying title to a lender in relation to houses in the course and of stage-payment construction loans more was recently highlighted in the covering letter to the profession of certificate 2009 the launching documentation. title tificate of title mortgage for lending residential certificate that includes planning matters a are in order and that an appro- priate certificate of compliance has been obtained. Clearly, an undertaking to furnish given be cannot title such of certificate a where a house is in the course dif- potential The construction. of relation in arise may that ficulties an undertaking such to providing include: April April 1999 (both of also which republished in are the commit- tee’s the the dangers of giving undertak- ings in relation to houses in the course of construction. It refers practitioners to its two previous practice notes, published in the Gazette • • T T A V and T or or T

A V mmittee o C mmittee (section (section 4A). o

T T on property C B A V xation xation a T T 4 T A V T arose on acquisition, acquisition, on arose T A V nveyancing nveyancing cause cause the committees are authorisation (section 13A), (section authorisation o e

C ession tax adviser to the that ensure tax adviser vendor client answers each of the and enquiries the purchaser client un- correctly, derstands the significance of given. response each services of a specialist specialist servicesa of B B T would have been chargeable T have been chargeable would A f conscious conscious of the fact that these enquiries have not been stress- prop- tested in a fully-functioning erty market, they are open to a review of same in future, if re- quired. The The vendor’s solicitor bear in mind that a vendor should may have acquired a property utilis- ing transfer of business (section 3(5)(b)(iii)), using a relief 13 or using a a In such vendor circumstances, may be under no the that impression but, for most rules, one must consider what V but to the on vendor acquisition, for the application of these re- liefs. T A V families and friends er 2010) T T his- A b V to the pro r T T issues arise, f A c V mbers mbers are reminded e T T special condition ap- M A to the drafting of the con- the of drafting the to V ers o a purchaser, the commit- n vailable to solicitors’ it it is inappropriate to a issue contract for sale deleting without inapplicable option paragraphs in that condition. special propriately, propriately, according to the of the transac- circumstances tion. that, unless special condition 3 is struck out in its entirety because no prior tract for sale, thus enabling the vendor’s solicitor to draft the O solicitor ought closing, to the seek purchaser’s con- firmation from the the to replies the that vendor’s solicitor are enquiries still correct and accurate. Whether acting for a vendor or that, members all advise tees unless they are expert in the application of the new system or the transaction is the a and one straightforward member is fully satisfied that he or she has furnished been with the complete tory of the property, they are strongly recommended to ad- vise all clients to engage the b

ing manage A r 4) 5) ate c vory • I UR T enquir- O or mem t enquiries (o t enquiries A V t f homas a stage. This c T v t Law Society of Ireland, Blackhall Place c Conta tober 2010) are now pre-contract c O T T implications of the trans- A 2010 Prior Prior to issuing the enquiries to the vendor’s solicitor, the solicitor acting for the chaser pur- must complete purchaser’s the statement enquiries. the of 2 page on Although the enquiries are to be raised by the purchaser’s it solicitor, is the view of the Conveyancing and also will they that Committees Taxation a for tool a useful be to prove vendor’s solicitor and should be completed by the vendor V It It is the committees that intention the enquir- of ies should the be raised by the purchaser’s solicitor and re- sponded to by the vendor at the is vital if the purchaser’s so- is to licitor be in to a position the on client her or his advise action. The pre-contract

ies ( available in the members’ area of the Society’s website by fol- lowing links for the committees. Solicitors are reminded of following the five guidelines using when the precedent enquiriesdocument: 2) 3) 1) ontra c y a M NOVEMBER ey ey are h T pre- T enquiries T enquiries A V el: 01 672 4800, fax: 01 672 4801, email: [email protected], website: www.lawsociety.ie T ew wedding rates ew wedding rates Prestigious premises designed by in elegant Blackhall Place T T enquiries was Full catering and bar services for up to 200 people • Private grounds with extensive car parking ttractive location for photographs, both inside and outside • Centrally located and easily accessible A N V A tober 2010 edition. edition. 2010 tober c O he pre-contract he pre-contract are are for use in the context of The The Society’s initial set of latively latively few comments were e Wedding ceremony and reception Wedding ceremony and T published published as a working draft on cir- and 2009 April in website the to culated the in profession R received by the Society, and no significant changes quested. were The committees have re- made some minor changes and have decided to adopt the work- as it publish and final as draft ing the not suitable not for suitable use, and should an of context the in used, be not lease. type occupational pre-contract 2009. 2009. At that time, members of the profession were invited submit to comments and sugges- tions for improvement, on their experience of based using the working draft in practice and ap- plying them to live transactions. the sale of a freehold, the sale of of sale the freehold, a of sale the a freehold equivalent (that is, a disposed interest long leasehold of for a premium with a pepper- corn rent), and the surrender or leasehold legacy a of assignment interest (that is, a leasehold in- creat- more or years ten of terest ed before 1 July 2008. www.lawsocietygazette.ie Law Society Gazette Gazette Society Law briefing 54 briefing 55 , In- 25/8/ 25/8/ 15/9/ 2010 Appoints Appoints Removes Removes the Appoints Appoints 1/9/ Appoints 1/10/ 1/10/ Appoints NOVEMBER SI 414/2010 414/2010 SI 449/2010 SI www.lawsocietygazette.ie Criminal Criminal Justice Act 2006 the the compliance of persons with the s108(4). Commencement date: 2010 2010 Act Procedure Criminal 2010 Order (Commencement) Number: Contents note: 2010 as act. the the of sections all for date commencement Communities European Economic (European (Amend- Groupings) Interest 2010 Regulations ment) 447/2010 SI Number: Contents note: cap of 20 on the number of of members a Euro- permissible Group- Interest Economic pean ing. Commencement date: 2010 2008 Act Liquor Intoxicating 2010 Order (Commencement) Number: note: Contents 2010 as the date for s14 (as to it test applies commencement purchasing) insofar as it relates to inserting s37C into the 1988. Act Liquor toxicating Board Medicines Irish Provisions) (Miscellaneous (Commencement) 2006 Act 2010 Order 441/2010 SI Number: Contents note: 1/10/2010 as the commence- ment date for ss11(a)(iii), 11(a) (iv) and of 11(a)(v) the act. Sec- tion 11(a) relates to the role of the competent authority receiving and products cosmetic for applications from and issuing certificates to persons propos- ing to export any description cosmetic products, of medicinal . sec- 7/9/ 7/9/ 7/9/ Appoints Appoints Prescribes Prescribes Law Society Gazette Gazette Society Law Amends and Prescribes forms forms Prescribes SI 436/2010 436/2010 SI 428/2010 SI 424/2010 SI SI 409/2010 409/2010 SI Companies Companies Act 1990, Companies (Forms) (No 2) 2) (No (Forms) Companies 2010 Regulations Number: Contents note: updates the various forms pre- scribed for filing information in the Companies Registration Office. Commencement date: 2010 3) (No (Forms) Companies 2010 Regulations Number: note: Contents to be used by applicants under the tion 256F-H, where applicants the migrate to seeking be would type certain a of office registered en- fund investment collective of to or from Ireland from or to tity without jurisdiction prescribed a en- the up wind to having firstly jurisdiction original its in tity Commencement date: 2010 (Miscellaneous Companies (Com- 2009 Act Provisions) 2010 Order mencement) Number: Contents commencement note: the as 7/9/2010 date for s3(i) and s5(j) of act, providing for the a mechanism whereby certain collective in- currently entities fund vestment based in relevant jurisdictions can migrate their of- registered firstly without into Ireland fices having to wind up in their cur- jurisdictions. rent 2006 Act Justice Criminal Monitoring (Electronic 2010 Regulations Devices) Number: Contents note: types of electronic monitor- ing devices that may be for used the purpose of monitoring tober 2010 tober 7/9/ 7/9/ 7/9/ 7/9/ 7/9/ c O Companies Act Act Companies Companies Act Act Companies Prescribes Prescribes the Prescribes Prescribes six Prescribes Prescribes the Prescribes the

