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PLACE YOUR To order, or for more information, simply call us on ORDER TODAY! +353 (0) 1 662 5301 or visit www.roundhall.ie La w So c i e t y An n u a l Co n f e r e n c e 9th/10th April 2010 Book online at lawsociety.ie

o n f e r e n c e p a c k a g e Ly r a t h Es t a t e Ho t e l C (d e l e g a t e s ): €275 Kilkenny CPD programme on Friday afternoon (3 CPD hours) • Gala dinner on Friday evening • One night’s bed and breakfast • Conference business session on Saturday morning • (3 CPD hours) • Lunch on Saturday

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See brochure and reservation form www.lawsocietygazette.ie 1 with this issue of the Gazette Law Society Gazette DECEMBER 2009 contents

On the cover LAW SOCIETY The long-running question over the admission of women as full members of Portmarnock Golf Club has finally gotten out of the rough, and the Supreme Gazette Court has confirmed that the men of Portmarnock indeed have discriminating tastes December 2009

pic: jupiter unlimited

Volume 103, number 10 Subscriptions: €57 Regulars 4 News Analysis 10 10 News feature: new criminal courts complex

Comment 13 13 Letters 14 Viewpoint: the LRC and the common good 10 36 People and places 40 Parchment ceremony photographs 45 Student spotlight Book review 47 Employment Law

Briefing 48 48 Practice notes 52 Legislation update: 13 October – 22 November 2009 36 54 Solicitors Disciplinary Tribunal 55 Firstlaw update 57 Eurlegal: anticompetitive information exchanges

61 Professional notices

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 61. 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, 39 Aaron McKenna, Ken Murphy.

2 www.lawsocietygazette.ie contents Law Society Gazette DECEMBER 2009

Get more at lawsociety.ie PROFESSIONAL notices: send small advert details, with payment, to: Gazette Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Gazette readers can access back issues of the All cheques should be made payable to: Law Society of Ireland. magazine as far back as Jan/Feb 1997, right up COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, to the current issue at lawsociety.ie. tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] You can also check out: • current news HAVE YOU MOVED? Members of the profession should send change-of-address • forthcoming events, including details of a details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] conference hosted by TCD’s law school and the HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. Dublin Rape Crisis Centre entitled ‘Rape law: Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] victims on trial?’ on 16 January • employment opportunities FSC independently-certified wood and paper products used by the Law Society Gazette • the latest CPD courses come from ecologically-managed forests. Visit: www.fsc.org

… as well as lots of other useful information PEFC certifies that wood and paper products used by the Law Society Gazette are sourced by suppliers from sustainable, managed forests. Visit: www.pefc.org features COVER STORY: 16 Discriminating tastes The recent judgment confirming that Portmarnock Golf Club did not breach equality legislation has far- reaching implications for clubs throughout the country, writes Larry Fenelon

The influence of friends 20 The new president of the Law Society, Gerard Doherty, might never have chosen a career in law – nor sought a Council position – had it not been for the influence of friends. Mark McDermott speaks to him about the exceptionally challenging year that lies ahead

House of cards 24 The recent Supreme Court judgment on the Zoe Group case provides significant practical guidance and clarification on the current thinking of the courts when considering a petition to appoint an examiner. Andreas McConnell and Aillil O’Reilly survey the site 24

One Bourbon, one Scotch, one beer 28 The Intoxicating Liquor Act 2008 made significant changes to the area of intoxicating liquor licensing in the District Court. Karl Dowling and Brendan Savage get a round in

Wherever I lay my hat 32 Disputes over the relocation of children are a by-product of travel, technology, and a smaller world. But recession is also a factor, and courts in all jurisdictions are seeing increasing applications as a result of job-seeking in other jurisdictions. Marion Campbell phones home

The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter. Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Email: [email protected] Website: www.lawsocietygazette.ie 28

www.lawsocietygazette.ie 3 Law Society Gazette DECEMBER 2009 news nationwide

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

kildare P ic : L ensmen longford Sadly, I don’t usually get Longford solicitors are snippets from the these parts, currently braving the floods so when Andrew Cody got of water from the Camlin, on to me about a seminar but it is a little more difficult that Frank Taaffe and David to survive the floods of Osborne are putting together professional insurance proposal in the Kilashee Hotel, Naas, on forms. So says bar association 18 December, I was delighted. president Brid Mimnagh. “The Getting the most out of proposal forms have been of technology is the topic, in such complexity in completion which colleagues Neil Butler and the anticipation of very and Dan O’Connor are the high quotes is much more draw. Andrew hopes to keep terrifying than the floods at this page abreast with what is the moment.” going on in the months ahead. dublin Reforming land and conveyancing law kilkenny At the conference to discuss the Land and Conveyancing Law Reform Act No longer being in power, you Sonya Lanigan, secretary of the 2009 were (back, l to r): Attracta O’Regan, Professor John Wylie, see, I have to glean the goings bar association, reports that her William Devine, John Buckley, John Murphy, William Prentice and Brian on in our bar association from Gallagher. (Front, l to r): Patricia Rickard-Clarke, Judge Mary Laffoy, president, Owen O’Mahony, Rachael Hession, Una Woods and Gabriel Brennan a respectful distance, allowing attended the court users group our new supremo John P meeting and advises that left until the expiry of their Doherty said that she kept an O’Malley some bedding-down the capital refurbishment of annual professional indemnity eye on what was happening in time. But no sooner had he the courthouse is due to be cover. All the members were England, and it seemed that a wrestled the chain off my back, completed in April 2010, at concerned, as no firm had serious number of smaller one than he was in the High Court which point furniture and IT received a quote for renewal, and two-partner practices had the next morning bidding adieu installation will begin. It is despite most having a claims- been forced to close as a result to the retiring Judge Johnston. expected that court sittings will free history. of not being quoted at all for start in the new building in Anger was expressed, and it insurance. clare autumn 2010 or earlier. was agreed that a request be A real concern was the effect When you make contact with made to the Law Society to of the changes in cover, in that colleagues around the country, DONEGAL extend the time for renewal of virtually all high-risk activities, as I do in putting this page The Inishowen Bar Association cover up to 31 December. like fraud, misrepresentation together, you can sometimes had a great turnout for what There was a general and commercial undertakings, overlook the particular was billed as their last CPD discussion that, not only did had been removed for all traumas engulfing their event of the year at the the members not know what renewals of policies of communities – as in Cork, Inishowen Gateway Hotel on it would cost, but then they indemnity. Galway, Limerick and Clare. 19 November. Roisin Doherty would have to arrange finance It was agreed that the And so when I got on to had prepared a very interesting from banks who were now members would approach Sharon Cahir, as I would lecture on the new provisions slow to advance finance. It was various insurers and look for a frequently do, I soon realised contained in the recently reported that premiums had group rate for its members, and that even more pressing than enacted Civil Partnership increased by up to 200%. also approach the Law Society PII for local colleagues at this Act. The management CPD Miceal Canavan, who to sponsor schemes for smaller time was managing to cope hours were to be covered by practises both north and south firms to avail of expertise with the mayhem caused by a workshop on planning for of the Border, explained the in identifying risk areas and the appalling floods, including emergencies, such as death. Northern system, which allowed setting up risk management damage to firms. Our hearts go However, a more pressing him to cover his southern systems, and to assist its out to affected colleagues. G emergency was discussed by practice for a reasonable members on how to respond the 25 solicitors attending, additional premium through to the very detailed (and ‘Nationwide’ is compiled by Kevin as none had received a quote Marsh UK, who underwrite utterly varied) questions in O’Higgins, principal of the Dublin with only five working days the policy in the North. Roisin proposal forms. law firm Kevin O’Higgins.

4 www.lawsocietygazette.ie news Law Society Gazette DECEMBER 2009 Gerard Doherty elected as new Law Society president for 2009/10

erard Doherty has been Gelected president of the Law Society of Ireland for the year 2009/10, with effect from 6 November 2009. Mr Doherty is a partner in the law firm O’Reilly Doherty & Co in Finglas, Dublin 11. He will serve a one-year term as president of the 12,000-strong solicitors’ profession until November 2010. A native of Westport, Co Mayo, Mr Doherty is the youngest son of Charles and Lily Doherty, and has one sister, Anne. He has two sons, Ronan (26) who works in financial services, and Kevin (19) who is Gerard Doherty, new Law Society president for 2009/10, with senior vice-president John Costello (left) studying in University College and junior vice-president John P Shaw Dublin. Gerard was educated in of Practice Committee, the • John O’Connor (1,753) Conall Bergin, Hilary the CBS primary school in Complaints and Client Relations • Stuart Gilhooly (1,749) Coveney and Valerie Peart Westport, and Castleknock Committee, the Professional • Kevin O’Higgins (1,696) were elected to Council for College, Dublin. He graduated Indemnity Insurance Committee • John D Shaw (1,688) the first time. with a BCL law degree from and the Finance Committee. • Valerie Peart (1,436) UCD. Apprenticed to the • James Cahill (1,356) Provincial elections late Joseph King in Westport, Council election results • John Costello (1,330) As there was only one he qualified as a solicitor at The count of election ballot • Hilary Coveney (1,295)* candidate nominated for each Blackhall Place, Dublin, in 1973. papers was conducted and • Michele O’Boyle (1,295)* of the two relevant provinces He moved into partnership at results declared on 6 November • Niall Farrell (1,176) (Connaught and Munster), O’Reilly Doherty in 1984. 2009. In all, 3,253 members • Moya Quinlan (1,140) there was no election and Gerard became a member of voted in the elections, of which • Conall Bergin (1,114) the candidate nominated in the Council of the Law Society 28 ballot papers were rejected, • Paul E Connellan (1,083) each instance was returned of Ireland in 1989. He has while three others were judged • Liam Kennedy (1,063) unopposed. chaired many of the Society’s to be spoiled. The number of • Thomas Murran (1,062) Rosemarie J Loftus was most senior committees, valid voting papers was 3,222. • Martin G Lawlor (925) elected for Connaught and including the Regulation The results were as follows: (*Equal number of votes) Frances Twomey for Munster.

www.lawsocietygazette.ie 5 Law Society Gazette DECEMBER 2009 news Are you a match for Boardmatch? he ‘Celtic Tiger’ is well and find the right match of skills Tand truly locked up in and experience – at no cost. the zoo, but every cloud has Professionals like solicitors a silver lining. Due to the can make a huge difference current economic climate to an organisation that can’t and the fact that professionals afford to buy in these skills. have found themselves with But, in truth, the benefits to the more time on their hands than individual far outweigh what previously, many are putting they give in terms of time and their spare time to good use expertise. Not only do they gain by volunteering with various great experience, develop strong organisations in the not-for- leadership skills and build new profit (charity) sector. One networks, but they also achieve organisation that facilitates the immense personal satisfaction matching of professional people boards in a formal, structured Among the thousands of not- from giving something to a with not-for-profit groups is and regularised way. Not-for- for-profit organisations that are worthy cause of their choosing. Boardmatch Ireland. profit organisations will register run by voluntary boards, many There is a growing need at Boardmatch Ireland, founded the specific skills required at recognise the need for thought present in the not-for-profit in 2005, is a web-based skills- board level and the link will be leadership, legal expertise, sector for more and more skilled matching service between made. and experience in strategic people to contribute to boards business people and not-for- The progress and success corporate governance to lead in these challenging times. profits. Solicitors, accountants, of Boardmatch since its organisations through times of To find out more, IT specialists, HR specialists, inception is testimony to the change and financial challenges. contact Fiona O’Connor marketing and PR specialists, needs of organisations and Until now, these specialist skills in Boardmatch, tel: 01 financial advisors and project the willingness of professional might have been out of the 671 5005, email: fiona@ managers can log on to the volunteers to lend a hand. To question for voluntary groups. boardmatchireland.ie. website to offer their skills date, more than 250 matches Through Boardmatch, they can To register, visit www. and expertise to not-for-profit have been made. now register their specific needs boardmatchireland.ie. It’s official: no UN help with ‘Hand of Gaul’ he United Nations High matter and threaten sanctions TCommissioner for Human against France unless a replay Rights, Navanethem Pillay, was of the match was agreed to? the special guest speaker on She replied that she had not 21 November 2009 at a seen the match but agreed from conference in Blackhall Place all reports that an injustice on ‘Economic, social and had been done, for which she cultural rights: making states sympathised with all her Irish accountable’. The conference friends. However, she pointed was jointly organised by out that France was a member the Society’s Human Rights of the Security Council and Committee and the Irish undoubtedly would veto any Human Rights Commission. measure such as Murphy had High Commissioner Pillay proposed. was the guest of honour at a So, no joy from the UN, UN High Commissioner for Human Rights, Navanethem Pillay, dinner the previous night in sympathised with Ireland’s plight – but could provide no helping hand therefore. But at least the Law Blackhall Place – less than Society was ensuring that no 48 hours after Thierry Given the national outrage intervene to seek to redress the stone was being left unturned in Henry’s notorious and blatant being expressed by prominent injustice that had been done the national search for redress handball had cheated Ireland members of the government, to the Irish soccer team and, of this injustice. out of at least a penalty shoot- among others, director general indeed, to the Irish people. Perhaps, as a man who out to determine whether Ken Murphy took an initiative. Could she not, he enquired, as personifies the philosophy of Ireland or France would go He asked Ms Pillay whether, as a minimum, summon a meeting ‘forgive and forget’, Roy Keane, to the 2010 World Cup in the UN High Commissioner of the Security Council of the has suggested, we will just have South Africa. for Human Rights, she might United Nations to discuss the to “get over it”.

