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

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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. Judge Peart specifically stated that he was: “satisfied that as soon as the The Law Society of Ireland can accept no responsibility for the accuracy of contributed defendants discovered the awful truth of what had happened, they 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 acted promptly, professionally and honourably in the only way they responsibility for loss or distress occasioned to any person acting or refraining from acting could”. 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 We are happy to make this clear and to apologise to the advertisement or editorial article submitted to this magazine, and to refuse publication or partners in Seamus Maguire & Company for any contrary to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter. impression that might have been taken from the report. Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Email: [email protected] Website: www.lawsocietygazette.ie

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

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

monaghan being repeated in May. Details The Monaghan Bar Association are available at www.dsba.ie, or held a retirement function tel: 01 476 3824. for retiring county registrar, DSBA president John Ms Josephine Duffy, on 26 O’Malley is delighted with the February at the Hillgrove Hotel, choice of Istanbul as the venue Monaghan. Josie has been the for the DSBA annual conference county registrar since 1988 and 2010. The dates to be noted are was much respected by all who 16-20 September at a cost of worked with her – evidenced by €999 per person sharing. Full the large crowd who attended to details are available at www. wish her well in her retirement. dsba.ie. As always, the DSBA is Special guests at the black-tie a broad church, where paying event included President of colleagues from outside the Pale the Circuit Court Mr Justice The South Dublin Collaborative Law Group was launched by the Minister for are welcome to attend. Children and Youth Affairs Barry Andrews TD on 23 February in the County Matthew Deery, Mr Justice John Hall, Dun Laoghaire. At the event were (back, l to r): Sharon McElligott, The bar association has O’Hagan and Mr Justice Sean Michael Sheil (chairman), Raphael Gilmore, Jason McGoey, Gearóidín been busy with seminars on McBride. Charlton, Kathy Irwin and Brendan Dillon. (Front, l to r): Mary O’Neill, defamation and NAMA. A series Speeches were made by Joan O’Mahony, Yvonne McEvoy and Shauna O’Gorman (see page 8) of seminars are scheduled at Mr Justice Matthew Deery, cost-effective and convenient Monaghan Bar Association Cantillon, solicitor, on how to District Court judges James locations. Another date for your president Dan Gormley, Kevin avoid being sued; Sean Sexton, McNulty, Con O’Leary and diary is Saturday 15 May for Hickey (solicitor) – a former solicitor, on how to stay out of David Riordan; Circuit Court the DSBA annual dinner. This apprentice of Josie’s, John trouble with regulation; and, judges Patrick Moran, Con year marks the 75th year of the O’Hagan, and Frank Martin BL finally, Tim Bolger, investigating Murphy, Seán Ó Donnabháin association. DSBA president on behalf of the Bar. The dinner accountant with the Law Society, and James O’Donohoe; Garda John O’Malley was keen to break was followed by dancing into the who spoke on pitfalls relating to Commissioner Fachtna Murphy, out of the doldrums of winter early hours. the Solicitors’ Accounts Regulations. DPP James Hamilton and a host – the traditional period for the The seminar was a great success, of local dignitaries (see page 38). event – and instead schedule it tipperary with 150 solicitors attending and Tributes were paid to Judge for early summer. The event The bar association continues to the feedback was very positive. Uinsin MacGruairc following will take place this year in hold an excellent array of CPD The SLA sponsored a social his recent retirement from the the Radisson in Booterstown. courses in the very convenient event at the end of the meeting. District Court, having served the Details will be available on the location of Horse and Jockey – According to SLA president bench in Cork for so many years website, with tickets priced at an within striking distance for most Eamon Murray: “Our intention and with such distinction. attractive level. Tipperary colleagues. Following is to have two CPD events per on from the well-attended month and to provide at least 40 dublin waterford seminar last month on risk hours of CPD to our members The family law mediators were Bernadette Cahill continues to management and professional from within the resources of honoured that Chief Justice fulfil her duties as president of indemnity insurance matters, our own association during the John Murray took time out to the WLA with aplomb. Last none other than Professor John course of the year.” attend the recent launch of the week, she attended a dinner Wylie will be the big draw on The annual dinner took DSBA mediation programme. hosted by the legal department the new Land and Conveyancing place recently in Maryborough A number of colleagues of WIT for the presidents and Law Reform Act 2009 in coming House Hotel in Douglas, have already completed the secretaries of the South Eastern weeks. Cork. Over 250 people enjoyed intensive course pioneered in Circuit bar associations. Also, all that was on offer. Guests this country by the DSBA and the WLA sponsored a lively cork included Mr Justice Liam which has already attracted the debate on so-called ‘head The Southern Law Association McKechnie of the High Court, involvement and commitment shops’. G (SLA) recently held a major Law Society President Gerard of leading family law CPD event entitled ‘Staying Out Doherty, director general practitioners across the country. ‘Nationwide’ is compiled by Kevin of Trouble’. Those attending Ken Murphy and members of The demand for places on the O’Higgins, principal of the Dublin were addressed by Ernest the local judiciary, including course has been such that it is law firm Kevin O’Higgins.

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Law Society launches new society clarifies Business Arbitration Scheme courses stance he Law Society’s new s a result of a number of Business Arbitration Scheme T queries raised by solicitors (BAS) was launched by the A with the Law Society, the Society president, Gerard Doherty, at wishes to clarify that no external Blackhall Place on 23 March courses or training providers are 2010. The scheme, designed affiliated with the Society and no and initiated by the Arbitration external courses are accredited and Mediation Committee, as Law Society courses. If a was established in response to seminar, conference, certificate a clear demand for a fast, cost- or diploma is stated to be a Law effective service to assist with Society course, the brochure or the resolution of disputes. The Pictured at the launch were (l to r): Mr Justice Matthew Deery, e-zine in which it is publicised launch was attended by the Law Society President Gerard Doherty and Eamon Harrington, chair of the Law Society’s Arbitration and Mediation Committee will always bear the Law Society President of the Circuit Court, crest and the wording ‘Law Mr Justice Matthew Deery, who 539/2009), which provide for the the parties – the parties have Society of Ireland’. welcomed the scheme. referral by a Circuit Court judge control of the cost. The While a number of external While there will be no or a county registrar at a case Law Society will not set or course providers also use the minimum on the dispute-value progression hearing of a case to recommend fees to be paid term ‘CPD’ – often in the form of requirement in the scheme, mediation/conciliation/ arbit- to the arbitrator. The fee will direct email marketing – the Law it is envisaged that it will be ration or other dispute resolution be agreed with the arbitrator Society wishes to emphasise suitable for any dispute between process to settle or determine the before the arbitration that it does not accredit any businesses or commercial proceedings or issue. commences. particular course or training enterprises involving sums of • If the parties are unable to provider. up to €100,000 in value. The How does the scheme work? agree a fee, then the Law The onus is on each solicitor BAS also offers the knowledge When the parties agree to Society will appoint an to exercise his or her reasonable and experience of qualified proceed by means of arbitration: alternative arbitrator, who judgement as to the quality arbitrators, all of whom are • The Law Society nominates will be entitled to have his/ of training or education being members of the Law Society’s a qualified arbitrator from her fee decided by a court provided, and its relevance to his Arbitration Panel. its panel, with expertise on a officer. or her training practice. One of the highlights of the particular dispute area, BAS is that disputes would be • Both parties submit written According to the chairman of resolved within 90 days from details outlining their the Arbitration and Mediation start to finish. The process will respective positions to the Committee, Eamon Harrington: be confidential between the arbitrator, “Disputes between businesses CRIMINAL parties, who will also be able to • An oral hearing is held in can be protracted and difficult NEGLIGENCE put a limit on costs. The details private within 60 days of the to resolve. The cost and time of the scheme (also available appointment of the arbitrator, involved in court litigation can CONFERENCE on the Law Society’s website, • The arbitrator makes an be unpredictable. This scheme The patient safety and justice www.lawsociety.ie) provide for award within 30 days of the offers an alternative mechanism charity Action against Medical very strict time limits for the hearing, controlled by the parties. It offers Accidents (AvMA) will host a exchange of pleadings between • The arbitrator has the power a speedy and cost-efficient resolu- ‘Criminal Negligence and Access the parties, setting down a to award costs against either tion of disputes, together with to Justice Conference’ on date for oral hearing, and the party, including the costs of the knowledge and experience Thursday 22 April at the Radis- publishing of the arbitrator’s the arbitration, of qualified arbitrators, with son Hotel, Golden Lane, Dublin award following hearing. • The process and the award expertise in resolving disputes in from 9.15am to 4.10pm. Speak- The awards are to be reasoned are confidential. diverse areas.” ers include Mr Justice William awards, unless otherwise Queries relating to the McKechnie (High Court), Dr Brian expressly agreed by the parties. What does it cost? scheme should be directed to: Farrell (Dublin City coroner), Roger The timing of the launch of • A €250 fee is payable to Colleen Farrell, secretary to Clements (consultant obstetrician the scheme is considered to be the Law Society on initial the Arbitration and Mediation and gynaecologist), Michael particularly appropriate, given submission of agreement. Committee, Law Society Boylan (Augustus Cullen Law) the recent coming into force • The arbitrator’s fee is entirely of Ireland, Blackhall Place, and Ernest J Cantillon (Ernest J of the Circuit Court Rules (Case a matter of negotiation Dublin 7 (DX 79); or visit www. Cantillon & Co). Progression (General)) 2009 (SI between the arbitrator and lawsociety.ie for full details.

www.lawsocietygazette.ie 5 Law Society Gazette april 2010 news Legal recruitment survey – Sterling line-up for significant decline in 2009 surrogacy he first six months of 2009 Salary and bonus expectations Tsaw a significant decline in changed significantly in 2009 seminar legal recruitment within both due to the influx of available he education committee in-house and private practice in candidates in the marketplace. Tof the Family Lawyers’ Ireland, according to the Robert Senior solicitors with strong Association is running a free Walters’ Legal Market Overview sector-specific experience could, seminar titled ‘Surrogacy/Legal and Salary Survey for 2010. in some circumstances, demand a Issues/Ireland’ at the Distillery Redundancies slowed premium for fixed-term contract Building on Church Street, considerably in the third roles. However, overall there was Dublin, on 21 April 2010. quarter. Where staff or skill a decline in salary levels across The seminar, which is being shortages existed within private the board. This is expected to chaired by High Court judge practice, lawyers were moved continue in 2010. Mr Justice Henry Abbott, will internally to different areas Due to the high number of feature a sterling line-up of of specialisation. Insolvency, Organisations preferred to hire good quality candidates available speakers. They include Bronagh litigation and employment individuals who had trained in the marketplace, organisations O’Hanlon SC, who will address remained busy throughout 2009, and worked with a leading law were able to hire professionals the issue of the law surrounding while corporate and banking firm before gaining in-house with a skill set above their surrogacy in England; US departments reduced the size of experience. original requirements. This lawyer and co-founder of their teams significantly. It is not trend is expected to continue for Circle Surrogacy in the US, yet known what impact NAMA Fixed-term contracts grow at least the first half of 2010. John Weltman, who will talk might have on legal recruitment The final quarter showed a The majority of legal about surrogacy laws there; figures in 2010. small but steady increase in recruitment this year is expected Dr Deirdre Madden of UCC, Senior solicitors with strong recruitment across commerce to be for contract in-house who will focus on the topic experience in corporate/ and industry. Many organisations positions within industry. Despite ‘Does surrogacy have a future commercial law, renewable circumvented headcount freezes the surplus of legal candidates in in Ireland?’; and Dr Gerard energy, and commercial by hiring fixed-term contractors the market, Robert Walters says Byrne, who will concentrate on contracts/procurement for an initial six to 12-month that finding niche skill sets will the psychological challenge of were sought after in 2009. period. continue to be difficult. surrogacy. All you need to know about regulation aw Society regulation in seminar will be the facility to • Traps for the unwary – a development skills points, and ‘Lthe 21st century – what ask questions of the panel on practitioner’s perspective. fulfils practitioners’ entire every practitioner needs to an anonymous basis concerning requirement of one hour of know’ is the intriguing title matters that may be of concern The experienced panel of training in regulatory matters, of a CPD Focus seminar that to participants. speakers will include: specified by the CPD scheme takes place on 9 June 2010 at Topics to be discussed: • John Elliot (director of 2010. Blackhall Place in Dublin. • An outline of the regulatory regulation), The seminar will provide system and how it operates, • Linda Kirwan (head of Com- Date: Wednesday 9 June 2010 practitioners with an outline • Preparation for a Law plaints and Client Relations), Time: 4pm to 6.30pm of the Law Society’s regulatory Society investigation and • Tony Watson (deputy head Fee: €140 system and how it affects what happens during such an of Complaints and Client Skillnet fee: €105 solicitors’ practices. It is designed investigation, Relations), Venue: Law Society of Ireland, to assist practitioners in avoiding • How to respond to a Law • Seamus McGrath (senior Blackhall Place, Dublin the more common pitfalls and Society investigation, investigating accountant), to provide them with a hands-on • Solicitors’ accounts revisited • Tim Bolger (investigating For the full list of discussion guide to compliance. – pitfalls for practitioners, accountant), topics, visit www.lawsociety.ie/ It will be of interest to all • How the Law Society deals • Michael Quinlan (Dixon cpdfocus, or contact a member practitioners, but particularly with complaints and practical Quinlan, chair), of the CPD Focus team, tel: to sole practitioners, managing tips on how to handle a • Sean Sexton (PJ Walsh & Co). 01 881 5727, fax: 01 672 4890, partners, and those responsible complaint in practice, email: cpdfocus@lawsociety. for compliance issues within • Undertakings as a profession- The course is liable for 2.5 ie, web: www.lawsociety.ie/ firms. A unique feature of the al conduct issue, and management and professional cpdfocus.

6 www.lawsocietygazette.ie news Law Society Gazette april 2010

Supports for Are you thinking of getting newly qualifieds eople who have qualified in admitted across the water? Precent months, or who are about to in the next few months, arge numbers of solicitors The most difficult matter to are encouraged to link up with Lare currently going through organise is the Irish equivalent the Society’s Career Support the process of applying for a of the Criminal Records service and to avail of the qualification in England and Bureau (CRB) check. The wide range of information and Wales – because the arrange- Garda Central Vetting Unit, supports they provide. ment that provides for full through which this must be Workshops are currently reciprocal rights could change obtained, is difficult to make being organised, focused on by autumn 2010, with a contact with. It also takes a matters of concern to people requirement to pass exams relatively long time to provide just qualifying – such as getting in the future, writes Keith the equivalent CRB document. your name entered on the O’Malley. If you apply for a ‘certificate roll of solicitors, working and If you believe that of good standing’ from qualifying in other jurisdictions, an England and Wales the Society’s Regulation and particular problems that qualification might be good to department at the same time face newly-qualified solicitors in have, then you should consider as applying for the CRB check, the current market. There is no applying for one without delay. available from the SRA, you may run into difficulty. charge for these events. Details All the information you need • The Irish equivalent of a The SRA in England insists on where and when they will to make an application to Criminal Records Bureau that the certificate of good take place are available on the qualify in England and Wales check, standing you provide them Society’s website. is provided on the Society’s • A certificate of good with is less than three months Seminars that are relevant website at www.lawsociety.ie/ standing from the Law issued. The best approach to all solicitors, regardless of en/pages/careersupport. Society of Ireland, is to seek a CRB check first level of experience, continue The process of application • An application fee of £100. – refraining from seeking a also, with upcoming dates and is based on submitting the certificate of good standing locations listed on the Society’s following to the Solicitors There is then an annual fee of until you believe your CRB website. For full details on these Regulation Authority (SRA) of Stg£20 to maintain your name document (from the Garda training events and to book your England and Wales: on the roll in England and Central Vetting Unit) will soon place, visit www.lawsociety.ie/ • An AD1 application form – Wales. be with you. en/pages/careersupport. All you need to know about regulation Spring diploma programme launched he Law Society’s diploma 20 April. Its objective is to in District Court Advocacy, focusing on the advocacy skills Tteam has launched its spring provide practitioners with a starting on 24 April. inherent in such applications. 2010 programme. comprehensive knowledge of The Certificate in Taxation This will be a blended learning The six-month Diploma in certain aspects of large-scale Law, provided in association course, meaning that online Employment Law course will commercial litigation, to with the Irish Taxation Institute, learning will be supplemented start on Saturday 17 April and include an examination of the aims to provide professionals by a limited number of onsite will run weekly. The course Commercial Court, rules of who have not yet specialised in workshops. gives a comprehensive ‘cradle discovery, evidence, injunctions, taxation with an understanding The fee for diploma courses to the grave’ understanding of judicial review and the Rules of of key issues and concepts. Core is €2,180 and for certificate the employment relationship the Superior Courts. topics will include a review courses is €1,280. However, – from recruitment through These diploma courses will and application of legal issues reductions are available for to termination. The diploma also be webcast live on the relating to capital gains tax, unemployed solicitors, with places a heavy emphasis on Education Centre’s secure capital acquisitions tax, VAT and course fees now reduced by employment issues that have internet site. stamp duty. 20% for such applicants. come to the fore since the The Certificate in District For further information economic downturn, such as Useful certificate courses Court Advocacy will analyse on these courses and redundancies, pay reductions, In addition, a number of two- some of the key areas of District application forms, visit industrial relations and month certificate courses are Court practice, including debt the diploma programme employer insolvency. on offer, including a Certificate collection, licensing, road pages at www.lawsociety.ie, The Diploma in Commercial in Taxation Law, starting on traffic offences and family email: diplomateam@lawsociety. Litigation will start on Tuesday 21 April, and a Certificate law proceedings, while also ie, or tel: 01 672 4802.

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

Supreme Setting up in practice 2010 courts etting up in Practice presidents’ ‘S2010’ is a CPD Focus network course designed to provide a practical guide to solicitors comes to thinking of setting up in town practice – and to those who have already done so. he Network of the It will be relevant, also, to TPresidents of the new partners and provides a Supreme Judicial Courts of useful ‘health check’ for those the EU met in Dublin Castle who have been in practice for on 19 March 2010 for its some time. bi-annual colloquium, which A unique feature of this was hosted by the Chief seminar is its mentor group Justice, Mr Justice John L system. Each group of Murray. The Chief Justice is participants meets with an a vice-president and board experienced solicitor, who management information, In all, 5.5 management and member of the network. provides the group with advice • Taxation: the ticking time- professional development These colloquia provide an and answers any questions bomb – income tax, motor skills hours, plus one hour of opportunity every two years or concerns. These mentors expenses, VAT, PAYE, PRSI regulatory matters, are available for presidents to address remain available to participants and Revenue audit, for this course. issues common to supreme in the months after the • Technology requirements, courts across the EU. The seminar. • Marketing and client care, Date: Saturday 12 June 2010 Dublin colloquium discussed: The seminar will cover the • Solicitors’ Accounts Time: 9.30am to 5pm • Developing and improving following matters: Regulations, Fee: €175 judicial cooperation in the • Factors influencing the • Anti-money-laundering Skillnet fee: €131 EU, decision to set up in practice, legislation. Venue: Law Society of Ireland, • The network of presidents’ • Financing your practice: the Blackhall Place, Dublin 7 relationship with EU commercial reality, The experienced panel of institutions, • Itemised costs of setting up speakers include: For the full list of topics being • Judicial independence, and running a practice and • John A Campbell, discussed, visit www.lawsociety. and the compilation of a realistic • Eamonn Keenan, ie/cpdfocus, or contact a • The organisation and budget/costs of closing a • Elma Lynch, member of the CPD Focus working environment of practice, • James McCourt, team – tel: 01 881 5727, fax: 01 supreme courts. • Dealing with the accountant • Kevin O’Higgins, 672 4890l, email: cpdfocus@ and the bank, • Charles Russell, lawsociety.ie, web: www. The network was established • Account systems and • Jim Ryan. lawsociety.ie/cpdfocus. in 2004 to address issues arising from the developing and enhanced role of the EU in the field of ‘justice, South Dublin embraces collaborative law freedom and security’, he latest group of their difficulties in a non- high percentage of cases settle, among other matters. Tcollaborative law confrontational manner, with the this is often only on the steps The network manages practitioners to pool resources help of collaborative lawyers.” of the court, by which time the a ‘common portal’ on the is South Dublin Collaborative Collaborative law solicitor adversarial system has taken its internet, through which each Lawyers. Collaborative law is an Gearódin Charlton has seen a toll on all parties, especially on supreme court has access alternative way to resolve family significant increase in clients the children involved.” to the case law of every disputes. Its aim is to assist choosing this method in the The essence of the other supreme court in the couples to reach agreement past year, chiefly because “it collaborative process is that EU. Data and information based on open discussions and is becoming increasingly clear the best interests of the family is exchanged on all matters realistic aspirations. It minimises that the courthouse is not are served by trying to resolve relating to the role and the involvement of the courts in the place to resolve family these disputes in a non- functions of supreme courts. such cases. disputes and restructure family confrontational way. To find The network also promotes Chair of the South Dublin relationships. The adversarial out more about South Dublin judicial exchanges between group, Michael Sheil, explains: system is not always suited to Collaborative Lawyers, visit other supreme courts. “Collaborative law encourages the complex dynamics of family www.southdublincollaborative the parties to try to resolve law work,” she says. “While a lawyers.ie.

8 www.lawsocietygazette.ie news Law Society Gazette april 2010 FitzGerald compliments profession

want genuinely to P i c : Ja son Clar ke Photog rap hy ) be corrected in a new bill. “Icompli ment the Law “We also encouraged Society of Ireland, who over the reference to the Supreme Court last two decades have worked of a bill to extend voting rights ceaselessly to improve standards in Dáil elections to citizens of and have never lost the sense states, such as the UK, which that the law is ultimately about extended that right to our justice and the rights of the citizens because, in this way, we citizen,” Dr Garret FitzGerald were able to insure against the told a packed Presidents’ Hall constitutional chaos that would in Blackhall Place recently. have ensued if a challenge to The former taoiseach was the provisions of that bill were guest speaker at a parchment to be taken, and to succeed, ceremony on 25 February 2010. after an election in which, Dr FitzGerald also spoke under the terms of that bill, of the importance of the non-citizens had voted. independence of the legal profession. “The independence Employment and career of the Bar, combined with prospects the fact that members of your Addressing the newly qualified side of the legal profession solicitors directly, and reflecting are officers of the court, are, I on his own life experience, he believe, crucial elements of our said: “When I went into the democratic system.” employment market over 60 years ago, life was difficult in Common law tradition Ireland – as it is again now. He continued: “We have been Former Taoiseach Garret FitzGerald speaking at the parchment ceremony on “It must be very lucky to have been inheritors of 25 February 2010 disheartening for you, having a common law tradition – one studied so hard, due to no of our happier gifts from our which must be one of our prime resent the right of the courts to fault of your own, to find former colonial rulers. Both concerns,” he said. have a last word on our laws. such a challenging economic the neighbouring island and They are wrong. Even in a environment when it comes ourselves escaped Napoleon’s Key element of the country where the executive to employment and career reforms – which together have Constitution and legislature have never prospects. determined much of the social One of the key elements of consciously sought to impinge “The final message I want to fabric of today’s European the Constitution, the former on the rights of citizens, leave with you is that law gives continent. taoiseach believes, is “the unintentional violations of these you a good basis for any career “And, in a European Union valuable mechanism of a rights can, nevertheless, occur. – as I found when I completed of 27 states, the majority of presidential constitutional “Moreover, I know from my my course in the King’s Inns. whom are civil law regimes, reference, following own experience as taoiseach “Please forgive me – a non- we have to be vigilant about consultation of the Council that, especially in the absence practising barrister of 62 years preserving our common law of State”. of a provision under which standing – for daring to talk system – a system which, I have He continued: “This unique the executive can seek the about the law to practising to say, from my experience of constitutional provision constitutional advice of the lawyers. But I could not resist the working of the European reflected Mr de Valera’s Supreme Court in advance the temptation provided by the Union, is neither understood concern about the danger to of legislating, this reference invitation to address you here nor appreciated by many of our human rights of parliamentary procedure can be employed as today! partners,” he remarked. tyranny – of which he and his a substitute. I think I am right “I went on to undertake the “For, in conjunction with a revolutionary colleagues had in recalling that, 27 years ago, seven careers I chose instead constitution which, despite a earlier had ample experience. my government encouraged of the law – airline economist, few dated elements, was well- “That power of reference the President to refer to the journalist, university lecturer, drafted overall, that common has been invoked on a score of Supreme Court legislation to economic consultant, author law tradition secures the rights occasions, a number of which remove rent control and, when of a dozen books, researcher of our citizens in a manner were followed by laws, or problems with this legislation into aspects of 19th century which I believe to be unique, parts of them, being declared had been identified by the Irish history and, also, of course and of which we should be unconstitutional. Supreme Court, this enabled – although only for 27 years – proud – and the maintenance of “I know that some politicians the defects in that legislation to politician!”