Companies Companies Act 1990, SI 426/2010 SI 430/2010 SI 429/2010 SI legislation update legislation section section 256F, must send section 256G. section Contents Contents note: jurisdictions – Bermuda, Brit- ish Virgin Islands, Cayman Is- lands, Guernsey, Isle of Man and Jersey – for the purposes of the outward funds migrating mechanism contained in Companies the (Miscellaneous Provi- 2009. Act sions) Commencement date: method of certifying and authen- an that documents certain ticating the under applicant 1990, to the Companies Registration Office. An applicant under this section would be seeking migrate the registered office of to a certain type of collective in- vestment fund entity to Ireland from a prescribed jurisdiction without firstly having to wind jurisdiction. that in up Commencement date: 2010 (Sec- 1990 Act Companies Doc- (Registration 256F) tion 2010 Regulations uments) Number: Contents note: 2010 2010 Order (Fees) Companies Number: Contents note: fees to be paid to the Compa- nies Registration Office by ap- the under plicants 2010 (Forms) Companies 2010 Regulations Number: Contents note: forms to be used by applicants under the 256G. and ss256F Commencement date: 2010 1990, 1990, Commencement date: 7/9/ 7/9/ Y Appoints Appoints R Prescribes Prescribes six Companies (Mis- Companies Central Central Bank Act S

e T N STATUTO SI 469/2010 SI 425/2010 SI E S D

E M T U C schedule 2, part 5. part 2, schedule R

E T L S E

N 11 11 11 – ptember Central Bank Reform Act Act Reform Bank Central Cer- of (Commencement 2010 2010 Order Provisions) tain Number: Contents note: 1/10/2010 as the commence- of the for date all ment sections act, with the exception of s6, s15(5), so much of schedule 1, paragraph 1, item 39 as inserts s32B into the 1942, (Rele- 1990 Act Companies Sec- under Jurisdictions vant 2010 Regulations 256F) tion Number: Contents note: – British Bermuda, jurisdictions Cayman Islands, Islands, Virgin Jersey and Man of Isle Guernsey, inward the of purposes the – for migrating funds the in contained mechanism I S Details Details of all bills, acts and statutory instruments since 1997 are on the library cata- logue – (members’ www.lawsociety.ie and area) – with students’ updated infor- mation on the current stage a bill has reached commencement and the date(s) each act. of All recent bills and acts (full text in PDF) are on and recent www.oireachtas.ie statutory instruments on a link to electronic statu- are tory instruments from www. irishstatutebook.ie. cellaneous Provisions) Act 2009. Act Provisions) cellaneous Commencement date: 1990 Act Companies under Jurisdictions (Relevant Regulations 256G) Section 2010 427/2010 SI Number: 2010 ew wedding rates for members of the profession New wedding rates G

250 250 1/9/ 1/9/ € 11/10/ 11/10/ s18, s18, and Prescribes Prescribes 95) 95) to Prepared by the by Prepared Appoints Appoints 1/9/ € Road Traffic Act Act Traffic Road Road Traffic Act Road Traffic Law Society Library Society Law SI 443/2010 443/2010 SI s19. from from £75 ( 350 350 in the case of for analysis in in the case of analysis for the of and alcohol to concentration € drugs. or drug a of presence the Commencement date: 2010 1994 Act Traffic Road 19) and 18 (Sections Forms) (Prescribed 2010 Regulations 434/2010 SI Number: Contents note: the form to be completed by a designated doctor under the Road Act Traffic 1994, the certificate, both in and English, Irish to be issued the by Medical Bureau of the under Safety Road 1994, date: Commencement 2010 (Miscellane- Welfare Social 2010 Act Provisions) ous (Commencement) (Part4) 2010 Order Number: Contents note: 2010 as the date for commencement part 4 and s34, insofar asit relates to part 4 of the act. Part 4 provides that the min- ister may, with the consent of the Minister for Finance, de- velop, implement and expand schemes with the objective of providing income support and generating employment or op- portunitiesfor employment. tions tions under the 1994 by by (SI (SI 10 10 . receiving it again, you can sign up by visiting the members’ section on the Law Society’s Click on the website at www.lawsociety.ie. ‘e-zine and e-bulletins’ section in the left- hand menu bar and follow the instructions. which will need your solicitor’s number, You is on your 2010 practising certificate and can also be obtained by emailing the records department at: [email protected]. B 1/9/ 1/9/ of of the 12/9/ 12/9/ ss133 ss133 20/9/

B Pensions Pensions , s141(1) s141(1) , Substitutes Substitutes pyright pyright and Rules Rules of the o (SI (SI 15/1986) t 2000, 2000, t C Substitutes Substitutes or- lfare lfare and Pen- t t 2001, s5) c t 1990 t c e t 2009. t A c A c W A A urts o urt Rules 1997 o C SI 420/2010 420/2010 SI SI 421/2010 421/2010 SI and adds forms 31 forms adds and C

13 13 in schedule . B B Soc Soc ial endment) endment) Pensions Pensions mber: mber: m u u A the the increase in the maximum contribution towards the costs and expenses incurred by the Medical Bureau of Road Safety in the performance of its func- der 31 der to to 31 93/1997) 93/1997) to facilitate the op- eration of the Rights Related the the Commencement date: 2010 Court (Intellectual District 2010 Rules Property) Contents note: N Superior to the in of respect applications High Court under legislation. tracts public con- Commencement date: 2010 (as (as inserted by the ( N District 257. and Commencement date: 2010 Courts Superior the of Rules of Award the of (Review 2010 Contracts) Public Contents note: order 84A of the to to court for enforcement of the ombudsman’s determinations, by virtue of the amendment of the 2) (No sions urt o C 12/9/ 12/9/ 12/9/ urt Rules urtRules urt Rules o o rcuit rcuit i C C C Amends Amends the Provides Provides for budsman budsman from Amends Amends order The Law Society’s e-zine is the legal newsletter of the solicitors’ profession. The e-zine issues once every two months and brings news and information directly to your computer screen in a brief and easily- digestible manner. If you’re not receiving the e-zine, or have opted out previously and would like to start Amends order m rcuit rcuit i rcuit rcuit O i (SI (SI 510/2001) to C C SI 444/2010 444/2010 SI SI 445/2010 445/2010 SI 446/2010 SI SI 435/2010 435/2010 SI nister nister for Social Protec- i (SI 510/2001). (SI (SI 510/2001) as order and and amends that order to of of the M

2010 mber: mber: mber: mber: mber: B E u u u Circuit Court Rules Court Rules Circuit 2010 (Costs) N Contents note: 66, rule 1 of the N N 57 numbering numbering of cor- requiring as provisions identified forms and the in rection 2001 to transfer the account into take the Pensions the tion of the function of applying Contents Contents note: Contents note: Rules Rules 2001 extend to the county registrar the power exercisable by court to under that provision re- the quire production and exchange by the parties of estimates of costs. Commencement date: 2010 Court Rules Circuit 2010 (Miscellaneous) 2001 Commencement date: 2010 (Pensions Court Rules Circuit 2010 Ombudsman) 63 Road Traffic Act 1994 1994 Act Traffic Road and (Costs 22) (Section 2010 Regulations Expenses) Number: Contents note: NOVEMBER 11/10/ 11/10/ Appoints 4/10/ 4/10/ Appoints 28/9/ Appoints Prescribes the Road Traffic Act Road Traffic SI 432/2010 432/2010 SI 451/2010 SI 433/2010 SI s50A, s50A, relating to applica- s17(2), and prescribes the and s17(2), prescribes Are you getting your e-zine? you getting your Are www.lawsocietygazette.ie 2010 products, products, veterinary medicinal products, or medical devices as is considered appropriate after law. the to regard having Act (Amendment) Patents 41) (Section 2006 2010 Order (Commencement) Number: note: Contents 2010 as transac- the (registrable s41 for date commencement act. the of tions) Development and Planning 2010 Act (Amendment) 2) (No (Commencement) 2010 Order Number: note: Contents 2010 as the date for commencement ss32 (amendment Planning of and Development Act 2000, tions to the High Court) and s33 (costs act. the of in matters) environmental 1994 Act Traffic Road (Prescribed 17) (Section State- of Manner and Form 2010 Regulations ment) Number: Contents note: form and manner of the state- English, and Irish in both ments, to be by produced an apparatus for determining the concentra- tion of alcohol in the pursuant to the breath 1994, statements the which in manner are to be duly completed by a Síochána. Garda the of member Commencement date: Law Society Gazette Gazette Society Law briefing 56 briefing 57