6 www.lawsocietygazette.ie news Law Society Gazette DECEMBER 2009 Are you a match for Boardmatch? PII tops agenda at Society’s AGM he Law Society’s annual of insurers and complete their that the support of the members Tgeneral meeting was held on proposal forms very accurately through the adoption of the 5 November 2009 in Blackhall and comprehensively. In light motion might greatly assist the Place. Over 100 members of the recent reduction in the Society in its lobbying efforts attended. The meeting approved obligation to hold run-off cover for the introduction of such the minutes of the 2008 AGM to two years, Patricia McNamara a measure. The motion was and adopted the 2008/2009 withdrew her motion to make overwhelmingly adopted by the Annual Report, together with the the requirement to maintain meeting. annual accounts for the year insurance run-off cover ended 31 December 2008. The discretionary. Issues raised reports of the scrutineers on the Members raised a number of annual and provincial elections Limited liability companies issues from the floor of the were approved, together with the Sonia McEntee had proposed meeting, including the following: election of auditors. Scrutineers all insurers and also with a motion that solicitors and • The write-down on the for the Council Election potential insurers in Ireland legal practices be permitted to value of the Benburb Street 2010/2011 were appointed. and Britain with a view to incorporate their businesses property, encouraging them to remain as limited liability companies, • Costs levied by the PII report in the market, or join it. which was seconded by Anthony Complaints and Client The chairman of the Professional Brady. Ms McEntee outlined the Relations Committee, Indemnity Insurance Task Force, Niall reported that the Council benefits that would be available • Tendering for legal work for Niall Farrell, presented a special had adopted three major changes to a solicitor’s practice if they the Society, report to the meeting about the at special Council meetings held were allowed to incorporate. • The cost of unsuccessful steps taken by the Society on in August and October: The director general spoke litigation, behalf of the profession to ensure 1) To remove the obligation to in favour of the motion and • The cost of the practising a viable market: provide cover in commercial outlined the various steps that certificate for newly-qualified • A special task force had been cases where there is an had been taken by the Society solicitors, appointed by Council at the undertaking to a bank to pay over the course of the past 20 • Whether professional beginning of the year charged off a mortgage, furnish a years to seek to enable solicitors indemnity insurance could be with the task of charting the certificate of title, furnish title to avail of the benefits of made optional and whether best course for the Society and deeds or stamp and register a incorporation through limited a ‘no-claims bonus’ scheme its members, title, liability partnership. He noted could be introduced, It’s official: no UN help with ‘Hand of Gaul’ • Specialist advice was obtained 2) To reduce the minimum level that the Society would continue • The possibility of returning from expert insurance of cover to €1.5 million, and to lobby for solicitors in Ireland to the three-solicitor advisors, 3) To suspend the Assigned Risks to have the same options to form conveyancing system, • Existing PII regulations were Pool for the next indemnity limited liability partnerships as • The introduction of a quality reviewed and amended in period. their counterparts across the standard similar to the Lexcel order to make the market world. system in England and Wales, more ap pealing to insurers All of these steps and regulatory Patrick Dorgan proposed an and and also to stabilise the changes had been communicated amendment to the motion to • The importance of risk market. to members who had, in turn, replace the word ‘companies’ management in solicitors’ • Meetings were held with been urged to apply to a number with ‘entities’. It was agreed practices.

www.lawsocietygazette.ie 7 Law Society Gazette DECEMBER 2009 news

MARINE RESOURCE LAW Marine Resource Law is a All change for practising new book on maritime law by Dr Ronan Long of NUI Galway. Published by Thomson Round certificate applications Hall, it runs to 940 pages and costs €265. It discusses he time of the year that we If you misplace your form the law relating to all types Tall dread is approaching fast you can download one, pre- of marine licensing, including – filling out your PC application printed with your individual offshore development, sea form. Wading through pages details, from the members’ fisheries, marine habitat and pages of dense text, area on the Society’s website, protection, underwater cultural eventually getting to the end www.lawsociety.ie. heritage and marine scientific and hoping you managed to fill If you are a non-practising research. It also provides it in correctly … and then the member, you will no longer over 40 handy maps and Law Society sends it back to be bombarded with lots of tables. you! enclosures that are not relevant Well the good news is that to you and will simply be sent KEEP YOUR CLIENTS close! things are about to change. Your a membership application form While solicitors are still the PC application form is now only and Support Services Directory. favoured source of advice on four pages long, more of your You can apply and pay online if how to manage inheritance tax data is preprinted on it, all of you wish. and make financial gifts, 44% the data relating only to firms The Society has undertaken of British people now consider has been removed, and it is much a major project to streamline their bank manager a good more intuitive to complete. all of the forms relating to this process in order to make source of advice, according to The fees due are much easier firms will be sent directly to the it easier for members, to effect Standard Life’s Wills and Trusts to understand, which means, managing partner/principal – direct and indirect cost savings, Research Report. Last year, 32% hopefully, that payments made this eases centralised control and improve the quality of sought such information from will be right, first time. The and processing. data-trapping and processing. their bank manager. Solicitors completion instructions will be Other good news – the ten Inpute Technologies, a are concerned that the advice contained in a separate guidance pieces of paper that used to come company that specialises in given may not be adequate. notes document, which will with the form are no more. A forms processing, form design The reason for the drop in the make the form much more Support Services Directory will and electronic data-trapping, number of people going to manageable. be issued with your practising were engaged to assist with the their solicitor or accountant for Based on member feedback, certificate in January. project. advice on estate planning is thought to be a greater effort by bank managers to contact their Society-wide action on opportunity generation customers in the wake of the ince early 2009, the Law Representation’ project. initiatives for solicitors, credit crunch. The lesson – SSociety has been working to Committees will seek to • Lobbying to ensure that the keep in contact with your address the challenge of reduced identify steps that can be taken, Society is consulted on, and clients. employment opportunities or contacts that can be made, in included in, all job market within the profession – and to order to create new employment activation and training NEW REGISTER FOR support solicitors who lose their opportunities and will constantly programmes being considered ARCHITECTS jobs or are otherwise faced with identify, pursue and review new by government, The Royal Institute of the related career challenges. and emerging opportunities that • Identifying and exploiting Architects of Ireland (RIAI) has The Career Support service might arise. No definitive list new and emerging business launched a new register for was established in May 2009, and of actions has been drawn up. opportunities, architects. Established under the a three-pronged approach was Instead, individual committees • Seeking to ensure that roles Building Control Act 2007, the initiated, involving: are being asked to identify and to for solicitors are included in register lists architects whose • Support provision, progress whatever opportunities legislation whenever possible, qualifications meet the standards • Information provision, they believe have best potential • Identifying non-solicitor set out in the act. Only architects • Opportunity generation. in their area. roles where solicitors might who are on the register may use Possible actions being be encouraged to up-skill in the title ‘architect’. The new Moving into 2010, all advisory undertaken by individual order to be eligible to seek system also provides consumers committees within the Society committees will include ones like positions, with an advice service and with have been asked to actively the following: • Encouraging and facilitating dispute resolution mechanisms progress opportunity • Lobbying government non-legal employers to hire in the case of poor service or generation initiatives within departments, NGOs and solicitors, suspected malpractice. Visit their area of activity, as part state agencies for internships • Promoting the ‘Support your www.riai.ie. of the ongoing ‘Excellence in and employment-creating colleagues’ initiative.

8 www.lawsocietygazette.ie news Law Society Gazette DECEMBER 2009

SÍN AMACH DO LÁMH! Urgent warning – change in Does the phrase ‘sín amach do lámh’ (‘hold out your hand’) set your heart racing? If so, Red stamp duty practice Pepper Productions wants to talk to you! The TV production company our urgent attention is (The Society expects to be in is producing a new four-part Ydrawn to the Society’s note a position to provide more television series on education in referring to a major change information following further Ireland, to be broadcast next year in stamp duty practice. The consultation with Revenue.) on TV3. The series will focus on note, entitled ‘Note on In the meantime – if you have the history of education in Ireland eStamping’ and dated not already done so – you over the last 40-50 years, as seen 25/11/09, can be found should register on through the eyes of students in the ‘News’ section the Revenue (past and present), teachers, of the members’ area Online principals and parents. To speak of the website at www. Service (see to Red Pepper Productions about lawsociety.ie. the October your primary and secondary The Revenue Commissioners Gazette, school experiences – good and have announced that e-stamping pages 10-11). To bad – contact Eimear or David at: will come into effect on 30 repeat the warnings: [email protected]; or tel: December 2009. Details of the practitioners should ensure 01 670 7277. proposed new system can be 30 December 2009 to that they obtain PPS numbers found on the Revenue website: deal with any difficulties that (for individuals) or tax reference EC STRENGTHENS FINANCIAL www.revenue.ie/e-stamping.ie. might arise. It would be useful numbers (for others) so that SUPERVISION The Law Society has engaged if members could alert the Law they are in a position to stamp The European Commission (EC) in extensive consultations Society of any difficulties with instruments post 30 December adopted legislative proposals with the Revenue about the the system when it goes live, so 2009. After that date, stamping on 26 October 2009 to further introduction of e-stamping. This that these can be raised with the any instrument (including strengthen financial supervision has resulted in changes in the Revenue. share transfers) can only in Europe. The EC proposes to legislation and the regulations Every office will have to be done either through the make targeted changes to existing being implemented to take review its procedures to ensure e-stamping system or using financial services legislation to account of the views of the Law that mistakes are not made in the new paper return, both of ensure that the new authorities Society. There have also been computer entries and that an which require PPS and/or tax can work effectively. The proposals extensive discussions concerning audit system is established. The numbers for the parties. There set out the authorities’ powers many practical aspects, and many Society is recommending that will be no other way to stamp and open the way to develop of these features can be seen solicitors establish procedures instruments, and penalties draft technical standards, settle from the guidelines contained on to have the client verify the and interest will accrue if the disagreements between national the Revenue website. information furnished by him/ return is not made on time. supervisors, and facilitate the The Society is continuing in her at the earliest opportunity. Get ready for e-stamping sharing of ‘micro-prudential’ its discussions with the Revenue The Revenue intends to devote now and submit any outstanding information (on individual financial on the various issues relating substantial resources to the instruments before 30 December institutions). The European Council to e-stamping – feedback from audit of returns and there 2009. and the European Parliament will practitioners is welcome. These are substantial fines for the (See also the practice note on p48 now consider the proposals. discussions will continue after making of an incorrect return. of this issue.)

www.lawsocietygazette.ie 9 Law Society Gazette DECEMBER 2009 analysis Pantheon of justice The new €140 million Criminal Courts of Justice have opened, representing the state’s largest ever investment in court facilities in the country’s history. Mark McDermott got the grand tour all pics : lensmen brand new Pantheon cost of €140 million – though “Aof justice,” is how the the Courts Service says that Courts Service describes the the total cost of designing, new Criminal Courts of Justice building, maintaining and (CCJ) complex in Dublin, which providing support facilities in was handed over to it on 25 the complex over the 28-year November 2009. The claim period of the PPP contract will is justifiable, given that the be €291 million net, in present diameter of the internal great terms. The building will then hall of the new building falls just be handed over to the Courts one metre short of the diameter Service in an “as new” state. of Rome’s famous Pantheon (see Ireland’s courts deal with panel). Encompassing an area of over 400,000 criminal matters 23,000 square metres on a site every year, with over half of of 2.5 acres, the building is a these being heard in Dublin. It commanding 11 storeys tall and Courts Service CEO Brendan Ryan is expected that up to 200,000 is a spectacular addition to the cases will be held annually in the city’s skyline. criminal business in Dublin city, Courts were first brought into CCJ. The relocation of courts and from every court jurisdiction operation”. The new building will court offices to the new complex – up to the Court of Criminal The striking landmark centralise all criminal courts will take place on a phased basis Appeal. building is certainly the most and offices currently housed in from 7 December through to Speaking at a special media significant investment in court various buildings around the the first week of January 2010, briefing in advance of the buildings and services since the city, including: with all courts sitting in the CCJ opening, the CEO of the Courts completion of the Four Courts • District Court – Chancery at the start of the Hilary term. Service, Brendan Ryan BL, structure. Back in 1796, the Street, The new building boasts 450 commented that the CCJ was Four Courts cost the equivalent • Some Richmond Courts rooms and 22 courts, as well as “the first state building of such of €125 million. The modern (courts 50 and 52), 27 lifts and about 250 flights of monumental proportions to be Criminal Courts of Justice • Circuit Court – Four Courts stairs. Its courts will handle all built since 1796 – when the Four building was delivered at a complex, • Central Criminal Court – Four Courts, • Court of Criminal Appeal – Four Courts, and • Special Criminal Court – Green Street.

Location, location, location The CCJ is situated on the western side of the city’s legal quarter, on the corner of Parkgate Street and Infirmary Road. Located close to current court buildings, Blackhall Place, the Luas line and Heuston station, it boasts a great hall four times the size of the Round Hall in the Four Courts, modern courtrooms of various sizes, and comfortable consultation rooms and waiting areas. Jurors are well catered for in the new complex. There is a

10 www.lawsocietygazette.ie analysis Law Society Gazette DECEMBER 2009 Pantheon of justice

THE INSPIRATION BEHIND THE DESIGN As lead architect on the project, Peter McGovern of Henry J Lyons, Architects, has much to be proud of. Just before starting the design work on the building in August 2006, Peter had returned from a trip to Rome, where he had visited the Pantheon. The circular shape of the 2,000-year old Roman building was his chief inspiration when it came to deciding the diameter and height of the great hall in its Dublin counterpart. Believe it or not, the diameter of the great hall is only one metre smaller than the Pantheon’s 142 ft. ‘We wouldn’t want to outdo such a major, iconic building, now would we!’ jokes Peter. “The Courts Service was keen to get natural daylight into all courtrooms – which we have managed to achieve,” he says, “and the acoustics requirements, too, were very specific. As architects, we’re very privileged to get the opportunity to design buildings like this. With the Criminal Courts of Justice, I can say that we’re very, very pleased with what we’ve achieved.”