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

Standard of scrutiny raised in judicial review decisions In the Meadows decision, the Supreme Court has raised the standard of scrutiny to be applied in judicial review decisions affecting fundamental rights, writes Joyce Mortimer

n a Supreme Court decision mutilation. She applied for that laid down by Finlay CJ in courts have mirrored English Iof 21 January 2010, Meadows refugee status, but both O’Keefe v An Bord Pleanála. jurisprudence in determining v Minister for Justice, Equality the Office of the Refugee The applicant challenged the grounds for granting and Law Reform, the majority Applications Commissioner and the High Court refusal to grant judicial review. The commonly of judges granted Ms Meadows the Refugee Appeals Tribunal leave for judicial review of the accepted standard for judicial leave to judicially review the refused her asylum application. ministerial deportation order. review was laid down in the minister’s decision to deport her Following this refusal, the English case of Wednesbury, to Nigeria, on the grounds that solicitor for the applicant A point of law where it was stated: “The court the minister did not properly wrote to the Minister for The High Court certified that is entitled to investigate the address the refoulement issues. Justice, outlining that the there was a point of law of action of the local authority Section 5 of the Refugee Act refusal might adversely affect exceptional public importance with a view to seeing whether 1995 prohibits ‘refoulement’ (or her constitutional rights, that required determination they have taken into account deportation to a state) where including the right to freedom by the Supreme Court. The matters which they ought not the individual’s life or freedom from torture and inhuman point of law in question to have taken into account or would be threatened or they and degrading treatment was “whether or not in conversely have refused ... or could be subject to a serious as protected by article 3 of determining the reasonableness neglected to take into account assault. the European Convention on of an administrative decision matters which they ought to This decision effectively Human Rights. The minister which affects or concerns have taken into account. Once means that an applicant’s subsequently replied, indicating constitutional rights or that question is answered in fundamental rights must be that he had decided to issue a fundamental rights, is it correct favour of the local authority, it considered if they are at stake in deportation order. to apply the test as set out in may still be possible to say that a decision. O’Keefe v An Bord Pleanála?” ... they have nevertheless come Judicial review application to a conclusion so unreasonable The facts of the case Taking into consideration Doctrine of reasonableness that no reasonable authority The applicant claimed that, the applicant’s claim that her The case effectively turned could ever have come to it. In if she returned to Nigeria, fundamental human rights on the interpretation and such a case, I think the court can she would be forced into an would be violated if she were application of the common interfere.” arranged marriage and be deported, the judge concluded law doctrine of reasonableness In the case of Keegan v subjected to female genital that the appropriate test was in judicial review. The Irish Stardust, Henchy J stated that one to watch: new legislation Pensions Insolvency Payment The scheme aims to offer pension schemes to purchase will assume responsibility for Scheme special payments to pensioners annuities from the government future payment of pensions to On 18 January 2010, the in situations where a defined at a lower price than normally beneficiaries at the rate agreed Minister for Finance signed SI benefit pension scheme is available on the open market. by the minister in approving the no 4 of 2010 under the Social winding up in deficit and the The reduced purchasing cost application. Welfare and Pensions Act 2009. employer has also become is intended to yield a greater It is noteworthy that the Section 22 of this act provides insolvent. This is called the balance of assets for members scheme expressly excludes for the introduction of the ‘double insolvency’ criterion. who have yet to retire. post-retirement increases. Pensions Insolvency Payment The scheme took effect from Under PIPS, trustees of a Section 22(2)(b) of the act Scheme (PIPS), to take effect 1 February 2010. It will operate qualifying pension scheme provides for the exclusion of from 1 February 2010. PIPS is on a pilot basis for three may pay the government a schemes that have contrived a cost-neutral scheme for the years, following which it will be lump sum, which will cover the a double insolvency or where, exchequer that was drawn up reviewed. cost of paying the pensions of according to the minister, it is by the Minister for Finance in retired members. On receipt in the public interest or in the consultation with the Minister for How does PIPS work? of the lump sum into the interests of the exchequer to Social and Family Affairs. The scheme works by enabling exchequer, the government exclude them.

10 www.lawsocietygazette.ie analysis Law Society Gazette april 2010 human rights watch Standard of scrutiny raised in judicial review decisions “the test of unreasonableness or pi c : co lli ns sufficient that a decision maker irrationality in judicial review goes wrong or even hopelessly lies in considering whether and fundamentally wrong; he the impugned decision plainly must have gone completely and and unambiguously flies in the inexplicably mad; taken leave face of fundamental reason of his senses and come to an and common sense”. In the absurd conclusion”. case of O’Keefe v An Bord As a result of this narrow Pleanála, Finlay CJ stated: “The line of interpretation, the circumstances under which standard of reasonableness was the courts can intervene on almost insurmountable in this the basis of irrationality with jurisdiction. the decision maker involved in an administrative function are ‘Anxious scrutiny’ limited and rare.” The applicant in Meadows The Irish courts have submitted that the court should adopted a strict interpretation extend the basis for judicial of the doctrine of review beyond the scope of the reasonableness. In O’Keefe, test set out in Keegan and O’Keefe Finlay CJ stated that, for to an ‘anxious scrutiny’ standard. the court to intervene, “it This standard derives from is necessary [to establish] English jurisprudence and allows ... that the decision-making for more rigorous examination authority had before it no of an administrative decision relevant material which would where it relates to individuals’ support its decision”. The court fundamental rights. implemented a significantly In R v Minister for Defence, high threshold in the case of the Court of Appeal stated: Aer Rianta CPT v Commissioner “Where an administrative of Aviation Regulation, where decision was made in the context it was stated that “to be of human rights, the court reviewably irrational, it is not Abosede Meadows: raised the standard would require proportionately

How to apply? standard as provided by sec- request the National Treasury trustees must accept the quote There are three separate stages to tion 44 of the Pensions Act Management Agency to calculate by paying the quoted price by the application process: 1990, the assessed net cost of provid- electronic funds transfer. 1) The scheme’s trustees must ap- d) A statement of affairs of the ing pension payments to the pen- ply to the Pensions Board to have insolvent employer, sioners of the scheme. The min- What happens on review of the it certified as an ‘eligible pension e) A notice of appointment of a ister will provide this quotation scheme? scheme’, as defined under PIPS. liquidator or receiver, in writing to the trustees of the PIPS must be reviewed within three In submitting an application, f) A statutory declaration by the applicant scheme. The quotation years of its introduction. At this trustees are required to submit employer declaring insolvency will expire after two weeks if not time, any schemes that are already the following: and by the trustees declaring accepted by the trustees. The in participation will continue. The a) A completed application, that the information provided quote will specify the amount to government may, at that stage, b) Written confirmation that the is complete and accurate. be paid to the relevant pension- decide to discontinue the scheme, winding up of the pension 2) On certification by the Pensions ers and the administrative costs continue it or modify it. G scheme had commenced, Board, the trustees may then to be charged by the minister. c) A statement that the scheme apply to the Minister for Finance 3) Before payments can be made Joyce Mortimer is the Law Society’s does not satisfy the funding for approval. The minister will by the minister under PIPS, the human rights executive.

www.lawsocietygazette.ie 11 Before

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greater justification before being reasonableness of a decision. on the rights, and in particular or reasons underlying the satisfied that the decision was Justice Denham stated: “A the fundamental rights, of decision.” within the range of responses decision which interferes with individuals as a consequence of In granting Ms Meadows open to a reasonable decision constitutional rights, if it is to be an administrative decision, the leave, he stated: “An maker.” The court held: “The considered reasonable, should be more substantial must be the administrative decision affecting more substantial the interference proportionate.” countervailing considerations the rights and obligations of with human rights, the more Murray CJ stated: “In that justify it.” persons should at least disclose the court will require by way of examining whether a decision the essential rationale on foot of justification before it is satisfied properly flows from the premises Implications which the decision is taken.” that the decision is reasonable.” on which it is based, and The Meadows decision clarified This decision will The Supreme Court in whether it might be considered that there is a necessity to undoubtedly lead to increased Meadows rejected the adoption of at variance with reason and consider fundamental rights in demands on public bodies the ‘anxious scrutiny’ standard, common sense, I see no reason the context of the reasonableness and the minister’s officials in opting instead for the use of a why the court should not have test by the use of the doctrine of the consideration of decisions test based on the doctrine of recourse to the principle of proportionality. The Supreme affecting fundamental rights. proportionality. proportionality in determining Court has raised the standard However, it could be argued that those issues.” of scrutiny to be applied this is a welcome development Proportionality The Chief Justice, referring in judicial review decisions that will lead to greater Justice Denham explained to the decision of the Supreme affecting fundamental rights. accountability and transparency, that, while the test of Court in Fajujonu v Minister The Chief Justice stated: “A and possibly fewer judicial reasonableness used in Keegan for Justice, stated: “It is purely formulaic decision of the review cases. G and O’Keefe did not explicitly inherent in the principle of minister may not in particular refer to proportionality, it is proportionality, where there circumstances be a sufficient Joyce Mortimer is the Law Society’s calcuttaimplied flyer.qxdin any analysis 18/03/2010 of the 10:28is grave Pageor serious 2 limitations statement of the rationale human rights executive.

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www.lawsocietygazette.ie 13 Law Society Gazette april 2010 comment letters

Send your letters to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected] Wine retailer’s licence changes From: Joseph Mooney, solicitor, 23 have an architect or someone confirmation of transfer Upper Mount Street, Dublin 2 to deal with proving the plans procedure. In essence, all shops ecently, a client who owns and compliance with the with a wine retailer’s off-licence Ra store in Dublin, while planning and fire-safety aspects are now brought fully within the carrying out a substantial of the premises. Luckily for the transfer regime operated by the refurbishment of his shop, client, since he had an architect District Court, just like pubs, allowed his wine retailer’s off- involved in the refurbishment/ hotels, off-licences and so on. licence to lapse for the licensing reconstruction of the shop, he It should also be noted that year 2007-2008. When he went was able to get a set of licensing the application for a new wine to take up his licence from the plans and had the architect retailer’s off-licence has Revenue Commissioners in ready to deal with proving plans to be included with every October 2008, he discovered and compliance with planning application for a new that the provisions of the and fire-safety aspects of the off-licence. This application Intoxicating Liquor Act 2008 now premises to the court. Once the will now be made up of the It would be interesting to applied in relation to the taking court certificate was taken up, application for the two licences know from whence the demand up of a wine retailer’s off-licence he then had to go through the previously applied for (that is, for this change in legislation and he was required to have a normal procedure of taking up the beer retailer’s off-licence and came – however, it is now court certificate in order to take the licence from the Revenue the spirit retailer’s off-licence), the law, and holders of wine up the licence from the Revenue Commissioners. together with the application for retailers’ off-licences have no Commissioners. It should be noted also that, a new wine retailer’s off-licence. alternative but to live with it. The act itself at section following the act, in order to Unless mention of the wine 6 states: “The Revenue transfer a wine retailer’s off- retailer’s off-licence is included (Editor’s note: see also ‘One Commissioners shall not grant licence (for example, because in the application, the judge may bourbon, one scotch, one beer’ a new wine retailer’s off-licence of sale of the property), it is end up granting an off-licence at p28 of the December 2009 to a person unless a certificate now necessary to go through without the entitlement to sell Gazette, which dealt with the new is presented to them which has the normal ad interim and wine. licensing regime.) been received by the person from the District Court and which entitles the person to a wine retailer’s off-licence.” Mallow District Court notice The actual application itself is From: Anne Casey, District Court Court Office has closed since and Fermoy are dealt with in quite straightforward. However, Office, Courthouse, Mallow, Co September 2009. Mallow District Mallow District Court. it is necessary to serve notice Cork Court is now the administrative Please note that the actual parties, to advertise, to produce would appreciate if you office. All documentation court sittings still sit in Lismore, plans of the premises, to produce Icould notify readers of the relating to the District Court Mitchelstown and Fermoy the title to the premises, and to Gazette that the Fermoy District areas of Lismore, Mitchelstown courthouses. consult a colleague The Consult a Colleague helpline is available to assist every member 01 284 8484 of the profession with any problem, whether The service is completely confidential and personal or professional totally independent of the Law Society

14 www.lawsocietygazette.ie comment Law Society Gazette april 2010 Protecting the ‘royals’ has a price? From: Brian Montaut competent authority). “In relation to statutory protection legislation where (spokesperson), Architects’ Alliance, The letter boasted of the protection of title, three aspects applicable. Protection of the Bray, Co Wicklow High Court-like powers of the field in which architects title ‘architect’ for business rchitects’ Alliance is permitted under part 3 of the practise invite examination. In entities is of no practical Aa recently created, Building Control Act 2007, summary: relevance for securing the unincorporated association but neglected to mention the • The design quality of the built performance of architectural that presently speaks for 170 diminished rights of consumers environment: this is essentially services. non-registered architects from (clients) and of defendants a cultural concern which across the state. Membership is (architects) when a complaint is was and remains one of the “In the light of experience since being formalised and requires heard. principal reasons for the the inception of the register the making of a statutory The following extract from formation and continuance of under the 1931 act, and more declaration of establishment (as John Bull’s Other Homes (Murray the Royal Institute of British particularly under the Architects evidence of having earned one’s Fraser, Liverpool University Architects as a chartered Registration Board’s regime living as an architect for ten Press, 1996) is informative. body. It has connotations from 1997, the recurring years and more). “The RIAI was formed in not only for the United question has been whether In his letter in last month’s 1839. Membership stood at Kingdom but worldwide. It is protection of title serves useful issue (p17), the director of about 65 architects in the 1880s beyond the ambit of statutory purposes in respect of the three RIAI Ltd (the institute) stressed and this barely rose to around protection of title. aspects mentioned above.” the consumer benefits, as he 100 members in the period • The technical sufficiency Unlike Britain, our conceived them, of ‘protecting just before the First World of buildings: the public registration standards were the title of architect’, and he War. The business of the RIAI interest is secured in the decided in full knowledge of did so without touching upon was riven from the turn of the United Kingdom under the relevant European directive the benefits this supposed century by a growing division building regulations and (2005/36/EC on the mutual protection brings to his royal with a splinter association in other enactments. This recognition of professional organisation. Those benefits Belfast, the Ulster Society of too is beyond the statutory qualifications) and there can be include the transfer of many Architects, and by a fruitless protection of the title no excusing its over-zealous and of its internal operating duties obsession with the idea of ‘architect’. restrictive transposition into to RIAI Ltd (the statutory securing compulsory legal • The business of architectural law. In addition, registration as registration body). This registration for the use of the practice: contracts of enacted suffers from two major new department is to be title ‘architect’.” engagement for professional weaknesses, viz the absence funded entirely by registered A second informative extract services are always of a ‘grandfather clause’ and practitioners, whether or not is from Wikipedia, ‘Architects between a business entity the absence of an independent they are institute members. registration in the United (whether individual, firm, registration body. Consumer The annual registration fees are Kingdom’. Although about partnership, or company) protection will remain also to cover the operating costs the longer-established UK and the client, and are diminished by part 3 of the of the third member of system, its arguments are readily governed by the general Building Control Act 2007 until this trinity, RIAI Ltd (the transposed to Ireland: law, including consumer those defects are corrected. G Two New Publications from Clarus Press

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www.lawsocietygazette.ie 15 Law Society Gazette april 2010 comment

Overhaul of direct provision system required On 18 February, FLAC launched its report, One Size Doesn’t Fit All, on the direct provision and dispersal system for asylum seekers, writes Saoirse Brady A ll pi cs : D e r ek Sp ir s hile the Irish state has undertaken to protect anyone Wput many resources who has come to Ireland to “seek into adapting its immigration and enjoy asylum”. While the and protection policies, it has Department of Justice, Equality not put the same vigour into and Law Reform recognises this improving the reception and duty of care to those seeking living conditions of persons protection, it is not fulfilling seeking asylum or other forms of this duty to the extent outlined protection. in a number of domestic and Direct provision refers to international human rights the scheme whereby people instruments. who apply for asylum in Ireland The universality of human are housed in accommodation rights is recognised both in centres and given three meals a domestic law and international day at set times. Direct provision human rights instruments. The residents are given a weekly Report author Saoirse Brady speaking at the launch, with Vukasin Irish Constitution contains a allowance of €19.10 for an adult Nedeljkovic, who gave his personal experience of the direct provision and number of stated and implied and €9.60 for a child. They can dispersal system for asylum seekers in Ireland human rights, as Walsh J pointed also apply for once-off payments out in McGee v Attorney General under the exceptional or urgent are dispersed to centres located residents or the applicant. ([1965] IR 294): “Articles 41, needs payments scheme. People around the country without Ireland is a party to the UN’s 42 and 43 emphatically reject who have applied for protection any consultation of either local 1951 Refugee Convention and has the theory that there are no rights without laws, nor rights contrary to the law and no rights anterior to the law. They indicate that justice is placed above the law and acknowledge that natural rights, or human rights, are not created by law but that the Constitution confirms their existence and gives them protection.” General Comment No 31 of the UN Human Rights Committee explicitly states that rights are “not limited to citizens” and “must also be available to all individuals”, including asylum seekers.

Some leeway However, states are given some leeway, as rights may be restricted by policy concerns. Denham J explained in Oguekwe v The Minister for Justice, Equality and Law Reform ([2008] 3 IR 795) that “these rights At the launch of FLAC’s report on direct provision was Labour’s spokesperson on justice, Pat Rabbitte TD are not absolute, they have to

16 www.lawsocietygazette.ie comment Law Society Gazette april 2010 viewpoint Overhaul of direct provision system required be weighed and balanced in all the circumstances of the case”, but she emphasised that any restriction has to be “proportionate to the legitimate aim pursued”. Although it was originally set up to alleviate a housing shortage, the direct provision and dispersal system now seems to be used as a disincentive to people who might want to come to Ireland to seek asylum rather than as a way for the Irish government to discharge its human rights obligations. The state contracts out the care of asylum seekers, and others seeking another form of protection, to private businesses, but the responsibility ultimately rests with the Department of Justice. It is an “organ of the state” as defined in the European At the launch of FLAC’s report on direct provision, One Size Doesn’t Fit All, were (l to r): Vukasin Nedeljkovic, Convention on Human Rights Act Saoirse Brady (FLAC policy and campaigns officer), Sue Conlan (Irish Refugee Council CEO), Noeline Blackwell 2003; therefore, it has to ensure (FLAC director general) and Josephine Ahern (ISICI CEO) that it complies with the rights enshrined in that instrument. Essentially, residents have to Court in October 2008. Leave One Size Doesn’t Fit All calls But, in real terms, direct make a complaint to the same was given for judicial review for the abolition of the current provision residents are not department that is responsible following the expulsion of the system but, while it remains in afforded the same rights as other for both housing them and plaintiff from direct-provision place, there are a number of destitute people in Ireland. The deciding on their application accommodation. He suffered ways it could be improved. The social welfare supports they for protection. Proper from a mental illness and, after government should carry out a receive are different to those safeguards must be put in place being expelled, was without a human rights audit of the direct given to other homeless people, to ensure that residents are medical card until his solicitor provision and dispersal policy. who the state also has to house; treated in line with due process intervened. Furthermore, an independent the direct provision allowance is and fair procedures. In initial submissions, counsel assessment of value for money the only payment never to have FLAC is calling for the for the plaintiff argued that the needs to take place that would increased since its inception. complaints mechanism to state’s failure to accommodate include the cost of long-term Despite this low level of be reformulated using the him constituted “inhuman consequences for residents payment, coupled with the fact Ombudsman’s guidelines. A and degrading treatment” and in terms of health and social that direct provision residents review of the house rules and cited the British decision of R inclusion. The government are not allowed to work, they are complaints procedure was v Secretary of State for the Home must take steps to guarantee not included as a target group undertaken by the Department Department, Ex p Adam, Limbuela that direct-provision residents in government anti-poverty or of Justice and completed in and Others ([2006] 1 AC 396), in are able to live in dignity. social inclusion strategies. 2008, but the revised rules have which the House of Lords found FLAC’s report and executive yet to be published. that there had been a breach summary can be downloaded at Revised rules not yet published The difficulties with the of the ECHR. The department www.flac.ie. G Another difficulty arises around current procedure were settled the case out of court the complaints procedure, highlighted in N v Minister for and agreed to rehouse him, Saoirse Brady is policy and as it is not administered in Justice, Equality and Law Reform, taking into account his medical campaigns officer with FLAC and a fair or transparent way. which came before the High requirements. the author of the report.

www.lawsocietygazette.ie 17 Law Society Gazette april 2010 cover story 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

n recent years, the courts have encountered instigated, and inspected only by a public service a surplus of cases brought by way of judicial vehicle inspector. The prosecution was not relying review relating to so-called ‘missing on the condition of the car as a factor in the crash, evidence’. The prosecuting authorities’ but on independent evidence from witnesses stating obligations to seek out and preserve that the speed of the vehicle was the cause of the Ievidence were established in the now well-known crash. The applicant had been trapped in the car at and seminal cases of Braddish v DPP and Dunne the time of the incident, so there was no suggestion v DPP. These judgments started an area of that he was not driving. However, he argued that, jurisprudence known as ‘missing evidence’ cases. as the vehicle had been destroyed without an Recently, the Supreme Court handed down a opportunity to have it forensically examined, it number of judgments that, although they do not resulted in a risk that he would not receive a fair change the original principles, have narrowed the trial. The Supreme Court held that he had failed circumstances where an applicant can succeed in to establish that an examination of the car was prohibiting his trial. necessary to advance possible reasons for the crash In Braddish, the investigating garda obtained as part of any defence and refused to prohibit the CCTV footage showing a robbery, which he trial. viewed. The applicant was arrested on foot of This case can be compared with Ludlow v DPP, identification from the video and made admissions, where prohibition was granted. In that case, having been informed that he was viewed on the missing evidence involved car tyres, which CCTV. The footage was subsequently destroyed. were disposed of by the applicant’s employer. In prohibiting the trial, the Supreme Court The Supreme Court held that the applicant was held that the garda was not entitled to dispose impeded in defending himself on the critical issue of evidence simply because the prosecution was of the trial, which was the state of the tyres. As only relying on the confession and not the CCTV these were not available for inspection by the footage. defence – or any forensic reports upon which In Dunne, the obligation on the prosecution the defence could cross-examine – the court held broadened to not only preserving evidence, but that there was a real risk. In the above cases, the also seeking it out in the first place. The Supreme Supreme Court included a best practice policy to Court held that there was a duty on the gardaí to avoid future difficulties. This recommends that seek out and preserve all evidence (within reason), gardaí give notice to an accused of any intention whether the state intended to rely on it or not. to destroy a vehicle, in order to allow them to While the video had been seized by gardaí and inspect it. disposed of in Braddish, in Dunne there had been no effort to seek out the video. Movie stills The second category of ‘missing evidence’ cases Crash and burn involves CCTV footage. In McHugh v DPP, the In Savage v DPP, the applicant was charged applicant was accused of stealing a jacket from a with dangerous driving causing serious injury shop. The evidence against him was that he was and unauthorised taking of a vehicle, which was observed on CCTV allegedly taking a jacket and involved in a crash. The vehicle was destroyed two leaving. He was arrested at the scene and detained. months after the crash, before a prosecution was The footage allegedly showing this was lost, and

18 www.lawsocietygazette.ie cover story Law Society Gazette april 2010 Missing in action

main points • missing evidence – whether there’s a real risk of an unfair trial • solicitor’s duty to request materials promptly • modification of the case law begun by Dunne and Braddish

www.lawsocietygazette.ie 19 Law Society Gazette april 2010 cover story

there was no other evidence from witnesses. The down and tried to grab between her legs and that state argued that there were five still photographs his hand brushed off her thigh. The Supreme Court from the CCTV in the possession of noted that the alleged incident could the prosecution that could be relied not have lasted more than a fleeting on. The question to be considered was “Given this second and was based on the garda’s whether, in the absence of the ‘moving’ shift towards a own statement, there being no other CCTV footage, there was a real risk. witnesses. The court stated that the The court held that the essence of more stringent assault, as alleged, was not such as the case was the identification on the test, solicitors to prompt any expectation that the CCTV; any other evidence was minor event would actually be caught on or peripheral. The defence never had should be camera. The failure to download some access to this footage, only to the stills. cautious about of the relevant moving footage was The court concluded that these stills regrettable, but it did not follow that were not enough to confirm that the launching the applicant suffered any prejudice. accused had engaged in the alleged judicial review The applicant had also argued that the illegal activity. There was a real risk still photos were not of good quality, of an unfair trial, as the defence was proceedings in that there were no photos of every unable to test the identification of the without having half-second interval. In refusing the state witnesses. relief, the court noted that to have this That case can be contrasted with CD first examined level of detail sought out would be v DPP. There, the applicant sought thoroughly positing a level of duty on the gardaí prohibition on the basis that not all that was far beyond anything that had of the possibly relevant footage was whether or not occurred before. Describing it as far- downloaded from CCTV and, while the accused is fetched and unreasonable, the court there were still photographs and some held that there was no real risk of an footage from other cameras, there was at risk” unfair trial. no moving footage covering the entire relevant period of the alleged incident. The applicant Word of warning sought prohibition of a trial of an allegation that he The case law has stated very clearly that there is sexually assaulted a female garda outside Leinster a duty on the defence to request any materials House. The evidence alleged was that he reached promptly. Therefore, the following is general

GENERAL PRINCIPLES The following is a general summary of the principles • The fact that the prosecution intends to rely on involving missing evidence, summarised from the evidence independent of the missing evidence in Supreme Court cases: order to establish guilt does not preclude the making • it is the duty of the prosecution, in particular An of an order. Garda Síochána, to preserve and retain all evidence • The application is considered in the context of all the having a bearing or potential bearing on the issue evidence likely to be put forward at the trial. of guilt or innocence of the accused, to be kept • The application must show, by reference to the case until the conclusion of any prosecution, as far as is to be made, how the missing evidence will affect practicable. the fairness of a trial. The applicant must engage in • The duty includes seeking out evidence that the a specific way with the evidence available so as to prosecution does not intend to rely on, and includes make the risk apparent. evidence that may assist the accused or undermine • The risk must be such that cannot be avoided by any the prosecution. directions given by a trial judge. An applicant will not • The duty is not one that is unending: it must be succeed where he can, by alternative means, make reasonable and cannot be construed as requiring the point in his defence that he wishes to make, for the gardaí to engage in an exhaustive search. example, cross-examination on a report. • The threshold that an applicant must meet is a • The request for disclosure must be made as early high one and should only succeed in exceptional as possible. Unexplained delays or ‘eve of trial’ circumstances. applications may result in prohibition being refused. • The missing evidence must be such as to give • The essential question at all times is whether there rise to a real possibility that, in its absence, the is a real risk of an unfair trial. The court should accused will be unable to advance a point material focus on that issue alone and not on whose fault it to his defence – no remote, theoretical or fanciful is that the evidence is missing and what the degree possibility will lead to the prohibition of a trial. of fault may be.