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Do stand admonished and ad- Do admonished stand vised, costs the to contribution a Pay of the Law Society measured at The The tribunal ordered that the e

f t ribunal e published by the e e On On 20 July 2010, the Solicitors Disciplinary found Tribunal the respondent solicitor guilty misconduct in her of practice as a solicitor in that she failed to en- sure there was furnished to the Society an accountant’s report for the year ended 31 December 2008 within six months 21(1) of regulation that of breach in date, of the 2001 tions solicitor: respondent a) b) o such time as he complies with the Society’s requirements relation to the orderly wind-down in of his practice and transfer his files, of documents and client funds in compliance the Society’s with requirements all respect of same. in t pl T en om d c wen

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T t 01 284 8484 284 01 Solicitors Solicitors Acts 1954 to ribunal inquiries ar T [8576/DT118/09] [8576/DT118/09] a acCarthy, solicitor, of 7 M Pay the whole of Pay of the whole the costs the Law Society of Ireland, master taxing a by taxed be to default in Court, High the of agreement. of compensation fund, compensation

acCarthy, solicitor, and in the solicitor, acCarthy,

HIGH n the matter of n the matter In In the previously solicitor a McEvoy, matter of practising as Linda McEvoy, Linda Solicitor, DMG Centre, 12 Business Camden Dublin 8, and Row, in the matter of the 2008 Ireland of Society Law (applicant) McEvoy Linda solicitor) (respondent c) 2010 no 12 M matter of the Solicitors Acts 1954 to 2008 notice Take that, by order of the High Court made on 18 2010, it was ordered that I A Grattan Crescent, Dublin 8, be Inchicore, practising suspended from as a solicitor until

lliot, E reland, I isciplinary THE D Solicitors’ John 13 July 2010 3,000 3,000 to the : s y member € isciplinary n ES Registrar of Solicitors, Law Society of D olicitors S C he Consult a Colleague iddle Abbey Street, Dublin 1, Do stand censured, stand Do Pay a sum of Failed to respond adequate- ly or at all to correspond-ence from the the Society in investigation complaint and, in particular, of the the Society’s letters of December 2007, 18 19 January 2008, 1 April 2008 and 23 June 2008. undertaking undertaking given to complainants on 18 Decem- the in ber 2006 manner, a timely having only finally complied 2009, May 20 on same with ccounts Regulations 2001

helpline is available to assist ever of the profession with any problem, whether personal or professional T

co ULT for the financial year ended 31 December 2008, was furnished to the Law Society of Ireland. be suspended from as practising a solicitor until as the prescribed by report, the A M The The tribunal ordered that the solicitor: respondent a) b) b) 8 NOTI onday

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ennedy, solicitor, of Barrington of solicitor, ennedy, treet, olicitors, 97 Failed Failed to comply with an n the matter of n the matter eports of the outcomes of 14 June 2010, it was that ordered of S S matter of the Solicitors Acts 1954 to 2008 notice Take that, by order of the High Court made on 2010 no 47 I K

aw S L ) of the Solicitors (Amendment) Act 1994 Solicitors (Amendment) Act 2002 R a) In the matter of John F of John Con- In matter the don, a solicitor practising as McMahon & Tweedy Solici- tors, Merchant’s House, 27- 30 Merchant’s Quay, Dublin 8, and in the matter of Solicitors the Acts 1954 to 200 On 18 the May Solicitors 2010, the found Tribunal Disciplinary respondent solicitor guilty of misconduct in his practice as a he: that in solicitor [3127/DT/100/09] [3127/DT/100/09] Ireland of Society Law (applicant) Condon F John solicitor) (respondent de de whether the applicant’s Irvine Irvine J held that the court novo claim qualified for compensa- tion. The plaintiff contended the in measuring the court, that damages to be awarded, had to compensa- of issue the approach tion based upon the conclusion of the minister that the injuries were not minor in It character. was argued that the test for the recoverability of compensation was not the test of reasonable but in negligence, foreseeability approach purposive a that rather stat- the of interpretation the to ute itself was appropriate. The plaintiff argued that the court had no jurisdiction to consider causation, and the arose of question whether the of injuries the plaintiff were caused by incorrect medical advice subse- act. malicious the to quent would make an order, in each of the test cases, that the appli- cant make discovery of all GP hospital notes, consultant notes, and records all test The results. court fixed a date for the hear- ing of the test cases. The court submission the accept not could of the plaintiff that the court could not be involved in issues ap- The causation. or liability of to proach be by taken the court in assessing damages in a case such as this was clearly set out in the act. As to mitigation of loss, the court had to take into account any failure on the part of the claimant to seek to ob- tain results of blood tests. The ap- purposive a take to had court act. the to proach Carey & Others (plaintiffs) v liability liability and causation, which was then conclusive and bind- ing on the latter. The respon- dent submitted that the court had an independent function and was entitled to consider Garda Garda force ma- force force force ma- . in this application. application. this in certiorari , , seeking compen- , , High Court, 25/3/ [2010] 3 JIC 2505 JIC 3 [2010] leave and took issue with leave approved and was not not was and approved leave Garda Síochána (Compen- Síochána Garda locus standi locus Hedigan Hedigan J held that, in the tort a circumstances where, at the time time the at where, circumstances ap- the made, was complaint the had his already plicant jeure was de- his form whether aware had applicant the not, or stroyed no On On the facts, there was no dis- pute for the Rights of case The Commis- adjudicate. to sioner fail. to had applicant the McGonagle O’Shea (applicant) Others (respondent) v 2010, and sation) Acts 1941-1945. Acts sation) The plaintiffs claims brought pursuant to test the Síochána (Compensation) 1941-1945 Acts sation for injuries maliciously inflicted on them. Each of the cases concerned an alleged fear of of contraction hepatitis B, C be- on submitted was It HIV. or half of the that plaintiffs an ap- plication for compensation was a two-stage process, involving the minister and High Court, where the former determined jeure the fact that he as was recorded The leave. without absent being applicant argued that the 1998 act failed to properly transpose on 96/34/EC Directive Council the framework agreement on respondents The leave. parental and notice parties contended that the applicant lacked stand- seek to ing army army form. The applicant sub- sequently applied for G compensation rda Malicious injuries – test for dam- ages – foreseeability – causation – of interpretation – loss of mitigation – act , , as the , , High Parental Parental [2010] 7 84 million, and and million, 84 art Daly € B aw’s current awareness service on www.justis.com m L rish case law informationrish case available and legislation is y I 2010 Kelly Kelly J held that, given the ews of om First emplo ent N fr Compiled by the recovery of of recovery the an that held had Court High the made been had defence arguable that alleged defendants The out. partnerships the of activities the were being carried irregular or unlawful out fraudulent, in a fashion. A firm of accountants to plaintiff the by appointed was review. a undertake lack of documentation, the fo- what and Daly Mr to turned cus he that in said re- it was alleged fa- a as out picked being of spect voured In developer. respect of the guarantee claim, the court justice, of interests the in would, adjourn the action for plenary hearing and ear- an of refuse basis the on judgment, summary Court. of High the decision lier partner- the reasons, similar For ship allegations would also be adjourned for plenary hearing. The accountants report would significant. be Anglo Irish Bank Corporation Limited (plaintiff) v & Sherry Others (defendant) 2001 JIC Court, Court, 20/7/2010, Force majeure Force forces defence – law Administrative – jurisdiction – Rights Commis- sioner – transposition – 1998. Act Leave was a The and applicant soldier he sought, among other things, to quash the decision respondent of the Rights they that found had who sioner, Commis- had no jurisdiction to investi- gate the case pursuant to the Parental Leave Act 1998 applicant applicant was a member of the defence forces. The applicant did not for attend duty and was marked absent on an internal NOVEMBER update