dedicated jury reception area, In all, 11 of the CCJ’s 22 into the structure of this ground- This allows remote, safe facilities a large jury assembly space in a courtrooms can display evidence breaking building. In order to for children giving evidence via secure area sufficient to cater for by means of electronic display provide the desired segregation video-conferencing facilities. up to 400 people, separate dining screens, while six have video-con- of various court users, special The bright-coloured, lighthouse and ‘fresh-air’ facilities, and ferencing and video-link facilities. accommodation has been themed room features soft furn- jury retiring rooms – all within Basement cells can house over provided for prosecution ishings and a TV games console. a segregated space. Sixteen jury 100 people, with holding rooms witnesses (including vulnerable Lawyers and members of the rooms are accessible from jury provided at all court levels. witnesses), victims and relatives media have their own dedicated courtrooms via secure areas. Dedicated accommodation is in a calm environment. The facilities. Rooms are provided for The building has been specially available for garda and prison Courts Service claims that these members of the legal profession designed to provide separate and service personnel. are among the best such facilities in a secure area, while a prison secure waiting areas and routes Ensuring that all of this runs in the world. video link is available for those to court for the public, jurors, smoothly are the 400-500 people A special children’s evidence who wish to communicate by those in custody and members of who will work in the building, suite has been specially designed, secure, private means with the judiciary and staff. daily. Much thought has gone with the assistance of Barnardos. clients in prison. G

www.lawsocietygazette.ie 11

comment Law Society Gazette DECEMBER 2009 letters

Send your letters to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected] Amended application process for authorisation as a mortgage intermediary From: Ciarán Farrell, with immediate effect. The investment intermediaries. mortgage intermediary Financial Institutions and Funds process will be amended to It is not anticipated that the application has been published Authorisation, Financial Regulator include the submission of an amended process will cause on the Financial Regulator’s lease note the following, individual questionnaire (for any significant extension of the website, www.financial Pwhich may affect some all directors, senior managers, current anticipated processing regulator.ie, with effect from members of the Law Society of etc) as part of the application time for mortgage intermediary 2 November 2009. Ireland. process. The aim is to achieve applications (approximately six If you have any queries in this The Financial Regulator consistency of approach across to eight weeks for a complete regard, please do not hesitate intends amending the the application processes for application with no issues of to contact me at ciaran.farrell@ application process for mortgage all retail intermediaries, that concern arising). financialregulator.ie or on intermediary authorisation is, mortgage, insurance and Please note that an amended 01 224 4369. ‘Nine to five’ and the right to consult From: Sinead Morgan, Dalkey, Co workforce to assert their right note that, when an employee’s Dublin to consult by approaching their hours are reduced, they have refer to my article entitled employer to agree consultation the right to take a I‘Nine to five’, published in arrangements. If they cannot claim for the November 2009 issue of the agree arrangements within unpaid wages Gazette, and would refer readers six months, the employees under the to page 20 of that piece. are free to appoint employee Payment For the purpose of representatives, whom of Wages Act clarification, I would like to the employer must meet 1991, in point out that the right to when significant changes addition to the consult under the 2006 act is are anticipated within the other remedies set not an automatic right. There workplace. out on page 20 of the is a requirement for 10% of the Furthermore, one should article. G

www.lawsociety.ie 13 Law Society Gazette DECEMBER 2009 comment ‘Wearing the shoes of th ose affected by the law’ The LRC provides an invaluable link between legislators devising new law and the public they serve. ‘An Bord Snip’ argued that the LRC should be ‘discontinued’. Frank Murphy argues strongly to the contrary

he group concludes that the pic : cian redmond who think they are parties to a “TLaw Reform Commission common law marriage that in (LRC) should only be convened fact doesn’t exist and, despite on a temporary basis as required. their family life together, they Therefore, the group recommends have no legal rights whatsoever. that the LRC be discontinued, with Law reform is essential half of its staffing complement to our law. Call it what you assigned to the AGO to finish will, our community needs remaining projects. This proposal a Law Reform Commission. should yield €2.8 million At the moment, we are annually” – Report of the Special fortunate in having a very Group on Public Service Numbers effective commission headed and Expenditure Programmes, by Ms Justice Catherine July 2009. McGuinness and her learned ‘What is law?’ is the commissioners, with productive question that has troubled legal The BCLC is a window of opportunity and focused researchers philosophers throughout the and staff. Recognition, not ages. As some might argue, the when draconian cuts are being without law reform is like a discontinuation of their public answer wouldn’t put bread on proposed. body without life. service work, is well deserved. the table, and it would be hard At the same time, however, Take the family – to find it a place on the agenda we must not lose sight of the everyone has one. Our 1937 ‘Looking for my view?’ in the cut and thrust of deciding foundations of our community. constitutional version is based Ballymun Community Law on government cutbacks. Social Law would surely figure on marriage, but given the Centre (BCLC) has been welfare, health and education prominently in the foundations plethora of family arrangements fortunate to benefit from the measures are more likely of our democratic republic. So in existence in 2009, it can lead commission’s engagement with to dominate cabinet room ‘What is law?’ is as important to both legal and non-legal the community over a number discussions. This is only right today as at any time – and law difficulties. Then there are folk of years, which is just a small part of its huge law reform workload. It was family matters that had a packed attendance five years ago in the Axis Centre for the commission’s first Ballymun presentation on the rights and duties of cohabitees, when Patricia T Rickard-Clarke (commissioner), Raymond Byrne (director of research) and Darren Lehane (researcher) presented their consultation paper. In the course of their presentation, somebody tapped me on the shoulder and whispered: “Are they looking for my view?” Local community organisations were well represented at the meeting, At the presentation of the Law Reform Commission’s Legal Aspects of Family Relationships consultation and some questions on the paper in the civic offices, Ballymun, were (l to r): Frank Murphy (solicitor, BCLC), Patricia Rickard-Clarke rights of fathers may well have (solicitor, LRC commissioner), Ms Justice Catherine McGuinness (president, LRC), Aine Rooney (director, BCLC), Paul Kane (director, BCLC), Catherine Hickey BL (director, BCLC), Christina Beresford (law clerk, BCLC) and raised those very issues that the Raymond Byrne BL (director of research, LRC) commission is now considering.

14 www.lawsocietygazette.ie comment Law Society Gazette DECEMBER 2009 ‘Wearing the shoes of th ose affected by the law’ pic : cian redmond It is important, particularly at this critical time, that our law is valued by the community – and law reform is a vital part of the law. Engagement between the legal system and the community it serves is critical for effective governance. In a society where it is often thought that the law is out of touch with the community, it is good to see this learned, legal institution in the community endeavouring to ensure that our law is the people’s law. Last month, the commission came to Ballymun again to present the new Consultation Paper on Family Relationships, which considers the rights and duties of fathers in relation to guardianship, custody and The LRC has visited Ballymun many times access to their children and the rights and duties (if any) The year 2005 saw the Committed to ensuring that its In addition to all this work, of grandparents and other commission in Ballymun for a programme would reflect the LRC researcher Charles members of the extended family. discussion on their consultation needs of a modern society, it O’Mahoney, on a voluntary The paper makes wide- paper Vulnerable Adults and came to Ballymun as part of the basis, has himself presented ranging, provisional the Law, with Deirdre Aherne process. and sourced contributors for recommendations for reform of (legal researcher). It being the BCLC participated in its criminal law courses for the law, including that there be commission’s 30th anniversary, annual conference in July on the adults and young people in a statutory presumption that a Judge McGuinness outlined the Third Programme Ballymun. non-marital father be granted law reform process, noting that, of Law Reform, an order for guardianship in recent times, there had been a which opened with Value for money (parental responsibility), unless good take-up on their proposals. an inspirational “It is good not an issue to do so would be contrary to In 2006, BCLC was part of a address from Mr Legal academics the best interests of the child or Spent Convictions Task Force Justice Michael to see this will give would jeopardise the welfare of and, as the commission was Kirby in Dublin learned, legal judgement on the child. working on that issue itself, it Castle, who issued the volumes The room was packed visited our Shangan Road offices the challenge: “Let institution in of work of the again, and both the audience one evening for an exchange of us see the law as if the community commission – and the commission made views. wearing the shoes and there are pertinent, thought-provoking Later that year, a large of people affected endeavouring volumes. Value contributions grounded in life Ballymun contingent attended by the law.” The to ensure that for money is as it is lived, with the goal of their annual conference in commission’s not an issue. Its improving that quality of life for Belfield, where the Minister consultative role our law is the valuable public each person and civic society. for Justice received the rights strives to achieve people’s law” engagement As usual, the commission and duties of cohabitees this. with BCLC has is inviting submissions from report, which included a draft In 2008, a series energised the everyone for this current Cohabitants Bill for consideration. of lunchtime surrounding Consultation Paper on the Legal seminars took community, Aspects of Family Relationships, by Wearing another’s shoes place in the ‘Reco’ (the central involving them in an inclusive 31 December 2009. G In 2007, the commission was youth facility in Ballymun), process of legal dialogue, identifying new areas of law including a public consultation contributing to the common Frank Murphy is a solicitor with to be included in its Third on advance care directives with good both locally and in the Ballymun Community Law Programme of Law Reform. the commission. wider community. Centre.

www.lawsocietygazette.ie 15 Law Society Gazette DECEMBER 2009 cover story

Discriminating tastes The recent judgment confirming that Portmarnock Golf Club did not breach equality legislation has far-reaching implications for clubs throughout the country, writes Larry Fenelon

he Supreme Court recently confirmed Parallel to the District Court proceedings, that Portmarnock Golf Club – which Portmarnock issued proceedings to the High excludes women from membership – did Court seeking declarations that it was not a not breach equality legislation. The discriminating club and, in the alternative, that decision marks an end to a long-running the relevant legislation was unconstitutional. The Tlegal battle that dates back to 2003, but which has matter was heard before Mr Justice O’Higgins, who far-reaching implications for clubs throughout the decided in June 2005 that Portmarnock was not a country. discriminating club. The matter was then appealed In an appeal brought by the Equality Authority by the Equality Authority to the Supreme Court. against an earlier High Court decision upholding the right of Portmarnock to exclude woman as members, What women want the authority had argued that Portmarnock was in Section 8 of he Equal Status Act 2000 provides that breach of section 8 of the Equal Status Act 2000. a club’s right to sell alcohol under a ‘certificate of registration’ licence could be suspended if a club was Battle of the sexes considered to be a ‘discriminating club’ – if it had as Portmarnock was registered as a club under its rule or policy or practice to discriminate against a licensing legislation that permitted it to sell alcohol member or an applicant for membership. to its members. The Equality Authority applied While Portmarnock admitted that it was a successfully to the District Court for a determination ‘discriminating club’ as defined in the act, it that Portmarnock was a discriminating club in successfully argued that the club fell within one of the order to deprive it of its registration as a club and, exceptions allowed under section 9 of the act. therefore, the right of its members to purchase Section 9 provides an exemption for clubs that are intoxicating liquor. The District Court judge deemed to be a ‘discriminating club’ under section 8 if decided on 20 February 2004 that the club was a their principal purpose is to cater only for the needs of discriminating club and ordered the suspension of its the group in membership to the exclusion of another licence to sell alcohol to its members. Portmarnock grouping. Section 9 permits clubs for specific groups then appealed the decision to the High Court to of the community – for example, men or women, gay ascertain whether the District Court decision, which people, travellers, married people, single people, ethnic would have far-reaching consequences, was correct minorities and so on – to exist and to exclude other in law. people and to be registered as clubs.

16 www.lawsocietygazette.ie cover story Law Society Gazette DECEMBER 2009

Discriminating

main points • ‘Discriminating clubs’ • Exceptions under section 9 of the Equal Status Act 2000 • Implications for clubs

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ACE OF CLUBS Portmarnock Golf Club was founded in 1884. It has provided for women, and women have access to the 626 members and 625 associate members. bar and restaurant, save and except that, as non- Women are permitted to play at Portmarnock members, they are not permitted to purchase alcohol on identical terms to male non-members. Women without a member being present. are permitted to play on the course seven days a The rules of Portmarnock provided for a club week upon payment of green fees. Competitions are consisting “of Members and Associate Members, as organised exclusively for women at the golf club during defined below, which shall be gentlemen” and clarified the year. Full changing facilities and locker rooms are that the club was “primarily devoted to golf”.

Section 9 of the act introduced exceptions of the Equality Authority’s interpretation of section because of fears that, without such provision, the 9, no club anywhere ever could ever benefit from interference with the free right of association under that exemption. the Constitution might lead to the section being The court emphasised that there is no prohibition declared unconstitutional. on the establishment of clubs or associations whose The question that the Supreme Court had to membership is limited to persons of a particular decide was whether Portmarnock was entitled to rely gender. The court recognised that ordinary social on the exception created under section 9 of the Equal life provides everyday examples of organised Status Act 2000. associations that cater exclusively for persons in a The Equality Authority contended that the club particular place or of a particular gender (ladies’ was not permitted the benefit of clubs, certain book clubs, sporting section 9 because its principal purpose organisations). The court made a is not to cater “only” for the “needs” “If Katie Taylor specific reference to the Emerald of persons of a particular gender. On Warriors, the gay men’s rugby club. the contrary, the Equality Authority were a member The court recognised that rugby is alleged that the purpose of the club of a ladies-only not a ‘need’ of gay men and the court is to provide facilities for the playing could not cite any game or sport of golf, which cannot be described as boxing club, that might be the ‘need’ of gay men. catering for the needs of one gender the Equality Furthermore, the court recognised only. that there is increasing momentum Authority’s behind single-sex associations. War of the Roses argument would The court also recognised that the The authority also argued that there number of all-women groups is much had to be a “logical connection” mean that boxing greater than the number of all-male between the purpose or activity clubs were in groups. It also recognised that there of the club and the gender, sexual was little doubt that these bodies were orientation, religious belief or other breach of the legally entitled to function on a single- grouping mentioned in section 9. Equal Status gender basis. However, when the court asked the What excluded Portmarnock Golf authority to provide one such example, Act 2000” Club from the exemption under it could not. The Supreme Court section 9(1) in the Equality Authority’s could think of many sports that were view was that facilities for the game of seriously important to persons of either sex, but golf were not a ‘need’ of men exclusively. The court noted that it was quite impossible to say which of believed that the authority’s construction of the term these were a need of either gender exclusively. ‘needs’ was narrow, outdated and unnatural. The The court acknowledged that the sport of boxing, appeal was dismissed. historically, was thought to be the preserve of men, The implications for clubs in this jurisdiction are which is untenable today in light of the achievements profound. Until and unless the exemptions under of Katie Taylor. If Katie Taylor were a member section 9 of the Equal Status Act 2000 are removed of a ladies-only boxing club, then the Equality or amended, then it will be permissible for clubs Authority’s argument would mean that boxing to discriminate on the grounds of gender, religion, clubs were also in breach of the Equal Status Act sexual orientation or otherwise without fear of 2000. The court acknowledged that such a club the club being penalised through liquor licence should not be disqualified from becoming a club. penalties. G Under the Equality Authority’s argument, they would have to show that boxing was the need of Larry Fenelon is a partner with Leman Solicitors. Leman women exclusively as women. Solicitors are official legal partners to the Federation of The Supreme Court recognised that, on the basis Irish Sport.