20 www.lawsocietygazette.ie cover story Law Society Gazette april 2010

I spy with my big eye... missing or unobtainable advice to practitioners: evidence can lead to the • A request for the material should be made as soon look it up granting of prohibition as possible, even where there may only be possible Cases: impending charges, • Braddish v DPP [2001] 3 IR 127 • If the material in question is a vehicle, a request • Dunne v DPP [2002] 2 IR 305 for inspection should be made as soon as the • Savage v DPP [2009] 1 IR 185 defence is notified, • Ludlow v DPP, unreported, Supreme Court, 31 • If the material is CCTV footage, a ‘Gary Doyle July 2008 order’/disclosure order should be obtained, • McHugh v DPP, unreported, Supreme Court, 24 • A follow-up letter should be sent requesting the February 2009 said material, and repeated if not complied with, • CD v DPP, unreported, Supreme Court, 23 • A hearing/trial date should not be set before the October 2009 said material has been disclosed and any CCTV footage viewed properly (the disc may not be compatible with certain systems), • If the material is not forthcoming, an application without having first examined thoroughly whether should be made to the court to vacate the date for or not the accused is at risk. This can only be done hearing/trial date until the issue relating to the by evaluating the possible difference to the case and missing/unviewable footage has been resolved. seeing if it is affected by any missing or unobtainable evidence. The case law seems to suggest that these Recent case law has narrowed the circumstances applications are now more appropriate for the trial where prohibition will be granted. The question judge to consider. Given the higher threshold that an is ultimately one of whether there is a real risk applicant now faces, perhaps the shift will move back of an unfair trial. Each case is fact specific, with to a remedy before trial judges, rather than looking to independent evidence separate to the missing the High Court for a remedy. G evidence being a crucial factor. Given this shift towards a more stringent test, solicitors should be Rebecca Smith is a Dublin-based barrister practising in the cautious about launching judicial review proceedings area of criminal law.

www.lawsocietygazette.ie 21 Law Society Gazette april 2010 examinership New lease of life 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 turns the key

ith the recent dramatic rise in held that: “Leases as a matter of law are contracts. the number of petitions to have Moreover, if the Oireachtas intended to exclude leases examiners appointed to troubled from the term ‘contract’ by which they are normally companies and the sharp decline in covered, it would have said so explicitly.” the property market, the interplay While not specifically referring to it, Murray CJ Wbetween such companies and their landlords has come then went on to reject the reasoning behind the into focus as companies attempt to find a way of out judgment in O’Brien’s: “A lease by its very nature burdensome leases signed in more prosperous times. involves the performance of obligations by both the Section 20(1) of the Companies (Amendment) Act lessor and the lessee other than payment of money. 1990 provides: “Where proposals for a compromise Some of these obligations have been referred to in or scheme of arrangement are to be formulated in the course of the hearing, such as the right to quiet relation to a company, the company may, subject to the enjoyment and to obligations to insure. It has not been approval of the court, affirm or repudiate any contract shown that the obligations arising under the leases in under which some element of performance other than this case are confined to the making of payments.” payment remains to be rendered both by the company As regards section 25B, Murray CJ found that it and the other contracting party or parties.” was “concerned only with the variation or even the The first written judgment to address the issue complete extinguishment of the rights of the lessor to of whether the above provision covers leases was payment of any rent while the lessee continues to have Re O’Brien’s Irish Sandwich Bars Ltd last October. the benefit of the property the subject of the lease”. Ryan J contrasted the section with section 290 of the This was “an entirely different matter” to “repudiation Companies Act 1963, which empowers a liquidator to of a lease, which involves the mutual release of both disclaim property. Section 290(8) deals specifically with the lessor and the lessee from all rights and obligations leases. There is no such provision in section 20. Ryan J under the lease”. saw this as “a significant omission” and went on to find that, having regard to the underlying purpose of the The court’s jurisdiction provision and the restriction contained in subsection 1, It is clear from the wording of the provision and the he could not approve the repudiation under section 20. judgment of the Supreme Court in Linen Supply that He placed particular emphasis on the requirement for some element of performance requires to be rendered “residual performance elements other than payment”. by the parties under the lease, other than the payment The same issue came before the court again, a few of rent, for the lease to be the subject of an order under weeks later, in Re Linen Supply of Ireland Ltd. Counsel section 20. Indeed, the one dissenting judge in the main points for the landlords referred the court to section 25B Supreme Court, Hardiman J, found that the leases that • Affirming and of the Companies (Amendment) Act 1990, as inserted were the subject of the application in Linen Supply did repudiating by section 26 of the Companies (Amendment) (No not satisfy this requirement. Hardiman J was of the leases 2) Act 1999, which provides that proposals for a view that covenants of quiet enjoyment or insurance • Jurisdiction of scheme of arrangement cannot contain a reduction or were not obligations to be performed under the leases. the High Court extinguishment of any rent payable under a lease after Of course, the majority in the Supreme Court to approve the the scheme of arrangement has taken effect, unless adopted a broader approach. Given that the right of repudiation of a the lessor or owner of the property concerned has passive enjoyment, effectively a negative covenant, lease consented in writing. In the High Court, McGovern was sufficient to satisfy the test in this regard, it is • Applications J found that “it would be completely at variance with submitted that it will be relatively easy for any standard under section section 25B” to permit the repudiation of a lease. lease to fall within the court’s jurisdiction. 20 of the The company in Linen Supply appealed to the Companies Supreme Court, which reversed the decision of the When can an application be made? (Amendment) lower court, finding that section 20 allowed for the Section 20(1) empowers the company, subject to the Act 1990 repudiation of a lease. Looking at the “ordinary approval of the court, to repudiate a contract “where meaning” of the wording in the statute, Murray CJ proposals for a compromise or scheme of arrangement

22 www.lawsocietygazette.ie examinership Law Society Gazette april 2010 New lease of life

are to be formulated”. The question of when or how interests of all persons interested in the liquidation”. this temporal limitation is satisfied has not been It is submitted that a court will adopt a similarly addressed by the courts. It would appear, however, broad approach to its discretion under section 20, to require some kind of positive indication from the assessing the interests of all parties interested in the examiner that he has started the process of putting examinership. together a proposal for a scheme of arrangement. In Linen Supply, when the Supreme Court allowed There is no case law in relation to when the court the appeal, it remitted the matter back to the High will decide to exercise its discretion when approving Court. In a brief ex tempore judgment, McGovern J the repudiation of a lease. However, an idea of the in the High Court exercised his discretion to approve approach the court might take can be seen in cases the repudiation of the leases, conditional upon, dealing with the disclaimer of onerous property by among other things, the ultimate confirmation of the a liquidator pursuant to section 290 of the 1963 act. scheme of arrangement. It is submitted that among In particular, in Tempany v Royal Liver Trustees Ltd, the factors influencing McGovern J’s decision would Keane J held that “the exclusive concern of the court have been: in an application for leave to disclaim must be the • The fact that the leases in Linen Supply were

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surplus to the requirements of the company and post-petition liability and must be paid in full. They had become burdensome, referred the court to section 22(5) of the act, which look it up • The fact that the investor was not willing to put states that “a creditor’s claim against a company Cases: money into the company if the leases remained, is impaired if he receives less in payment of his • Re Linen Supply and claim than the full amount due in respect of the of Ireland Ltd • The fact that the examiner was of the view that he claim at the date of presentation of the petition for ([2009] IEHC 544, could not put together a scheme of arrangement the appointment of the examiner”. The landlords 4 December 2009; unless the leases were repudiated. submitted that this meant that the scheme could only Supreme Court, 10 apply to debts due “at the date of presentation of the December 2009; Loss and damage petition” and argued that, in their case, there were no High Court, 3 Section 20(2) provides that “any person who suffers amounts due at that time. February 2010) loss or damage” as a result of repudiation under In rejecting this argument, the court pointed to • Re O’Brien’s Irish section 20(1) “shall stand as an unsecured creditor for section 3 of the act, which lists, among the bodies and Sandwich Bars Ltd the amount of such loss or damage”. persons who may present a petition ([2009] IEHC 465, Section 20(3) then provides that “the to have an examiner appointed, “a 16 October 2009) court may hold a hearing and make an “The court creditor, or contingent or prospective • Tempany v Royal order determining the amount of any creditor (including an employee) of the Liver Trustees Ltd such loss or damage and the amount then went on company”. The court deduced from ([1984] ILRM 273) so determined shall be due by the to find that the this that it was “clear that the act had company to the creditor as a judgment regard to different types of creditors”. Legislation: debt”. landlords were The court then went on to find that the • Companies The manner in which a prospective landlords were prospective creditors (Amendment) Act determination pursuant to subsection and that the fact that they argued that 1990, s20(1), 3 is to be carried out remains to be creditors and their claim was for damages arising s25B addressed by the courts. In O’Brien’s, that the fact from repudiation, rather than for • Companies Act the company applied for an order unpaid rent, did not alter their status. 1963, s290 pursuant to the subsection. However, that they argued • Companies no such order was made, as the court that their claim Confirming proposals (Amendment) (No refused an order under section 20(1). In what circumstances will the court 2) Act 1999, s26 In Linen Supply, the company and was for damages confirm proposals for the impairment each of the landlords had previously arising from of a landlord’s debt? Section 24(4)(c) agreed figures for the loss and damage of the 1990 act provides that “the resulting to the landlords in the event repudiation, court shall not confirm any proposals that the repudiations were approved. rather than for … unless the court is satisfied that … The following passage from (i) the proposals are fair and equitable McGovern J indicates the factors unpaid rent, did in relation to any class of members taken into account by the parties in not alter their or creditors that has not accepted the Linen Supply in coming to the agreed proposals and whose interests or claims figures: “In this case, the claim by status” would be impaired by implementation, the landlords is a claim for agreed and (ii) the proposals are not unfairly damages based on the loss of rent in prejudicial to the interests of any the future, and taking into account dilapidations interested party”. and the possibility of the landlords re-letting the Without prejudice to their argument that the properties during the currency of the term of the impairment was not covered by the statute, the repudiated leases.” landlords in Linen Supply objected to the impairment of Is the amount due to the landlord from the their debts on these grounds as well. These objections repudiation subject to impairment in the scheme of were rejected, McGovern J finding that the 30% arrangement? In his final judgment in Linen Supply, dividend being offered to the landlords was fair and McGovern J gave judgment approving the scheme equitable, as it was similar to the offer made to many (unreported, 3 February 2010). His judgment at this other creditors who were supporting the scheme. stage is noteworthy, as it deals with the important It is important to note in this regard that the question of whether the amount due to the landlord court’s assessment of the fairness of the write-down arising from the loss and damage suffered as a result of the landlord’s debt should not take account of the of the repudiation of the lease can be subject to possibility of re-letting the premises. This will already impairment in the scheme of arrangement under the have been taken into account in the assessment of the 1990 act. figure for the landlord’s loss and damage. Indeed, as The scheme of arrangement provided that the noted above, it appears to have been accounted for in landlords would receive 30% of the agreed figure the parties’ agreed figures in Linen Supply. G for loss and damages arising from the repudiation of the lease. The landlords argued that this was a Conor Feeney is a Dublin-based barrister.

www.lawsocietygazette.ie 25 Law Society Gazette april 2010 company law Keeping company

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

he Companies (Amendment) Act 2009 was to enter and search premises and seize information, signed into law on 12 July 2009. The act was, whether in hard copy or electronic form. It gives the effectively, a knee-jerk reaction to unhealthy ODCE extended powers of seizure. The act states practices that had evolved in the banking that it has the power to remove material or electronic industries. It was a rapid response to Ireland’s information from the premises for subsequent off-site Tcurrent economic crisis and the public outcry that ensued. storage and examination. The act allows the ODCE to The new act is aimed at increasing the transparency of apply for a search warrant from the District Court, which loans made by companies that are banks to their directors would be valid for one month and could be extended if and persons connected with them. It confers extra powers the court saw fit. on the Office of Director of Corporate Enforcement It is interesting to note that the ODCE can rely on this (ODCE) and it amends existing provisions relating to section, even if it includes the seizure of information that Irish-registered non-resident companies. is claimed to be legally privileged, while the question of The act incorporates some of the Company Law privilege is being determined by the courts. This might, Review Group’s proposals for major changes in the world potentially, be controversial and it will be interesting to of corporate law. The CLRG have been working on a see what happens when the ODCE uses this power in myriad of proposals that, it is hoped, will dramatically circumstances where a court, at a later date, deems the streamline company law. While some of the CLRG’s information privileged. Section 6 seems to apprehend proposals are incorporated in the 2009 act, there is a the potential problem with this provision, stating that plethora of other proposed changes that will be coming if a situation arises whereby privilege is being sought into play in the near future. over certain documents, the documents can be possessed This article outlines the main changes that have been by the ODCE, as long as the confidentiality of the brought about by the Company Law (Amendment) Act information can be maintained pending determination by 2009, and it sets out some of the other proposals that the the court. CLRG hopes to incorporate in the imminent Companies Consolidation and Reform Bill. Directors’ powers and duties In addition to the extra powers that have been conferred Extra supervisory powers on the ODCE, certain changes have been made to In an attempt to prevent company directors from directors’ powers and duties. Section 43 of the Companies abusing their position for their own personal benefit, (Amendment) Act 1999 required that the company had an the act sets out a number of changes that confer extra Irish resident director – this to ensure that the business supervisory powers on the ODCE. Section 2 of the act was being carried on in Ireland and was tax compliant gives the ODCE a specific right of access and a power here. This requirement has been amended by the 2009 to take copies of books that record a director’s interest in act, in that it now requires that at least one director contracts or proposed contracts with the company. This of the company must be resident in a member state of provision gives the ODCE more supervisory powers and the European Economic Area, provided there is a real may act as a deterrent to errant directors in the future. and continuous link with one or more activities that Under section 194 of the Companies Act 1963, a director are carried on in the state. The act also clarifies the has an obligation to declare any interest that he may have circumstances in which a company is regarded as having in contracts or proposed contracts with the company, and a real and continuous link with one or more activities that the company is required to record all such information. are carried on in the state, the existence of which removes The new provision seeks to ensure that directors actually the necessity of having a resident director. comply with section 194, something that many have The banking crisis was an impetus for the changes that failed to do in the past. have come about in relation to loans made between the Section 5 of the act expands the power of the ODCE company and a director. Section 9 of the act increases

26 www.lawsocietygazette.ie company law Law Society Gazette april 2010 Keeping company

disclosure obligations regarding transactions between a company and its directors and applies special rules of disclosure to licensed banks. This section was necessary after the adverse public reaction to the manner in which certain banks were running their business and the procedures that were being used in giving out loans. Section 31 of the Companies Act 1990 prohibits loans by a company to its directors and connected persons. Section 40 of the Companies Act 1990 provides for criminal penalties for breaches of section 31. The new act has also removed the requirement of ‘wilful’ or ‘knowing’ default on the part of an officer who authorised or permitted a transaction in contravention of section 31 in order for that officer to be guilty of an offence. The new act imposes liability on all officers of the company who are in default where the company breaches section 31. The sanctions and penalties that are now in place are much main points more onerous – as an officer cannot plead • extra that he was unaware that he was breaching supervisory section 31 – and it brings the offence powers for the within the remit of a strict liability ODCE offence. All officers are now at risk. • changes to The 2009 act requires banks to a director’s disclose, in their annual accounts, powers and the particulars of any arrangements duties or contracts with each director. This • disclosure obligations regarding transactions

www.lawsocietygazette.ie 27 Law Society Gazette april 2010 company law

a memorandum and articles of association will be look it up replaced by the filing of a single document – the Legislation: company constitution. It will not be necessary to insert • Companies Consolidation and Reform Bill a limited liability clause, as the CLS will be limited by • Companies Act 1963 definition. The CLS will have its own application for • Companies Act 1990 incorporation. An objects clause will not be necessary. • Companies (Amendment) Act 1999 • Companies (Amendment) Act 2009 Changes to directors’ duties The General Scheme gives clarity in relation to the Literature: definition of a ‘director’. The definition of ‘director’ is • Company Law Review Group’s Report on the stated to include “any person occupying the position General Scheme 2007 (available on line at of director by whatever name called”. This effectively www.clrg.org) means that shadow directors and de facto directors will • Company Law Review Group First Report fall within the definition. • Company Law Review Group Second Report The General Scheme proposes codification of • CLRG Company Law Statute Book www.clrg.org/ common law fiduciary duties of directors, like the CLRGarchive/welcome.asp requirement to act in good faith and to avoid conflicts • Company Law Review Group website: www.clrg.org of interest. Until now, these duties could only be deciphered by trawling through case law. These changes would be very welcome, as they would requirement creates far more transparency in relation bring much needed clarity to the issue of directors’ to agreements with directors, and it also provides responsibilities. The CLRG also proposes a new protection for the public. age restriction on directors, in that there will be a minimum age of 18. This will prevent child directors CLRG General Scheme from being issued with summonses for failing to file In its General Scheme of the Companies Consolidation and annual returns, among other things. Furthermore, Reform Bill 2007, the Company Law Review Group directors will be enabled to give restriction/ has created a structure that incorporates two different disqualification undertakings to the Director of parts, which are commonly known as ‘pillars’. ‘Pillar A’ is Corporate Enforcement. exclusively concerned with the private company limited Pillar A, chapter 2 of part 5, details the general by shares. ‘Pillar B’ provides the variations for each other duties of directors and secretaries. In head 5, the company type, for example, public limited companies, duty of each director to ensure compliance with the unlimited companies and investment companies. The Companies Acts is set out and will apply equally to CLRG proposes that there will be a new type of shadow directors and de facto directors. This head company known as the ‘designated activity company’. also makes provision for the concept of ‘an officer The General Scheme contains a number of significant in default’ and requires directors to acknowledge proposed reforms of Irish company law. It is proposed their statutory and common law duties on their that the model company, under the legislation, will appointment. be the private company limited by shares (CLS). The Pillar A also proposes a new provision that concerns proposal provides that a private company limited by directors’ liability to account to their companies for shares may have a single director. The bill eliminates the gains made and to indemnify their companies for need for the annual general meeting and replaces it with losses caused as a result of their breach of duty. This a provision whereby it can now be carried out by written provision is modelled on remedies currently available procedure. A single document constitution is envisaged, in part III of the Companies Act 1990 where directors replacing the current need for the memorandum and act in breach of their duties. This is an important articles of association. New criminal offences arising amendment, as it exposes a director personally and it under the Companies Acts are proposed and the offences erodes the doctrine of limited liability. have been graded. The private company limited by shares will now have the legal capacity of natural person. Designated activity companies The doctrine of ultra vires will be defunct, apart from If a contract or agreement is not within a company’s situations that arise where a limit on the powers of a memorandum and articles of association, the doctrine company is desirable. In that situation, the proposed of ultra vires operates to render a contract, purportedly legislation provides for a designated activity company, entered into by a company, void and unenforceable. which will retain an objects clause. With the practice of the flooding of the objects clause by company members, the reality is that these Company incorporation structures no longer achieve what they were intended Chapter two of the General Scheme deals with to achieve. The CLRG has recognised that companies incorporation and registration of a CLS. The proposed are not carrying out business in relation to matters for process of incorporation has been simplified greatly. which they were originally designed, because of the The current requirement that a company must lodge practice of drafting wide and varied objects clauses.