t c justis o c ntra 21,460,077.38 21,460,077.38 arising from www.lawsocietygazette.ie Banking – guarantee – judgment Summary not to representation enforce guar- – lack solicitors – experienced antee – whether evidence documentary of existed. defence arguably The plaintiff sought summary judgment against the dant defen- solicitors for the sum of € the involvement of the defen- dants in two limited companies and The two pro- partnerships. ceedings related to guarantees executed by the defendants in favour of the plaintiff as to the liabilities of the companies and of borrowings the partnerships. The defendants alleged that it was represented to them that the plaintiff would not enforce the guarantees against The them. defendants among other things, contended, that they genuinely believed the repre- sentations made to them by a person named Mr Daly, an ac- the in shareholder and countant limited companies, as having some form of special status and that they had security sufficient An- that and borrowings the for glo never required any form of of statement means from them. The plaintiff argued that it was incredible that experienced so- licitors could genuinely believe in the non-enforceability the guarantees, of having regard, among other things, to the ac- tual wording of the guarantees, the lack of supporting contemporaneous or mentation, docu- note thereof. The defendants asserted the existence arguable of defence to the an claim. Mr Daly was being the plaintiff in the sued Commercial by Court, in proceedings antedat- for proceedings, present the ing Law Society Gazette Gazette Society Law briefing 58 briefing 59 , 2010 G

NOVEMBER . The claim pursued Civil Liability and Courts www.lawsocietygazette.ie High High 2610 JIC 3 Court, [2010] 26/3/2010, his injuries. The plaintiff fur- ther misled the court in main- taining that he had his attended physiotherapist on over 70 occasions and his general prac- titioner on some 50 occasions. The defendant had succeeded establishinginplaintiff thethat sought to deliberately mislead the court as to the extent of his alleged psychological plaintiff’sRecent theentrieson injury. Facebook page had recorded the participation of the plain- tiff in physical activities. The plaintiff had deliberately over- stated his injuries. There was no need for the court to con- sider the effects of section 26 of the Act 2004 would fail. Danagher (plaintiff) v Glan- tine Inns Limited (defendant) SSocIatIon Law Society Gazette Gazette Society Law a ards Card B ball eve chriStmaS the C Irvine J held that, having : enevolent regard to the findings of fact, the defendant had discharged its duty of care to the plaintiff and other patrons on the night in question. Having heard all evidenceoralviewedandthe of the video recording, the fendant acted de- in a professional and responsible fashion, the and use of force unnecessary was nor unreasonable. neither The intervention was warrant- ed. The physical resistance of theplaintiff hadcaused himhis plain- the of claim Theinjuries. tiff for liability on this matter thus failed. The court was sat- isfied that, when the plaintiff told the court definitively that the parachute jump had taken place the year before the cident, in- he did so deliberately, hoping to mislead the court on this most material issue, which would undermine the extent of fOrm

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the New Year S With Best Wishes , , on the basis that the for Christmas and Civil Civil Liability and Courts reetInG the G

Association, whose needs are work of the Solicitors’ Benevolent of thus rendering the defendant li- defendant the rendering thus able to the plaintiff in damages for assault and/or negligence. Counsel for sought to rely the upon section 26 defendant of the Act 2004 plaintiff had knowingly given in evidence misleading and false relation to a material aspect of the claim, thus warranting the issue The claim. the of dismissal arose as to the accuracy of the the to as plaintiff the of evidence rel- the and injuries his of extent of evance a jump un- parachute by dertaken the and plaintiff its events. disputed the after timing well-being physical general The of the in plaintiff the aftermath of the incident also arose for consideration, and it was con- tended that the plaintiff health his to as court the misled had and recovery from the incident question. in

particularly acute at Christmas time This is an opportunity to support the This is an opportunity to support the hristmas aId

n I C SBA Christmas Cards, Santry Printing Ltd, Unit 5, Lilmar Industrial Estate, Coolock Lane, Dublin 9. tel: 842 6444. contact: amanda Civil Liability and . i enclose cheque for € payable to Santry printing ltd (€132 per pack) inimum order 50 cards. each card sold in packets of 50 costing €125 (including overprinting of your firm’s name). m add €7.00 for postage and packaging for each packet of 50 cards. i wish to order pack(s) of card a @ €125, text to be overprinted: pack(s) of card b @ €125. firm: address: dX: tel: fax: contact: 15/6/2010, Court, High , Card A madonna and child antonio correggio rsonal injuries injuries rsonal e 2008 [2010] 6 JIC 1502 JIC 6 [2010] 2008 P Assault in nightclub – evi- court – – misleading sustained injuries nightclub – jump parachute – dence use of force – whether unreason- misled had plaintiff – whether able the court – 2004. Act Courts The plaintiff claimed damages in respect of an assault that he alleged was on perpetrated him by the security staff of the de- fendant in 2005 at a nightclub, where he was knocked to the ground. He claimed to suffered have soft-tissue injuries to his neck and significant back physiotherapy. The requiring court had to consider whether the plaintiff was ejected from the premises of the defendant by use of unreasonable force, Minister Minister for Finance (defen- dant) G

With With that aim in mind, it is James James Kinch is a senior executive solicitor in the law department of Council. City Dublin care care should be taken to ensure that the margin for manoeuvre for potential concessionaires to innovative and dynamic prepare proposals – particularly where a contracting authority is un- able to specify its requirements in sufficiently precise terms – over- by delimited be not would requirements. restrictive ly submitted that a means to pre- serve the scope for innovation to be commission the for would provide an updated interpreta- tive communication in relation to the practical application of the of in definition ‘concession’ area. this . Remedies Directives Remedies Effective Effective remedies for same the with bidders ag- grieved as guarantees those provided the under It is submitted that, while sub-contracts to third parties sub-contracts or to request the concession percent- the specify to holder sub-con- be to services of age and parties, third to tracted

ffairs Committee In relation to service concessions concessions service to relation In (to which Directive 2004/18/ EC is generally inapplicable), participants were invited to ex- press their views regarding the impact of new any, legislation, providing for if compulsory conces- service of advertisement level. European at sions greater clarity as to the practi- cal of application the definition would of be ‘concession’ useful, e) A ducation, Law Society of Irelandducation, Law Society E , nternational I and EU 2010 The The obligation to minimal respect deadlines for presentation the of applications concession, the for The for obligation a conces- sion holder to respect principle of the non-discrimina- tion while selecting holders sub-contracts, of The possibility for the con- tracting authority to require the concession holder award a of minimum 30% of to The The obligation for the con- tracting authority to publish a concession notice in EU the of Journal Official the Participants Participants were asked