www.lawsocietygazette.ie 19 Law Society Gazette DECEMBER 2009 interview

New president of the Law Society, Gerard Doherty, might never have chosen a career in law – or sought a Council position – had it not been for the influence of friends. Mark McDermott speaks to him about the challenging year that lies ahead

erard Doherty doesn’t answer questions quickly, preferring to think before he answers. If he were a card-player, he’d play his cards very close to his chest, but once he spotted an opportunity, you’d have no doubt but Gthat you’d have been played by an expert! Born and reared in Westport, Co Mayo, until the age of 13, his life took a significant turning when he left for Castleknock College, Dublin, to start his secondary schooling. Was there much of a difference between the two schools in their approach to education? “Yes, you could say that!” he laughs. “Castleknock was more civilised in terms of how it meted out corporal punishment – it was more selective about it!” He says that moving from Westport was not his choice. “That was the way it was then. You weren’t consulted about these things. You would be now, but not then. You just got on with it.” His decision to go into law was inspired, not by some heartfelt desire, or by his parents (his father was a chemist and his mother a teacher), but by fellow students at third level. (One of them is his fellow partner in his firm.) He agrees that it was a pretty haphazard decision at the time: “They had decided on law and I said I’d give it a go.” He describes his years studying for his law degree in UCD as “absolutely brilliant! I escaped from the conservatism of The influen ce of friends Westport of the 1960s to the freedom of living in a flat in purely selfish reasons, I suppose. I like the intellectual Dublin.” Having completed his degree, he was apprenticed challenge. I like the sense of satisfaction you get when you to Joe King in Westport. Once he had fully qualified, he feel you have done a job well. There have been cases where remained in Dublin, working with three firms during a you felt the odds were stacked against you, and you did better relatively short period. He describes this movement as “all than other people might have expected.” He regards himself, study on my part. I was gaining experience in different chiefly, as a personal injuries lawyer. aspects of the law. I learned something in each office – He looks genuinely surprised when asked if he ever seriously from the start of the learning curve, when I was getting to considered becoming president of the Law Society at any stage grips with general litigation in Patrick Kevans; to Frank during his career. His answer is a direct “no!” So how and why O’Mahony’s, where I learned how to deal with large did he get involved with the Council of the Law Society? volumes of personal injury litigation; and subsequently “It arose in the mid ’80s,” he replies. “I was speaking to to Smith Foy for broader experience, where I did a little Council member Elma Lynch, giving out about the bar of everything, but mostly litigation.” association and the Law Society, asking what they were Is he happy that he chose the solicitor route? “Yes, for doing for members, and she replied: ‘Why don’t you run for

20 www.lawsocietygazette.ie interview Law Society Gazette DECEMBER 2009

The influen ce of friends election?’ I did run for election – in the DSBA – and, in committees of the Law Society for quite a long period. 1989, DSBA president Geraldine Clarke appointed me I think the immediacy or imminence of serving as as the bar association’s nominee to the Law Society’s president only hits you when you become senior vice- Council. From there on, I received more nominations president.” main points than possibly any other Council member. I was So how does he feel about his new role? “It’s • From Mayo to nominated six times on various tickets.” He puts this strange! I feel that it’s an enormous honour. I like the Dublin down to the influence of friends. challenge of it. These may be challenging times, but • ‘Absolutely we must seek ways to meet those challenges during my brilliant’ student Becoming president year as president.” days Gerard subsequently served on the Council of the What are the main goals for his term? “Well the • Choosing the Law Society for over two decades. When did he feel very obvious ones are employment and professional solicitor route that the role of president was achievable? “Never! It’s indemnity insurance. In relation to employment, • A challenging not something you ever think about – until you are significant inroads were made by the immediate year ahead almost there, in fact. I have been fully involved on the past-president, John D Shaw, when he established

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IN BRIEF • Gerard Doherty serves a one-year term as president financial services, and Kevin (19), who is studying in of the Law Society for the year 2009/10, with effect University College Dublin. from 6 November 2009. • Qualified as a solicitor at Blackhall Place, Dublin, in • A native of Westport, Co Mayo, he is the youngest 1973 and is partner in the law firm O’Reilly Doherty son of Charles and Lily Doherty, and has one sister, & Co in Finglas, Dublin 11. He became a member of Anne. He has two sons – Ronan (26), who works in the Council of the Law Society of Ireland in 1989. the Career Support Service, which answers to deputy How is the Society assisting its members through director general Mary Keane. Clearly, the demands on these crises? “No one person, no matter how well- the service will increase and – even though its successes intentioned, can address all aspects of the difficult may be small – nonetheless they are significant issues facing the profession – but the Council to the people involved. It’s not going to solve the and its committees, working together, can make a entire problem. For some individuals it may lead to difference. I’ve already mentioned the establishment employment; for others, it will give hope. of Career Support. Each committee has been asked “On a more optimistic note, however, we’ve gone to address seven action points in their dealings with through difficulties before and anybody who has government, state agencies or other bodies in order been in the profession for as long as I have will know to assist with lobbying for the inclusion of solicitors that the areas of work we have been engaged in have in job creation and training initiatives. dramatically increased in recent years. There is no “In relation to the uncertainties surrounding PII reason not to expect that trend to continue.” cover, the Society has put in place a PII Helpline – 01 879 8790 – to assist firms in dealing with the PII woes renewal process in the current radically changed “Turning to the second major challenge – PII – we circumstances. Queries about the revised regulations don’t know what the outcome will be this year, and can also be emailed to [email protected]. probably won’t fully know until after Christmas, “In terms of helping members run their but certainly it’s not satisfactory that we should find businesses more efficiently, the Society launched ourselves in the position that obtaining PII should a practice advisory service last June for existing depend on whether other players in the insurance and start-up firms. Separately, the ‘Solicitor Link’ sector decide to enter the PII market. service assists firms to merge or share overheads, “No matter what the end result is going to be while the locum service and free employment in relation to PII this year, the PII Task Force will register on the Society’s website have been remain in place. Insofar as is possible, we must firstly experiencing increases in the number of legal jobs examine the reasons for the difficulties that arose and advertised – the first increase since September look at implementing quite significant changes in the 2008.” manner in which we, as solicitors, run our offices. Risk management must become part and parcel of our Looking back practice management skills. Secondly, we must also What would he like to be able to say about his year ensure that we are never held out as hostages to the as president when it’s completed? insurance companies again. How that is going to be “I think there are two obvious challenges that achieved is still an open question.” face me as president. In relation to PII, in my view it Gerard believes strongly that the impact of Lynn is resolvable and solvable. It is a question, however, and Byrne has had very little to do with the current PII of whether or not it can be done within the year, but difficulties. “The reason for the difficulty in obtaining I certainly intend to try. PII cover with the insurers is nothing more than the “In relation to the economic challenge – well, huge increase in the number of claims. It really is as that indeed is a much greater difficulty. Before the simple as that, and I believe that solicitors will have profession can feel any benefits, there has got to be to take a different view in relation to matters like risk an improvement in the economic situation. That management.” hopefully will start in 2010, but the benefits could He believes that the filling out of the proposal forms take some time to filter down to our members. this year has exposed weaknesses in large numbers of “People are inclined to sympathise with me firms. “We have to look and see why there has been on becoming president at a particularly difficult such an increase in the number of claims. We must time but, as a Society, we need to confront these get as much information as we can from the insurers challenges and look for new and innovative ways to and the Solicitors Mutual Defence Fund to discover meet them and resolve them. If we don’t, we will precisely the nature of the claims that have arisen, just be overwhelmed by the enormity of it and do and then seek ways to ensure that this doesn’t happen nothing. Any successes we have had to date may be again,” he says. small – but they’re a start.” G

www.lawsocietygazette.ie 23 Law Society Gazette DECEMBER 2009 company law House of cards The recent Supreme Court judgment on the Zoe Group case provides significant practical guidance and clarification on the current thinking of the courts when considering a petition to appoint an examiner. Andreas McConnell and Aillil O’Reilly survey the site

he recent judgment of the Supreme Court, appointed – there is, in addition, a judicial discretion. delivered on 14 October 2009 by Denham The judgment of Fennelly J in Gallium was cited in J, brought the final curtain down on the the Zoe Group petitions. That judgment held that a series of applications and appeals brought judicial discretion to appoint an examiner according by a group of companies controlled by to all the circumstances is “triggered” by the Twell-known property developer Liam Carroll (the establishment of a reasonable prospect of the survival Zoe Group) for the appointment of an examiner to of the company as a going concern – that is, satisfying the Zoe Group. Though it is arguable that little new the test did not establish an entitlement to enter into law was created in the Zoe Group petitions, with the examinership. This judicial discretion was further benefit of two written High Court and two written investigated in the judgment of Kelly J in the High Supreme Court judgments, significant practical Court in refusing the first petition made by the Zoe guidance and clarification has been provided to Group for the appointment of an examiner. In that the profession, giving a clear insight to the current judgment, considerable focus was attached to the fact approach and thinking of the courts when considering that the proposed scheme of arrangement involved a petition to appoint an examiner. a restructuring of bank debt and a moratorium While the process of examinership may often be on capital payments being accepted by creditors considered to be the preserve of the large corporation and approved by the court. Kelly J noted that the (and the gargantuan levels of debt, together with proposed scheme “is most unusual, in that it does not the presence of a ‘who’s who’ list of lenders, placed require any investment in the companies or a write the Zoe Group petitions squarely in the big-ticket down of the debts”. bracket), it is projected that there will be in excess Indeed, Kelly J confirmed in his judgment that, of 14,000 corporate insolvencies in the state this even if the company had satisfied the statutory year and the vast majority of these insolvencies test (that is, demonstrated that the company had a will be SMEs. Obtaining some advice on the law reasonable prospect of survival), he would have been of examinership will be relevant to many of these disinclined to exercise his discretion to appoint an SMEs (even if that advice is to dismiss examinership examiner in favour of the petitioners. Among other as an option), and it is in this broader context to the reasons, he stated: “It is clear that there is something profession that this article investigates how the law artificial about what is involved here. The only on examinership has been further clarified with the creditors are banks. They will be able to take steps to benefit of these recent judgments. realise their debts and deal with the property. They will wish to maximise the return on that and thus can main points Grounds for appointing an examiner be expected to enhance the properties’ values as they • Process of The statutory test for the appointment of an examiner see fit with a view to obtaining a greater realisation. examinership is well known to most practitioners, and it is set out They have already behaved in this way.” • Practical in section 5(b) of the Companies (Amendment) (No 2) This judicial discretion was given further guidance and Act 1999, which amends section 2(2) of the Companies clarification by Murray CJ on appeal in the Supreme clarification (Amendment) Act 1990. The test established by that Court, where he stated that “mere assertions on • Duty on a section is: behalf of a petitioner [including it would follow, petitioning “The court shall not make an order under this the opinion of an independent accountant] that a company section unless it is satisfied that there is a reasonable company has a reasonable prospect of survival as a to present prospect of the survival of the company and the whole or going concern cannot be given significant weight all relevant any part of its undertaking as a going concern.” unless he is supported by an objective appraisal of information A company satisfying this statutory test does the circumstances of the company concerned and not, however, acquire a right to have an examiner an objective rationale as to the manner in which the

24 www.lawsocietygazette.ie company law Law Society Gazette DECEMBER 2009 House of cards

End of an era for Zoe Developments? company can be reasonably expected to overcome particularly in Dublin ... is grossly over-subscribed. the insolvency in which it finds itself and survive as a The residential sector is hardly moving at all.” Little going concern.” or no evidence had been presented to him to form Both judgments firmly underline the established this view. principle of judicial discretion. It is clear that the The decision of Clarke J in the second Zoe Group test upon which this judicial discretion is now examinership petition clarified the approach of the based involves a detailed practical and commercial court to evidence placed before it. Clarke J stated assessment of the actual prospects for survival of the that the courts were very familiar with estimating the company, based upon the evidence supplied to the likelihood of future events when assessing damages court and the court’s interpretation of this evidence in in common law actions. He characterised this as an the prevailing economic climate. In Kelly’s judgment, objective appraisal of the relevant evidence. he commented that the “commercial market, Clarke J also focused on the timescale for a plan

www.lawsocietygazette.ie 25 Law Society Gazette DECEMBER 2009 company law

PRACTITIONERS SHOULD NOTE... In summary, in advising any client in connection with a survival of the company in question, possible examinership, practitioners should note: • Consent of creditors/third parties – if an argument • Judicial discretion – the threshold of the level of is going to be made that creditors are supporting an scrutiny has been raised by the courts, application, then obtain their written support – tacit • Independent accountant’s report – must support may not be sufficient, demonstrate a rigorous independent verification of • Present all information – failure to do may constitute facts and interrogation of the actual prospects of an abuse of the courts.

to restore a company’s fortunes. He held that there It is clear that, in parallel with the increased rigour was no strict cut-off, that the relevant timescale with which the courts will scrutinise a petition for the was that which was reasonable based upon all of the appointment of an examiner, the courts expect and facts. In doing so, he commented that the aim of the demand the independent accountant to do likewise. legislation is to save ailing companies, not to achieve It is not sufficient for the independent accountant a more orderly winding up of insolvent enterprises. to simply accept assumptions or projections on face From a practical perspective, the threshold of the value; they must be independently analysed and test has been raised, as the courts will now subject the verified. If the independent accountant does not contents of reports submitted as part of a petition to possess the expertise to do this, then it is advisable a more rigorous and commercial practical assessment that an independent expert be retained by the of whether a company has a reasonable prospect independent accountant to do so. of survival in the prevailing economic climate. The message here for practitioners is that, Practitioners should take note of this development. where a series of scenarios or facts or predictions are presented to an independent accountant, the Independent accountant’s report independent accountant must demonstrate that he In the judgment of Kelly J, as endorsed by the has independently interrogated/verified such facts Supreme Court, it was noted that the independent if the report of the independent accountant is to be accountant’s report: considered positively by the court. a) Was based upon certain assumptions that formed part of a business plan (which was not furnished to Confirmed support of creditors the court), and Significant importance was attached by the petitioner b) Referred to certain property valuations that in the first Zoe Group petition to the fact that various had been prepared some time in advance of the lenders to the group of companies had agreed to application (and which were not furnished to the impose a moratorium on interest repayments due to court). such lenders (ACC Bank being the exception). It was argued that such forbearance constituted ongoing Kelly J took issue with the fact that the independent support for the companies and that such action accountant had not independently verified the “speaks louder than words”. assumptions of the business plan, nor the valuations The Supreme Court, however, found that there upon which it was predicated. In his judgment, Kelly was no evidence of any commitment by any bank to J stated that “there is no evidence of any independent continue to provide financing in the future for the view being formed by him [the independent day-to-day operations of the Zoe Group. It further accountant] or of him consulting with anybody else”. found that the “relevant fact is that the basis on which In the Supreme Court, Murray CJ noted that the the banks support the petitioner’s application has not independent accountant expressed “no view as to the been articulated to the court, and no opinion has been reasonableness” of certain projections that formed expressed on their behalf that the appointment of an part of the report of the independent accountant, “or examiner could reasonably be expected to result in the about the assumptions upon which they are based”. survival of the company as a going concern”. Following the theme of increased scrutiny, it is clear that tacit support may not be sufficient, and a clear consent (which can be easily obtained by letter look it up of ‘in principle’ support) by a bank or other creditor Cases: to any company considering examinership should • Re Gallium Ltd ([2009] 2 ILRM II) always be obtained. Legislation: • Companies (Amendment) Act 1990, section 2(2) Present all information • Companies (Amendment) (No 2) Act 1999, It is well known that the Zoe Group case involved section 5(b) the issuing of two High Court petitions for the appointment of an examiner and that additional