28 www.lawsocietygazette.ie company law Law Society Gazette april 2010

The new proposals attempt to circumvent this for shareholders to unanimously accept this. The problem by stating that the capacity of a private CLRG noted “that in many private companies, the company limited by shares (CLS) is stated to be “full business of an annual general meeting is a foregone and unlimited capacity to carry on and undertake conclusion, particularly where the members in their any business or activity, do any act or enter into any capacity as directors will already have approved transaction”. In effect, a CLS would be endowed with the accounts, the level of dividend, the re-election the capacity of a natural legal person. of themselves as directors and the continuance in However, it is important to note that there will office of auditors”. It is asserted that, with the use be provision made for retaining an objects clause in of modern-day communications such as email and certain circumstances. There will be two types of conference calls, the need for AGMs is now obsolete. ‘designated activity company’ (DAC), which will be identified by the letters Positive step ‘DAC’ appearing at the end of their “The General It is apparent that the legislation that corporate title. The first type will be Scheme was introduced earlier this year was a special-purpose vehicle, and the precipitated by the near collapse of the second will be a private company proposes to banking system, and as a result of some limited by guarantee and having dispense with of the insidious practices that had evolved a share capital. The obligation to at the higher echelons of some of these ensure the DAC acts within its the need to institutions. powers will lie with the directors, hold an AGM. The 2009 act is a positive step towards who will be liable for any breach. It reining in the large number of wayward is asserted that the DAC may be used However, it will company directors who had escaped for specific ventures, such as property be imperative under the radar in the past. Further, it management companies or charities. acts as a deterrent to any other would-be for shareholders miscreant individuals who have become Single director companies to unanimously directors of companies and banks. The CLRG proposes that new private However, it is clear that the 2009 act is companies limited by shares will be accept this” merely the tip of the iceberg compared allowed to have a single director. This with the colossal changes that the recognises the reality that many small Companies Consolidation and Reform Bill businesses have a second token director for compliance proposes to introduce. reasons only. It will also cut down on the number of With the regularisation of directors’ duties, the directors appearing before the District Court for failing clarification in relation to the definition of the term to file tax returns and annual returns. This provision ‘director’, the introduction of a single-member may save large quantities of court time in the future, as director company, and the copious amounts of new the Revenue and the Companies Registration Office criminal penalties for failing to comply with company will only have to pursue one director. From a director’s law, a new era has dawned for company directors. viewpoint, this proposal will place more of a burden on They must be cognisant that an awareness of the them, as they will now have sole responsibility for all legislation is imperative in order to comply with the decisions taken and contracts made. law and to evade the extensive and far-reaching forces of the Director of Corporate Enforcement. G Abolition of the AGM The General Scheme proposes to dispense with the Majella Twomey is a practising barrister and a member of need to hold an AGM. However, it will be imperative the Refugee Appeals Tribunal.

www.lawsocietygazette.ie 29 Law Society Gazette april 2010 harbour law

The Harbours (Amendment) Act 2009 introduces further liberalisation and lucrative opportunities for the commercial ports. Sean Nolan sights his sextant on the principal changes Any port in a storm

he Harbours Act 1996 enacted the first major the 1996 act and removes the local authority and revision of Irish harbours legislation since port-user representation at board level, which had the 1940s. Prior to that act, Ireland’s 26 constrained the ports’ commercial ambitions. state-owned ports operated as harbour As with much legislation that has a commercial authorities under the Harbours Act 1946 impact, the 2009 act was preceded by a consultation andT were essentially run as public utilities by harbour process with the port sector stakeholders, including commissioners, many of whom were nominated by the Irish Ports Association, whose members include local authorities, chambers of commerce and other the Irish commercial port companies. The 2009 act representatives of port-user interests. became law on 21 July 2009. Here, we focus on the Central to the reforms introduced by the 1996 act principal changes introduced by the act. was the introduction of a legislative framework for establishing a top tier of state-owned commercial Changing tack companies, incorporated under the Companies Acts, to The scope of activities that may be undertaken own and manage the principal commercial ports of by port companies has been extended by section Dublin, Cork, Shannon, Foynes, Dun Laoghaire, 5 to permit port companies to invest in or engage Waterford, Dundalk, Galway, Drogheda, New Ross, in commercial activities outside the limits of their Arklow and Wicklow. (Rosslare Port is excluded from respective harbours, subject to obtaining ministerial the 1996 and 2009 acts and continues to be governed consent. Under the 1996 act, the port companies by private legislation of the Victorian era under the were constrained, in that they could only engage aegis of Iarnród Éireann.) in business activities that were advantageous to Given that Ireland – of all the countries in the development within their harbours. Port companies EC – is the most heavily dependant on external trade, may now participate in a range of commercial the state policy underpinning the Harbours Act 1996 ventures with other harbour companies, local reflected the importance of fostering a competitive authorities and private enterprises outside of their main points and commercial regime within the Irish ports sector harbour limits, including ventures overseas. Thus • Port companies by removing operational state control of the principal far, there has been little appetite for establishing permitted to commercial ports. After a decade of operating cross-border joint ventures between port companies. invest outside within the commercial environment introduced by However, as traffic volumes within the Irish ports harbour limits the 1996 act, the majority of the commercial ports decline, port companies are now empowered to • relaxation have adapted to the new commercial environment make strategic external investments with a view to of borrowing and have developed from being essentially public benefiting from such investments when the economy constraints utilities with unclear mandates to being enterprises recovers. • removal of with clear and defined commercial objectives. By Section 9 introduces flexibility to enable the port local authority implementing the government’s policy as set out in its companies to borrow funds to finance a number and user Ports Policy Statement 2005, the Harbours (Amendment) Act of strategically important capital projects. Under representation 2009 complements and expands upon the commercial the 1996 act, the amount of borrowings of a port on port boards mandate given to the commercial ports under company was capped at 50% of the value of its fixed

30 www.lawsocietygazette.ie harbour law Law Society Gazette april 2010

Any port in a storm

The Seacat enters Dublin’s harbour

assets. Borrowings may now exceed this threshold (Appointment of Local Authority Directors) Regulations where ministerial consent is obtained, provided that 1996 (SI 335 of 1996), whereby the Minister for total borrowings do not exceed €200 million. Transport was required to appoint three directors of a port company, as nominated by the local Land ahoy! authority in which the port company was situated, Under section 6, port companies are now subject and neighbouring local authorities. The repeal of to a legal obligation to have regard to government local authority and user representation is central policy or guidelines in relation to both the disposal to the liberalisation of the Irish commercial ports. and the acquisition of land and the consideration Given their role and status as commercial entities, therefor. Under the 1996 act, port companies were the government regards it as being essential that the only required to have regard to government policy boards of the port companies be smaller and more or guidelines in relation to the acquisition of land. focused on the achievement of commercial objectives Notwithstanding this, port companies were, and and well-being of the port company alone. continue to be, expected to adhere to the corporate The former requirement for significant local governance principles in the Code of Practice for the authority representation was regarded as being Governance of State Bodies, which addresses both land inconsistent with government policy, and the 2009 acquisitions and disposals. It remains to be seen act gives effect to this policy. Those practitioners whether the ‘Bord Snip Nua’ report will be adopted with an interest in history will be aware that the as government policy. If it is adopted as government harbour authorities that preceded the commercial policy, port companies will be required to adhere port companies were founded in the Georgian/ to its policies in respect of land disposals and early Victorian era and evolved in tandem with the acquisitions. local chambers of commerce. As a result, it became common practice – and later a legal requirement Mutiny on the Bounty of the 1946 act – for harbour authorities to have Sections 8 and 11 have repealed the provision commercial, user and local authority representation contained in the 1996 act and the Port Companies on their boards. By removing local authority and user

www.lawsocietygazette.ie 31 Law Society Gazette april 2010 harbour law

seascapes

Arklow Harbour and Mulcreevy v Minister for Environment concerning The 1996 act envisaged and provided for the the extent to which a minister may, by statutory incorporation of Arklow Harbour. This is no longer instrument, effect changes to primary legislation. warranted, and section 17 amends the 1996 act to Following advice from the attorney general that the facilitate the reversion of Arklow Harbour from being a 1996 act did not contain sufficient principles and port company governed by the Companies Acts 1963 policies to allow the harbour limits to be altered by to 2009 to local authority control. ministerial order, section 9 has now been amended to include sufficient principles and policies to satisfy the Braemore Port requirements identified in the above cases. Section 3 alters the harbour limits of Drogheda Port Company in order to facilitate the construction of a Bantry Bay, Tralee and Fenit Harbours new port at Braemore in North County Dublin. The Section 18 makes provision for the transfer by change to the harbour limits is being effected by a ministerial order of Bantry Bay Harbour to Port of retrospective change to the 1996 act. These changes Cork Company, and Tralee and Fenit Harbours to had previously been made by the minister under Shannon Foynes Port Company, in the event that it is statutory instruments passed under section 9 of the determined that there is significant commercial traffic 1996 act, which are now revoked. The power of the within these harbours. However, flexibility is maintained minister to alter a company’s harbour limits under to provide for their possible reversion to local authority section 9 of the 1996 act has also been clarified in the control or to local port company control. No such 2009 act to take account of case law developments transfer may take place unless a public consultation in Cityview Press Limited v An Chomhairle Oiliunna process is undertaken in accordance with the section.

representation, this characteristic of the ports for company’s employees was between 30 and 50, it was upwards of 300 years has been severed. As a result, the required to hold an election for the appointment of maximum number of directors who may be appointed one member of staff as a director of the company. to the board of a port company has been reduced Where the number of employees exceeded 50, an from 12 to eight. Consequential changes are made election for the appointment of two employees to to the model form of articles of association of port the board was required. In addition to reducing companies, which will require implementation by the number of worker-elected directors from two special resolution of each of the port companies. to one, the 2009 act introduces helpful averaging provisions in recognition of the fact that the number All hands on deck of employees may rise above or fall below the trigger With a view to reducing the size of the boards of port number of 30 during the course of a year. An election companies, section 11 has reduced the number of is now only required where the average number staff-elected directors of port companies from two to of the employees will remain in excess of 30 in the one, irrespective of the number of staff employed by following accounting year. the port company. Under the former law, an election was required Under the 1996 act, where the number of a port if the threshold was attained at any point in time,

look it up Cases: • Port Companies (Appointment of Local Authority • Cityview Press Limited v An Chomhairle Oiliunna Directors) Regulations 1996 (SI 335 of 1996) [1980] IR 381 • Mulcreevy v Minister for Environment, Heritage and Literature: Local Government [2004] 1 ILRM 419 • Code of Practice for the Governance of State Bodies (updated 15 June 2009) (www.finance.gov. Legislation: ie) • Harbours (Amendment) Act 2006 • Ports Policy Statement 2005, Department of • Harbours Acts 1946, 1996 Communications, Marine and Natural Resources • Harbours (Amendment) Act 2000 (www.transport.ie) • Maritime Safety Act 2005, section 58 • Report of the Special Group on Public Service • Planning and Development (Strategic Infrastructure) Numbers and Expenditure Programmes (www. Act 2006 finance.gov.ie).

32 www.lawsocietygazette.ie harbour law Law Society Gazette april 2010

even if it was envisaged that the workforce would fall below the threshold level immediately after the election result was announced. In determining the number of a port company’s employees, those members of staff employed in subsidiary companies are not to be aggregated with the employees of the port company itself. For example, where a port company employs 29 members of staff directly and a further two are employed in a subsidiary, no election is required, whereas if all of the 31 staff were directly employed in the port company, an election is required. Surprisingly, the 2009 act has not addressed this issue. For those port companies whose Dublin’s harbour enters a sea cat employees number less than 30, and consequently where no election is required, the Minister for within their harbour limits. Section 7 of the 2009 Transport is required to appoint a person who, act transfers the CPO functions exercisable by the in the minister’s opinion, is representative of the Minister for Transport to An Bord Pleanála. This interests of the employees of the company. In transfer is similar to that made by the Planning and this regard, the minister is required to consider Development (Strategic Infrastructure) Act 2006 with regard any recommendations of nominees made by any to the CPO powers of Dublin Airport Authority. relevant recognised trade union or staff association. Such a person need not be an employee of the port Taking the wheel company. Given that the government expects that the In an effort to prevent conflicts of interest at commercial port companies should be capable board level, the 2009 act precludes the of funding their operations and appointment and/or nomination of infrastructural requirements without certain persons as directors, such as a relying on exchequer support, the person who has provided a “significant 2009 act provides for the necessary commercial service” to the port “The 2009 act legal environment to encourage the company during the previous three provides for the port companies to develop sources years. of revenue from other avenues, necessary legal such as private sector investment. Haul anchor environment to Notwithstanding the 2009 act’s focus Section 15 gives effect to recent on individual port responsibility, changes in international maritime encourage the it is likely that amalgamations and conventions that extend the range port companies mergers of port companies, and even of persons who may be issued with a the possibility of privatisation of port pilotage exemption certificate under to develop companies, will feature as the current section 72 of the 1996 act. The holder sources of economic climate and contraction of a pilotage exemption certificate of exports bring further commercial is exempt from compulsory pilotage revenue from challenges to the ports sector. within the whole or part of a port other avenues, The government has indicated company’s pilotage district. Before such that the case for amalgamations will a certificate is issued, the port company such as be accepted where the proposals must be satisfied that the holder is in private sector demonstrate the potential to possession of the skill, experience and reduce costs, create synergies and local knowledge sufficient to enable investment” opportunities for more dynamic the holder to pilot the ship within the development, marketing, product relevant area of the company’s pilotage delivery and critical mass. The case district. for amalgamations has already been The 2009 act implements the advice of the made and implemented in relation to Foynes Port attorney general by closing off a lacuna under the Company and Shannon Estuary Port Company, 1996 act, whereby those harbour authorities that were which were amalgamated to form Shannon Foynes not incorporated under the 1996 act and that remain Port Company. It will be interesting to see if other subject to the 1946 act had no power to organise and port companies follow suit. G ensure the provision of pilotage services, including the making of bye-laws in relation to pilotage Sean Nolan is a partner in MJ O’Connor, Solicitors, Waterford. services. He represented the Irish Ports Association in its submissions to the Port companies were conferred by the 1996 Department of Transport on the Harbours (Amendment) act with powers of compulsory acquisition of land Bill 2008.

www.lawsocietygazette.ie 33 Law Society Gazette april 2010 judicial fellowships pi c : l ensmen

In May 2008, seven judicial fellows were appointed to provide support to the judges of the High Court, Jol ly good with a further three fellows appointed later that year. Orla Veale Martin gives three cheers

main points • Duties of judicial fellows • ‘Decision hose attending the High Court for judges of the High Court, with a further three fellows enhancing’ chancery, commercial, judicial review or appointed later that year. They were assigned by the • Behind the asylum matters over the past two years President of the High Court to work directly with curtain of may have noticed an extra body in the one or two judges whose major commitment was to judicial decision familiar line up at the top of the court, judicial review, chancery and commercial lists. Tnext to the registrar. In May 2008, seven judicial Judges who were assigned fellows included Judge making fellows were appointed to provide support to the Frank Clarke, Judge Iarfhlaith O’Neill, Judge Peter

34 www.lawsocietygazette.ie judicial fellowships Law Society Gazette april 2010 Jol ly good fellows

Kelly, Judge Mary Laffoy and Judge Mary Finlay A key element of the fellow’s role is in providing Geoghegan. Fellows were also appointed to judges of assistance with the drafting of written decisions by the asylum and competition lists. It is a requirement their assigned judges. To this end, judicial fellows for the role that the judicial fellows are legal typically sit in court for the duration of any cases professionals, and so the first ten fellows comprise over which their judge is presiding. Then, after qualified solicitors and barristers. consultation with the judge to whom they are Although these fellowships comprise a new role assigned, the fellow prepares a draft summary of in the Irish state, similar roles are well established in relevant facts and law, plus the submissions of the other jurisdictions. The titles for these roles may vary parties for inclusion in a draft judgment. Further throughout the common law world – from judicial assistance is provided by the fellow in editing and fellow to law clerk to judicial assistant or associate proofreading the draft judgment. As extremely – but the duties remain essentially the same. The important documents of public interest, and because Supreme Court of the United States has had judicial of instantaneous worldwide publication, there is no assistants, or clerks, gracing its halls for over 100 margin for error with the drafting and editing of years, and their role and functions are as familiar as judgments. those of any protagonist in the courts system. ‘Post-adolescent mandarins’? Duties of judicial fellows Like our American counterparts, there is no defined As the first set of judicial fellows, the role was ours statutory basis for the role of judicial fellow. The to form – within certain parameters. In forming the American Federal Judicial Centre has attempted to role, we drew on the experiences of similar, more define the role of the law clerk in its publication, the established roles, and from the expectations of the Law Clerk Handbook, which states: “Clerks are usually judges to whom we were assigned. In essence, the assigned to do legal research, prepare bench memos, primary functions of a judicial fellow are akin to those draft orders and opinions, edit and proofread the of a professional support lawyer providing assistance judge’s orders and opinions and verify citations. Many to a High Court judge. judges discuss pending cases with their law clerk and Prior to the appointment of judicial fellows, confer with them about decisions.” research assistance to the judiciary was provided However, the functions and duties of a judicial by a number of judicial researchers, who were first fellow will vary considerably, depending on the put in place in 1993. Yet the functions and duties judge to whom they are assigned. Perhaps a more of the judicial fellows were intended to be entirely comprehensive and accurate summary of the duties separate to those of the researchers. A judicial fellow of a fellow is set out by US Court of Appeals judge is assigned to a particular area of court business and Daniel Mahoney, in an article for the Brooklyn Law works alongside an individual judge. Review: “A large part of a clerk’s functions in America

www.lawsocietygazette.ie 35 Law Society Gazette april 2010 judicial fellowships

is to do the legwork on a given case; spot the most Public Trust: Ethics for Federal Judicial Law Clerks. As important issues, summarise the arguments, give an an evolving role, every possible ethical issue is not impression of which arguments are most persuasive, covered, and this is an area that must be managed by and thus identify the aspects of a case that should the fellow and their assigned judge. have an impact on the final decision. With this assistance, the judge can get to the heart of the case Behind the curtain and be prepared to highlight the most important The posts were intended to provide a direct insight issues at oral argument or at a conference afterwards. into the judicial process and to expose the fellows A clerk performing such functions renders a valuable to practice in the High Court. As a role in the service, but it is hardly the equivalent Irish legal system, the experience is of decision making. After cases are completely unique. Additional to the argued, it is the judge who casts the privilege of being the first judicial vote on a tentative disposition, based “Few legal fellows in this jurisdiction, few legal partly upon a clerk’s impressions professionals professionals have the occasion to see and recommendation, but more behind the curtain of judicial decision dispositively upon the judge’s review have the making, until they themselves are on of the briefs and related materials, occasion to the bench. There is no apprenticeship oral arguments and ultimately his own for the judiciary. The fellowship has conclusions. Is this a usurpation of see behind placed us in a pseudo-apprenticeship decision making? I would suggest that the curtain of for its duration. the law clerk’s role is better described The experience of each judicial as ‘decision enhancing’.” judicial decision fellow has as many differences as In that regard, as judicial fellows, making, similarities. For example, the judicial we would agree that we are ‘decision fellow assigned to a list with a fast enhancers’. Some criticism of clerking until they turnover, such as asylum, may sit in the US courts is that it has led to a themselves are in on a new case every day, with “corps of post-adolescent mandarins, input required on each case heard. judges for a year”, as put by Richard on the bench. Judicial fellows are also assigned to Posner in his article ‘The jurisprudence There is no lengthy and complex commercial of skepticism’. We can be very clear cases, some lasting over six months, about this: the role of judicial fellow is apprenticeship where the duties will cover keeping not intended to encroach on judicial for the judiciary. track of evidence and submissions function. and summarising these as the case There is, obviously, a very strong The fellowship progresses. emphasis on confidentially and ethics has placed us The experience may also include in the role. Judicial fellows must sitting in on a trial for a number of protect the judge’s confidences and in a pseudo- days, only for it to settle. In which the integrity of the courts. Being apprenticeship case, having invariably read the professionally qualified lawyers, pleadings and researched the issues, we have come to the role with a for its duration” the judicial fellow may seem to be the knowledge of ethics in the practice only party to be disappointed at such a of our respective professions, but settlement, with his or her work being we also follow distinct guidelines – filed only in the knowledge banks currently those as set out by the American Federal rather than forming the basis of a judgment. Judicial Centre in their publication Maintaining the Whatever the differences, all of the fellows have

look it up Cases: istants in the decision-making role of the Irish judic- • Doran v Ireland (ECtHR 50389/99) iary’, Judicial Studies Institute Journal (2006) 6(1) 171 • Federal Judicial Centre, Law Clerk Handbook Legislation: • Federal Judicial Centre, Maintaining the Public Trust: • Section 46(3) of the Courts and Court Officers Act Ethics for Federal Judicial Law Clerks 2002, as amended by section 55 of the Civil Liability • Mahoney, Daniel, ‘The second circuit review – 1986- and Courts Act 2004 1987 term: foreword; law clerks: for better or for worse?’ Brooklyn Law Review (1988) 54 Literature: • Posner, Richard, ‘The jurisprudence of skepticism’, • Coonan, Genevieve, ‘The role of judicial research ass- Michigan Law Review (1988) 86

36 www.lawsocietygazette.ie judicial fellowships Law Society Gazette april 2010 pi c : l ensmen

The ten judicial fellows with the President of the High gained an insight into the contemporary policy issues As such, there is increased pressure on judges to Court, Mr Justice Nicholas Kearns. Back row (l to r): facing the judiciary, as well as an appreciation of the deliver judgments quickly after the hearing of a matter. Geoffrey Sumner, Stephen nature of judicial administration. Judges are also expected to read the relevant papers Byrne, David Fennelly, in advance of a trial in order to reduce the length of Gerard Nicholas Murphy, The future hearings. Stephen Fagan and Christo- pher Martin. Front row (l to The Courts Service hopes to continue the fellowship The judicial fellows were appointed to help the r): Laoise Ní Chonail, Orla program, as the work of the High Court is by no High Court judges meet these time frames. Following Veale Martin, President of means slowing down – with ever more complex an ad hoc analysis carried out by the fellows, it can be the High Court Nicholas cases being heard, particularly given Ireland’s recent confirmed that most judgments worked on by a judge Kearns, Máire Reidy and Joanne Williams economic difficulties. In 2008, the number of civil with the assistance of their fellow are issued within matters issued was 22,861, an increase of 3,426 over these time limits. In 2009, nine judicial fellows worked the previous year. Of these, for example, breach of on a total of 181 judgments. contract cases almost doubled, with 1,507 such cases With the first fellowship programme coming to an received by the High Court in 2008. There was end, a new group of judicial fellows will be recruited another large increase in 2009, with 27,465 new civil this summer. It is envisaged that these judicial fellows cases issued in the High Court, an 18% increase on will be assigned to an area of law rather than to an the number from 2008. Preliminary statistics for 2009 individual judge, to allow a greater number of judges from the Courts Service indicate that 579 reserved access to a judicial fellow’s assistance. Without judicial judgments were delivered in 2009, compared with 449 fellows, judges in Ireland’s superior courts are in the in 2008 and 403 in 2007. relatively unique and unenviable position of carrying Non-delivery and or late delivery of reserved a voluminous and ever-increasing workload with only judgments can lead to a finding of liability on the part secretarial support. No partner in a large law firm or of the state, as determined by the European Court busy senior counsel would ever tolerate such skeletal of Human Rights in the case of Doran v Ireland. resources. In this way, judicial fellows positively aid the Following on from this, section 46(3) of the Courts judiciary and, in turn, bring about increased efficiency and Court Officers Act 2002, as amended by section 55 in the courts. G of the Civil Liability and Courts Act 2004, sets out a time limit of two months from the hearing of the case Orla Veale Martin is a qualified solicitor and judicial within which reserved judgment should be delivered. fellow.

www.lawsocietygazette.ie 37 Law Society Gazette april 2010 people and places Singing Sinatra at SLA dinner A ll pi cs : D ee Bau m a nn Photog rap hy he annual Southern Law Patrick McCarthy represented TAssociation (SLA) dinner the judiciary, and the Director was held in the Maryborough of Public Prosecutions and House Hotel on 26 February. Garda Commissioner were also In all, 250 solicitors and their present. guests attended. Special guests In the course of his address, included Gerard Doherty the SLA president called for (president of the Law Society), the abolition of stamp duty Ken Murphy (director general), as a stimulus to the sale of Norville Connolly (president unoccupied housing stock. of the Law Society of Northern Patrick Dorgan and Kieran Ireland), John O’Malley McCarthy provided humorous (president of the Dublin entertainment, with the Solicitors’ Bar Association) and traditional ‘topical song’ poking Bernadette Cahill (president of fun at many local and national the Waterford Law Society). events from the year gone by. Four local district judges, Music and entertainment was four local Circuit Court judges, provided by the Sinatraesque together with High Court Ronnie Costly until 3.30am, Gerard Doherty (Law Society president), Eamon Murray (SLA president), judges Liam McKechnie and ending the night on a high note! Bernadette Cahill (WLS president) and John O’Malley (DSBA president)

Stephen Rowe, Harvey Kenny (retired judge), Mary Campbell and Tim Bracken Finian Dullea and Philomena Murnane

Gerard Doherty (Law Society president), James O’Donoghue (Circuit Court judge), Patrick Moran (Circuit Court judge), Pat Mullins (past Eamon Murray (SLA president), Con Murphy (Circuit Court judge) and Seán Ó Donnabháin (Circuit Court judge) president SLA)

38 www.lawsocietygazette.ie people and places Law Society Gazette april 2010

SLA president Eamon Murray with staff, enjoying the SLA’s annual dinner

Emer O’Callaghan and Noel Power Kate Murphy and Jim Thompson

Eileen Lee and Tim Bracken Louise O’Brien and David O’Mahony

www.lawsocietygazette.ie 39 Law Society Gazette april 2010 people and places Dressed to impress for Respect he Trinity Business Alumni Lee and jointly hosted by Trecently hosted a ‘dress business veteran Eddie Hobbs to impress’ event – with all and TV personality Kathryn proceeds going to the charity Thomas, there were guest Respect. Fashion and business appearances on the catwalk by clashed, in more ways than one, Senator Shane Ross, politicians at the corporate fashion show Leo Varadkar and Lucinda on 6 March at the Mansion Creighton, Louis Copeland, House in Dublin. the reigning Rose of Tralee The event organiser was Charmaine Kenny and Breffny solicitor Marie Louise Heavey Morgan from The Apprentice. of Matheson Ormsby Prentice. Just over €20,000 was raised Her novel approach saw for Respect, the Irish-registered lawyers, auditors, accountants charity responsible for and office workers strutting fundraising projects for people their stuff on the catwalk with intellectual disabilities. wearing Irish and international Respect is currently working Mark Ryan, Kathryn Thomas, Marie Louise Heavey, Eddie Hobbs and fashion from, among others, to develop an Alzheimer’s unit, Celia Holman Lee Louis Copeland, LK Bennett, with all proceeds from the Arnotts and Fran & Jane. fashion show being set aside for Directed by Celia Holman this purpose.