b) c) d) a) be be paid by the contracting au- thority. favour in be would they whether of includ- in EU area, this rules for: providing rules ing ews from the dited by TP Kennedy, Director of dited by TP Kennedy, E N NOVEMBER legal eur ublic procurement – Commission he he European Commission recently launched a consul- The distinguishing feature in feature distinguishing The www.lawsocietygazette.ie relation to the definition of ‘con- of definition the to relation cession’ in EU law is that the consideration for the execution con- the of matter subject the of cession consists either solely in the right to exploit the work or or in together right this service, were Participants payment. with invited to canvass their views as to the possible shortcomings and operational downsides, if with associated the any, present definition of concession in EU law. In particular, participants were asked whether they had experienced difficulty in distin- guishing between public con- tracts and whether concessions, they had in difficulty a defining or ‘substantial’ part’ ‘significant of the operating risk, and how could consideration the of much tation on concessions addressed addressed on tation concessions social authorities, contracting to and com- the partners, business with munity, a view to improv- framework. legal current the ing In this the context, commission prepared a consultation ques- tionnaire, the aim of which is to groups’ from the learn target in, participation and experience of, concessions and to gather suggestions for improvements. The commission envisages that an EU on initiative concessions would aim to facilitate the use of concessions and ensure best value for money by providing all interested parties with legal trans- guaranteeing and security for treatment equal and parency operators. economic T P consultation on concessions consultation Law Society Gazette Gazette Society Law briefing 60 briefing 61 2010 NOVEMBER the advocate general G www.lawsocietygazette.ie

The inclusion of an email Another criterion is using the informationthe publishedthe on site, indication of thetional codebefore thetelephone interna- or fax number, information indi- cating the route to get from oth- er member states to the where the professional operates, and information on the possibility of checking the availability of stock theof a commodity. address on a website is ficient insuf- to conclude that a chant mer- is directing its activity to another state. If a professional had in the past concluded tance dis- contracts with consumers of a given member state, there is no doubt that activities it towards directs that its member state. In contrast, thesion of conclu- one contract consumer with of a one particular mem- ber state will the direction not of suffice activity to state. for that The language the website may used be an index of on the direction of activity towards a particular member to several state member states. or If language a is used on a site, but it can be changed language,that may be an indica- to another tion that it is directed to memberstates. Itother demonstrates merchantthecon-thatwishes to clude contracts with consumers from other member states. the top-level domain of a given state, especially of where a state where it he is tablished. is not Likewise, es- the use of email to ensure that consumers invarious member states are in- formedoffersof criterion.ais In Pammer, consideredwhether tourista trip on board a cargo ship could be consideredas part of apackage holiday, defined in article 15(3) of the regulation as a for contracta fixed-price combining travel and accommodation. She said that the court should find it is. that , . penhof l A Pammer Regulation uropean law Law Society Gazette Gazette Society Law

I Hotel rica Trstenjak. e E V Brussels y 2010, opinion of Advo- a Pammer lives in Austria r M Heller lived in Germany and M The question raised by the litigation s Case C-144/09, and Case C-585/08, 18 booked a one-week stay for her- self and a through number the website of of the Aus- friends trianHotelAlpenhof.theleft She hotelwithout paying forher stay. cate General andbookedtripGermanwith aa company specialising in boat ex- cursions. Through a website, he booked a boat trip from Trier to Fernost. The boat did not match the one advertised on the web- site – cabins were for one per-son rather than two, there was no outdoor swimming pool, fitness no centre, no television and functioning no possibility to use the deck. He cancelled his trip and asked forback. his money national court the German or was Austrian courtsshould whether have jurisdiction in dispute. The the case turned on the interpretation of article 15(1)(c) of the M This provides that the consumer rules apply if a consumer cludes con-a contract with a person whodirects professional orcom- mercialactivities tothe consum- er’s state or to several states, including the consumer’s state. Thus, a consumer is able to sue in his/her own state. vocate The general ad- considered interpretation the of of the ‘directing concept activityconcluded that to’. it is She enough not broad simply mere accessibility to of a website. cover Several criteria the will be relevant in assessing whether a person is directing commercial or fessional pro- activities to (whether a he is state inviting and couraging en- a consumer to enter a direct contract). These include em- M G Pro- M G Probud’s assets situated The court held that, due to The judgment opening insol- There are only two grounds to M ember states are not obliged bud’s assets, including those in Germany. Polish law determines not only the opening vency proceedings but also their of insol- course and closure. It the governs treatment of assets in other member states and the effects of the insolvency on the measures to which those proceedings assets are liable to be subject. en- permit not does law Polish As forcement proceedings relating insol- the in assets of pool the to vency to be brought against the debtor after insolvency proceed- ing have been opened, German order validly not could authorities enforcement measures relating to in Germany. ber states are also entitled refuse to to recognise contrarymanifestly be would judgments that to its public policy, in particular its fundamental principles or the libertiesand rights constitutional of the individual. the universal effect of the main insolvency proceedings proceedings, opened in encompassed the Poland all of to enforce a judgment that may result in a limitation of personal freedom or postal secrecy. opened by the competent court of a member state debtor where has the an These ‘secondary establishment. proceedings’ produce effects that are restrict- ed to the assets of the situated debtor in the territory of state. that vency proceedings in a member state is to be recognised in all the other member states the from time that it becomes effec- tive in the state of the proceed- furtherno formali-with is, it ings; effectssame the produce to ties, in any other member state. refuse to enforce judgments re- lating to insolvency proceedings. M G M y MG Probud Gdyn- c ecent developments in developments ecent e nsolvency Regulation I CY v R EN V In the Polish insolvency pro- The Court of Justice noted insol n makes provision for two kinds of Proceed- proceedings. insolvency ings opened by the courtterritory the within state member of a where the debtor’s main interest are located produce effects, in universal that the proceedings apply to the debtor’s assets lo- cated in all the member states. Subsequent proceedings may be INSOL Case C-44/07, , 21 January21 oo, 2010. z Sp ia Probud is a registered building in company Poland. It out carried construction work in Germa- ny through a branch. In 2005, it was declared insolvent by a Pol- ish court. Proceedings had been taken in Germany manager against of the the German branch for failure to pay to workers make and social security butions. The contri- German court had ordered the freezing of held assets in German banks and attachment the of various claims by it against German parties whom with it had entered into tracts. con- ceedings, the court questioned whether these German were orders lawful. Polish law applies to the orders insolvency such allow not does it and proceedings after an undertaking has declared been insolvent. The court asked Polish the Court of Justice whether, after main insolvency proceedings have been initiated in one member state, the courts per- are state member another in mitted to order the attachment of assets of that the has declared undertaking insolvent the in latter state and, to refuse to recognise and to en- secondly, force judgments concerning the course and closure of insolvency proceedings opened in the first member state. that the and and v- o N and and in the Act 1978 Act Landlord Landlord and

a reland. I H acam acam SC. To be l B Landlord and Tenant Landlord and Tenant o R und ll in Dublin city centre, ad- centre, city Dublin in ociety of e S rk rk de seeks co-author seeks c a and and a sample of your legal M aw Drunken Driving Drunken and Driving the Law

uters, is seeking an assistant assistant an seeking is uters, L o e V writing writing 30 by to: thomsonreuters.com catherine.dolan@ R und R Hall, part of to Thomson update the previous edition of by considered, please email your C ember 2010 ember mis llaneous title deeds title matter matter of the 2) (No Rents) (Ground in the matter of an application by Carrick Hill Developments Lim- ited Tenant Acts Tenant 1967-2005 [1,922] In the matter of the [1,922] Solicitor’s apprenticeship sought by highly hardworking, qualified and very confident law graduate. Passed all FE1s and trained typist. 086 Tel: 3039 331 (c500 offices floor ground Modern let to ft) sq Courts Four Street, to Grafton jacent 15 minutes. One car parking included. space Suit sole practitioner ex- with and facilities of shared possibility isting legal practice. Rent negotiable. 3878 254 086 Tel/txt: Solicitors, Brighton House, 50 Teren- 50 House, Brighton Solicitors, tel: 6; Dublin Rathgar, East, Road ure 01 490 fax: 01 3394, 490 email: 3190, [email protected] late