26 www.lawsocietygazette.ie company law Law Society Gazette DECEMBER 2009

evidence was presented to the court in the making the ‘overriding situation’ was determinative of the of the second petition (including the business plan issue, it would mean that petitions could be presented and the valuations referred to earlier in this article). routinely as a dry run. Then, having got a negative The court accepted that the reason behind the failure decision from a court, essentially an advice on proofs, to provide all of the relevant evidence in the first a second petition, and indeed further subsequent application was contrary to legal advice provided petitions, could be brought and legitimised by the to the petitioner by his representative team, and ‘overriding consideration’.” the High Court held that there was no malevolent The judge ultimately noted that the petitioner attempt to conceal the matters from the court with a had the opportunity to present its case for the view to misleading it. appointment of an examiner on the hearing of the The question that was first considered by Cooke first petition and to present all documents to the J in the High Court, and subsequently by Denham court at that stage. It was further noted that there J in the Supreme Court, was whether allowing the was a procedure to present documents that were presentation of the second petition constituted an commercially sensitive to the court, but that this had abuse of the courts by the petitioner. not been availed of by the petitioner. Ultimately, In the High Court, Cooke J – having considered Denham J found that “to take a deliberate strategic all of the facts presented to him – determined that decision to withhold evidence from the court the second petition could proceed on the basis of an (contrary to legal and financial advice), then moving “overriding consideration”. The High Court stated: the first petition for the protection of the companies “In the final result, however, the court’s view is that by the appointment of an examiner, and, having lost, the overriding consideration in this situation must to seek then to go again with fundamentally the same be the legislative objective of securing, if feasible, petition but this time with the previously withheld the interests of the creditors, the employees, of evidence, is an abuse of the court’s process”. those doing business with the companies, and of the Consequently, the presentation of the second economy as a whole by investigating any reasonable petition was disallowed, and there ended the prospect of survival of the enterprise in whole or in entire process. The very clear direction given to part.” practitioners in this judgment is to present all This ‘overriding consideration’ argument was evidence available at the making of the petition. G overturned in the Supreme Court in order to avoid multiple petitions. Andreas McConnell is a partner in Philip Lee Solicitors Denham J stated: “There is a duty on a petitioning and head of its insolvency and restructuring group, and company to present all relevant information to the Aillil O’Reilly is a practising barrister and contributing court. The petitioner has failed to present relevant editor to Lyndan MacCann and Thomas B Courtney’s information in the first petition.” She continued: “If Companies Acts.

www.lawsocietygazette.ie 27 Law Society Gazette DECEMBER 2009 liquor licensing

1 Bourbon 1 Scotch 1 Beer The Intoxicating Liquor Act 2008 made significant changes to the area of intoxicating liquor licensing in the District Court. Karl Dowling and Brendan Savage get a round in

he enactment of the Intoxicating Liquor The procedure for making an application for an Act 2008 made significant changes in the off-licence to the District Court under order 68 is as area of intoxicating liquor licensing in follows. the District Court. In particular, sections An application for a new off-licence must be 6, 7 and 8 of the act relate to (a) new preceded by the issue of a notice stating the intention Tprovisions concerning the grant of new wine retailers’ of the applicant to make the application. The notice off-licences, (b) the grounds on which the District should take one of the Forms 68.1 to 68.5 in the Court may refuse to grant a certificate in respect appendix of forms to the District Court Rules and of a new relevant off-licence, and (c) provisions must be signed by the solicitor for the applicant. The concerning the enlargement of the District Court’s notice should set out the following details: licensing jurisdiction. • The name, address and place of residence of the applicant. Red wine and whiskey • The nature of the licence for which the applicant Order 68 of the District Court Rules provides for requires a court certificate. main points the making of applications to the District Court • The exact location of the premises – that is, city • Liquor licensing for off-licences. Traditionally, however, the or town, street, house number, etc – where the in the District District Court would only entertain applications applicant intends to carry on the business. Court for spirit retailers’ off-licences and beer retailers’ • In circumstances where the applicant has • New wine off-licences; an application for a wine retailer’s off- previously held licences for the sale of wine, spirits retailers’ off- licence was previously made directly to the Revenue or beer etc, full particulars shall be given in respect licences Commissioners. However, section 6 of the 2008 act thereof. (If the applicant has held a licence as a • Grounds of now provides that a new wine retailer’s off-licence spirit grocer or beer retailer within the two years refusal and the shall not be granted except pursuant to a certificate preceding the application, the notice shall give full grant of off- issued by the District Court. particulars of the premises in respect of which the licences Section 6 states: “The Revenue Commissioners applicant held the said licence. Also, see section • Special and shall not grant a new wine retailer’s off-licence to a 4 of the Beer Houses (Ireland) Act 1864; where the general person unless a certificate is presented to them which applicant has held a licence for the sale of wine, exemption has been received by the person from the District spirits, beer etc, at any previous time, the notice orders Court and which entitles the person to a wine shall set forth the last place of business where such retailer’s off-licence.” intoxicating liquor has been sold.)

28 www.lawsocietygazette.ie liquor licensing Law Society Gazette DECEMBER 2009

1 Scotch 1 Beer

145 bottles of beer on the wall • In relation to an application for a beer retailer’s • The character, misconduct or unfitness of the off-licence, the notice should set out the annual person, rateable valuation of the premises (section 2 of the • The unfitness or inconvenience of the premises, Beer Licences Regulation (Ireland) Act 1877). • The unsuitability of the premises for the needs of persons residing in the neighbourhood, or It is important to note that, in circumstances where • The adequacy of the existing number of the application for a new wine retailer’s off-licence licensed premises of the same character in the is successful, the applicant will be required to apply neighbourhood. to the Revenue Commissioners for the licence itself. This must be done within one year of the granting It will, of course, be open to the applicant to of the District Court order. On the expiration of demonstrate to the court and to satisfy the court each off-licence (under the Finance Act (1909-1910) accordingly that he or she is a suitably qualified 1910, each licence shall expire on 30 September person to hold a liquor licence. The applicant should each year). Renewal applications are made directly to also demonstrate a willingness to comply with the the Revenue Commissioners, but only in the absence relevant licensing laws. In relation to the premises of any objection by the gardaí (section 7(5) of the and place of business, the applicant will be required 2008 act). to satisfy the court that the premises are fit and Furthermore, the applicant must produce to the convenient to be licensed and are suitable for the Revenue Commissioners a current tax clearance needs of persons residing in the neighbourhood. certificate and, where appropriate, either a certificate Furthermore, the court will require the applicant to of incorporation pursuant to section 370(1)(b) of the submit plans or a map of a premises, which should Companies Act 1963 or a certificate of registration include: under section 16(1)(b) of the Registration of Business • A location map indicating the precise position of Names Act 1963. the premises in relation to neighbouring premises, • A site plan, Beer drinkers and hell raisers • Floor plans, Pursuant to section 7(1) of the 2008 act, the District • Elevations, and Court may refuse to grant a person a certificate • The area proposed should be delineated with a red entitling him or her to receive a new off-licence in verge (see Re Brannigan (1947) and Application to respect of premises on the grounds of: Terence J Maguire (1963).

www.lawsocietygazette.ie 29 Law Society Gazette DECEMBER 2009 liquor licensing

One Bourbon, one Scot, one bear

Pursuant to section 7(2) of the 2008 act, the District Order 68 of the District Court Rules was Court is empowered to impose conditions on the amended by the District Court (Intoxicating Liquor grant of a certificate, relating specifically to the Act 2008) Rules 2009, which came into operation on installation, use and operation of a 25 May 2009. closed-circuit television system in respect of the premises concerned. Whiskey in the jar Furthermore, the section states that a Order 71 of the District Court Rules failure to comply with such conditions “Notice of the concerns the grant by the District shall relate to the good character application for Court of special exemption orders of the licensee for the purpose of a within the meaning of the Intoxicating renewal under the Courts (No 2) Act the grant of Liquor Act 1927, as amended by the 1986. a certificate Intoxicating Liquor Act 2003 and further amended by the Intoxicating Champagne supernova should be Liquor Act 2008. Section 10 of the Section 7(3) of the 2008 act provides published in 2008 act now prescribes further that, at the hearing by the District conditions that may be attached to Court of an application to give a a newspaper the grant of special exemption orders person a certificate entitling him or circulating in a under order 71 of the District Court her to receive a new relevant off- Rules and must be read in light of the licence in respect of a premises, place in which 1927 and 2003 acts. The amended (a) the garda superintendent within the premises section 5 of the 1927 act states that whose district the premises are situate special exemption orders shall contain and (b) any person who resides in the concerned are the following conditions: neighbourhood may object to the situate, at least i) That intoxicating liquor shall not application and, for that purpose, may be sold at the event, function or dance appear and give evidence. 21 days before to which the order relates during the Accordingly, the garda the day of the hours specified in the order to persons superintendent within whose district other than those attending the event, the premises are situate must be put hearing of the ii) That members of the public, other on notice of the application at least application” than persons so attending, shall not be 21 days prior to the date of hearing of admitted to the part of the premises the application. It is also noteworthy in which intoxicating liquor is being that notice of the application for supplied or consumed pursuant the grant of a certificate should be to the order, published in a newspaper circulating in a place iii) That the event, function or dance is held in in which the premises concerned are situate, at compliance with the relevant provisions of least 21 days before the day of the hearing of the the definition of ‘special occasion’ in application. subsection (1),

30 www.lawsocietygazette.ie liquor licensing Law Society Gazette DECEMBER 2009

look it up Cases: • Courts (No 2) Act 1986 • Application to Terence J Maguire (unreported, • District Court Rules, orders 68, 71 and 72 High Court, Murnaghan J, 4 April 1963) • District Court (Intoxicating Liquor Act 2008) • Re Brannigan ([1947] 13 Ir Jur Rep 1) Rules 2009 • Finance Act (1909-1910) 1910 Legislation: • Intoxicating Liquor Acts (1927, 1960, 1962, • Beer Houses (Ireland) Act 1864, section 4 2003 and 2008) • Beer Licences Regulation (Ireland) Act 1877, • Private Security Services Act 2004, section section 2 2(1) • Building Control Act 1990 • Registration of Business Names Act 1963, • Companies Act 1963, section 370(1)(b) section 16(1)(b) iv) That, in the case of a special occasion which does Order 72 of the District Court Rules concerns the not fall within paragraph (a)(ii) of the definition grant by the District Court of general exemption of ‘special occasion’ in subsection (1), a closed- orders within meaning of the Intoxicating Liquor circuit television system be in operation on the Acts of 1927, 1960, 1962 and 2008. Section 5 of premises concerned during the course of the the 2008 act further amend section 4 of the 1927 special occasion, act and, among other things, prescribes that no v) If subparagraph (iv) is applicable but the premises general exemption orders shall be granted in concerned do not have a closed-circuit television respect of premises unless a general exemption system installed in them, that a closed-circuit order was in force in respect of the premises on television system be installed in them for the 30 May 2008. purposes of that subparagraph, and Section 5 of the 2008 act states: “Section 4 (as vi) That any person providing, in respect of the amended by section 10 of the act of 1960) of the event, function or dance, a security service as a act of 1927 is amended (a) in subsection (1), by door supervisor, within the meaning of section substituting ‘Subject to the other provisions of this 2(1) of the Private Security Services Act 2004, be section, the’ for ‘The’, and (b) by substituting the the holder of a licence required under that act to following for subsection (7): provide such service. ‘(7) No general exemption order shall be granted a) In respect of premises unless a general Cigarettes and alcohol exemption order was in force in respect of the The practitioner should be aware that conditions premises on 30 May 2008, or (i) to (vi) above should not be considered to be an b) For any time on any Sunday or Saint Patrick’s exhaustive list, with the amended section 5(4)(b) of Day, Christmas Day or Good Friday’.” the 1927 act conferring on the court jurisdiction to impose such other conditions as it may think proper. The above amendments to the District Court Rules Section 5(6) of the 1927 act, as inserted by section allow for the practical application of the relevant 10 of the 2008 act, now states that the court shall provisions of the Intoxicating Liquor Act 2008. In not grant a special exemption order in respect of any particular, the new powers conferred on the District premises unless it is satisfied that: Court to attach specific conditions to the granting a) The premises comply with the fire safety standards of off-licences will be of some significance to under the Building Control Act 1990 applicable to practitioners advising their clients as to their duties such premises, and and obligations in the context of compliance with the b) The special occasion will be conducted in a manner new provisions. G that will not: i) Cause undue inconvenience or nuisance to Karl Dowling and Brendan Savage are practising persons residing in the locality, or barristers and the authors of the recently published Civil ii) Create an undue threat to public order or public Procedure in the District Court (Thompson Round safety in the locality. Hall).