Paul Farrell (Matheson Ormsby Prentice)

Dr Leo Varadkar TD Louis Copeland

Lucy O’Reilly and Clare Walsh Lucinda Creighton TD Kate and Emma Walls (both of Maples and Calder) Caroline Hosey and Ingrid Hoey

40 www.lawsocietygazette.ie people and places Law Society Gazette april 2010 P i c : Ja son Clar ke Photog rap hy P i c : Ja son Clar ke Photog rap hy

Former Taoiseach Garret FitzGerald celebrates at the Law Society with Attending the parchment ceremony on 25 February 2010 were (l to r): his granddaughter, Ciara FitzGerald, who won the Constitutional Law President of the High Court Mr Justice Nicholas Kearns, former Taoiseach Prize for best overall performance in that subject in the final examination Garret FitzGerald, director general of the Law Society Ken Murphy, and first part (FE1) in 2009 president Gerard Doherty P i c : Ji m Y o r ke

Members of the Laois Solicitors’ Association (LSA) met in the Heritage Hotel, Portlaoise, on 3 March, where they were briefed by Law Society president Gerard Doherty and director general Ken Murphy on matters of interest to the profession. (Front, l to r): Karen O’Sullivan, Ken Murphy (director general), Philip Meagher (president, Laois Solicitors’ Association), Gerard Doherty (Law Society president) and Elaine Dunne (secretary, LSA). (Back, l to r): Tony Duncan, John Turley, Donal Dunne, Jim Binchy, Vincent Garty, Gerry Meagher, Noel Egan, Pat O’Sullivan, Kevin O’Donnell and Eugene O’Connor

Attending the seminar ‘Mortgages and judgment mortgages following the Land and Conveyancing Law Reform Act 2009’ at Blackhall Place on 10 March 2010 were (l to r): William Prentice (Matheson Ormsby Prentice), Ms Justice Mary Laffoy (High Court), Susanne Bainton (Liston and Co), Barbara Joyce (Law Society), Sean Green (Eversheds O’Donnell Sweeney) and Frank Nowlan (AB Wolfe)

www.lawsocietygazette.ie 41 Law Society Gazette april 2010 students’ page student spotlight Giving something back

e’re not just training and skills from the experience, “Wtechnocrats,” says an insight he hopes his fellow Geoffrey Shannon. “We’re students will carry with them training professionals.” And into their careers. those professionals won’t just be “It wouldn’t hurt the responsible for providing legal profession to have more of a advice, but “assistance to society social conscience,” he says. generally,” writes Colin Murphy. Shannon is the deputy Overlapping benefits director of education at the For Geoffrey Shannon, the Law Society. In that role, volunteering programme he has helped oversee the ultimately has a number of Law Society’s increasing overlapping benefits: it helps focus on volunteerism Getting down to business at the ‘After School Klub’ are (l to r): Sean connect the Law Society to its among its students. As well Grouse (11), Arron McKenna (12) and Scott Fitzsimons (11) local community, allowing it to as the community volunteer “give something back”; it opens programme run by the Student girls at Stanhope Street community around them.” the trainees to an awareness Development Service, which primary school, the ‘Just ASK’ According to Geoffrey of “the broader public interest has been profiled here in a series homework club at the Dublin Shannon, the volunteers dimension of law”; and it helps of articles in recent months, Christian Mission on Chancery have been “energised” by the them develop greater awareness students are encouraged to Place, the Capuchin day centre experience. “Many feel they and skills in the broader area of volunteer with FLAC and for homeless people, and a get more out of it than they put client care. to participate in an overseas homework club for Junior and into it.” Visiting these projects in volunteer programme. Leaving Cert students at St One of those who took it recent months, the Gazette For Shannon, this is about Paul’s CBS on North Brunswick particularly to heart was student was struck by the sense of connecting trainee solicitors, Street. Cian Martin, who volunteered history that permeates these not just with the local to help at the homework club communities. They are among community, but with a ‘global Energised by the experience at St Paul’s, and ultimately the most firmly rooted in the community’. Antoinette Moriarty, who set up found himself coordinating the city, with many families having “We’re helping to create the programme for the Student club. He was impressed by the lived in the same areas for opportunities for trainees to Development Service eight dedication he found among the generations. With the legal contribute to society. Hopefully, years ago, says it’s vital that students at St Paul’s. community similarly rooted in they will continue when students – who often come from “Most of those who come this area of Dublin since the qualified. more privileged backgrounds here have a desire to go on to 18th century, the volunteering “There is an understated than the communities local to third level,” he said, and while programme could be seen also tradition in the profession of the LawStill Society – learn about celebrating?some were looking for support as a celebration of that linkage. doing pro bono work, and we hope the challenges faced in those simply to “get their pass in With record numbers of this will encourage trainees to communities. If you are concerned the Leaving aboutCert, and how move muchtrainees you having are drinking,signed up this engage in pro bono work when “They’re not allcall going LawCare to on”, for others free had and “very confidential high year, adviin partce. inspired by the they qualify.” be practising in Donnybrook ambitions”. economic crisis, that linkage This year, students have or Ballsbridge.Freephone It’s important 1800For Martin,991801 the benefits • ofwww.lawcare.ie looks set to be strengthened participated in four projects: for them to get an insight volunteering are two-way, with further in the academic year to a reading club with young into what’s going on in the the trainees gaining in insight come.

86% of lawyers say long hours are damaging their relationship with their children. Will you be Are you one of them?

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and Advice for Free confidential help and support seven days a week. Lawyers Keep our number handy. You never know when you’ll need us. Stress • Depression Alcohol • Drugs Freephone 1800 991801 • www.lawcare.ie students’ page Law Society Gazette april 2010

Society team takes ELMC regional final in New York he European Law Moot TCourt competition is a prestigious bilingual competition in French and English. Teams of students prepare written pleadings on a problem of European law and present their arguments before the Court of Justice of the European Union. This year, the Law Society’s team comprised Anna Hickey, Richard Kelly (both Matheson Ormsby Prentice trainees), Ruth Ní Fhionnáin (trainee with the Immigrant Council of Ireland) and Grace O’Connor (trainee with William Fry). The competition started in September with the publication of this year’s case, which primar- ily focused on the effects of directive 94/19 on deposit guar- Professor George Bermann (Columbia University), Eva Massa (team coach), Grace O’Connor (William Fry), antee schemes and directive Ana Hickey (Matheson Ormsby Prentice), Ruth Ní Fhionnáin (Immigrant Council of Ireland) and Richard Kelly (Matheson Ormsby Prentice) 103/2009 on long-term resid- ence of third country nationals. The team submitted two sets of tougher! Anna Hickey pleaded Fhionnáin would plead for the we had the honour of kicking written pleadings, one for appli- on behalf of the applicant on team in the final in her role as off proceedings in a tongue-in- cants and another for respond- the first day of the competition, applicant. She was up against a cheek ‘Eurovision’. The team ents, in the form usually submit- while Richard Kelly pleaded strong team from Katholieke attempted a ‘Walls of Limerick’ ted by parties to a preliminary for the respondents later the Universiteit Leuven in Belgium while singing ‘Whiskey in the reference to the Court of Justice same day. Grace O’Connor but spoke brilliantly and with Jar’! Despite two feet of snow of the European Union. pleaded as representative of the passion. on the ground, Columbia was In January, the team heard Commission of the European beautiful, and the participants that it had qualified for the Union. Their points’ score Tears flow managed to fit in some regional final in New York (the broughtStill them through to the celebrating?On past performance, KU sightseeing and a Broadway other three finals are held in next day of pleadings If you – a aregreat concernedLeuven were about favourites how to win. much show. you The are team drinking, is now preparing Maastricht, Madrid and Flor- result. Richard Kellycall pleaded LawCare The for Law free Society and team confidential benefited, to plead advi in frontce. of the Court of ence). Twelve teams compete again for the respondent and however, from the merits of each Justice in Luxembourg in April. at each final, with only one Ruth NíFreephone Fhionnáin on behalf of 1800 individual 991801 and from fantastic • www.lawcare.ie Thanks goes to each member’s team from each qualifying for the applicant. teamwork at all stages: from the firm, the Immigrant Council the all-European final at the When the finalists were drafting of the written pleadings of Ireland, Matheson Ormsby Court of Justice in Luxembourg. announced, we were somewhat in September to each acting Prentice and William Fry for Columbia University hosted pessimistic, due to the fact that as co-counsel for86% one of another lawyers saytheir long support hours throughout; are damaging to native English speakers may – which was apparent to thetheir relationshipPhilip Burke with of their Independent children. the regionalW finalill andy obecameu ba e Are you one of them?

European enclave in the heart only be awarded points for the judges. Tears flowed when theFree and CollegesConfidential for Health his sponsorship; Support home to tuck and Advice for Lawyers of New York, with a variety of use of one foreign language team was named the winner – a and all former participants who Europeanus teamsin pleadington overig ht(French),? and not two like most testament to five months Freephone of hard assisted 1800 with 991801 practice rounds. two days. other teams. We were surprised, work put in by the team. www.lawcare.ieThanks, too, to team coach Eva The competition was tough, but delighted, to reach the final. As winners, after a formal Massa for her generous help and and the judges’ questions even It was decided that Ruth Ní dinner in Columbia University, support. G Could You Help? LawCare needs more volunteers. People who could care for a lawyer in need based on their own experience. If this is you please call 00 44 1268 771333 www.lawcare.ie/volunteers

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and Advice for Free confidential help and support seven days a week. Lawyers Keep our number handy. You never know when you’ll need us. Stress • Depression Alcohol • Drugs Freephone 1800 991801 • www.lawcare.ie ------G

Mr Mr Harrington confirmed In addition, the issue of risk rofessional indemnity indemnity rofessional P insurance Eamon Harrington that, reported as of that firms had morning, indicated to 14 the So- ciety that they had not yet suc- professional renewing in ceeded indemnity insurance for current the insurance year. of Each these firms had been offered assistance from the appointed broker. However, as Society- these firms were potentially in obliga- statutory their of breach tions, each firm had been asked to either close their voluntarily practice or, disciplinary proceedings would alternatively, have to issue. that the PII met Committee with had the Qualified Insur ers Liaison and Committee had that concerns Society’s the raised the debacle of 2009 should not recur. It had been agreed that efforts should be made to pro duce a common proposal form includ timetable, an agreed and for ing the deadlines, indemnity 2010. for process management had been vassed, and can the the pressed on insurers whether Society had a risk management procedure would result in a discount on renewal premiums. The insur ers had responded and negatively had indicated that it important that was the issue of risk ingrained be would management and, ac practices into solicitors’ no provide would they cordingly, guarantee that discounts would management risk a if offer on be firms for introduced was package during 2010. Nevertheless, the committee had decided to em bark on the of production a list of approved risk management consultants. ------150,000, 150,000, € Mr Mr Mullane said that he had pecial general meeting general pecial ries about aspects of the propos the of aspects about ries was it that believe not did He al. if that, bought a logical solicitor a 20-acre farm for with no and no buildings requi sitions on title, the new regula pur the that suggest would tions solicitor was competent chaser’s was but property, the purchase to reg and stamp to competent not The proposal ister the property. was solicitor a that suggest would to act if the competent property by client, his to was be occupied compe not was solicitor the but not was property the if act to tent to by be He his occupied client. not was office own his that noted in breach of any undertakings and had not been the of subject He service. about complaints any reg and stamping the why asked istration of his interests client’s else someone to passed be should competent. as be not might who no difficulty if a limit was en to set, had bank the which above regardless its own solicitor, gage resi was property the whether of However, commercial. or dential he did not that believe a system cli his send to him required that ent to another solicitor, which would require the which preparation and attorney of power a of would require his client to sign an acknowledgement that would not he sue his own solicitor if the transaction went wrong, was a system that represented progress. S requi a considered Council The meet general special a for sition ing, signed by more than pro three 100 consider to members, posed The resolutions. Council agreed that the meeting should be held at 6.30pm on Thursday 2010. March 11 ------2.5 million, above which which above million, 2.5 € Mr Shaw said that, essen- Kevin O’Higgins noted that Simon Simon Murphy said that one John O’Connor agreed that Michael Mullane raised que stances, stances, there would effectively change. no be regula- a was proposal the tially, tory matter, and he noted that the proposed new regulations would have to co-exist with the professional indemnity insur was it Accordingly, regime. ance of Registrar the ask to proposed regu- draft prepare to Solicitors lations for consideration by the Council at its March meeting and for dissemination for the views of the profession there- after. the principal lenders were al ready reassessing their current one that understood He systems. of the main banks had already decided that, in every commer cial loan, regardless of they value, would instruct their own solicitor. Another of the main banks was a considering thresh of old Mr Mr Shaw noted that, in many large commercial transactions, the banks already retained their own solicitors and, in these in they they would also instruct their solicitor. own of the significant difficulties in relation to the Lynn and Byrne of multi existence the was cases ple undertakings on investment properties. the Lynn and Byrne cases had done huge damage reputational to the profession. As a institutions, financial conse the quence, professional the and Society, the indemnity insurance companies were all pursuing their own re sponses to the matter. Any ob jective observer would an needed system entire the that agree overhaul. ------aw Society Council meeting, meeting, Council Law Society 19 February 2010 report Solicitors Acts 1954 1954 Acts Solicitors .’ It It would help to avoid a real threat to the stability of the insur indemnity professional stantially stantially reduce the risk of interest, of conflict pru of a cornerstone was ties banking, dent Ensuring registration of the the improved quality security book/asset, loan the of It would reduce the risk of reckless lending and fraud, and market. ance The The new system would sub of securi Proper registration otion: commercial commercial otion:

council www.lawsocietygazette.ie april 2010 april Gazette Society Law • • • • • undertakings ‘That this Council the directs Reg Indemnity to (Professional 2008 Insurance) (Amendment) Regu M istrar of Solicitors to prepare draft for regulations the approval of the Council at its March meeting to prohibit giving solicitors undertak ings to a financial institution in a commercial property transaction as the in defined 2009 lations Past-president John Shaw re ported that the working group appointed by the strongly was matter this Council progress to introduction the that view the of of regulations prohibiting un in dertakings trans commercial of prudence an was issue actions and best practice. The Regis trar of Solicitors had indicated that there had been a surge in complaints by financial insti tutions relating to breaches of undertakings, both commercial and residential, and there were safe of considerations overriding prac banking and conveyancing tice underpinning the proposal. Mr Shaw noted that the pro posed regulations represented a response to a seriously flawed system and were in the reasons: public of number a for interest briefing 44 briefing 45

- - - - aw L n n the I be avail ommittee ommittee ommittee C C C must axation axation e list. e Litigation Litigation T riminal Law Law riminal notes C

www.lawsocietygazette.ie evenue. evenue. R n n addition, it has been I first call of th of call first directed that a book fully of pleadings paginated being is a motion day the on able heard. Committee page on the members’ area of the Society’s web site, www.lawsociety.ie. tention. Further information available is on the Criminal will will be June 2010 at the earliest before they are resolved. meantime, it is that recommended practitioners do not rely on the calculation of produced stamp by the e-stamping cal duty culator, but should compare with it their own assessment and, if necessary, seek clarification from ment for s50 s50 for ment cquisitions

y - A - - de april 2010 april Gazette Society Law n the in I 2007 A J C be present at practice detentions detentions must cheme – pa – cheme he latest CPD courses, as well S

gazette.ie revised claim form will nstructing nstructing solicitors should I A These These problems have been 2007 evenue evenue Commissioners, who arrival arrival of the other side (in order the short), colleague a take to not court may still not allow the mat calling’. ‘second to go to ter therefore stress that to they counsel and t issue in due course. terim, solicitors lodging claims should indicate on the existing claim form that the claim is respectin of a s50 being being acquired may not include the acquisition of premises a and, business in such practitioners may not be cases, able to the in return duty stamp a submit normalway. brought to the attention of the R have indicated that working to resolve they them, but are it ct - - - d ct A A AD HOC AD e A e n n many I c dvice i A ice ice st v pplications pplications for egal A L d riminal Justice Ju A C al . in Scheme has been extend egal egal eturns in respect of Business Business of respect in eturns m is is first called. adjournments will not be permit and present not is counsel if – ted the matter is not in a position to struck be will motion the proceed, out. Where one counsel is pres ent and is prepared to await the Hoc ed to include detentions under s50 of the 2007 confirmed that the scope of the Garda Station situations, situations, the business assets others others that do not (for example, intellectual property). There a is risk that, system if the is e-stamping the used stamp-duty liability on to such transactions, calculate it may produce an inaccurate result. The also system requires an the business to address be provided as for a mandatory field entry. L R

- - - y Cri ev R ut D tation tation S common law motions list 1 – no ‘second calling’ ‘second no – 1 list motions law common representations n n many acquisi I stamp stamp duty return tamp tamp aw Committee to of

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he he form currently in use by the ollow made by the Society’s as lots of other useful information at lawsociety.ie. forthcoming events, employment opportunities You can also check out current news, right up to the current issue at gazette.ie. You Gazette readers issues of the magazine as far back as Jan/Feb 1997 can access back Get more at t t has been from announced Monday that, 8 March 2010, enue enue Commissioners does not allow an apportionment of assets the acquired to be entered in the return. the Department of Justice, the committee is pleased to advise that the department has now Criminal

tions tions of businesses, the assets acquired comprise a mixture of assets, some of which attract a stamp duty charge (for example, land, goodwill, and so on) and T

F I motions listed in listed his mo motions Monday tions list will no longer be put to ‘second calling’ if counsel or the solicitor dealing with the matter is not in court when the matter ------Building Building ommittee ommittee C C in respect of

A as amended. amended. as T) T) breach of this pro this of breach A €45 per hour) EN onveyancing onveyancing ct 1990 ct onveyancing onveyancing C A C DM These These regulations include a ontrol ontrol €60 for one hour course of the building that neces that building the of course sitate this) and what is called a regularisation certificate, which does what its name that implies is, it regularises a – situation where an FSC should have been obtained but was regularisa a for charged are fees not. Higher tion certificate, and the fees for a seven-day notice are substan commence a for than higher tially notice. ment significant new provision, which imposes a prohibition on open ing, or operating build occupying ings unless an FSC granted by the BC has been building. the will and offence an be will hibition render a person in breach liable the under prosecution to C tenancy agreements going for ward should be to these regu lations. EN - - - - , - CHANGES , , will

A €45 for one hour if payment on the spot and used before 4pm If invoiced (if greater than 1 hour, €60 for 2 hours €200 per day S) (AM S) The Law Society’s partners in this initiative are GlobalAirNet International Ltd. n n n n From 1 January 2007, the Four Courts consultation room will be a broadband ‘hotspot’ for wireless enabled laptops. No laptop? Simply use the internet kiosks in the Four Courts consultation room office. HiRe Rates E S U Building Building Regulations seven-day notice has to has notice seven-day A D HO D IMPORTANT E S 2009 S These These regulations also ex The The above regulations in The committee recom : : T N and, and, within such period as may be specified by the to the modifications any carry out BC under required be may that works the FSC or required under conditions any attached to the FSC largely should This granted. when that difficulty practical the resolve above. described is pressly provide for FSC (if changes are made in the a revised notice duly rejected. troduced a new form of notice, called a ‘seven-day notice’. This author local the with filed be can ity instead of a commencement notice. be by accompanied a valid appli statutorya and FSC an for cation declaration from the applicant, saying that he will comply fully with the regulations. mends that any referencesuch regulations to in precedent O I ------) A REN

LAT R U . Some de G d take a take could A uthority (BC A RE DS FO DS R CERTIFICATES further few months’ de Y Y A DA N to update and effectivelyforce en minimum standards rented housing. for These replace the 1993 minimum standards velopers tried to get around this by issuing notice a in relation commencement to site works only, and some local authorities allowed this device, but others refused to countenance it returned and the commencement lay would then ensue while the Building Control processed the application. De velopers tended to want to start work on site works, basements, car parks and waiting so for on an FSC. without Thewas that developers got their ar result chitects or engineers to submit commencement notices without the details of the FSC (which, of course, did not yet exist) usually, and, these rejected were by the BC returned was prepared, which which prepared, was few months for a large develop ment. - SAFET - - -

G (STA G Building Building IN FIRE S tel: 01 668 1806 U s are referred to HO mendment) Regulations Regulations mendment) no 351 of 2009) last I A ll ll of these are regulations no 462 of 2009 for de I A (S ractitioner S problem for developers in he he Department of the Envi ronment made the These These regulations introduced A ontrol ( ontrol tails of the above regulations,introduced by the government P C sion had been obtained and decision a was made to proceed with the construction. Develop ers were then faced with a delay while the for application the FSC 2009 year. January 1 2010. since force in important changes in relation to certificates. safety fire relation to developments required a that fire safety certificate (FSC) has been that the form of commencement notice required the person submitting it to put of in the details FSC. Developers frequently deferred authorising the of preparation an application for an FSC until permis planning T Consultation Room www.lawsocietygazette.ie april 2010 april Gazette Society Law briefing 46 briefing 47 ------Ex (SI 1/2/ 1/2/ nion nion U ) II Extradition Extradition Extradition Extradition . . Enables the Amends the Designates the Designates uropean uropean E SI 44/2010 44/2010 SI SI 45/2010 SI to the United States of of States United the to to the United States of of States United the to www.lawsocietygazette.ie xtradition ( xtradition xtradition Act 1965 1965 Act xtradition plified plified extradition between the member states of the European Union 1995) (Brussels, and ap plies part 2 of the (European Union Conventions) 2001 Act America. Commencement date: 2010 E Conventions) Act 2001 2001 Act Conventions) 2010 Order 10) (Section Number: note: Contents United States of America as a country being deemed to have adopted the convention relat ing ing to extradition between the member states of the European Union 1996) (Brussels, and ap plies part 3 of the (European Union Conventions) 2001 Act America. Commencement date: 2010 E Part of (Application 2010 Order (Amendment) Number: Contents note: Extradition Act 1965 (Applica tion of Part II) Order to 2000 relation in apply to 474/2000) the America of States United the of provisions part II of the tradition Act 1965 extradition of persons in pur suance of the for arrangements entered into by extradition way on extradition of the agreement between the European Union Ameri of States United the and (US-EU 2003) ca (Washington, extradition agreement) and the - - in 8 april 2010 april Gazette Society Law rimi 1/2/ nion nion ircuit ircuit ourts C C U C ules 2010 2010 ules ssistance) ssistance) mendment) mendment) R A A of the Designates the Designates riminal riminal Justice A C uropean uropean nsert prescribed nsertprescribed I E SI 43/2010 43/2010 SI 93/1997) to provide dmission to courtdmission and I A estbury Hotel, Dublin 2 (S . riminal Justice ( Justice riminal Rules of the Superior Superior the of Rules C xtradition ( xtradition (Mutual (Mutual Assistance) Act 200 accordance with international conventions. and treaties Commencement date: 2010 E Conventions) Act 2001 2001 Act Conventions) 2010 Order 4) (Section Number: note: Contents United States of America as a country being deemed to have sim on convention the adopted ct 2008 ct FEE: €390.00 including Lunch VENUE: W riminal Justice (Mutual (Mutual Justice riminal A C - OLD SKILLS AND UPDATING YING NEW LEGISLATION . Substitute new rules 10, 18, 19, 20, 20, 19, 18, 10, rules new Substitute . ourt Rules 1997 C 23/3/2010 1/3/2010 16/3/ 2010 16/3/ Y ct 2008 ct ssistance) ssistance) A A arch 2010 arch mend order 136 of the the of 136 order mend District District ules (Criminal Justice (Mutual Assistance) Act Act Assistance) (Mutual Justice (Criminal ules Substitute a Substitute new rule 1 in order 68 Criminal Justice Justice Criminal A Substitute a new order 14 Substitute (‘

Designates the Designates R prescribing forms and procedure in relation to the the to relation in procedure and forms prescribing M 82/2010 82/2010 33/2010 33/2010 54/2010 I I I STATUTOR roceedings under the under roceedings ssistance) ssistance) ’) (rules 33 to 47 inclusive) in order 136. 136. order in inclusive) 47 to 33 (rules ’) . S ENTS S S P A D D SI 42/2010 42/2010 SI legislation update legislation M umber: note: ontents ommencement date: ommencement ourtRules umber: note: ontents ommencement date: ommencement (Mutual Justice (Criminal Courts Superior the of ules umber: note: ontents ommencement date: ommencement ct 2009 ct ct 2008 ct C Circuit Court Circuit 2010 2008) N C nal Justice (Mutual (Mutual Justice nal C N C publication of proceedings’) in, and amend orders 12, 17, 18, 24 and 31 of, the District Court (Criminal Justice (Amendment) Act 2009) 2009) Act (Amendment) Justice (Criminal Court District A C R 2010 2008) Act Assistance) N C forms and procedure in relation to the the to relation in procedure and forms A forms in the schedule as appendix HH. HH. appendix as schedule the in forms C to to provide forms and procedure in relation to the (Mutual (Mutual new a substitute and 136, order from 24 rule delete 136, order in 21 part V (‘ tual tual assistance between Ireland and these states under specified the of provisions INSTRU (Mutual Justice Criminal 2008 Act Assistance) 2010 Order 4) (Section Number: Contents note: United States of America, the Isle of Man, the Bailiwick Guernsey and of the Bailiwick of Jersey for the purpose of mu SELECTE

: - - TIME: 9.15 to 5.00 : Friday 23rd April 2010 DATE - - - New New STEPHENSON SOLICITORS’ SEMINAR 17 8/6/ Geneva Geneva and the Arbitration Arbitration Arbitration Arbitration Arbitration Arbitration . . Gives ef Arbitration Act Act Arbitration , , the Geneva Geneva Protocol Gives the force force the Gives 8/3/2010