late of

late of 20 20 of late

late of 3 Kilakee Gardens, Graiguenamanagh, Graiguenamanagh, Co Kilkenny. If any person who above-named the by executed has will any knowledge of deceased, who died at Main Graiguenamanagh, Street, Co Kilkenny, on 21 April 2010, please contact Grace Solicitors, Old Courthouse, Street, Green Callan, Co tel: Kilkenny, 056 775 5035, fax: 056 775 5135, email: [email protected] (deceased), John O’Leary, Lucan, Park, Valley Liffey Vale, Liffey having person any Would Dublin. Co knowledge of a will executed by the above-named deceased, who died on Bowman contact please 2010, June 10 McCabe, Solicitors, 5/6 The Lucan, Co Mall, Dublin; tel: 01 628 0734, fax: 01 628 0832, email: info@bow- manmccabe.ie O’Sullivan, Mary (deceased), of 44 Cork. Greenlawn, Would any the Kinsale by executed will person any of knowledge who Road, St has at died who deceased, above-named Hospital, Finbarr’s Cork, on 28 July Paula Desmond, 2009, contact please Solici- Co, & Kilcullen Irwin solicitor, 021 tel: Cork; 56 Parade, tors, Grand 1361 427 Reilly, Patrick (deceased), 34 Leixlip Park, Leixlip, Co Kildare. any person having Would knowledge above-named the by executed will a of deceased, who died on 28 December Co, & Kelly Paul contact please 2005, Rye Solicitors, Cottage, Main Street, 01 tel: 624 3624, Co Kildare; Leixlip, [email protected] email: Webster, Stephen Raymond (de- ceased), Dublin 24. Firhouse, Kilakee, Would any person with knowledge of a will executed by the ceased, above-named who de- died on please 1 contact Cogan July Daly 2010, & Co, late of 7 Lower late of Main Street, Regulated by the Solicitors Regulation Authority of England and Wales 2010

Delahunt, Delahunt, Thomas late of (deceased), 23 Co Watson Dublin. Road, Would any person hav- Killiney, ing knowledge of a will made by the above-named deceased, who died on 26 May 2010, please contact Dela- hunt, Solicitors, 357 North Circular Road, Phibsborough, Dublin 7; tel: email: 4781, 01 830 fax: 4711, 01 830 [email protected] Fitzpatrick, Maura) (deceased), Mary Kindlestown, Greystones, Co Wick- (otherwise knowl- having person any Would low. edge of a will made named by the deceased, above- Ruth- who contact please 2009, December died on 15 erfords, Solicitors, 41 Square, Dublin 2; tel: 01 Fitzwilliam 661 6466, [email protected] email: Garland, Edward ceased), Francis late Clondalkin, (de- Dublin of 22, who died on 1 2 Laurel August 1994. Park, Would any having person knowledge of abouts of the original will, the dated 19 where- February 1985, or made by the any above-named deceased, other will please contact Terence E Dixon of KMB Solicitors, 127 Lower Baggot Street, Dublin 2; tel: 01 639 fax: 01 639 8202, email: terrydixon@ 8200, kmb.ie McCormack, James late (deceased), of Tongalee, hon, Co Tang, Longford, who died Ballyma- on 18 July 2010. any Would person having of any whereabouts of the knowledge will made by the above-named ceased de- please contact Byrne Carolan Main Street, Solicitors, Cunningham Moate, Co 648 2090, Westmeath; fax: 090 648 2091, tel: email: [email protected] 090 Murphy, Frank (otherwise Fran- cis) (deceased),

NOVEMBER late of

ublication of advertisements in this section is on a fee basis and does not represent an endorsement by the ublication of advertisements in this section is on a fee basis and does not represent an endorsement late of 23 Watson Road, Kil- Road, late of 23 Watson P wills www.lawsocietygazette.ie [1,922] Armstrong, Eric Co John Castleblayney, (deceased), Creighanroe, of late Monaghan, who died on 8 ber Novem- 2009. Would any will a of person whereabouts the of having knowledge deceased above-named the by executed please contact Anne Stephenson, Ste- phenson Solicitors, 55 Carysfort Ave- 275 01 tel: Dublin; Co Blackrock, nue, stephen- email: 9845, 210 01 fax: 6759, [email protected] Barry, Phyllis Philomena) (deceased), (otherwise late of Summerstown Mary 34 Road, Wilton, Cork. Would any person having knowledge of a will made by deceased, who the died on above-named 21 June 2009, please contact Michael licitor, Nestor, 4C so- Iveagh New Bride Trust Street, Dublin 8; Buildings, tel: 087 066 1532, eircom.net email: mnestordublin@ Coyne, Bridget (deceased), Laragh, Ballymoe, Co Roscommon. Would any person having knowledge by of the above-named a executed will deceased, who died on 24 July 2004, please contact the Office of the Gen- eral Solicitor for Minors and Phoe- 15/24 Service, Wards Courts of Court, nix Street North, Smithfield, Dublin 7; tel: 01 888 6231, fax: 01 872 2681, email: [email protected] DS/1959) (reference Delahunt, Phyllis (Philomena) (de- ceased), liney, Co Dublin. Would any person having knowledge of a will made by the above-named deceased, who died on 20 May Dela- 2008, contact please hunt, Solicitors, 357 North Circular Road, Phibsborough, Dublin 7; 01 830 4711, tel: fax: 01 830 4781, email: [email protected] Law Society Gazette Gazette Society Law

briefingprofessional notices 62 briefingprofessional notices 63 : e b 2010 and in the Landlord and Gazette Landlord and Tenant ollows: 33 extra NOVEMBER f € 13.01 (£10.4.11 pre-deci- € www.lawsocietygazette.ie office on tel: 01 672 on tel: office e rates Cheques should Cheques

mal currency), created by a fee-farm grantdated 24 September 1858 from thetoRight Honour- WilliamVance able Archibald Earl of Gosford. that the person or ciallyentitled superiorallto interests persons benefi- up to and including the fee simple in the said property are unknown unascertained. and Date: 5 November 2010 Signed: William Fry (solicitors for applicant),the Fitzwilton Place, House, Dublin 2 Wilton In the matter of the Tenant Acts 1967-2005 matter of the (Ground Rents) (No thematterandinapplicationan of 2) Act 1978 by Joseph O’Reilly personAnyhavinginterest anythe in fee simple estate or any intermediate interest in all that and those the her- editaments and premises known42 Upper as O’Connell Street, Dub-ofcityThomas andStparish in of the lin, the subject of a perpetual yearly rent of AT at 21%) V c Gazette tion. a tion are as c i c AT at 21%) Deadline for December l ox around it – V b oti b 88.88 (£70), e se € €144 (incl Law Society Gazette Gazette Society Law c N eland. r I

f represent an endorsement by the Law Society of Ireland. Michael Kleeman, Esq., at o