www.lawsocietygazette.ie 31 Law Society Gazette DECEMBER 2009 family law

Disputes over the relocation of children are a by-product of travel, technology, and a smaller world. But recession is also a factor, and courts in all jurisdictions are seeing increasing applications as a result of job-seeking in other jurisdictions. Marion Campbell phones home

arental disputes over the relocation I am satisfied, extend for the situation for a father of of children are a relatively modern a child conceived as a result of a casual intercourse, phenomenon. They are a by-product of where the rights might well be so minimal as travel, technology, lowered frontiers and practically to be non-existent, to the situation of a the world becoming increasingly smaller. child born as the result of a stable and established PRecession is also a factor, and courts across all relationship and nurtured at the commencement of jurisdictions are seeing increasing numbers of his life by his father and mother in a situation bearing applications being brought before them in relation to nearly all of the characteristics of a constitutionally- relocation issues as a result of families job-seeking in protected family, when the rights would be very other jurisdictions. extensive indeed.” Judges and child custody evaluators often look on relocation issues as the most difficult to resolve. Letter from America There is a dearth of Irish case law to guide Father and son practitioners in this jurisdiction in terms of advising In this jurisdiction, the starting point for any parties seeking or opposing an application for consideration of an application for relocation to relocation of their children. change the residence of children must be pursuant to The leading authority on the point in this section 11(1) of the Guardianship of Infants Act 1964 jurisdiction is a decision of Flood J in the 1992 (as amended) and, in particular, section 3, which High Court case of EM v AM. In that case, the provides: “Where in any proceedings before the court applicant mother, who was an American woman, Wherever I lay my hat

the custody, guardianship or upbringing of a child met and married the respondent father in 1983. is in question, the court in deciding that question They lived in Dublin as a family with the applicant’s shall regard the welfare of that child as the first and child from a previous relationship and had another paramount consideration.” child together in 1986. The marriage broke down, In considering the welfare of the child, consid- resulting in the respondent father leaving the home eration by the court must be given to a variety of in or about July 1987. Arrangements were entered factors. into vis-à-vis parenting. The respondent husband In the 1990 High Court case of K v W, Finlay CJ, enjoyed regular weekend and midweek access to the delivering the judgment for the majority in a case child. concerning the position of an unmarried father in These arrangements ultimately broke down. relation to his child, held: “The blood link between The applicant then applied to the court and sought the infant and the father and the possibility for the leave to remove the parties’ child to America on the infant to have the benefit of the guardianship by, and basis that she had secure employment there with the society of, its father is one of the many factors accommodation provided by her parents, and that which may be viewed by the court as relevant to its she would forward generous access to the respondent main points welfare.” husband. The respondent rejected this application • Relocation The conclusions in K v W were applied in the and argued that the child was well settled in Ireland applications subsequent Supreme Court decision in the 1996 case and enjoyed a very good relationship with their • Welfare of the of WO’R v EH, where Hamilton CJ approved the extended family. child words of Finlay CJ in K v W to the following effect: Flood J, in determining whether or not to grant • Irish case law “The extent and character of the rights which accrue the application, set out a list of factors to which the • Situation in arising from the relationship of a father to a child court “must” have regard: England and to whose mother he is not married must vary very 1) Which of the two (hypothetical outcomes) would Wales greatly indeed depending on the circumstances of provide the greater stability of lifestyle for the each individual case. The range of variation would, child,

32 www.lawsocietygazette.ie family law Law Society Gazette DECEMBER 2009

Wherever I lay my hat

2) The contribution to such stability that would be made an order appointing the father as joint guardian provided by the environment in which the child will and joint custodian of three children, with primary reside, with particular regard to the influence of (his/ care and control to the children’s mother. Before that, her) extended family, the mother was the sole guardian and the father’s 3) The professional advice tendered, applications in that regard to become guardian had not 4) The capacity for, and frequency of, access by the been successful. non-custodial parent, The court had further ordered that the children 5) The past record of each parent in the relationship be allowed to take up residence with their mother with the child, insofar as it impinges on the welfare in England. A detailed order was made in relation of the child, and to custody/access. By notice of appeal, the applicant 6) The respect in terms of the future of the parties to father appealed the part of the judgment in relation orders and directions of this court. to the relocation of the three dependant children. The court, in considering matters, looked at a strong Ultimately, it would appear that Flood J was swayed line of authorities from Britain and, in particular, the by expert evidence and concluded that the applicant 1970 decision of Poel v Poel and the 2001 decision of was in a better position to offer the child stability of Payne v Payne. The court, in making its decision, was environment, and leave to remove the child from the of the view that the welfare of the children and of their jurisdiction was duly granted on terms. mother, who had constituted a unit since 2003, was of paramount importance. Where do the children play The court believed in this case that the welfare of The most recent judgment in the Irish courts pertinent the children was best served by all three remaining with to relocation of children is a judgment of Mr Justice the mother, the primary carer. The court confirmed Roderick Murphy, delivered on 15 May 2009, in KB the order made by the Circuit Court regarding the v LO’R. This arose out of an appeal from a Circuit children moving to England. The court took on board Court judgment. In that case, the Circuit Court had the line of authority in the English courts dealing

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family law Law Society Gazette DECEMBER 2009

opposition. Is it motivated by the genuine concern look it up for the future of the child’s welfare or is it driven by Cases: some ulterior motive? What would be the extent • EM v AM (High Court, 1992, unreported) of the detriment to him and his future relationship • K v W (1990 2IR437) with the child were the application granted? To what • KB v LO’R (2009 IEHC 247) extent would that be offset by extension of the child’s • Payne v Payne (Britain, 2001 2WLR; 2001 relationship with the child’s maternal family and FLR1052; 2001 FAM473) homeland? • Poel v Poel (Britain, 1970 WLR1469) c) What would be the impact on the mother, either as • W v R (Family Court of Australia [2006] 35) the single parent or as a new wife, of a refusal of her • WO’R v EH (1996 2IR248) realistic proposal? d) The outcome of the second and third appraisals Legislation: must then be brought into an overriding review of • Guardianship of Infants Act 1964 (as amended) the child’s welfare as the paramount consideration directed by the statutory checklist insofar as appropriate.” with relocation of applications. The line of authority as adopted by the English courts was consistent with The judgments in Payne considered specifically two the requirements of section 3 of our Guardianship of categories of cases in which the court recognised Infants Act 1964 – the welfare of the children being of that the proposed relocation was consistent with the paramount consideration. welfare of the child. The first category was that of the repatriating mother, whose only attachment to England Land of hope and glory came with the marriage and went with its breakdown. The leading authorities in England and Wales on The second category was that of the mother who the standard to be applied in relocation cases are the was married again to a man whose roots and whose decisions of the Court of Appeal in Poel v Poel (1970) employment must take him to some other jurisdiction. and Payne v Payne (2001). Recently, it has been suggested that a third category In Poel, the applicant’s mother wished to emigrate to is emerging, which has been labelled ‘the lifestyle- New Zealand with her husband (whose job prospects choice category’. Clearly, in a lifestyle-choice case, the were better there), together with the parties’ infant applicant faces a harder task in satisfying a judge that son. The respondent father paid maintenance and had the refusal of his/her application would profoundly been enjoying regular weekly access. The Court of destabilise his/her emotionally and psychologically. Appeal overturned the decision of the trial judge, who The paramount consideration across all relocation had initially refused the leave sought, on the basis that applications is the child’s welfare. the plan would cut off contact between the boy and the respondent father. In the hearing by the Court of Hard lessons Appeal, Sachs LJ stated: “The court should not likely An extremely comprehensive review of Australian, interfere with such a reasonable way of life as is selected English, New Zealand, US and Canadian authorities by that parent to whom custody had been rightly in relocation cases were conducted by Carmody J in given. Any such interference may produce considerable the Family Court of Australia in the case of W v R. strains, which would not only be unfair to the parent Analysing the authorities, Carmody J noted that there whose way of life is interfered with but also to any new was a presumption in favour of relocation in the US; marriage of that parent. In that way, it might well in the New Zealand and Canadian courts tended to resist due course reflect on the welfare of the child.” it; while, in England, the child’s welfare was seen as Payne was an appeal against a High Court decision best being served by allowing mothers to chose the acceding to a mother’s application to remove a child geographical proximity between the children and their born to the parties during the marriage (which had father, based on the theory that a happy mother meant subsequently broken down) to her home country of a happy household. If the only way that this could be New Zealand in order to live there. In considering achieved was at the expense of contact with the father, that appeal, Thorpe LJ set out a four-stage test in then regretfully that is how it had to be. determining relocation applications: The gravity of relocation applications for all the a) “Is the mother’s application genuine in the sense individuals concerned is not to be underestimated. that it is not motivated by some selfish desire to The best outcome for any family involved in such exclude the father from the child’s life? Then ask, is applications must be resolution by agreement rather the mother’s application realistic, by which I mean than by court order. Litigation procedures should founded on practical proposals both well researched require a judge to consider and, if appropriate, to direct and investigated? If the application fails either of mediation at a very early stage before positions are these tests, refusal will inevitably follow. hardened and proceedings take over. G b) If, however, the application passes these tests, then there must be careful appraisal of the father’s Marion Campbell is a solicitor specialising in family law.

www.lawsocietygazette.ie 35 Law Society Gazette DECEMBER 2009 people and places ‘A scene well set and excellent company’ he above was the line Marie Heaney had never been Tfrom WB Yeats, quoted by to Blackhall Place before. His Seamus Heaney in his letter status as Ireland’s greatest living accepting on behalf of his wife, writer was established beyond Marie, and himself an invitation doubt when, in 1995, he joined to a very special dinner in with literary icons WB Yeats, Blackhall Place on 29 October George Bernard Shaw and 2009. The guest of honour was Samuel Beckett as the fourth the President of Ireland, Mary Irish winner of the Nobel Prize McAleese, accompanied by her for Literature. husband, Dr Martin McAleese. Earlier this year, Heaney This was the third time in her celebrated his 70th birthday. 12 years in office that President The number of birthday parties McAleese had been a guest of held in honour of the poet in the Law Society for dinner. different parts of the world We would like to have her as President McAleese and Seamus Heaney were welcomed to Blackhall was estimated by his wife as a guest every year, but given Place by then Law Society President John D Shaw about eight so far. An excellent the extraordinary demands on hour-long portrait of the man her time – resulting from her and his work appeared on RTÉ continuing immense popularity television entitled Out of the and her tireless devotion to duty Marvellous. – this is not possible. When director general Ken President McAleese has Murphy, a fan of Heaney’s work been a strong supporter of the for decades, revealed that in the Society and its work, however. 2006 Annual Report of the Law She opened the Society’s new Society he had structured his Education Centre on 2 October report around, and concluded 2000, and she again visited with a quote from, Heaney’s Blackhall Place on 30 April poem Postscript, the poet kindly 2004 to welcome to Ireland the expressed himself pleased to presidents of the law societies hear it. He said he was always of the ten new member states The poet and the director general swap verses pleased when he discovered formally joining the European “poetry breaking out beyond the Union at ceremonies held members and staff to celebrate executives of law societies in circle of poetry readers and into in Dublin during the Irish the 150th anniversary of the 50 jurisdictions around the the grit of the world”. presidency on 1 May 2004. Society’s Charter in October world, who were in Dublin for It was, truly, a very special, In addition, she hosted a 2002. As recently as 1 October the CEEBA and IILACE joint ‘marvellous’ evening. One to reception in Áras an Uachtaráin 2009, she very graciously conference. “catch the heart off guard and for Law Society Council welcomed to the Áras the chief By contrast, Seamus and blow it open”.

At the dinner in Blackhall Place were (front, l to r): Dr Martin McAleese, Seamus Heaney, President Mary McAleese, then president John D Shaw and Marie Heaney; (back, l to r): Yvonne Chapman, then senior vice-president Gerard Doherty, Eileen Shaw, director general Ken Murphy and deputy director general Mary Keane

36 www.lawsocietygazette.ie people and places Law Society Gazette DECEMBER 2009 ‘A scene well set and excellent company’

Gathering of West Cork clan in Clonakilty The West Cork Bar Association met at Dunmore House Hotel, Clonakilty, on 2 November 2009, where the special guests were the president of the Law Society and the director general. (Front, l to r): Roni Collins, Richard Barrett (president, WCBA), John Shaw (then president of the Law Society), Ken Murphy (director general), Lorna Brooks and Veronica Neville. (Back, l to r): Jim Brooks, Karen Crowley, Shane McCarthy, Emma O’Brien, Frank Purcell, Paul O’Sullivan, Michael Purcell, Ray Hennessey, Myra Dineen, John Flynn, Michelle Corcoran and Diarmuid O’Shea

Meeting of minds in Meath At the Meath Bar Association meeting with the president of the Law Society and director general in the Knightsbrook Hotel, Trim, on 27 October 2009 were (front, l to r): Vincent O’Reilly, James Martin, Helen McGovern (president, MBA), Gerard Doherty (then senior vice-president), John D Shaw (then president of the Law Society), Ken Murphy (director general), Anthony Murphy, Katie Barbour (secretary, MBA) and Cora Higgins. (Centre, l to r): James Walsh, Martina Sheridan, Claire Keaney, Esmond Reilly, Oliver Shanley, Joseph Curran, Elaine Murtagh and Annie Walsh. (Back, l to r): Brendan Steen, Kevin Martin, Pat O’Reilly, Declan Brooks, Adrian Shanley, Paul Brady, Ronan Regan and Paul Moore

PII and the economy raised at SLA AGM P ic : D ee B a u mann he AGM of the Southern Law Association (SLA) enjoyed its Tusual large attendance and was held at the Cork premises of the Law Society of Ireland on 3 November 2009. The meeting was presided over by the outgoing president, Mortimer Kelleher, with the special guests being then President of the Law Society John D Shaw and director general Ken Murphy. The SLA president pointed out that the year had been dominated by the vexed question of professional indemnity insurance, the plight of the sole practitioner and large-scale unemployment – and how the profession was endeavouring to deal with all these issues. Outgoing Law Society President John D Shaw spoke on PII, re-skilling, the Society’s radio advertising campaign and the regulation/representation dichotomy. The last two issues provoked much discussion and debate. Ken Murphy spoke about (Front, l to r): Law Society President John D Shaw, Fiona Twomey, Don Murphy, the case of O’Brien v Piab. Mr Kelleher paid particular tribute to Mortimer Kelleher (president, SLA) and Ken Murphy (director general). (Second vice-president Gail Enright and wished the incoming president row, l to r): Sean Durcan, Joan Byrne, Eamon Murray, Gail Enright and Pat Mullins. (Third row, l to r): Fergus Long, John Sheehan and Peter Groarke. Eamon Murray and vice-president Fergus Long success for the (Back, l to r): Eamon Harrington, Jonathan Lynch and Terry O’Sullivan coming year.

www.lawsocietygazette.ie 37 Law Society Gazette DECEMBER 2009 people and places

Diploma in Commercial Litigation The Diploma in Commercial Litigation conferral ceremony took place on 21 October at Blackhall Place, Dublin. Conferees are pictured with (front, centre) Freda Grealy (diploma manager), Michelle Ní Longáin (chair, Education Committee) and Mr Justice Peter Kelly (High Court) P ic : L ensmen P ic : C onor M c abe /J ason larke hotography

Conference on Civil Partnership Bill 2009 Caroline follows in Dad’s legal footsteps At the Civil Partnership Bill 2009 conference, presented by the Society’s At the parchment ceremony for newly-qualified solicitors at Blackhall Family Law Committee and CPD Focus were: (back, l to r): Paula Fallon, Place on 15 October 2009 were (l to r): Tony Ensor (past-president), Michelle Nolan, Attracta O’Regan, Eoin Collins, Muriel Walls and Rosemary Mr Justice Richard Johnson (then president of the High Court), Caroline Horgan. (Front, l to r): Geoffrey Shannon, Hilary Coveney and John Mee Ensor and Beatrice Ensor

Diploma in Employment Law Conferees are pictured at the conferral of parchments for the Diploma in Employment Law at the Presidents’ Hall, Blackhall Place, on 11 November, with (centre) John O’Connor (vice-chair, Education Committee) and Colin Daly (chair, Human Rights Committee)