WILL DRAFTING FOR THE NEW DECADE: APPL D , , the , , the 1/2010

Washington Convention Washington and the the and ASSE . Reminder

P 16 January – 15 15 – January 16 (Amendment) Act (Amendment) 1980 Arbitration (International Com York Convention ACT mation mation on the current stage a bill has reached and commencement the date(s) of each act. All recent bills and text in acts (full PDF) are on www.oireachtas.ie, and re cent statutory instruments are on a link to statutory electronic instruments from www.irishstatutebook.ie. 2010 Act Arbitration Number: Act 1954 mercial) Act 1998 fect to Ireland’s international obligations under the Convention and the Contents note: Contents of law to (United the Nations Commission UNCITRAL on International Trade Law) model law on commercial international arbitration it that to apply will all provides and arbitrations that take place in the Repeals state. the (members’ (members’ and area) – with students’ updated infor these matters were previously provided for in the 1954 Act Details Details of all bills, acts and statutory instruments since 1997 are on the library cata logue logue – www.lawsociety.ie 1980 enacted: Date Commencement date: 2010 (three months after the passing of the act, per s1(2) of act) the ------1/3/ Solicitors Solicitors Prepared by the the by Prepared Set out the re , , to be fulfilled egulations egulations Solicitors (Amend Solicitors R Law Society Library Society Law SI 352/2010 SI , , as substituted by sec 2010 as the commencement date date commencement the as 2010 for section 9 (disqualification pursuant to European conven tion on driving disqualifications) disqualifications) driving on tion act. the of 2008 to 1954 Acts Solicitors 44) (Section 2010 Number: Contents note: quirements, in accordance with s44(3) and (4) of the Act 1954 tion 52 of the ment) Act 1994 by to a practise qualified person in a corresponding profession (profession in a non-EU mem ber state jurisdiction that has already been the subject of an order made under the said sec tion 44 as in amended) order to solicitor. Irish an as admitted be Commencement date: 2010 ------I r a O C (S rder rder rder rder rder rder axes axes axes O O O T T apital) apital) C axes axes on T rder rder 2010 nformation nformation I O urks and and urks T rder rder 2010 29/2010) 29/2010) nformation nformation Re nformation Re nformation Re nformation Re I O I I I I ax ax Matters and 26/2010) T I (S axes axes (Gibraltar) axes ( axes axes (Liechtenstein) (Liechtenstein) axes ax Matters and Dou and Matters ax T (S T 24/2010) 27/2010) 25/2010) axation axation Relief ( T T axation Relief ( Relief axation I I I T T slands) slands) (S (S (S I axation axation Relief ( ncome ncome and on ncome) ncome) (Guernsey) T I I 28/2010) 28/2010) I rder 2010 rder xchange xchange of xchange of xchange of xchange of xchange of ncome) ncome) (Jersey) 30/2010) I ble ble (S icos O lating lating to 2010 der to lating to lating to lating Double Double E E Double E E E Relating Relating to on on on (Kingdom (Kingdom of Bahrain) 2010 2010 (Republic (Republic of Belarus) 2010

• • • • • • ------I I r r r ay O O O ax (S T rder rder C nfor axes axes axes axes axes axes I (S O T T T T 20/2010) nguilla) nguilla) I A apital Gains) Gains) apital apital Gains) Gains) apital (S rder rder 2010 C C nformation nformation Re nformation Re O I I oncerning oncerning rder rder 2010 21/2010) 22/2010) 17/2010) ax ax Matters ( I I I C T O axes axes ( axes axes (Bermuda) T at the Law Society axation axation Relief ( (S (S (S T 18/2010) axation axation Relief ( axation axation Relief ( axation Relief ( axation Relief ( T ncome) ncome) (Republic of I T T T T I slands) slands) rder 2010 rder (S I ncome) ncome) (Georgia) O ncome) ncome) (Republic of Ser friends during the summer season. I ncome and and ncome ncome and and ncome I I I greement greement xchange xchange of xchange of der 2010 der 19/2010) lating lating to lating to mation on der 2010 der man Moldova) Moldova) es es on bia) A Double Double Double Double E E Double Double 2010 der Double 23/2010) on on on on on on (Bosnia (Bosnia and Herzegovina) 2010 axation agreements axation

T • • • • • • • • soccer pitch and a beautiful garden to hold your BBQ. soccer pitch Blackhall Place is the venue for your summer day out. Summer - - 1/2/ 3/3/ Lifting the Blue Skies on the Recession Lifting the Blue Skies Barbecues An ideal opportunity for you to entertain your staff or family and An ideal opportunity for you to entertain your staff or family Revoke and Appoints 28/1/ 28/1/ Appoints conomic Value of of Value conomic National National Asset Man E Very reasonable rates. Facilities include on-site catering with a full bar service, tennis courts, include on-site reasonable rates. Facilities Very SI 88/2010 SI SI 11/2010 11/2010 SI (SI 546/2009). (SI For details please contact catering manager Aidan Gilhooly on 01 672 4922 For details please contact catering manager Aidan Gilhooly ational Asset Management Management Asset ational 2010 egulations oad Traffic Act 2002 2002 Act Traffic oad www.lawsocietygazette.ie 2010 N of (Determination Agency Long-Term Assets) Bank and Property R Number: Contents note: replace the instrument instrument as contemplated by as agreement of that 3(2) article to the application of the 1983 treaty on extradition between of States United the and Ireland 2005). (Dublin, America Commencement date: agement agement Agency (Determination of Economic Long-Term Value of Regula Assets) Bank and Property 2009 tions Commencement date: 2010 R (Commencement) 9) (Section 2010 Order Number: note: Contents april 2010 april Gazette Society Law briefing 48 briefing 49 - - €50, which is €1 per week. We www.lawsocietygazette.ie The annual accounts will be will accounts annual The To To cover the ever-greater I would like to thank all the ing the year. ing the year. published in the May issue of the Gazette. Thomas A Menton, Chairman sonal subscription to association of the less than had to realise investments to fund and grants this year, on demands more expect we present the to due funds our economic difficulties. Many of the new applications re- ceived are from persons in their 30s and 40s. demands on the association, additional subscriptions are more than welcome, course, as, are of legacies and proceeds the of any fundraising events. Subscriptions and do- nations will be received any of the directors or by by the secretary, from whom all in- formation may be at 73 obtained Park Avenue, Dublin 4. I would urge all members of the association, when making their own wills, to leave a leg- will You association. the to acy find the appropriate wording of a bequest at page 32 of the Law Directory 2010. directors, and the association’s secretary Geraldine for Pearse, their valued hard dedication and assistance dur work, year, year, but 1,328 of these did not contribute to the - Solici tors’ Benevolent Associa- tion. I suspect that many of these are employees of the banks or other bodies corporate and are not of the aware non-payment of the subscription to the ciation. I would asso- urge these solicitors to make a per april 2010 april Gazette Society Law ssociation ssociation Ireland, A ovember November 2009 rish Banks plc, 37/38 37/38 plc, Banks rish I Faculty of Notaries Public in Ireland, So- Golfing Solicitors’ Irish ciety, Limavady Solicitors’ Asso- ciation, Mayo Solicitors’ Bar Asso- ciation, Meath Solicitors’ Bar Asso- ciation, Midland Solicitors’ Bar As- sociation, Monaghan CPD Associa- tion, Sheriffs’ Association, Southern Law Association, Bar Association, Tipperary Roscommon Bar Associa- tion, and Law Society. Waterford

pper O’Connell Street, Dublin 1 Dublin Street, O’Connell pper llied llied • • • • • • • • • • • • There were 7,755 - practis ing certificates issued this Secretary Geraldine Pearse Auditors CharteredDeloitte & Touche, Accountants, Deloitte & House, EarlsfortTouche Dublin 2 Terrace, Stockbrokers Bloxham Stockbrokers, 2-3 Exchange Place, IFSC, Dublin 1 Bankers A U 31/35 High Street,First Trust, Belfast BT1 Offices of the Association Law Society of Ireland, Black- hall Place, Dublin 7 Northernof Society Law Law Society House, 96 Victoria Street, Belfast BT1 3GN Charity number: CHY892 - report and accounts th ecember December 2008 to 30

DIRECTORS AND OTHER INFORMATION I wish to express particular Law Society of Ireland, Law Society of Northern Ireland, Local Authority Solicitors’ Bar Association, Co Louth Bar Association, Donegal Bar Association, Dublin Solicitors’ Bar - As sociation, rustees 146 Directors Thomas A Menton (chairman) chairman) (deputy Sexton John Robert Ashe (Carlow) Caroline Boston (Belfast) Thomas W Enright (Birr) Felicity M Foley (Cork) William B Glynn (Galway) John Gordon (Belfast) Colin Haddick (Newtownards) Dermot Lavery (Dundalk) Anne Murran (Waterford) John M O’Connor (Dublin) John T D O’Dwyer (Ballyhaunis) Brian K Overend (Dublin) Colm Price (Dublin) David Punch (Limerick) Andrew F Smyth (Dublin) Brendan J Twomey (Letterkenny) (Dublin) Brendan Walsh T (ex-officio directors) John M O’Connor Andrew F Smyth John Sexton John Gordon

ciety of Ireland), Barry Finlay (past-president of the Society of Northern Ireland), Law Ken Murphy (director gener al), Alan Hunter (chief execu- both of personnel the and tive) societies. appreciation to all those who contributed to the tion when associa- applying for their practising certificates, to those who made individual contri- butions, and to the following: • • • • • •

- Year: 1

olicitors’ Benevolent Benevolent olicitors’

S he Solicitors’ Benevolent Association is a voluntary

The amount paid out dur There are 19 directors, The directors are grateful T charitable body, consisting of all members of the profession in Ireland. It assists members, or former members, of the so- licitors’ profession in Ireland and their wives, widows, widowers, family and husbands, immediate dependants are who in need. The association was established in 1863 and is active in giving assistance on a confidential basis throughout the 32 counties. ing the year collected was which €629,660, in grants was from members’ subscriptions, donations, legacies and vestment income. in- Currently, there are 57 beneficiaries in receipt of regular grants. Ap- proximately 50% of these are themselves supporting spouses and children. three of Northern whom Ireland, reside and meet they in monthly in Society’s offices the at Law Blackhall other every and Dublin, Place, year at the Law Society, Bel- directors, the of work The fast. who provide their entirely on a services voluntary basis, consists in the main of review- ing applications for grants and approving new applications. them- make also directors The selves available to those who may need personal or profes- sional advice. They have avail- able the part-time services of a professional social who, worker in appropriate cases, can advise on state entitlements, including sickness benefits. to both law societies for their wish particular, in and, support Shaw John to thanks express to (past-president of the Law So- €93,816.69 337,962 as €337,962 €81,013.08 on €96,500 from a 11 March 2010 Laois, be struck €152,495.10 on an- 96,500 on the named the on €96,500 Law Society of Ireland, €340,645 to occur on the other client’s other ledger client’s account and, as a result, left a short- of fall ledger account, client’s from another named client’s to it used and account ledger clear part of the shortfall on the client ledger account of the client mentioned at (f), Misappropriated totalling money clients’ Concealed his priation misappro- of clients’ through money teeming and lading in the books of account, Initially denied that he had borrowed or taken clients’ money (before subsequently going on to disclose that he had misappropriated clients’ money), Incorrectly took money of client’s named client’s ledger led- count to another client’s ac- ger account where it helped to partly clear a debit bal- ance of Subsequently took the sum of incorrectly Failed to maintain books proper of account, with the result that the books of ac- count did not show the true clients’ funds position as of 31 July 2008, of 31 July 2008, Incorrectly caused a balance debit of of client account as of 31 July 2008, ribunal c) d) e) f) g) b) h) Portlaoise, Co lliot, Registrar of Solicitors, John Elliot, Registrar - Eamon Comiskey & Company, Solicitors, at Ballycarnan, off the Roll of Solicitors. P Solicitors Acts [5559/DT22/09 ribunal inquiries areribunal inquiries published by the d their recommendation Caused or allowed a deficit That the respondent solici- costs the of whole the pay tor of the Law Society of of default in taxed be to Ire- land, agreement. That the respondent solici- tor should not be permitted practitio- sole a as practise to he that partnership, in or ner practise to only permitted be under solicitor assistant an as the direct control and super vision of another solicitor of at least ten years’ standing, to be approved in advance of the Law Society of Ireland, In the matter Corcoran, a of solicitor previ- Gerard ously carrying on practice as James H Powell & Son, So- licitors, at East Green, Dun- the in and Cork, Co manway, matter of the 1954 to 2008 and High Court record 2009 no 110SA] Law Society of Ireland (applicant) Corcoran Gerard solicitor) (respondent On 17 November 2009, Tribunal Disciplinary Solicitors the found the respondent tor solici- guilty of misconduct in his he: that in solicitor a as practice a) • • sion an sion as to the sanction that, in their was imposed be should opinion, as follows: ------Solicitors Acts 1954 to the matter of the 2008 Take notice that, Court by orders made of on it the Monday was ordered High 1 that the March name of Comiskey, 2010, Eamon solicitor, formerly practising as 5,000, before he had settled settled had he before 5,000, amon praised of the party and party party and party the of praised on offered costs his to behalf to right his to and solicitor his same, of taxation seek Charged his client fees, not withstanding that he to those fees entitled recover was in the or, defendant the from alternative, failed to demon to provided services the strate his client, the fees for which were not recoverable from defendant. the Procured Procured his client to sign the foregoing document, in which his client effectively waived his right to be ap Breached section 68(6) of the the of 68(6) section Breached 1994 Act Amendment Solicitors by failing to provide his cli pre as costs of bill a with ent section, the by scribed Procured his client to sign a document dated 10 May 2002, whereby his agreed that the solicitor and client own client fees 25% would of the that damages, is, be € the party and party costs re defendant, the from coverable The The tribunal found the re E

The The opinion of the tribunal as to the fitness or otherwise of the to solicitor respondent be a profes solicitors’ the of member • • • • spondent spondent solicitor was guilty of misconduct in his practice as a had: he that in solicitor ciplinary Tribunal ciplinary of Tribunal a hearing 2008. July 3 on it before omiskey, omiskey, a aois, and in C ------olicitors, at L

COURT HIGH : THE NOTICE S P o C amon E ompany, ompany, C ortlaoise, P omiskey & ceedings ceedings before the Court High and the costs of the proceedings before the So Tribunal licitors Disciplinary ascertained. and taxed when That That the Law Society recover the costs of the pro do That the respondent solicitor solicitor respondent the That should not be permitted to as practise a sole practitioner or in that partnership, he be permitted only to practise as an assistant solicitor in the employment and under the direct control and supervi sion of another solicitor of at solicitor of sion another be to standing, years’ ten least approved in advance by the Ireland, of Society Law n the matter of

Ballycarnan, C solicitor previously practising as SA 2009 no 102 SA 2010 no 13 I olicitors DisciplinarySolicitors T Reports of Solicitors Disciplinary of the outcomes T IrelandLaw Society of as provided 17 of the 23 (as amended by section for in section ) of the Solicitors (Amendment) Act 1994 Solicitors (Amendment) Act 2002 The The president had before him a report of the Solicitors Dis 2) 1) In In the matter of Michael Murphy, a J solicitor formerly practising as MJ Murphy mat & the in and Solicitors, Co, ter ter of an application by the Law of to Society Ireland the Tribu Disciplinary Solicitors nal and in the matter of the Solicitors Acts 1954 to 2002 [4803/DT46/07 and SA] 80 no 2009 record Court High Ireland of Society Law (applicant) Murphy J Michael solicitor) (respondent On 27 July 2009, the President of the High Court made an or der in relation to the respondent respondent the to relation in der solicitor: www.lawsocietygazette.ie april 2010 april Gazette Society Law briefing 50 briefing 51 G www.lawsocietygazette.ie That the Law Society recover the costs of the pro- do ceedings in the High Court proceed- the of costs the and ings before the Disciplinary Solicitors Tribunal, include to witness expenses as against the respondent when taxed or ascertained. ten years’ standing, to approved in advance be by the of Ireland, Law Society 2) april 2010 april Gazette Society Law That the respondent solici- tor should not be permitted - practitio sole a as practise to he that partnership, in or ner practise to only permitted be as an assistant solicitor consultant or in the employ- ment and under the direct control and supervision of another solicitor of at least 1) President President of the High Court ordered:

“As a society, perhaps the most sensitive “As a society, perhaps the most is the manner measurement of our maturity are facing in which we care for those who of life.” the ultimate challenge – the loss y Committee (Report of the National Advisor on Palliative Care, 2001) Over 6,000 people use hospice care each year. Over 6,000 people use hospice care of patients and their Hospice care involves the total care where the focus families at the stage in a serious illness at cure, to ensuring has switched from treatment aimed symptoms of illness quality of life. It seeks to relieve the – physical, emotional, and cater for a person’s entire needs psychosocial and spiritual. The demand for hospice care is growing. While the service has expanded in recent years, much more needs to be done to ensure quality end-of-life care for all. Please remember the Irish Hospice Foundation when drafting a will. Irish Hospice Foundation, Morrison Chambers, 332 Nassau Street, Dublin 2 Tel: 01 679 3188; Fax: 01 673 0040 www.hospice-foundation.ie No-one should have to face death without appropriate care and support.

of accounts to be backdated from March 2008 to Octo- that result the with 2007, ber a debit balance of - approxi mately 337,000 € ledger on account of the a named client was concealed. The tribunal ordered the Soci- ety to bring the matter forward to the High Court Monday 11 January and, 2010, the on

ALL CARE FOR HOSPICE QUALITY Caused entries in the books Caused transfers to be made between accounts in the cli- ents’ ledger without main- taining supporting transfers the enable to ments docu- to be appropriately vouched, in breach of the regulations, the client’s ledger account mentioned at (g) when transferred the above he sum of €93,816.69 therefrom, j) i) ------ment law ment y , , Court of Criminal Ap emplo ractice and procedure and ractice P ortho consultant – relief Injunctive proceedings of compromise – dontist par – break career – leave special – career of extension – hospital ticular break as no avail position suitable hospital. area particular at able The plaintiff was a consultant orthodontist who was an em ployee of the defendant sought a permanent and injunction to restrain the defendant from refusing her permission to re sume her post at a hospital, particular in addition to dam ages. A dispute ensued between the plaintiff and the defendant in 2002, and the in order no with out proceedings struck were 2003. The compromise agree ment was not reduced to writ held held that the court would treat the application for leave to ap appeal the of hearing the as peal and would quash the sentence. In its place, the court sentence the appellant to would three years’ imprisonment, with the last 12 months suspended on condition that he attend pro bation supervisions, subject to the that condition he engage in sex therapy as directed by the Probation Service. The had taken place very late in plea the The had appellant proceedings. sought the severance of the in dictment. There was only one count involved, and the fallacy of the case of the appellant was to assume that, if all of the of fences had been tried together, effect in received have would he a total sentence amounting to years. four Director of Public Prosecutions (defendant) v O’C(P) (appel lant) 5/11/2009 peal, , ------[2002] 1 IR 372 372 IR 1 [2002] The The court retained a discre es of burden substantial The tion tion in deciding whether to and dis that the make order, cretion had to be exercised proportionately and could be informed by the fact that the effect of an order could be greater on a professional person. tablishing that an order was warranted rested on the Di Enforce Corporate of rector ment. The The Court of Criminal Ap

criminal law criminal entencing entencing Cahill v Grimes v Cahill ( applied.) and adopted Director of Corporate Enforce ment (applicant/respondent) v Byrne (respondent/appellant) 23/7/2009 Court, Supreme 7) 8) S princi – Appeal Criminal of Court ples ples – and mitigating aggravating factors – indecent assault – sever and consecutive – indictment of ing sentences – concurrent leave to ap sentence. appropriate – peal The appellant brought an ap plication for leave years three of sentence a to against appeal imposed by the Central Crimi indecently for 2009 in Court nal assaulting a female pupil. The appellant contended that the trial judge erred in imposing a on the ap sentence consecutive had been The appellant pellant. to four sentenced impris years’ onment for the same offence as to another complainant, which fifth The served. already he had trial was the subject of the ap peal. It was submitted that he had no previous other than convictions those relating to a indictment. severed peal (per Denham J; MacMenamin Dunne, JJ concurring) ------The The Supreme Court (Den The The court should take into account the entire history of the person in question and not just the alleged acts of isolation. in wrongdoing The matter was not to judged be with the benefit of hindsight. The The primary purpose not of was order disqualification a to punish the individual, but to protect the public against the future running of com past whose by persons panies records have shown them to be a danger to creditors and others. Incompetence, Incompetence, even when occurring with irresponsi The conduct necessary justify to a disqualification or The The conduct necessary justify to the making of a dis order qualification had to be blame and grave more much that conduct the than worthy order. restriction a justified bility, was not sufficient to ground a or disqualification der. more manifestly be to had der blameworthy than failing merely to exercise an appro priate degree of responsibil ity. Commercial misjudge ment was The not sufficient. conduct complained of had to display a lack of commer cial probity although, in an extreme case of gross negli or gence incompetence, total disqualification could be ap propriate. Probity was used in the sense of or dishonesty integrity. of lack

ham J) allowed the appeal, hold appeal, the allowed J) ham to whether ing in that, deciding make a disqualification order, the factors that had to be con were: sidered Supreme Court. Court. Supreme 5) 6) 4) 2) 3) 1) ------rish case law informationNews of Irish case available and legislation is from FirstLaw’s current awareness service on www.justis.com Compiled by Bart Daly , that that , , , the update

, , section Companies Companies inter alia inter law y Companies Companies Acts provides, provides, compan irectors Companies Act 1990 conduct conduct of any person the in concerned be makes to unfit him management of a the company, court may … make a disqualifi cation cation order such against a per fit.” sees it as period such for son to appointed investi Inspectors gate and upon report the affairs of National Irish Bank in rela tion to of the evasion tax on in terest on accounts held therein applied to the High Court for an order under section 160 of the 1990 act disqualifying the respondent. The High Court found that there had been no evidence of gross or negligence total nor incompetence, of him being a danger to the public. It then found that the conduct of the respondent displayed a lack of commercial probity on the basis that he failed to raise the retrospective potential a of issue respect in due DIRT for liability of on interest wrongly accounts classified as exempt, and made 160 section to pursuant order an disqualifying him from being concerned in the promotion, formation or management of any company. The respondent appealed that decision to the “where “where the court is satisfied … that … (e) in consequence of a report of inspectors appointed by the court or under the the minister 160. 160(2) of Section the 1990 Act D Disqualification – approach adopt in deciding to whether person unfit to be director – statutory in terpretation – words and phrases – lack of con be to unfit commercial respondent whether probity – cerned of in company management – www.lawsocietygazette.ie april 2010 april Gazette Society Law firstlaw briefing 52 briefing 53

------, High G

Succession Act Act Succession www.lawsocietygazette.ie , that the proceedings were were proceedings the , that Irvine J held that the standard standard the that held J Irvine terest arising under the will, and and will, the under arising terest it was alleged that the that transfer and invalid was will the after their in failed had defendants the duty of care. The deceased tes died in tatrix 1999 and her hus band died in 2000. The defen probate compromised had dants defen The 2007. in proceedings pursuant a raised dants defence, the of 11 section to 1957 barred. time of care provided for the parties fell short of what the were entitled parties to expect from a prudent solicitor. The defen dants in failed their obligations. valid the challenging claim The ity of the will would have oc curred irrespective of whether the defendants were negligent. direct a was occasioned loss The and of consequence foreseeable defendant. the of negligence the It was clearly foreseeable that, if the same solicitors acted for in both parties the a case, state inval to made be could case able idate the even transfer, if there was a possibility that defended. it successfully been could have Darby & Another (plaintiff) v Shanley & Shanley, practis she she had transferred a parcel of land to the plaintiff. After her death, her husband had sought to a obtain half of share his late in life the of lieu in estate wife’s ing under the style and title of licitors (defendants) Court, 16/10/2009 Shanley and Company, So ------april 2010 april Gazette Society Law , , High can sign up by visiting the members’ section on the Law Society’s website at www.lawsociety.ie. Click on the ‘New e-zine for members’ section in the left-hand menu bar and follow the instructions. You will need your solici- tor’s number, which can be obtained by emailing the records department at: [email protected]. tort Land Land law – equity – professional – negligence probate – – succession – undue influence of standard care will. producing in The plaintiffs, brothers, initi ated proceedings against defendant solicitors the for alleged negligence in advices and work carried out in respect of a will and a of transfer lands by a de The ceased testatrix. two trans actions that were the subject of the claims were carried out by the firm of defendant solicitors. It was alleged that the defen dants had advised both the de intended the and testatrix ceased beneficiaries of the will. the was deceased the of The husband respect in will, her of beneficiary of a house and lands, whereas Court, 8/7/2009 Court, court court would not interfere with an of assessment un credibility less it was clearly demonstrated that the conclusion that been reached had been vitiated material by error. Unless an issue as to the improper or unlawful conduct of an appeal hearing had been raised and at rejected wrongly the re time, judicial view was not a remedy for sub jective dissatisfaction with the how to as complaint a or hearing been has given actually evidence received and perceived by the maker. decision MAW (applicant) v Appeals Refugee Tribunal, for Justice Minister (respondent) , ------