injured in the United States putting a y AT at 21%) r r prior to pu Travel law: Representing foreign visitors seriously Personal injury litigation in the United States et by Publication of advertisements in this section is on a fee basis and does not V o i Contact (toll free) 00-800-221-56970 or by e-mail at [email protected] For more information about our law firm visit our website at www.kleemanlawfirm.com Kleeman, Abloeser & DiGiovanni, P.C. is a prominent U.S. law firm that specializes in providing the following legal services in the United States: 1 2 United United StateS LawyerS f Take noticeTake that Joseph O’Reilly, In default of any such notice c e o c DN187403F, DN187403F, the subject to petual a yearly per- rent of created by a lease forable forever dated November2 1754 lives renew- from George Stewart Ward. to Michael being the person entitled to the les- see’s interest in the tends saidto apply to the lease, Dublin county in- registrar for the acquisition fee simple of estate the and all intermedi- ateinterests andthesaidin property, any party asserting that the fee they simple hold or any interest intermediatein the aforesaid property is called upon to furnish their title evidence thereto to the under-men- of tionedsolicitors within 21days from the date of this notice. being received, O’Reilly intends to proceed with the the application said before Joseph the registrar said at the end county of 21 days from the date of this notice and will apply to said registrar for such directions as may be appropriate on the basis S essional essional noti €288 per deed (incl f w w paid a e ro L b P and €144 (incl our noti Landlord y e e to essional essional l Landlord and ills – b mployment/miscellaneous – itle deeds – s s must f a e T E W y

c • • • vember 2010. For further information, contact the the contact information, further For 2010. vember ighlight o H rates in the N ade ade pa l and in the matter of an ap- 17 17 4828 (fax: 01 672 4877) 01 672 (fax: 4828 m A l noti pro Take Take notice that the applicant, In default, Sally Cronan intends Summerwell, for the term years of from 500 1 Novemberthe yearly rent 1732, of £50, at should give noticetothe undersigned solicitors. Sally Cronan, intends to submit an application to the county registrar for the county of acquisition Dublin of for the the est and all freehold intermediate interests (if inter- any) in the aforesaid property, and any party asserting that a they superior hold interest in the aforesaid properties is called upon to furnish evidence of the title tomentioned the property afore- to the mentioned under- within 21 days from the date of this notice. to proceed before with the an to said acquire the application countyfreehold and termediateall registrar in- interests (if any) in propertiesthe on the expiry of 21 days from the date of this notice and will apply to the said for county directions registraras may be appropri-ate on the basis beneficially entitled that to the superior the persons interest(s) including reversion the in freehold the said unknown or property unascertained. are Date: 5 November 2010 Signed: Donal T McAuliffe & Co (so- licitors for the applicant), 57 Merrion Square, Dublin 2 In the matter and of Tenant the Acts 1967-2005 in the matter of the (GroundTenant Rents) (No 2) Act 1978 plication by Joseph O’Reilly Any person in having the fee simple any estate or termediate any interest interestin- in all those that the hereditaments and and prem- ises known as 56 O’Connell Street Dublin Upper, comprised1, folioin and in the Landlord and Landlord and Ten- and in the matter of an ap- And take notice that said lease is And take notice that any person In default of any such notice be- In the matter of the Take Take notice that Carrick Hill velopments De- Limited submit an application to the county intends registrar for the to county of ofthe Dublin city for the acquisition of the freehold interest in property, the being following all that that piece and or plot thoseof ground situate at Portmarnock on the west side of the road leading from Portmarnock Railway Station to the Carrick strandHill, known and as part lands of containing Burrow, of 23-and- the a-half perches statute thereabouts, measure situate or in of the Coolock barony and county with of the timber bungalow Dublin, residence erected thereon, held under a lease dated 7 June 1926 Carey between Violet of the Brady of onethe other part for the term part and 1926,subjectMay years1 from 92 of Anne to the yearly rent of four pounds. inferior to a lease dated 30 Decem- ber 1944 between Helena M Early and Bridget O’Neill for 200 a years from term 29 September of 1852, subject to a yearly rent of £0.00.01. having an interest in estate of the the aforesaid freeholdproperty and any party asserting that a they superior interest hold in the property (or aforesaid any of them) are called upon to furnish evidence of title to the aforementioned premises to the below named within 21 the days date of this notice. from ing received, Carrick Hill Develop- ments Limited intends to with proceed the county application registrar at before daysfrom the the date of this notice and end the of 21 will apply to the county registrar for the county/city of Dublin for direc- tions as may be appropriate on basisthe that the entitled persons to the beneficially superior interest in- cluding the freehold each of reversion the in aforesaid unknown or premises unascertained. are Date: 5 November 2010 Signed: Eugene Smartt the applicant), Newlands Retail (solicitor Centre, for 22 Dublin Clondalkin, Cross, Newlands Acts Tenant 1967-2005 matter of the ant (Ground Rents) 1978 (No 2) plication Act by Sally Cronan of 118 Griffith Avenue, Dublin 9 noticeTake that any person having an interest in the fee simple or any superior or intermediate interest in the property known as 43/44 Wel- lington Quay, Dublin 2, held under an indenture of lease tober dated 1732, 7 Henry Oc- Aston to Adam

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uality uality received, the in- said received, O’Reilly Joseph tends to with the proceed application the at registrar county said the before end of 21 days from the date of this notice and will apply to said registrar for such directions as may be appro- priate on the basis that or persons the beneficially entitled to all person up to including and interests superior are property said the in simple fee the unascertained. and unknown 2010 November 5 Date: ap- the for (solicitors Fry William Signed: Place, Wilton House, Fitzwilton plicant), 2 Dublin RTISEMENTS q E E HOSE yan Solicitors, V T R ADS, STA INING

ard ard has taken this decision based D E o ran Quay, Dublin 7. ran Quay, A B CL T H

Tel 01 8725622 Tel Law Law Society E ployment ployment E oran & ER m EMPLO C RUITMENT 35 Ar M E Contact Seamus Connolly itorial itorial

A D d LAW SOCIETY GAZETTE SOCIETY LAW E OV mail [email protected]

F IN C E ociety members to advertise NOTI O S UITMENT R D O aw Gazette C L REE E IRE he he i R T Please Please note that, as 2006 and issue of from the the August/September advertisements will be published that include references to to references include that published be will advertisements ( experience post-qualification of years T on legal advice, which indicates that such references may be be may references such that indicates which advice, legal on the of breach in V sit to www.lawsociety.ie, place an ad or contact employer the support by employment email on employersupport@lawsociety. section on ie or tel: 01 the 672 4891. You the can view to also area members’ the Law to in log Society register. website, seekers job For staff requirements, not just qualified solicitors. Take Take notice that Joseph O’Reilly, being notice such of any In default Thinking of retiring, downsizing or disposing of your prac- Contact files? your from income earn to want still but tice us today about our innovative Fileshare Scheme and see how you can still get the value of your files without the hassle of managing a practice. All replies will be treated with the strictest of confidence. F RE REGISTER being the person entitled to the grant- the to entitled person the being grant, fee-farm said the in interest ee’s county Dublin the to apply to intends of the fee for the acquisition registrar simple estate and all in- intermediate and property, said the in any, if terests, that they hold the any asserting party fee simple or any inter- intermediate est in the aforesaid property is called title of their evidence to furnish upon thereto to the under-mentioned so- licitors within 21 days from the date notice. this of oad, R

t c et/

ATION L C etails Dublin 7 D Conta LO Buying

licence licence ie/548394 Contact Contact o ilding ilding can be let in Selling or Selling u rristers, rristers, Solicitors or or sale a a solicitor position, 0404 42832 (opposite the new T a B Tel: 086 2549431 Tel: 7am to 12 midnight o 1 Conyngham Daft Code: www.daft. B 2010 f tes negotiable and flexible flexible and negotiable tes email: [email protected] Available Available to let as offices N ffices/Consultation rooms to the self-maintained job For more info visit Daft.ie a Criminal Courts of Justice) V a seven-day liquor a seven-day O others attending the CCJ. the attending others or as consultation rooms. R per hour, half-day, per day, annually. or monthly weekly, The The property comprises a 3 storey self-contained, terrace office mid building of ap- proximately 2600 sq The feet. ex- The entirety. its in or units cellent location of the prem- ises makes it ideally suited to NOVEMBER  REE   . B F -seekers’

   ciety ciety members seeking o S b   or website: 27001 certified;  care in Ireland. O