38 www.lawsocietygazette.ie people and places Law Society Gazette DECEMBER 2009 Putting the ‘hope’ into Stanhope Street

t’s just past 1pm on a IWednesday, and in room 12 in Stanhope Street girls’ primary school, on Aughrim Street, a dozen or so glamorous young women have 24 seven and eight- year-olds hanging on their every word, writes Colin Murphy. Scattered around the classroom on tiny stools, the women, students of the Law Society, sit at low tables with the girls – books of all shapes and sizes laid out before them. This is the weekly reading club. For almost an hour, the students read to and with the girls, from any book from the class library. Eight-year-old Krithya is reading a Ladybird book called GloCricket. What’s it about? I wonder. “Molligans,” she tells me, and then asks if I have been to the Taj Mahal. Krithya is “When we’re finished the two-way, Antoinette says. For the community around them.” from Tanjore in India, she tells other school, secondary, we’re the girls, in a school officially Of 395 students starting this me, and moved to Ireland last going to college,” says Emma. designated as ‘disadvantaged’, it year, says Murray, a record 305 year. Is it very different? “That’s how you get a job,” provides them with role-models signed up for the volunteer “There’s a lot more shops says eight-year-old Stephanie, for further education – and, more programme, which takes place in than Aughrim Street,” she says. also from O’Devaney Gardens. simply, for reading. six-week blocks. Numbers have Beside her, seven-year- “That’s how you get a good “Research has shown that surged – a sign of a student body old Taylor, from O’Devaney job,” says Taylor. the more contact you have with that is more aware of economic Gardens, explains that the “But you have to be very people who’ve gone on to third hardship and insecurity, she says. women around them are “going smart,” says Emma. level, the more chance you have “They want to be out there, to be lawyers”. “They help of going.” making a contribution.” people convince others that they Role models for reading And for the law students, it The projects are a didn’t do things.” None of these This reading club is one part provides the chance for many of contribution in themselves, but three are interested in being of a volunteer programme run them to gain a new perspective perhaps more importantly, they lawyers: Taylor wants to be a by the Law Society’s Student on disadvantage and social may help the students make beautician, and eight-year-old Development Service, set up problems. more of a contribution in the Emma, from Smithfield, thinks by Antoinette Murray when “They’re not all going to long run, she suggests. she might become a teacher. she arrived at the Law Society be practising in Donnybrook “It makes for a much more “Teachers give stickers out, and as student development officer or Ballsbridge,” she says. “It’s humane profession, and one jellies, and learn you how to eight years ago. important for them to get an that’s far more responsive to write an’ all.” The benefits of the club are insight into what’s going on in what’s happening in society.”

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www.lawsocietygazette.ie 39 Law Society Gazette DECEMBER 2009 parchment ceremonies of their parchments on 25 June 2009 N ewly qualified solicitors at the presentation Dearbhla O’Brien, Eoin O’Connor, David O’Dea, Ciara O’Donovan, Sile O’Dowd, Sarah O’Gorman, Deirdre O’Mahony, Julie O’Neill, Joanne O’Rourke, Celene O’Shaughnessy, Ciara O’Sullivan, Julie O’Neill, Joanne O’Rourke, Celene O’Shaughnessy, David O’Dea, Ciara O’Donovan, Sile O’Dowd, Sarah O’Gorman, DeirdreDearbhla O’Brien, Eoin O’Connor, O’Mahony, Therese Lyne, Conor McClements, Andrea McGurn, Mary Miles, ClaireVicki O’Brien, Blandina Brendan Moran, Denis Moriarty, O’Brien, Fiona Moriarty, Niamh Mulherin, Jennifer Murphy, Peter Callanan, Elizabeth Cass, Lorraine Clifford, Creegan, Geoffrey Morgan Coleman, David Collins, Tara Dillon Leetch, Cian Duffy, Emer Durkan, Emma English, Siobhan Farrell, Sinead Feeney, honour at the 25 June 2009 parchment Aisling Burke, David Sorcha ceremony for newly qualified solicitors: Eva Barrett, Burns, Gerald Byrne, Nicholas Blake Knox, Paul Brady, Katie Byrne, Sarah Flynn, Hilary Siobhan Kirrane, Forde, Ruth Lyndon, Michael Gill, Derek Hegarty, Killian Kehoe, Thomas Kiely, Claire Higgins, Claire Hirst, Louise Howard, Jill Hughes, Linda Hynes, Eoin Kealy, Mr Justice Michael Peart of the High Court, I rish ndependent ) and Ken Murphy (director general) were guests of John D Shaw (then president of the Law Society), Dearbhail McDonald (legal editor, Christina Sauer Dechant, Catriona Savage, Michelle Sheerin, Deirdre Wills and Sheila Young St John, Gareth Steen, Sally-Anne Stone, Trevor Majella Regan, Padraic Roche, Niall Rooney, Susan Quigley,

All photos: Jason Clarke Photography

40 www.lawsocietygazette.ie parchment ceremonies Law Society Gazette DECEMBER 2009 Billie Sparks, Orlagh Toal, David Trethowan and Helena Walsh David Trethowan Billie Sparks, Orlagh Toal, of their parchments on 16 July 2009 N ewly qualified solicitors at the presentation Kelly McGowan, Denise McPhillips, Jason Milne, Alison Mitchell, Aisling Molony, Mary Mullen, Breege-Anne Murphy, Orla Murphy, Mary Mary Orla Murphy, Kelly McGowan, Denise McPhillips, Jason Milne, Alison Mitchell, Aisling Molony, O’Callaghan, Shane O’Donovan, O’Driscoll, Mullen, Breege-Anne Murphy, Caitlín Friel, Elsbeth Gabbett, Roger Geraghty, Shane Geraghty, William Greensmyth, Clare Hannon, Julie-Anne Bronagh Margaret Hardiman, Louise Harrison, Shane Geraghty, Holden, Gavin Hinchy, Caitlín Friel, Elsbeth Gabbett, Roger Geraghty, Rachel O’Halloran, Susan O’Hara, Rory O’Loghlen, Alison O’Mahony, Kerill O’Shaughnessy, James P O’Mahony, Geoffrey Rooney, Deirdre Sheehan, John Sheehy, Jessica Smith, Kevin Geoffrey Deirdre Sheehan, John Sheehy, James P O’Mahony, Rooney, Rachel O’Halloran, Susan O’Hara, Rory Kerill O’Shaughnessy, O’Loghlen, Alison O’Mahony, ceremony for newly qualified solicitors: Michele Barker, Jane Beattie, Louise Bennett, Lucy Boyle, Caroline Brennan, Ken Byrne,ceremony for newly qualified solicitors: Michele Barker, Helen Cahill, Darina Cochrane, Cora Coffey, Gemma Corcoran, Ashling Holden, Daniel Hughes, Lisa Jackson, Aifric Jordan, Sinead Kane, Bobby Kennedy, Edel Kennedy, Paul Kennedy, Lisa Killilea, Jeff Mackey, Colm Manning, Fiona McConnell, David McEvoy, Lisa Killilea, Jeff Colm Manning, Fiona McConnell, David McEvoy, Paul Kennedy, Mackey, Edel Kennedy, Ashling Holden, Daniel Hughes, Lisa Jackson, Aifric Jordan, Sinead Kane, Bobby Kennedy, Mr Justice Richard Johnson (then president of the High Court), John D Shaw (then president of the Law Society) and Ken Murphy (director general) were guests of honour at the 16 July 2009 parchment Rebecca Cotter, Caitriona Cummins, Barry Nicola Doran, Helen Dorris,Rebecca Cotter, James Doyle, Ronan Dunne, Declan Finn, Sarah Fleming, William Foot, Mark Foster, Shane Doorley, Curran, Elizabeth Sarah Divilly,

www.lawsocietygazette.ie 41 Law Society Gazette DECEMBER 2009 parchment ceremonies of their parchments on 27 A ugust 2009 Gillian Sweeney, Deirdre Ryan, James Stokes, Gillian Sweeney, Declan Thomas, Claire Tuohy, Sinead Turner and Karen Walsh Sinead Turner Deirdre Declan Thomas, Claire Tuohy, Ryan,Gillian Sweeney, James Stokes, Gillian Sweeney, N ewly qualified solicitors at the presentation Deirdre Russell, Deirdre Marianne Quill, Gerard Ryan, Quinn, Diane Reidy, Louise O’Riordan, Sean O’Shea, Jennifer L O’Sullivan, Anthony Noel Power, James Stokes, Michelle O’Mahony, Roberto Miller, Clare Mungovan, Michelle O’Connell, Tara O’Connor, Mary O’Connor, Roberto O’Donnell, Cliona O’Donoghue, Finghin O’Driscoll, Mícheál O’Dubhda, Brian O’Keeffe, Gillian O’Leary, Clare Mungovan, Michelle O’Connell, Tara Rhona O’Kelly, Miller, David Carroll, Claire Ann Coleman, Deirdre Costello, Sarah Coughlan, Victoria Creber, Ita Crowley, Peggy Cusack, Sean Daly, Melanie Evans, Kieran David Fitzpatrick, Clare Flavin, Julie Gallwey, Melanie Evans, Kieran David Fitzpatrick, Clare Flavin, Julie Gallwey, David Carroll, Peggy Cusack, Sean Daly, Claire Ann Coleman, DeirdreIta Crowley, Costello, Sarah Coughlan, Victoria Creber, Mr Justice Patrick McCarthy (High Court), John D Shaw (then president of the Law Society), Mortimer Kelleher (president, Southern Law Association), James O’Sullivan (chairman, Education Committee) and Ken Murphy (director general) were guests of honour at the 27 August 2009 parchment ceremony for newly qualified solicitors: Lindsay Ahern, Leo Barry, Bríd Cahill, Megan Breen, Caroline Buckley, Susan Gleasure, Leah Goold, Caroline Jost, Alison Kelleher, Anita Kelly, Patrick J Kiely, Mary Patrick J Kiely, Liddane, Jonathan Lynam, Patrick Martin, Anita Kelly, Susan Gleasure, Leah Goold, Caroline Jost, Alison Kelleher, Claire McCarthy, Bríd McDonnell, Declan McHugh, Elisa McMahon,

42 www.lawsocietygazette.ie parchment ceremonies Law Society Gazette DECEMBER 2009

of their parchments on 3 S eptember 2009 N ewly qualified solicitors at the presentation Lesley Farrington, Michael Fitzgibbon, Catherine Fitzsimons, Julisa Flanagan, Mark Gilligan, Cliodhna Guy, Kate Hallissey, Ciara Hanley, David Hannigan, Lisa Ellen Healy, Caitriona Healy, Caitriona Healy, David Hannigan, Lisa Ellen Healy, Ciara Hanley, Kate Hallissey, Lesley Farrington, Michael Fitzgibbon, Catherine Fitzsimons, Julisa Flanagan, Mark Gilligan, Cliodhna Guy, Emma Jane Hyland, Lorcan Keenan, Leonore Kelleher, Vera Kelly Keane, Sinead Kerin, Ian Knight, Cleo Lambert, Barbara Lydon, Vera Emma Jane Hyland, Lorcan Barry Leonard Keenan, Leonore Leader, Kelleher, Lynam, Aideen Mawe, Declan McBride, parchment ceremony for newly qualified solicitors: Caroline Austin, Timothy Brennan, Billy Brick, Eoghan Browne, Martin Browne, Angela Byrne, David Callinan, Ellen Campbell, Niamh Charlton, Madeleine McDonnell, David McKechnie, Sarah-Jane Mulcahy, Micheál Mulvey, Declan Murphy, Gemma Neylon, Aoileann Ní Dhúill, Emer O’Hora, Emma O’Dolan, Shane O’Dowd, Regan O’Driscoll, Declan Murphy, Micheál Mulvey, Madeleine McDonnell, David McKechnie, Sarah-Jane Mulcahy, Zoe Chatten, Robert Clancy, Airy Cleere, Julia Collins, Julie Conlon, Conor Corcoran, Vincent Costello, Byran Cotter, Lynn Cramer, Carol Daly, Claire Davis, Sinead Dooley, MaryZoe Chatten, Robert Airy Claire Davis, Sinead Dooley, Dunne, Paul Eaton, Carol Clancy, Daly, Lynn Cleere, Cramer, Julia Collins, Julie Conlon, Conor Corcoran, Vincent Costello, Byran Cotter, Eleanor O’Farrell, Donal O’Loinsigh, Marcus O’Sullivan, Lisa Patten, Sarah Prendeville, Michelle Quinn, Elizabeth Ryan, Michelle Ryan, Stephen Ryan, Donal Scanlon, Kevin Sherry and Aideen Young Mr Justice William McKechnie (High Court), John D Shaw (then president of the Law Society), Colin Daly (solicitor) and Ken Murphy (director general) were guests of honour at the 3 September 2009

www.lawsocietygazette.ie 43 Law Society Gazette DECEMBER 2009 parchment ceremonies

Rowena Toomey, Simone Walsh, Patrick Walsh and Jennifer Ward Patrick Walsh Simone Walsh, Rowena Toomey, of their parchments on 15 O ctober 2009 N ewly qualified solicitors at the presentation Caoimhe Collins, Michael Commons, Gwen Considine, Catherine Cooney, Fergal Alice Cummins, Niamh Dillon, U na Duggan, Eimear Dunne, Corcoran, Aine Corrigan,Caoimhe Collins, Michael Commons, Gwen Considine, Catherine Cooney, Kieran Cuddihy, Saranna Enraght-Moony, Caroline Ensor, Cairbre Finan Jnr, Marilyn Finnan, Greg Flanagan, Róisín Forde, Christine Galbraith, John Gallagher, Brendan Gavin, Shiofra Hassett, Jessica Hickey, Brendan Gavin, Shiofra Hassett, Jessica Hickey, Marilyn Finnan, Greg Flanagan, Róisín Forde, Christine Galbraith, John Gallagher, Cairbre Finan Jnr, Caroline Ensor, Saranna Enraght-Moony, Mr Justice Richard Johnson (then president of the High Court), John D Shaw (then president of the Law Society), Michael Collins SC (chairman of the Bar Council) and Ken Murphy (director general) Mona Jackson, Louise Jennings, Anne-Marie Keaveny, Niamh Keogh, Andrea Liston, Sam Lyons, Shane Mackessy, Aishling Mahon, Stephen Kenny McArdle, Aoife McCarthy, Niamh Keogh, Andrea Ciara Monaghan, Liston, Sam Lyons, Shane Mackessy, Mona Jackson, Louise Jennings, Anne-Marie Keaveny, Ruairi Rynn, Aisling Quinn, Emma Mark Shane Reynolds, Lorraine Kate Sheppard, Nigel Sweeney, Rooney, Rachel Power, Anderina O’Meara, Louise O’Neill, Nigel William O’Reilly, were guests of honour at the 15 October 2009 parchment ceremony for newly qualified solicitors: Sadhbh Burke, Roisin Cahill, Sally Anne Carney, Eileen Carr, Tom Casey, Sinead Casey, Anne Cassidy, Anne Cassidy, Sinead Casey, Casey, Tom were Eileen Carr, guests of honour at the 15 October 2009 parchment ceremony for newly qualified solicitors: Sadhbh Burke, Roisin Cahill, Sally Anne Carney, John Moran, Joseph G Moroney, Grant Murtagh,John Moran, Joseph G Moroney, Robert O’Brien, Andrew O’Connell, David Daragh O’Donovan, Cathal O’Gorman, Nolan, Aveen Audrey O’Hara, Lelia O’Hea, Kimberley O’Leary,