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– – finding as to cred

Refugee Act 1996 – Im – 1996 Act Refugee lum law lum y The The applicant had arrived to declined Cooke Justice Mr immigration and immigration as udicial review udicial J Certiorari ibility of applicant – fair procedures procedures fair – applicant of ibility de whether – court of jurisdiction – cision of Refugee Appeals Tribunal – flawed Im Illegal – 2003 Act migration Act 2000 migrants (Trafficking) 1951. Convention Geneva – in the state from Ethiopia and had applied for refugee status. The claim had applicant’s been as activities political his on based a student and membership of a the coalition, political particular Appli Refugee the Both ‘CUD’. cations Commissioner and the Refugee Appeals Tribunal had rejected the applica applicant’s tion and had found that the ap credibility. lacked claim plicant’s The applicant brought judicial review proceedings in respect of the decision, claiming his to as that conclusion negative the was credibility legally flawed. It been had there that claimed was of consideration give to failure a a report (SPIRASI) carried out applicant. the on quash the of decision the tribu nal. Because a decision maker such as the tribunal had testi of the hearing benefit member seeing of and hand first at mony the of a witness, the demeanour Service Service Executive (defendant) High Court, 26/5/2009 Court, High ------Are you getting your e-zine? The The High Court (per Laffoy ing. ing. A compromise of the pro ceedings ceedings was reached, whereby the plaintiff would remain on special leave. The basis of the was compromise that the plain for break career a take would tiff the recon Following years. five stitution of the Health Boards was employment her 2000, from entities, the between transferred as they were that reconstituted, would evolve into the Health Service Executive. The defen dant maintained that there was no vacancy for her in the Dub lin/mid-Leinster region to fa cilitate her return from career break in 2008. In the circum stances, her career break was being extended for a further 12 being were efforts while months vacan suitable a source to made claimed plaintiff The her. for cy that the purported extension of her career break for an addi tional 12 months was in breach employment. of contract her of her to regard having that, held J) contractual rights, the plaintiff posi her resume to entitled was orthodontist consultant a as tion terms the on defendant the with 2008, from dated contract her of but without identifying the ac tual locus where she might be orthodontic provide to required services. She did not have an entitlement to a mandatory or der to a position in a particular hospital. She was entitled to be and emoluments her salary paid 2008. from Health v (plaintiff) McNamara ------In In February 2009, Intel re omputer chips market chips omputer month’s month’s rejection by the CFI of its application, Intel made a substantive written submission to the commission, including its response to the SSO. The commission considered document, the notwithstanding this fact that Intel had decided not to respond to the SSO by the deadline. original quested quested an oral hearing in rela tion to the SSO. This request was rejected by the hearing of unani the obtaining After ficer. mous endorsement of the Ad visory Committee on Restric tive Practices and (the group containing Positions Dominant a representative of each member state EU that advises the compe relevant on commission tition and mat merger-control ters), the commission imposed a negative decision on Intel in 2009. May C The products involved in the decision commission’s are cen tral processing units of (CPUs) the x86 architecture. CPUs are better known as computer chips. The CPU, which is of ten referred to as the ‘brains of a computer’, is the key compo nent of both in these machines, terms of and performance cost. be can computers in used CPUs subdivided into two categories: those that utilise the x86 archi tecture and those that do not. The x86 architecture is a stan dard designed by Intel for its CPUs. The commission found market product relevant the that was not wider than the market the open left but CPUs, x86 for relevant the whether of question ------certain OEMs the German-based German-based the vis-à-vis vis-à-vis Intel did not reply to the SSO SSO the to reply not did Intel com the 2008, December In covered by the July 2007 SO. SO. 2007 July the by covered by the October 2008 deadline, but instead lodged an applica tion with the European Court of First Instance (CFI), known now as the General Court, seeking an order for the com mission to obtain exculpatory potentially documents from, among other sources, the file between litigation private the of Intel and AMD in the US state of Delaware. Intel plied for also measures to ap suspend the commission’s proceedings pending the ruling of the CFI and to be 30 granted days from judgment court’s the of date the SSO. the to reply to Media Media Saturn Holding GmbH (MSH) (Europe’s largest com puter retailer through its Me dia Markt and Saturn chains) and another OEM, This move Lenovo. arose from, among other things, a complaint AMD to by the German competi tion authority regarding Intel’s practices involving MSH. This complaint was passed to commission. The SSO also the in cluded new evidence of Intel’s conduct mission mission sent a letter to outlining specific Intel items of evi dence that it intended to use in a potential final decision. Intel failed to reply to this letter by Febru In deadline. relevant the previous the following 2009, ary oral oral hearing was held in March 2008. In July of the same year, following further ‘dawn raids’, supple a issued commission the objections of statement mentary (SSO) concerning Intel’s con duct ------In July 2007, the commission commission the 2007, July In rocedure dominant dominant companies are under a special responsibility not to hinder effective competition in the market place. Article 102 contains a non-exhaustive list of types various of con abusive imposi the include These duct. tion of unfair purchase prices or and other conditions trading the of limitation to markets the dom A consumers. of prejudice inant company may argue that justi objectively is behaviour its fied and thus does not infringe 102. article P investigation The commission’s was both lengthy and proce durally complex. The focus on Intel’s business practices began when AMD made a complaint to the Competition Director ate-General (DG Comp) the of commission in 2000. The investigation stalled October until AMD supplemented its original complaint with ther evidence, fur most notably in November 2003. In May 2004, the commission its investigation relaunched and, in 2005, in conjunction with July rep resentatives of the relevant na tional competition authority, DG Comp officials carried out ‘dawn raids’ at Intel locations in Britain, Germany, Italy and Spain and at the premises several Intel customers in these of France. in and states a of issued objections statement conduct Intel’s concerning (SO) in relation to five major origi nal equipment Acer, HP, manufacturers Dell, namely (OEMs), NEC and IBM. Intel to replied an and 2008, January in SO this ------). ). News from EU and International the Affairs Committee Director Law Society of Ireland of Education, Edited by TP Kennedy, (now article article (now legal eur is not illegal, but Treaty Treaty on the Func EC EC Treaty per per se ast ast summer, the European Commission found that In 1.06 1.06 billion and ordered it to rticle102 L 102 102 of the tel tel Corporation had abused its article under position dominant 82 of the tioning of the European Union tor, Advanced Micro Devices Inc (AMD). In its decision, the commission found that abused Intel its dominant position by offering both rebates and conditional direct payments to order in partners commercial its to AMD exclude from the mar Intel fined commission The ket. € conduct. abusive the from desist This fine represents the largest by firm single a on imposed ever competition for commission the infringements. law A Article 102 prevents the abuse of a dominant position in the EU (or in a substantial part of EU between trade affects that it) member states. in Accordingly, a compa that to establish order the 102, article ny infringed has commission must first establish that this company has a domi posi dominant A position. nant tion is defined as a position of economic strength that allows a company to hinder effective competition being maintained on the relevant market by appre an to al behave, to it lowing ciable extent, independently of its competitors, customers and, ultimately, consumers. Domi nance The The abusive conduct resulted wish to from combat Intel’s the threat to its leading position in the market for computer chips posed by its main competi he commission’s decision to fine Intel decision The commission’s www.lawsocietygazette.ie april 2010 april Gazette Society Law briefing 54 briefing 55 ------www.lawsocietygazette.ie Ultimately, Ultimately, Intel’s conduct Intel sought to justify its re The The commission found evi from from the market. The mission com found that, in to compensate an order OEM for its loss of the Intel rebate, a hypo thetical ‘as efficient’ competi tor would be obliged to sell its of measure viable a below CPUs restricted the (given costs Intel’s amount of a purchaser’s com puter chip requirements that were open to competition due to, among other things, Intel’s status). ‘must-stock’ meant that were consumers de of different of choice the prived products that an OEM/MSH may have if offered its procure ment decisions were The and price. on based quality purely commission’s approach reflects a deeper analysis of the nomic eco effects of the dominant conduct than was undertaking’s carried out in previous cases. also The noted the commission increased potential for foreclo sure resulting from con Intel’s duct, given the impor strategic tance of Dell and HP in allow ing a access CPU manufacturer in particular, and, to market the the corporate segment. Intel’s behaviour also reduced the in centive of its business rivals to innovate. bate bate schemes on the basis that they were merely a response to price competition or were nec essary to achieve efficiencies. The commission rejected these they that basis the on arguments focused on conduct that DG Comp not anticompetitive. was did not object to volume-based rebates, it objected to ity fidel rebates. The commission, therefore, concluded that the conditional rebates and ments pay offered by Intel consti tuted an abuse of 102, article as they diminished the abilities of this company’s competitors to compete on the merits of their x86 CPUs and resulted in a re and choice consumer of duction innovate. to incentives lower dence dence that Intel had sought to ------april 2010 april Gazette Society Law . . The com Intel’s Intel’s conduct predates last Hoffman-La Roche Hoffman-La its its requirements of a particu lar product from the dominant company. The found that the conditional commission re Intel by granted bates/payments pay fidelity abusive constituted ments fulfilling the conditions of mission mission indicated that the Intel rebates lost by customers the event of increased sourcing in of CPUs from AMD would be and, significant also, dispropor tionate to the actual volume of computer chips purchased. In addition, Intel was likely to al locate rebates withdrawn from one OEM to another The OEM. freedom of customers to source CPUs from AMD was restricted. therefore year’s publication of the com mission’s guidance on its en in applying priorities forcement exclusion abusive to 102 article under dominant by conduct ary the com Nevertheless, takings. did the follow analysis mission’s approach of this document by economic a detailed conducting analysis regarding whether In tel’s conduct would foreclose an equally efficient competitor . ------Hoffman-La Hoffman-La Roche Abuse of a dominant position can cost you dearly Rebates Rebates to Lenovo were de pendent on this buying its CPU needs for its company desktop computer segment Intel. from exclusively emphasised The commission for for its desktop and notebook and Intel, from segments

Intel Intel also awarded payments to retail this on conditional MSH, Intel-based exclusively selling er personal computers. The com mission’s decision states that were these equivalent payments condition the to effects their in al rebates offered to the OEMs. four that it did not object to rebates payments such since themselves, may ultimately lead to However, prices for consumers. lower the competition concerns this case in arose from the actual conditions that Intel attached to the rebates. The commis sion relied on the ECJ’s 1979 decision in This judgment states that it is an infringement of article 102 for a dominant undertaking to rebates fidelity of system a apply cus on the relevant conditional tomer obtaining all or most of • ------tional tional on it sourcing no less than 80% of its CPU needs Rebates to NEC were condi were NEC to Rebates Rebates Rebates to HP were depen Rebates Rebates to Dell were con ditional on it buying exclusively, Intel CPUs dent on this company pur chasing no less than 95% of its CPU needs for desktop Intel, from computers onditional rebates onditional

ntel’s dominance ntel’s • • • product market could be further further be could market product subdivided into separate mar that In found The commission I The two main global x86 CPU manufacturers are Intel AMD. The and commission noted that, from 1997 to 2007, Intel consistently held a worldwide market share in excess around of 70%. Other factors or in C kets kets for desktops, laptops and servers (as this would make no difference to its conclusions on dominance). The relevant geo graphic market was held to be worldwide. dicating dominance were also present, such as the significant barriers to entry and expansion in the x86 CPU market arising from investment the substantial in research and development, intellectual property and pro duction facilities required. The position of Intel as an unavoid able trading partner due to its ‘must-stock’ status was noted as The a to barrier entry. also as out, fur pointed commission ther of evidence the high barri ers to that entry, each of Intel’s competitors (other than AMD) hold an insignificant market. the exited have or share market On this basis, the commission concluded that Intel was domi nant in the market at for, least, the period covered by the deci sion, that is, October 2002 to 2007. December tel awarded OEMs rebates that on these com were conditional panies purchasing all or almost all of their x86 CPU require Intel: from ments

------G Intel Intel would argue that it has It It is obviously beyond the ext steps ext Cormac Cormac Little is a partner in the competition and regulation unit of William Fry Solicitors. He wishes to thank his Lynam, for colleague, her Sarah article. this of help preparation with the N Intel’s business activities have also come under regulatory re from decision the commission’s to fine Intel. However, per how fiercely a dominant com marketplace. done nothing more than com view view in and Korea South Japan, November In States. United the 2009, the New York attorney general filed an anti-trust suit against Intel, reiterating many of the European Commission’s The findings. month, following Commis Trade Federal US the sion took legal action against Intel. The latter actions proceedings not focus only on Intel’s in the CPU market, but on also actions in the graphics chip market. In addition, Intel may be pursued for damages caused behaviour anticompetitive its by ju relevant the of all or some in risdictions. Accordingly, Intel’s competition/antitrust woes are over. from far scope of this article sider the many legal interesting to con or economic issues resulting the haps of key issue is case this pany may compete in the pete vigorously for every pos competitive highly a in sale sible would The commission market. respond that Intel has engaged in a series of practices anticompetitive aimed at ing its eliminat sole viable competitor. The General Court’s views on these issues will not only be vi tally important for the respec tive business strategies of Intel and AMD and to enforcement the of article future 102 by the commission, but also to all market strong a with companies await position. We the General in great with judgment Court’s terest.

------In particular, Intel contends Regarding the commission’s Intel’s argument that the Intel also challenges the infringement and the fine im posed to the General The Court. company argues that the commission erred failedin law, to meet the required standard of proof in its analysis of evidence, the did not prove Intel that engaged in a long-term competiforecloseastrategy to tor and, also, infringed essen tial procedural requirements. that the in commission law by failing erred to that the establish conditional discounts had the capability to foreclose competition, by omitting conduct to any analysis of fore closure regarding the restrictions naked and by failing analyse to whether the had rebates immediate, direct and substantial, foreseeable effects within Europe. alleged failure to meet the re quired standard of proof, Intel claims that the failed to prove that the rebates commission were conditional on the cus tomer purchasing all or almost all their CPU from Intel, requirements committed errors in its application of the ‘as ef ficient’ competitor test, failed to and address certain other issues (such as the positive im pact of Intel’s discounts upon consumers). Intel also argues that the commission’s finding long-termofa strategy tofore closeAMD isnot supported by the evidence. commission infringed essen tial procedural requirementsrelates to the commission failure to of grant Intel the an oral hearing in relation to the SSO, to procure certainternal documents in from AMD when requested to do Intel, so and by to make note of a a meeting proper with one of customers.Intel’s level of the fine, claiming that it is disproportionate and takes into account irrelevant consid erations. ------In accordance In with the accordance com 1.06 1.06 billion. In accordance he appeal he strategy strategy aimed and, at AMD of threat growing the foreclosing therefore, constituted a single of infringement article 102 that from 2002 October to persisted behaviour This 2007. December of a fine the imposition justified because the abuse was commit ted intentionally. ted In intentionally. fixing the considered commission the fine, the gravity and duration of In The infringement. tel’s level of of 10% exceed not could fine the most its in turnover global Intel’s year. financial completed recent guidelines, fining 2006 mission’s was fine the of amount basic the on the calculated basis of a par of value the of percentage ticular CPUs of x86 sales annual Intel’s to European customers, mul tiplied by the number of years the abuse lasted. The relevant percentage was calculated on the basis of the gravity of the infringement. In assessing this, the commission noted the ma of the jor importance economic CPU market, the Europe-wide of scope the the abuse, fact that its foreclose to seeking was Intel the and competitor, credible sole taken by measures Intel to con these of light In conduct. its ceal factors, the the of commission proportion the con that cluded estab to used be to sales of value fine the of amount basic the lish to be imposed on Intel should be 5%. This amount was mul by of 5.5 to tiplied account take infringement the of duration the (five years and three months), resulting in a final € figure of with the 2006 guidelines, whether the considered commission any – factors mitigating such as of – the abuse termination early were applicable, but concluded pres were elements such no that ent. The fine 4.15% represents of Intel’s 2008 global turnover allow the half than less is, that – 10%. of maximum able T In July 2009, Intel the appealed commission’s finding of ------, where the the where , Irish Sugar Irish Examples Examples of such ‘naked re aked restrictions aked he fine he conceal conceal the conditional nature of its payments. Many be to found of were that conditions the abusive were not explicit in In The contracts. commission tel’s in terms these of proof obtained emails, in responses to formal and in for information, requests a number of formal statements made to DG Comp by parties. third Mindful of these hid den terms and conditions, the commission recommends that Intel’s future compliance with article 102 would be facilitated if the terms of each agreement between this company and its partners were commercial writ full. in down ten N that found also commission The pay OEMs three awarded Intel ments that were on conditional their delaying or cancelling the launch of products AMD-based and/or putting restrictions on the distribution of such prod ucts. DG Comp termed these restrictions’. ‘naked payments strictions’ included a payment to HP to delay its launch of its first AMD-based desktop com puter by six months. Similarly, Intel paid Acer and Lenovo to postpone the launch of laptops containing AMD CPUs by a number of months. The com 1999 CFI’s the on relied mission in decision ficiency, and resulted in reduced reduced in resulted and ficiency, choice for consumers by delay the reaching from a ing product market. T The commission that concluded the conditional payments, rebates/ allied to the naked restrictions, formed a uniform court found that it an was that abuse found court for a dominant undertaking to seek to prevent a the on competitor’s present being from brand market. DG Comp concluded did Intel by payments these that not constitute competition on the merits, were not linked to or ef any justification objective www.lawsocietygazette.ie april 2010 april Gazette Society Law

briefing 56 briefing 57 - - - - - G

court, designated in that that in court, designated A www.lawsocietygazette.ie n n the case of disputes concern and and a seller or has supplier, been which included without being individually negotiated and which confers exclusive jurisdiction on jurisdic courtthe territorial the in tion of which the seller or supplier supplier or seller the which of tion has his principal place of busi ness, may be considered to be unfair. may way, be a long way from the consumer’s place of residence, which is likely to make it difficult for him to enter an appearance. I the money, of amounts limited ing costs relating to the consumer’s entering an could appearance be a deterrent and him cause to for go any legal remedy or defence. The court held that it is wheth for assess court to the Hungarian conferring term contractual the er jurisdiction in the contract concluded subscription between the unfair. parties was - april 2010 april Gazette Society Law national law A vailable to soliciors’ families and friends vailable to soliciors’ A term, contained in a contact tion, tion, where it has available to it the legal and factual including necessarytask, that for elements when it is assessing whether it has territorial jurisdiction. Where such court considers national the a to clause it be must not unfair, apply it, unless the after having consumer, been informed of it by the court, does not intend to assert its unfairness and binding non- status. directive the with comply not does in it is only that it where provides the event that the consumer has successfully contested the valid ity of a contract term before the national court that such a term is not binding on the consumer. Such a law would rule possibility out of the the national court the motion, own its of assessing, unfairness of a term. contractual A concluded between a consumer - - - t t I I Contact OUR catering manager with with her contractual obligations. The court observed that she was in receipt of an pension invalidity and lived 275km from Budaors, with limited means of transport between those two places. The Hungarian court about the possible unfairness of had the doubts term conferring in jurisdiction the subscription contract. referred referred a number of questions on the unfair terms in consumer contracts directive to the ECJ. wished to know whether it must, of its the in unfair, is term that whether own motion, territo own its verifying of ascertain context that held ECJ The jurisdiction. rial the role of the national court in the area of consumer protection is not to limited a mere power to rule on the possible unfairness of a contractual term, but consists also of the obligation to ex amine that issue of its own mo - - - - n I , , 4 an P Tel: 01 672 4800, fax: 01 672 4801, e-mail: [email protected], website: www.lawsociety.ie

in elegant Blackhall Place annon has its its has annon Pannon Pannon GSM P annon annon brought P Prestigious premises designed by Thomas Ivory • Prestigious premises designed by

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rzsébet rzsébet Sustikné Gyorfi Wedding ceremony and reception Wedding ceremony E consumer law consumer annon for the provision of mobile mobile of provision the for annon rt v Case Case C-243/08, Z non’s non’s general terms and condi Dis the that stipulated This tions. trict Court for the Budaors, court where place the of principal place of business, had arising dispute any for jurisdiction from the contract subscription or in relation to it. proceedings against Mrs Gyorfi, complied not had she that arguing June 2009. Directive 93/13/EEC 93/13/EEC Directive 2009. June on terms unfair con in consumer tracts tracts provides that unfair terms with concluded contract a in used supplier or seller a by consumer a are not on binding consumers. December December 2004, Mrs with contract a Sustikné into Gyorfientered P telephone services. By the signing contract, she accepted ------late late of Law Society Gazette Society Law 767, 767, fax: 061 713 642, email: gwen@ legalsupportservices.ie Doyle, Paul late Joseph of (deceased), La Drive, Touche, off 25 Crumlin Brickfield nagh,Dublin 12; formerly of12 Sel Road, Drim bourne Place, Minehead, Somerset, England; of Flat 1, The Manse, 2A Bacup Road, Rawlinstall, Rossend ale, Lancs BD4 7ND, England; and of The Village Room, 104 Street, George Sedgley Manchester, Park, England. Would person Prestwich, any having any any will made knowledgeby the above-nameddeceased, who died of on 27 December 2009, please contact Mary B Morris, Solicitor, 10 Ailesbury Grove, Don nybrook, Dublin 4; tel: 01 269 2342, fax: 01 269 2342, email: mbmorris@ eircom.net Foley, James (deceased), hav person any Would Cork. Co low, ing knowledge of a will executed by who the deceased, died above-named on 12 February 2010, please contact John Murphy, O’Connor Clune, Murphy Solicitors, 26 tel: Cork; 021 427 fax: 8380, 021 427 South Mall, [email protected] email: 8586, Heery, 11/11/2009), late Margaret of Park, 69 Riverside any person having knowledge Would Clonshaugh, (deceased of Dublin the whereabouts of a by 17. the above-named deceased will please made contact Laura [email protected], Gallagher; 086 833 7978 tel: email: Spring Spring Cottage, Quartertown, Mal ------late late of

late late of 75 The section applies to a person holding a lien. This The application shall be on notice by the applicant The last date for lodgement of applications was Where the certificate is claimed to be lost or de- must authority the as lengthy, be can procedure This 23 23 Ashington Registration of lien created through deposit or pos- certificatesession of land or certificate of charge of holder a that provides act 2006 the of 73(3)(b) Section a lien may apply to the authority for registration of the determine. as the authority may lien in such manner a lodge to undertaking of letter solicitor’s a include may of charge. land certificate or certificate to the registered owner and must be accompanied section 73(3)(c)). the original certificate (see by 31 December 2009. Applications lodged after that date will not be accepted. Applicants must therefore ensure that the prescribed notices are served time, in as good the application may only be such service. expiration of 26 days from lodged after the stroyed, the applicant for a lien must first 170(2) apply rule for to pursuant its with, dispensed be to production . Land Registration Rules 1972 satisfy itself that than (other the security as pledged been not has certificate and stroyed has been lost in- or would Proofs it). before application the of respect in de- owner registered and applicant the from affidavits clude the in directed be would notices and and a local or national newspaper. - - all that and those the dwell the those and that all wills Brady, Brady, James (deceased), Raithin Road, Cuilinn, Hollyfort Go rey, Co Wexford. Would any person having of knowledge the whereabouts de above-named the by made will a of ceased, who died on 13 August 2009, please contact So McKeever Taylor, licitors, 31 Laurence Street, Droghe da, Co Louth; tel: 041 983 8639, fax: 9762 983 041 Burke, Edward (deceased), any Would Kilkenny. Co Kells, Viper, wherea the of knowledge having body bouts of the last will and of testament on who died deceased, Burke, Edward Owen contact please 2009, October 21 O’Mahony & Co, Solicitors, 5 Johns Kilkenny Bridge, Curley, Noreen (also Nora) known (deceased), as 7. Would Dublin Road, Navan Court, any person having knowledge of the whereabouts of any will made by the above-named deceased, who died on 28 January 2010, please contact Bo wen & Co, Solicitors, Pound Street, Co Sixmilebridge, Clare; tel: 061 713 Date: 1 April 2010 April 1 Date: Tipper Registry, Land Titles, of Registrar Waterford. Section, ary Schedule: inghouse (known as Apsley out yard offices, and garden situate in House) in Cahir, Townsparks, of townland the the barony of Iffa and Offa and West Tipperary of county otice: Notice: Important - Registration of Title Act 2006 - pro , Colonic Registration of Title Act . 1964 The sec- Registration of Title licence Lake Road Robin Hill Clinic el: 021-4812222 Robin Hill has two T packages available. relax and rejuvenate? self-catering and B&B. Hydrotherapy & retreat medicine, NLP www.robinhillclinic.com Set in tranquil beautiful Selling or Buying therapies, acupuncture, stressed? The subsection also provides that section 105 of the Section 73(2) of the 2006 act provides that land cer From 1 January 2010, both land and charge accommodation options, bolition of land certificatesAbolition certificates and of charge a seven-day liquor Harbour. Huge selection of Harbour. o you want to hide away, Do you want to hide away, massage, holistic & beauty Rushbrooke, Cobh, Co Cork Contact 0404 42832 homeopathy, Chinese herbal homeopathy, surroundings overlooking Cork Section 73(1) of the vides that the Property Registration Authority shall (PRA) cease to issue land certificates and certificates charge under the of 2007. tion commenced on 1 January Registration of Title Act 1964 (requirement apply only will charge) of to certificates or certificates land produce to certificates issued before commencement, and then only for a three-year period after the commencement of the section. tificates and certificates of charge issued before mencement of section 73 that are not com- already cancelled will cease to have force or effect three commencement years after of the the section, that is on ber 31 Decem- 2009. Until that furnished with all applications date, by the registered owner. land certificates must Certificates of charge, where issued, must be be produced on all releases of charge except where such release is by discharge. certificates will cease to have any force and and effect should not be lodged with applications. In cer the land the without lodged is application an if interim, tificate, where one issued, it will be rejected. If the land be should application the forthcoming, not is certificate held over and relodged after 31 December 2009. proceed unless notification is received received is notification unless proceed the from days 28 within registry the in date of of publication the notice that dated conveyance of deed original the 28 November 1967 and tween Jane M made Stokes of the first part be and John K Stokes of the other part is in existence and in the registered custody the than of other person some owner. Any such notice should state conveyance the which on grounds the held. being is ------or website: care in Ireland. For information: A Caring Legacy: tel: (01) 2454800, from €500 per GB. ISO 27001 certified; email: [email protected] art www.wpg.ie/docstore.htm bequests to The Carers Emma at 057 9370210. e-discovery support service or www.carersireland.com. WPG DocStore’s professional Association (CHY10962) help to support family home-based lost land land lost certificates [email protected] www.lawsocietygazette.ie pensing pensing with the land certificate is sued in respect of the lands specified in the schedule, or which lost been have to original stated is land certificate cer land The destroyed. inadvertently tificate will be dispensed with unless is notification received in the registry within 28 days from the date of pub of that this lication the notice original certificate is in existence the than and other person some of custody in the registered owner. Any such which notifica on grounds the state should tion held. being is certificate the Property Registration Authority, Chan cery Street, Dublin 7 (published 1 April 2010) First registration application: lost conveyance dated the of Stokes M Jane between 28 1967 November one part and John K Stokes of the p other An application has been made in the Land Registry for a first registration over lands at Cahir, Co Townsparks, Tipperary. There is a missing docu ment with associated this registration, which is a deed of conveyance dated 28 November 1967 and tween Jane M Stokes of made the first part be and John K of part. Stokes the second be cannot This and document located or lost inadvert to been have is stated ently destroyed. The application will Registration Registration of Deeds and Title Acts 2006 and 1964 from received been has application An the registered owners mentioned in the schedule hereto for an order dis april 2010 april Gazette Society Law briefingprofessional notices 58 briefingprofessional notices 59 : Gazette 33 extra € heques heques should C www.lawsocietygazette.ie

