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Without a Trace: Recent Judgments on Lost Evidence

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Without a Trace: Recent Judgments on Lost Evidence Law Society GazetteGazette€3.75 April 2010 wIthout A trAcE: recent judgments on lost evidence INSIDE: judicial fEllowS • rEpudiating leases in ExAminerShIp • hArbourS lAw • lEttErS PTSB_LAW_soc_GAZ 12/03/2010 10:09 Page 1 Great deposit rates are really only half the story The other half of the story is all about you. We created Principal Banking, your personal team dedicated to providing for your specific deposit needs as a professional. We wanted to deliver more options, better service and of course a great financial return. We understand the demands on your time and your money and the need for responsive, intuitive and intelligent banking. We don’t do things in halves. See for yourself, call our Principal Banking team today at 1890 818 741 or drop us an email at [email protected] (but please do not send any personal or confidential information by email). principalbanking the savings team dedicated to professionals Terms and conditions apply. The rate advertised above is for illustration purposes. To help improve our service to you calls may be recorded. Irish Life & Permanent plc (trading as permanent tsb) is regulated by the Financial Regulator. president’s message Law Society Gazette april 2010 it’s good to talk he recent special general meeting in the Presidents’ tHall in Blackhall Place on 11 March 2010 witnessed the biggest attendance at any general meeting of the Society for many years. The meeting was called by the Council following receipt of a requisition signed by more than 100 members of the profession to consider three separate motions, set out below. No fewer than 39 colleagues spoke in the course of a meeting that lasted three hours, of whom 18 were Council members. The discussions focused on two specific decisions of the Council, namely: past actions of the Council) the Council be prohibited from a) The Council’s decision in October 2009 to give a guarantee of entering into any guarantee of any nature on behalf of the €8.4 million for a bank loan to be obtained by the Solicitors Society without the prior approval of the members at a special Mutual Defence Fund, and general meeting convened for this purpose and that the bye- b) The decision, in 2005, to acquire a 1.1 acre site adjoining the laws be amended accordingly.’ Society’s premises at Blackhall Place. (Votes in favour: 39; votes against 108.) • ‘That the Council of the Law Society or any subcommittee There was both criticism and praise of these decisions. There thereof be prohibited from purchasing or acquiring any was also criticism of the manner in which the decisions were interest in freehold or leasehold property without the prior taken and communicated by the Council. In reply, Council approval of the members at a special general meeting members explained in detail the good reasons for convened for this purpose and that the bye-laws these decisions, the responsible manner in which be amended accordingly.’ they were taken, and why it would be contrary to (Votes in favour: 29; votes against: 108.) the best interests of the profession to seek to fetter “The • ‘That (without prejudice to any other limitation the Council in making such decisions. on its powers) the Council be prohibited from A detailed explanation was given of the essence of exposing the Society to any risk involving exposure € circumstances, together with the process, in the debate to any sum in excess of 500,000 without the which the Council decided to guarantee a loan prior approval of the members of the Society at a to the SMDF. As I explained in my e-bulletin to related to special general meeting convened for this purpose, all solicitors of 15 December 2009, it was done trust and provided nothing in this limitation shall prevent in order to ensure a competitive professional the performance by the Society of its statutory indemnity insurance renewal market at the end of communi- functions in relation to the compensation fund.’ 2009, and to avoid the chaos of a potential market cation” (Votes in favour: 21; votes against: 133.) failure. Several Council members described the decision as necessary and as “the least worst In my view, the special general meeting was an option available”. excellent exercise in two-way communication, from which both the Council and the members present trust and communication benefited greatly. Strong views were expressed by Many speakers described the essence of the debate as relating many colleagues, but, overwhelmingly, the speeches were very to trust and communication. It is necessary for members of positive and constructive. the profession to trust the people they elect to the Council. My thanks to all who were involved in organising the However, it is also necessary for Council to communicate better requisition that brought this meeting about. It proved to be a with the profession. very important and valuable exercise. At the end of the evening, the three resolutions were put to a vote. The result in each case was as follows: Gerard Doherty • ‘That (without prejudice to the invalidity or otherwise of President www.lawsocietygazette.ie 1 Law Society Gazette april 2010 contents on the cover l a W SOC i ETY The problems of missing evidence and the risk of an unfair trial have led to a surplus of judicial review cases relating to ‘missing evidence’. irish gazette solicitors should be aware of recent developments in case law in the area april 2010 piC: getty iMages/Gazette stuDiO Volume 104, number 3 subscriptions: €57 regulars 1 president’s message 4 news analysis 10 10 Human rights watch: judicial review and fundamental rights 10 One to watch: Pensions Insolvency Payment Scheme comment 16 14 14 Letters 16 Viewpoint: direct provision system for asylum seekers 38 people and places 42 student spotlight Briefing 44 44 Council report – 19 February 2010 45 Practice notes 47 Legislation update: 16 January – 15 March 2010 49 SBA annual report 50 Solicitors Disciplinary Tribunal 30 52 Firstlaw update 54 Eurlegal: the Intel fine 58 professional notices 61 recruitment advertising editor: Mark McDermott. deputy editor: Dr Garrett O’Boyle. designer: Nuala redmond. editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 59. 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, 40 aaron McKenna, Ken Murphy. 2 www.lawsocietygazette.ie contents Law Society Gazette april 2010 get more at lawsociety.ie professional notices: send small advert details, with payment, to: Gazette Office, Blackhallp lace, 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 a panel details to: iT Section, Blackhall place, Dublin 7, or to: [email protected] discussion on ‘life as an in-house and public how to reach us: Law Society Gazette, Blackhall place, Dublin 7. sector solicitor’ on 29 april in Blackhall place Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] • Employment opportunities • The latest cpd courses FSC independently-certified wood and paper products used by the Law Society Gazette come from ecologically-managed forests. Visit: www.fsc.org … as well as lots of other useful information pEFC certifies that wood and paper products used by the Law Society Gazette are sourced by suppliers from sustainable, managed forests. Visit: www.pefc.org features COVER STORY: 18 missing in action The courts have been encountering a surplus of cases brought by way of judicial review relating to so-called ‘missing evidence’. Rebecca Smith inspects recent developments in missing-evidence case law new lease of life 22 The interplay between companies in examinership and their landlords has come into sharp focus as companies try to find a way out of burdensome leases signed in more prosperous times. Conor Feeney goes through the keyhole Keeping company 26 Directors should take serious note of the implications of recent changes to Irish company law as a result of the enactment of the Companies (Amendment) Act 2009. Majella Twomey keeps company with the changes 34 any port in a storm 30 The Harbours (Amendment) Act 2009 introduces further seamus maguire & co liberalisation and lucrative opportunities for the n article in the March 2010 issue on solicitors’ commercial ports. Sean Nolan sights his sextant on the aundertakings (entitled ‘Keep me covered’) referred to principal changes the decision of Mr Justice Peart in Allied Irish Banks Plc v Charles Maguire, Noel McDonald, Richard Clinch and Tommy Jolly good fellows Gibbons, carrying on practice under the style and title of Seamus 34 Maguire & Co, Solicitors ([2009] IEHC 374). In May 2008, seven judicial fellows were appointed to We wish to make it clear that none of the partners in provide support to the judges of the High Court, with Seamus Maguire & Company were found to have engaged a further three fellows appointed later that year. Orla in any dishonourable conduct or to have contributed in any Veale Martin gives three cheers personal way to the matters before the court.
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