 For information: a A Caring Legacy: tel: (01) 2454800, tel: (01) 2454800, from€500 per G IS L  email: [email protected]  o mma at 057 9370210.  www.wpg.ie/docstore.htm  bequests to The Carers E e-discovery support service   or www.carersireland.com. WPG DocStore’s professional  full-time, part-time or as a locum. a as or part-time full-time, seekers register within the employment section or contact career email support [email protected] by or 01 881 5772. tel: For For Log in to w the www.lawsociety.ie, to members’ upload your register C of the Law Society website, Association (CHY10962) help to support home-based family j

[email protected] REGISTER     www.lawsocietygazette.ie Law Society Gazette Gazette Society Law briefingprofessional notices 64 CORPORATE SOLICITOR/ HEAD OF LEGAL SERVICES PARTNER DESIGNATE Semi State organisation,

required for a very high prof ile position. innovative and progressive €100k South Dublin Law Firm. €80k Commercial mindset and proven management experience Exceptional opportunity suited to essential.

a top f irm Associate seeking to

advance their career and take an Business qualif ication a plus. integral role with an exciting and Experienced Corporate Solicitor growing f irm. with strong Commercial Law and For more information contact M&A, fundraising, JV’s and inward Litigation. Leadership qualities. Dave Riordan (ACA) immediately on investment. Strong track record In-house experience preferred. tel: 01-5005904, email: dave.riordan@ and an established Corporate Strong negotiation and careers-register.com or Linda Evans (LLB) on tel: 01-5005907, email: linda. client base. Brilliant opportunity. inf luencing skills. [email protected]

IN-HOUSE LEGAL COUNSEL Dublin

Macquarie Group (Macquarie) is a global provider of banking, fi nancial, advisory, investment and fund management services. Our main business focus is making Senior Management Opportunity in Revenue returns by providing a diversifi ed range of services to clients. Macquarie acts on behalf of institutional, corporate and retail clients and counterparties around Assistant Secretary\Revenue Solicitor the world. Founded in 1969, Macquarie employs more than 14,600 people in The post of Assistant Secretary\Revenue Solicitor is a key senior management approximately 70 offi ce locations in 28 countries. position in the Office of the Revenue Commissioners. The person appointed will Macquarie Corporate and Asset Finance Limited, a subsidiary of Macquarie Bank be responsible for leading directing and motivating teams of legal professionals Limited, is a leading structured & asset fi nance and leasing specialist with offi ces in and support staff to deliver high quality, timely and cost effective legal advice, Australia, New Zealand, Asia, North America and Europe. analysis and support in relation to all aspects of Revenue’s business. The main areas of work involve the conduct of appeals, civil litigation, criminal Due to the considerable recent growth of the business a lawyer is sought to join prosecution and enforcement of tax debt as well as certain non-tax issues, such the legal and compliance team in Dublin which works across a diverse range of as administrative and employment law, and special projects as they arise. businesses, jurisdictions and products. The person appointed will also have wider corporate responsibilities as part of You will be responsible for: the senior management team. • Legal support to existing structured lending and vendor fi nance teams; The successful applicant will – • Legal support to new business ventures; n Be a qualified solicitor, or be eligible to practice in Ireland, and have • Structuring and advising on potential and existing businesses based in foreign; substantial post-qualification experience ; jurisdictions (such as Ireland, Germany, North America and UK); and n Have a track record of significant achievement as a leader and senior • Assisting in developing and drafting relevant internal policies and external manager in a large or complex organisation or firm in either the private or regulations and monitoring ongoing compliance. public sector. To be successful you will: The post is based in Dublin but may over time involve senior management responsibility for functions located outside Dublin. • Be qualifi ed to practice law in the UK and/or Ireland with a law degree or equivalent • Be a motivated commercial lawyer seeking to work directly within a business in Closing Date: Thursday 18 November, 2010 an advisory and structuring capacity; For more information on this significant opportunity, including a full list of responsibilities and requirements, please visit www.publicjobs.ie or for a • Have previous post-admission experience in a banking & fi nance, corporate or confidential discussion contact Tommy Quinn on + 353 1 8587405 or at commercial law environment and have a good working knowledge of fi nance law, [email protected] companies law and contracts law; • Ideally have debt structuring or leasing experience To apply, go to www.macquarie.com.au/careers and use reference 681961. For enquiries, please email [email protected]

Blaze145417 THIS IS MACQUARIE www.benasso.com Remaining the number one Irish legal recruitment consultancy takes a dogged determination, thinking creatively, spotting new opportunities and keeping an open mind New Openings

Private Practice Banking - Associate to Senior Associate: First rate law fi rm seeking a strong Banking lawyer with exposurePrivate to SPVs. Practice You will be involved– Partnership in a range of transactions acting on behalf of both domestic and international clients. Signif icant opportunities exist in the following practice areas and a client following is not Commercialessential: Litigation – Associate: Central Dublin practice is looking for a strong practitioner with an excellent litigation background. CommercialCommercial Litigation Litigation - Associate to Senior Associate: Strong practice with a client base ranging fromEnvironmental SMEs to international & Planning companies requires litigators with commercial litigation expertise. CommercialFunds - Senior Associate: A signifi cant Dublin practice is searching for excellent candidates with commercialInsolvency nous coupled with the enthusiasm and drive to develop a fi rst rate client base. CorporateProfessional Finance Indemnity – Assistant to Senior Associate: Leading Dublin practice requires a high calibre lawyer to deal with corporate advisory work including mergers and acquisitions, joint ventures, management buyRegulatory/Compliance outs, reverse takeovers and debt and equity fi nancings as well as advising on fl otations and fundraisings. EU/Competition - Assistant: Our client is a fi rst class legal practice whose client base includes prestigious public service and private sector organizations operating both in the domestic market and internationally. You willPrivate be a Solicitor Practice or Barrister with – Junior excellent exposure to Senior to EU and Associate Competition Law, gained either in private practiceOur clients or in-house. are searching for high calibre candidates with experience in:

Funds - Assistant/Associate: Top ranking law fi rm requires excellent Funds specialists at all levels. You willBanking/Structured advise investment managers, Finance custodians, – Associate administrators and other service providers of investment funds on establishingBanking/Recoveries operations in Ireland. – Junior to Senior Associate FundsBanking - Assistant – Senior to Associate Senior Associate : International law fi rm recently established in Dublin is searching forConstruction ambitious commercially-minded (Contentious practitioners & Non Contentious) with strong exposure – Junior to investment funds. (Must have excellent academics and strong exposure to commercial contracts) InCorporate/Commercial House – Associate to Senior Associate SeniorEU/Competition Legal Advisor: – Associate Our client is searching for a senior solicitor or barrister with expertise in equity capital markets, corporate fi nance, mergers and acquisitions or general corporate practice advising Irish or UK listedFunds companies. – Junior (Must have strong academics and prior exposure to TelecomsFunds work - Juniorin training Solicitor contract) or Barrister: Our client is searching for a junior solicitor or barrister to workFunds with a– growingAssociate team. You will be dealing with a variety of Telecoms related matters. This is a new role which requires strong people skills and business acumen. Fluency in Spanish is an essential pre-requisite. Funds – Senior Associate PartnershipInsurance (Contentious & Non-Contentious) – Associate to Senior Associate OurProfessional clients include theIndemnity leading Irish – law Associate fi rms. Signifi to Seniorcant opportunities Associate exist in the following practice areas and a clientCommercial following is not Litigation essential. – Associate to Senior Associate EmploymentTax – Senior ; Funds Associate ; Insolvency ; Litigation ; Regulatory/Compliance ; Environmental & Planning

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