. Take notice Take that the applicant in- dwellinghouse at the west side of the gate and the store houses on the east pat- the and gate entrance the of side ent slip and forge heretofore erected by one Henry premises are Smith, bounded on which the north by the River Boyne and said on the south by a wall running along the rear houses of fronting Saint and James the east by a Road wall at the rear the of houses in Ship Street and upon the west by the premises by now held the Drogheda Gas Light pany, which said Com- lands and premises in Mary St of parish the in situate are the borough of Drogheda, and as by a map thereof inscribed upon these presents are more particularly delin- eated and described at Marsh Road, Drogheda, Co Louth. tends to submit an application to the county registrar for the Louth for acquisition of the freehold county of and property, aforesaid the in interest any party asserting that a superior they interest hold in premises the (or any aforesaid of them) are called office on tel: 01 672 4828 4828 672 01 tel: on office Deadline for May . lication

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reland I Landlord Landlord and €144 (incl VAT at 21%) otice Notice rates of Landlord Landlord and - Ten y ociet S by putting a title deeds title ant (Ground Rents) (No 2) Act 1978 Act 2) (No Rents) (Ground ant and in the matter of the property at Marsh College and property’) (‘the Road, Louth Drogheda, Co Proteins Limited (‘the applicant’) Take notice that any person having any interest in the of freehold the estate following property: and those all part that of the mised premises by de- indenture of 12 March 1864, made lease between John dated Gradwell, Richard Gradwell, Chadwick John and of Francis the one part, Chadwick Smith, and Saint George George Rev Thomas Roe Harmon and Rev William Disney Roe Strype, of the other part, for term a of 170 years, are which described premises as all the that part of and the those lands of Lagavoreen being the premises known Saint as ‘The James’s Dockyard’ with the In the matter of the Acts Tenant 1967-2005 and in the matter of the aw aw L €288 per deed (incl VAT at 21%) - - - - e e paid for prior to pu b rofessional Professional notice section are as follows: €144 (incl VAT at 21%) late of le le to b your notice a y Employment/miscellaneous – Lost land certificates – €144 (incl AT V at 21%) Wills – Title deeds – Well-established

• • • • pril 2010. For further information, contact the the contact information, further For 2010. pril Highlight rates in the A Regulated by the Solicitors Regulation Authority of England and Wales e e made pa ll ll notices must (fax: 01 672 4877) 01 672 (fax: b 21 A

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above-named deceased please contact deceased above-named Brooks and Co, Solicitors, Baldwin Street, Mitchelstown, Co Cork; 24694 tel: 025 fax: 24833, 025 Slayven, Colin (deceased), Main St, Brosna, will Co a of knowledge Kerry. having Would person any made by the above-named deceased, who died on 19 May 2009 (approx), please contact solici Gerard Hanley, & Frank Buttimer Co, Solicitors, tor, Cork; Street, tel: 021 19 Washington 427 7330, fax: 021 427 2496, email: [email protected] tire. tire. Contact: Pat McCrohan, Mc Crohan Quinn & Co, Accountants, Road, Naas Old House, Mhuire Dun Dublin 12; tel: 01 450 7577, email: [email protected] Solicitor’s practice for sale in Dub in sale for practice Solicitor’s lin city sole centre. practitioner who wishes to re

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late of 56 Der late late of 7 Somerton Rd, ublication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland. Publication of advertisements in this section is on a fee basis and does not represent an endorsement pital, Cork on 5 October 2009. Would Would 2009. October 5 on Cork pital, any person having knowledge of the whereabouts of a will made by the (deceased), Christopher O’Sullivan, St, Baldwin 8 1, No Apartment of late Co Mitchelstown, Cork, or Thomas Co Cork St, who Mitchelstown, died Hos in the South Infirmary/Victoria 31 31 Lenabeag, Lahinch Road, Drum Sruhaun, Gorvagh, Co Leitrim (also known at Carrick-on-Shan Foxfield, ceased), person any Would Cork. Ballinlough, having knowledge of a will executed by the above-named deceased, who died on 4 June 2009, please contact John Murphy, O’Connor Clune, Murphy Solicitors, 26 tel: 021 Cork; 427 fax: 021 8380, 427 South Mall, [email protected] email: 8586, Kearns, Kearns, Helen (deceased), (deceased), Michael Murphy, O’Driscoll, Josephine (Josie), de ham ham Park, Balbriggan, Would 2008. Co February 9 on died who Dublin, will a of knowledge having person any made by the above-named deceased please contact Gerrard L McGowan, Solicitors, The Square, Balbriggan, 01 fax: 841 841 2115, tel: Co Dublin; [email protected] email: 2037, cliffe, Ennis, Co Clare and died formerly who Clare, Co Kilkee, Dough, of any solici on Would 4 2010. January tor or holding having any knowledge of a will made by the deceased above-named please contact Chambers, Joseph Francis Street, A Clare Co Kilrush, Feb 5 on died who Leitrim) Co non, having person any Would 2010. ruary any of knowledge a will made by the contact please deceased above-named [email protected] or, alternatively, P Toolan of Bernie telephone Walter 4004 964 071 tel: Leitrim; Co Sons, & Johnson, Johnson, Mary Molly) Ann (deceased), (otherwise - Landlord Landlord and Tenant (Ground Hilary Hilary Timmins and - Chris An order determining the tlement enti- of the applicants herein to acquire the any intermediate fee interests in the simple premises and more particularly scribed in the schedule hereto, de- An order determining the pur If necessary, an order apportion- ing the said purchase tween the price various interests be- as af- fect the said lands, If an necessary, order pursuant to the provisions of section 8(3) of the Rents) Acts 1967 appointing an chase price to be paid by the ap- plicants herein in respect of acquisition the of the fee simple and all such intermediate interests, 1) 2) 3) 4) Date: 1 April 2010 April 1 Date: Miley Signed: & for the Miley (solicitors Dublin Street, Molesworth 35 applicant), 15 ref: 2; In the matter of the Landlord and Tenant (Ground Rents) Acts 1967- 1986; topher property at Timmins Laurel Grove, Dublin Co Kildare Road, Celbridge, (applicants); Take notice that application will be made to the ting at the Courthouse, county Naas, in the registrar county of Kildare on 28 May 2010 at sit- the following relief: 11.30am for - - - - - Take notice Take that Derek Wine and In of default any such notice being Square, Rathmines in the county of of county the in Rathmines Square, Dublin) Take notice that any person an having interest in the freehold the estate following of property: the premises known as 31 Leinster Square, Rath mines, Dublin 6 (formerly 22 Leinster Leinster 22 (formerly 6 Dublin mines, Square, Rathmines in the county of Dublin). Alison Saffer (the applicants) intend county the to application an submit to registrar for the county of the city of of the free for the acquisition Dublin property, aforesaid the in interest hold and that they hold any party asserting a superior interest in property (or any the of the them) aforesaid to title of are evidence furnish called to upon below the to premises aforementioned of date the from days 21 within named notice. this to pro intend the applicants received, ceed with the application before the at county registrar the end of 21 days from the date of this notice and will apply to the county registrar for the county/city of Dublin for that basis the on directions appropriate maybe as enti beneficially persons or person the tled to the superior interest including the freehold reversion in the premises above are unknown or tained. unascer and and and and in the Landlord and €750,000. Landlord and Tenant and Landlord Tenant www.cbre.ie DUBLIN DUBLIN 8 +353 1 6185500 aforesaid premises are unknown or unascertained. Date: 1 April 2010 Signed: Eugene F Collins (solicitors for the applicant), Temple Burlington Road, Dublin 4; DX 25 Chambers, 3 In the matter of the Acts Tenant 1967-1994 matter of the (Ground Rents) No 2 Act 1978 in in the matter of an application by Derek Wine and Alison Saffer re: 31 Leinster Square, Dublin Rathmines, 6 (formerly 22 Leinster Title: Freehold. Situated beside Ashling Hotel and Criminal Courts of Justice. storey building (former B&B) Two extending to c.171 sq m. suit Would a variety of uses including offices or redevelopment (site area c.140 sq m). Offers in region 14 PARKGATE STREET 14 PARKGATE Contact John Ryan 01 6185536 • • • • • In default of any such notice be- FOR SALE BY PRIVATE TREATY FOR PRIVATE SALE BY www.lawsocietygazette.ie ing received, the applicant intends to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the county of Louth for directions as may be appropriate on the basis that the persons beneficially entitled the to superior interest including freehold the reversion in each of the upon to furnish evidence of the title to the aforementioned from days 21 premises within named below the to the date of this notice. april 2010 april Gazette Society Law

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www.lawsocietygazette.ie recruitment LAW to the superiortheto interest including the freehold reversion in the premises aforesaid are unknown or unascer tained. 2010 1 April Date: - appli for (solicitors Co & Cullen Signed: Road, cant), Inchicore, 86/88 Tyrconnell 8 Dublin Solicitors’ apprenticeship sought by hard-working, law highly graduate, soon to become AITI- qualified registered tax consultant. Passed all FE1s, trained typist, very confident and excellent work experience. Tel: 086 331 3039

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Editorial Board has taken this decision based on legal advice, advice, legal on based decision this taken has Board Editorial cts 1998 cts A aw aw ERTISEMENTS L Law NOTICE V Gazette or or og in to the new expanded employment recruitment register in the the in register recruitment employment expanded new the to in og aw Society website, www.lawsociety. quality quality lease lease note that, as and from the L employment opportunities section on the members’ area L of the recruitment Murphy, Trina contact or ie, administrator, at the Cork office, tel: [email protected] email: 021 422 6203 or For staff requirements, not just qualified solicitors. AD full-time, part-time or as a locum. a as or part-time full-time, F Log in to the employment opportunities new section self-maintained on the job-seekers’ members’ area Law register of Society the in website, the www.lawsociety. ie, or contact Trina Murphy, recruitment the at administrator, office, tel: 021 422 [email protected] 6203 or email: FREE EMPLOYMENT RECRUITMENT REGISTER ers’ job-seek The The that include references to years of post-qualification experience ( experience post-qualification of years to references include that the of breach in be may references such that indicates which E P Law Society REGISTER the freehold interest in theaforesaid andproperty,anyparty portion of or parties asserting thata superior they interest hold in premises, the in particular, aforesaidsuch persons who are entitled to Charles the interest Byrne, of are calledfurnish evidence titleoftheaforeto upon to mentioned premises to named within 21 days the from the date below of this notice. In default of any such notice being received, the said plicants ap intend to proceed with theapplication before the county regis trar at the end of 21 days date fromof thisthe notice and will apply to the county registrar for the Dublin forcity directions of as may be ap propriate on the basis that the per son or persons beneficially entitled - - and

and and in the y Take Take notice that the said appli in the matter of an application by George Kearns and in the matter of premises situated at the rear of Road 568 South Circular Take notice any person interest in having the freehold estate an of the following property: all that and those part of the premises demised by indenture of an lease dated 7 June 1933 between Charles Byrne of part the and William one Byrne and Robert Stewart of the described other as part, therein “that situate plot on the of South Circular ground Road near Rialto Bridge bounded on north the partly by property in the pos- Company Canal Grand the of session and property in the possession of the lessor and on the south by the South Circular Road on by the property west partly in the Grand Canal the Company and the possession South Circular Road and on the east of by property in lessor’s possession all which lands and premises are situate in the parish of St James, barony of Upper Cross and county of the city of Dublin”. In the matter of the Landlord and Acts Tenant 1967-2005 matter of the Landlord and Tenant 1978 Act 2) (No Rents) (Ground cant intends to submit an tion to applica the county registrar forcity of theDublin for the acquisition of Fee per issue basis. Fee per usiness opportunit usiness strictest confidence. b Experienced anted – Midlands all that and those that in the All submissions will be treated W Looking for a long-term business relationship. Looking for 25 March 2010. Interested persons/firms should providesummary of their credentials, a brief experience and structure to fee the following email address – lgldvc@ gmail.com – on or before close of business on i ) Company Law ii ) Commercial & Employment Law iii) Inheritance and succession planning Two Two medium sized and long standing family businesses run are seeking to an retain energetic and the expert services solicitor to of legal deal with aspects all of their individual/firm businesses. will The be able to demonstrate successful a deep knowledge and understanding of the following key areas, in particular: Commercial Solicitor officer officer of the any necessary court documentation, in- to execute cluding an assurance in respect of the said property or any interest therein for and on behalf of any owner of same. unascertained Schedule: Which said grounded upon the notice application of inten- tion to will acquire the fee simple dated be 3 December 2009, the nature of the offered. case and the reasons to be portion of lands Grove, situate Dublin Road, at Celbridge, partic- more as Kildare, Laurel in of county the annexed map the on delineated ularly hereto and thereon held edged under indenture in of lease made red, 2 October 1973 and made and part one the of between King Joseph John a being part, other the of Price James demise for the term of 66 years from 1 January 1973, rent of five subject pence (if demanded) and to held yearly under indenture of lease made 1 August 1967 and part and one the of King Joseph John made between a being part, other the of Price James demise for the term of 71 years from rent yearly the to subject 1967, July 1 of five pounds. Date: 1 April 2010 (so- Co & Timmins O’Reilly LC Signed: licitors for the applicants), The Harbour, Kilcock, Co Kildare World class law firm

Opportunities at Associate and Partnership level

A global law firm with offices throughout the United States, Europe and Asia, our client is among the leading names world-wide for funds/asset management, transactional and contentious work.

Renowned for the strength and breadth of its international funds practice, it works closely with a prestigious client base ranging from boutique investment firms through to many of the largest financial institutions in the world. Furthermore, as an integrated part of a full service law firm it benefits from a complete range of complementary practice areas.

The firm has an ambitious strategy for growth, integral to which is the opening of the firm’s Dublin office, making it the first genuinely global law firm in Ireland. Its lawyers will be at the forefront of the domestic market whilst working closely with colleagues in London, Europe, Hong Kong and the United States.

Committed to building a leading team, it is interested in speaking with ambitious lawyers with first-class experience in the following areas

Funds • Corporate • Finance • International Infrastructure • Tax

Partners will need to be able to display outstanding credentials, including a strong business case and portable business. Associates will need a minimum of twelve months’ relevant experience in a recognised and respected practice.

This represents a unique opportunity to make a vital contribution to growing an office for a world class law firm. To find out more contact Portia White or Kate Coughlan in confidence on:

Portia White | Managing Consultant Kate Coughlan | Consultant t: 353 (0)1 669 8522 t: 353 (0)1 669 8523 e: [email protected] e: [email protected]

more than a legal recruiter Dechert - the first global law firm in Dublin

Opportunities at Associate and Partnership level Partner – Corporate Law

A global law firm with offices throughout the United States, Europe and Asia, Dechert is internationally recognised for its world- Our Client is a top law firm with a prestigious reputation class asset management, transactional and litigation practices. and renowned for high calibre work. The firm is particularly recognised for it’s expertise in the field of corporate law. An Its international funds practice is renowned as one of the best and benefits from being an integrated part of a full service law opportunity has arisen for a high calibre Solicitor to join firm. Working closely with investment professionals globally, the firm designs domestic and offshore structures and financial the firm as partner. services products for a client base stretching from boutique firms to the world’s largest financial institutions.

Integral to the development of the practice is the opening of the firm’s Dublin office, the first genuinely global law firm in the The successful applicant will be a proven expert in the field of market. Its lawyers will be at the forefront of the domestic market whilst working closely with colleagues in London, Continental corporate law and will have managed multi million euro deals to Europe, Hong Kong and the United States. include public and private mergers and acquisitions, cross border deals, equity offerings, joint ventures and partnership structures. You Committed to building a leading team, it is interested in speaking with ambitious lawyers with first-class experience in the will have represented a wide range of high calibre clients. following areas: Applicants must have worked with a top tier Irish or International law Funds • Corporate • Finance • Infrastructure • Tax firm and be admitted to practice in a common law jurisdiction.

Partners will need to be able to display outstanding credentials, including a strong business case and portable business. Associates You will have strong drafting, negotiation and communication skills will need a minimum of twelve months’ relevant experience in a recognised and respected practice. and have the gravitas to build productive business relationships. The ability to manage a growing team is essential. This represents a unique opportunity to make a vital contribution to growing an office for one of the world’s larger and most profitable law firms. Our Client is a truly dynamic, forward-thinking and profitable firm and credits its success to choosing the right people. This is a key

To find out more information about these roles please contact: appointment offering an exceptional remuneration package to the successful applicant.

Portia White | Managing Consultant Kate Coughlan | Consultant Fitzwilliam Business Centre t: 353 (0)1 669 8522 t: 353 (0)1 669 8523 77 Sir John Rogerson’s Quay Dublin 2 e: [email protected] e: [email protected] Interested applicants should contact Yvonne Kelly Tel: +353 18415614 in strict confidence on 01 8415614 or 087 6824591. All third party CVs will be forwarded to Laurence Simons Fax: +353 16401899 Alternatively email your CV to Web: www.keanemcdonald.com [email protected]. Email: [email protected] Absolute discretion assured.

more than a legal recruiter Keane McDonald is an executive search fi rm focusing on legal appointments. We specialise in the recruitment of high calibre legal professionals both in Ireland and overseas. Applicants are assured the utmost confi dentiality and discretion when working with us.

Opportunities

Senior Legal Manager – Leasing, Dublin A leading global leasing operation is seeking to recruit a senior lawyer to join their expanding legal team. The successful applicant will perform a senior management role with a focus on managing a team of lawyers in the execution and completion of transactions relating to aircraft fl eet. The role involves extensive client contact and requires superior communication skills together with proven transactional experience. Candidates with strong leasing or fi nancing experience will be considered.

Senior Legal Advisor – Capital Markets, Dublin Our Client is seeking a senior banking lawyer with experience in capital markets transactions with a leading banking institution or with a top law fi rm. You will have a full understanding of securities laws, bank regulation and corporate governance matters. This is a key appointment in the organisation and will suit a confi dent negotiator with strong management skills. You will be admitted to practice in a common law jurisdiction. Excellent package on offer for the successful applicant.

Commercial Litigation Solicitors, Dublin A leading litigation practice is seeking to recruit two experienced litigators to represent Insurance Clients on all contentious matters to include commercial disputes, professional negligence, policy disputes and professional indemnity matters. Financial Services experience is preferred but not essential. Solicitors with alternative dispute resolution experience are particularly welcome.

Corporate Lawyers, Dublin Our Client, a leading Irish law fi rm, is seeking two corporate lawyers to join the fi rm. The candidates will have big ticket transactional experience and have gained solid experience in negotiating and drafting agreements. Attention to detail is essential as is the ability to use one’s initiative. This is a superb opportunity to join a dynamic environment which offers huge variety in work and excellent career prospects.

Funds Lawyer, Dublin Our Client, a respected Irish law fi rm, wishes to recruit an experienced funds lawyer with a solid background in negotiating, drafting and reviewing fund documentation and agreements. An impressive client portfolio includes domestic and international banks, fund managers brokers and pension funds. Top tier experience preferred. Fitzwilliam Business Centre 77 Sir John Rogerson’s Quay To apply for any of the above vacancies, interested applicants Dublin 2 should contact Yvonne Kelly in strict confi dence on Tel: +353 18415614 +353 18415614 or email your CV to Fax: +353 16401899 [email protected].

For a comprehensive list of our vacancies visit our website at Web: www.keanemcdonald.com Email: [email protected] www.keanemcdonald.com

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

Private Practice Commercial Litigation-Assistant : Our client is a Top Tier law fi rm with an enviable client base searching for exceptional candidates to deal with a broad mix of Commercial Litigation. You will have a fi rst class academic background coupled with excellent communication skills. Corporate Finance-Assistant/Associate: Leading Dublin practice requires a high calibre lawyer to deal with corporate advisory work including mergers and acquisitions, joint ventures, management buy outs, reverse takeovers and debt and equity fi nancings as well as advising on fl otations and fundraisings. Intellectual Property-Assistant: First rate Dublin law fi rm is seeking a strong junior lawyer to join its IP department. Candidates must have a science degree. . 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 will be a Solicitor or Barrister with excellent exposure to EU and Competition Law, gained either in private practice or in-house. Funds-Assistant/Associate: Top ranking law fi rm requires excellent Funds specialists at all levels. You will advise investment managers, custodians, administrators and other service providers of investment funds on establishing operations in Ireland. Projects/PPP – Senior Associate/Partner - Belfast: One of Northern Ireland’s leading Commercial law fi rms has a superb opportunity for an innovative, highly motivated individual with vision and energy to quickly create a strong, separate practice area. You must have signifi cant experience of major projects and a track record of PPP work on both procurement authority and bidder sides. An excellent package commensurate with the role, which will include imminent entry to Partnership, will be available to the successful candidate. In House Telecoms-Assistant: A major player in the Telecoms industry is looking for bright solicitors with outgoing personalities to work with its international sales team focusing on opening up new markets. Fluency in either Spanish or French is an essential pre-requisite. Legal Counsel- Senior Associate/Salaried Partner level: Our client is a major player in the tobacco industry and requires a senior lawyer to advise the Irish market on all legal matters affecting the business. You will be a Solicitor or Barrister. Prior in house experience whilst desirable is not essential. Partnership Our clients include the leading Irish legal practices. Signifi cant opportunities exist in the following areas: Employment; Funds; Insolvency; Litigation

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]