44 www.lawsocietygazette.ie students’ page Law Society Gazette DECEMBER 2009 student spotlight Night of the big Gael! ongratulations to Law CSchool trainees Áine Bhreathnach and Ruth Ní Fhionnáin, who reached the final of Bréagchúirt Uí Dhálaigh in the High Court on 6 November, writes Maura Butler. The trainees were pipped at the post by Niall Ó hUiginn and Stiofán Ó hAinifidh of the King’s Inns. The Irish language moot court competition is organised annually by Gael Linn in memory of the late Cearbhall Ó Dálaigh, former President and Chief Justice of Ireland. The competition is open to third-level law students who are fluent in the Irish language, and it provides a The Law Society’s team was runner-up in Bréagchúirt Uí Dhálaigh, the Irish language moot court competition platform for aspiring young organised by Gael Linn. (L to r): Áine Bhreathnach, Antoine Ó Coileáin (príomhfheidhmeannach, Gael Linn) solicitors and barristers to and Ruth Ní Fhionnáin practise their courtroom skills. Participants either held on 6 November 2009 in Four Courts that evening, a cheque for €600 along defend or prosecute in the King’s Inns. presided over by High Court with the Gael Linn Perpetual an appeal against a court Teams of a very high standard judge Roderick Murphy, who Trophy, while the Law judgment. participated from the King’s Inns, was assisted in his adjudication Society’s Áine and Ruth This year saw the largest the Law Society, NUI Galway, by barristers Daithí Mac received a cheque for €300. number of entries since the University College Dublin and Cárthaigh and Séamus Ó Presenting the prizes, Gael competition began 12 years Trinity College Dublin. Tuathail SC. Linn CEO Antoine Ó Coileáin ago. Preliminary rounds were The final was held in the The winners were awarded said: “I urge Irish speakers to avail of their right to use Irish in the courts, a right which is enshrined in the Official Languages Act 2003. Through Bréagchúirt Uí Dhálaigh, Gael Linn is pleased to provide a forum for student solicitors and barristers to present a case in Irish.” This is the first time that a team from the Law Society has reached the final stages in this competition. Thanks goes to Doireann Ní Mhuircheartaigh BL, Caroline O’Connor BL and Pól Ó Murchú (solicitor) for offering Mr Justice Roderick Murphy (High Court), Niall Ó hUiginn, Stiofán Ó hAinifidh (both King’s Inns) and their assistance to the Law Antoine Ó Coileáin (príomhfheidhmeannach, Gael Linn) School’s participants. G

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Employment Law Maeve Regan (ed). Bloomsbury Professional (2009), www.tottelpublishing.com. ISBN: 978-1-84766-162-3. Price: €195.

earning of the launch of of leading practitioners and No book on this field can LEmployment Law, my initial academics have produced in ever stay up to date, and the reaction was one of some Employment Law an outstanding intention of Ms Regan and her scepticism. Surely the market new textbook, covering nearly colleagues to have expanded could not sustain yet another every aspect of the subject. subsequent editions is to be book on the subject? Over the The strength of the work is welcomed. One topic that last 20 years, a host of authors its diversity, with the expert could usefully be considered in (including modest efforts by knowledge of the authors being the future is the explosion in this reviewer) have produced a brought to bear on a range whistleblowing provisions that variety of textbooks touching of topics usually beyond the has occurred in literally dozens mostly on the individual aspects scope of earlier works. Take, of statutes in recent years. of labour law. for example, the comprehensive It could be said that a The catalyst for this discussion on vicarious liability, challenge for our law makers is formidable output was which considers the recent to bring some coherence and, the extraordinary burst of decision in O’Keefe v Hickey, indeed, streamlining to the legislation produced by the late where the judges of the Supreme growth of Irish labour law and Michael O’Leary as Minister for Court took divergent routes to the myriad of fora for disputes Labour in the mid 1970s, which a common decision rejecting in an area of law that had the first established a floor of rights liability. Another novel chapter and workplace privacy quite avowed, but unreal, intention of for Irish workers, especially is the treatment of immigration comprehensive and a useful keeping lawyers away. in terms of unfair dismissal and international employment: reference point. Collective In the meantime, Regan on and employment equality. If an unimaginable chapter in the aspects of the employment Employment Law will have a Irish employment law was Ireland of the 1990s. Other relationship are also well central place in the library of indigenous in its seminal form, useful chapters deal with covered. any practitioner who wishes to it has since mushroomed under pensions, taxation, practice and Running through the texts readily access this very complex waves of European directives in procedure. of each contribution are helpful area of modern law. G the intervening period, not to Space is found for topics from and up-to-date case references, mention immense case law. other fields of law that impinge not just to Irish sources, but Ciaran O’Mara is a partner in Under the editorship of on the workplace. I found the across common law jurisdictions O’Mara Geraghty McCourt, Maeve Regan, a large group chapter on data protection and, of course, from the ECJ. Solicitors. Need Management hours? Book your place now on our Practice and Regulation Update Conference and claim 3 Management and Professional Skills hours and 1 General hour (by group study) Friday 11 December 2009 – 1pm to 5.15pm

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www.lawsocietygazette.ie 47 axation Committee T Conveyancing Committee for-letting holiday home is commercial property the purpose for of the regula- tions. The regulations spe- cifically provide that ‘buy-to- let’ properties are classed as commercial property. An undertaking given to a a lender to procure discharge the or discharge a commercial of mortgage or other security or a commer- cial loan. lender to provide the lender with title deeds to any com- mercial property. An undertaking given to a procureor pay to thelender payment of any stamp duty or to register or procure the registration of title to any commercial property. An undertaking given to d) b) c) The Law Society has been en- The committee will keep the mat- fur- issue will and review under ter ther practice notes if necessary as the practical operation of the new regulations becomes clearer. ply irrespective of when the con- tract was entered into. Returns with incorrect reference numbers will be rejected by the system. gaged in active consultation with the Revenue about and e-stamping will be more communicating detail with the in profession about this exciting development closer to the introduction date. 1.5 million € the partiesto the all ffectively, Effectively, any- An undertaking given to a lender to provide the lender with a certificate relating to of any commercial title property. principal a than other thing private residence or a not- plies where solicitors obtain solicitors where plies amount any for cover top-up in excess of minimum the current level (which of after cover 1 2009 December will be each and every claim). Practitioners should start col- a) giving an uninsuredunder-tak- an giving ing to a lender or to any other party would be advised to do so, not as this would place their personal assets at risk. The Conveyancing Committee is not in a position to give any interpretation of the tions or regula - any legal opinion on what specific types categories of undertaking are to be or excluded from the terms and minimum conditions of cover. The regulations provide the that following types of takings are under- affected: Any solicitor contemplating ber for others) of others) for ber evenstamped, be to document a in the case of non-Irish-resident thisrelax may (Revenue persons. in the case of specific categories of persons yet to be clarified.) lecting this information should (which be verified sible) to enable where stampable docu- pos- ments to be stamped when the new system is introduced on 30 December 2009, as this will ap- 3) 4) TRANSACTIONS INGS IN COMMERCIAL LOAN TAK Any queries on the content Where solicitors obtain ad- ditional cover for commer- cial undertakings, it should be noted that, in order to ensure there is PII in place at the cover time of any toadvisable be will it claim, renew the additional cover (or obtain run-off cover the if solicitor ceases prac- tice in the interim period) for subsequent indemnity periods (normally least six years). for at The same requirement ap- In order to make a stamp duty stamp a make orderto In cover for such given after undertakings1 December 2009, obtain to have will practitioners separate additional cover. • • dential Property and Transaction’ ‘Undertaking’, and practi- tioners are urged to familiarise themselves with these regula- tions. regula- these of implications or tions should be referred to the Society’s PII helpline for solici- tors at 01 879 8790 or email [email protected]. In order to have insurance ECEMBER 2009 PING: 30 D E-STAM system, practitioners will to need be registered should for contact ROS Revenue and to range this as ar- soon as possible. Revenue has set up email a special address for any on e-stamping. The address is E- queries [email protected]. return (either through ROS or in paper form), it will be necessary to include the PPS reference number tax num- (or individuals for 2) notes

Undertaking’, ‘Resi- ER ARNING: UND W The regulations provide Practitioners should care- For the borrower alone or For the borrower and lending institution jointly, the -stamping will be introduced on 30 December 2009. To To use the new e-stamping From 1 December 2009, as • • a result of tions contained new in SI PII no 384 of regula2009, - undertakings (as set out at 4(a) to (d) below) given on or after that date by solici- tors to lending institutions in commercial loan transactions, where the solicitor acts either are no longer covered by the minimum terms indemnityprofessional of tions and condi- insurance cover that solicitors are obliged by law to hold. that undertakings given by a solicitor in relation to a com- wheretransaction mercialloan the for solely acts solicitor that lending institution in the trans- action are not affected. fully read the new PII regula- tions. They contain definitions of ‘Commercial Development’, ‘Commercial Property action’, - Trans ‘Financial Institution’, ‘Relevant E From that date, any not already document stamped will require a return to be filed in order the for document to be This can be stamped.done either through ROS (which, it is expected, prac- titioners will find the preferable method), using the new e-stamp- long-form a filing by or regime, ing new paper return. 1) www.lawsocietygazette.ie DECEMBER 2009 DECEMBER Gazette Society Law practice briefing 48 briefing 49 Agree- Edition) and your axation Committee T Guidelines and Conveyancing Committee www.lawsocietygazette.ie ment 2009 client is entering into a mort- gage on or after 1 December 2009, you should ensure that you use the relevant new PRA form of charge mortgage as appropriate. or updated Solicitors drafting mortgage that the old form of charge/ mortgagedat- and executed is ed before 1 December 2009. lender a with dealing are you If that is not a member of the IBF/IMC (the members of the IBF/IMC that are signed to up the new 2009 of certificate title system are the listed in documentation for including mortgage clients, deeds in mat- conveyancing commercial ters, should familiarise - them selves with the PRA’s require- ments for approving forms for registration purposes. A solicitor’s undertaking is a There is no obligation on a so- INGS TAK erty for VAT purposes. Therefore, they that advised are practitioners may disregard the practice note. 3) 4) biguous undertakings will gener- ally be construed in favour of the recipient, and they are even binding if they do not include word ‘undertake’. the professional conduct issue. Con- sideration is not required for it to be enforceable. licitor either to give or accept an undertaking, and a client cannot instruct you to do so. Likewise, you cannot avoid complying with DEED – TGAGE or apply DECEMBER 2009 DECEMBER Gazette Society Law expect to re- to expect either If you have already received to the relevant lender for a re - placement package. A replacement package, once a solicitor’s package with the old form of charge gage or in mort respect - of a loan al- the where but approved, ready mortgage may not complete before 1 should you December 2009, ceive a replacement package before 1 December straightused be provided,can away, as it will contain a dual mortgagedeed/ the of version charge, which is suitable for use whether the is executed before or mortgage after 1 December. If your loan trans- action completes before 1 De- cember 2009 and no replace - madebeen has package ment available, you should ensure cember cember should ensure that the correct form of mortgage deed/ charge used. is 1) 2) coming into force of the section on section the of force into coming doesRevenue 2009, December 1 changing as section the regard not the existing position regarding the time of supply of immovable prop- of clients are more easily trans- on rely can people because acted a solicitor’s undertaking. An un- betherefore dertaking not should given or accepted carelessly. Remember: Undertakings should be understood clearly and agreed, and they should always be confirmed undertakingan If writing. involves in the payment of a sum of money, make sure the amount is clear or that it is easy to calculate. Am- ax Brief- T LAW REFORM ACT 2009 LAW Practitioners dealing with the The PRA has indicated to the Not only is dealing with a com- a with dealing is only Not Society and to the IBF that either its own new statutory charge, or the new form approved IBF of forms of mortgage deed/charge, PRA the by approved forms any or with respect to individual lending institutions, are acceptable for registration purposes. execution of mortgage - documen tation by clients on or after 1 De- mortgages executed and dated either before or after 1 Decem- ber 2009. We are advised that most of these mortgage lenders startnew to the hope distributing IBF mortgage deed with tor’s packages solici- in November, so that practitioners will have them available for use straight away. The remaining members will dis- tribute their own form of revised mortgage deed documentation in November and will the move IBF format to over the coming months. p51), in response to a submission a to response in p51), Rev- Committee, Taxation the from enue has confirmed in a ing, published on 2009, 2 that, November notwithstanding the plaint of this nature likely to take couldthat time greatof a deal up have been spent more profitably, it may also involve a substantial financial claim, with the addition- al possibility of a referral to the Solicitors Disciplinary Undertakings Tribunal. considered to have been given negligently have also given rise to a considerable num- resulting,claims insurance of ber inevitably, in a crease in substantial premiums. The affairs in- R DARD MO STAN : NEW IBF ARNING Land LAND AND CONVEYANCING CONVEYANCING AND – SECTION 52(1), LAND UPDATE Conveyancing Gazette in rela- NOTICE TO ALL PRACTISING SOLICITORS – UNDER Act 2009, all Land W URGENT

Land and

ECEMBER 2009 FROM 1 D OF CHARGE FORM RY D REGIST NEW LAN

ollowing commencement of the

ince the publication November the in note practice of the The members of the Irish he Society continues to ceive an unprecedented num- re- Law Reform Registry charges the must form prescribed or approved be by in the PRA, and there will be a new formula for a mortgage over unregistered land. The PRA has drafted a new form for Land Registry title, of which will charge shortly be available on the PRA website as part of the new Registration (No 2) Rules 2009. It should be noted that the Form old 67 (charge for a principal sum) is to remain. Banking Federation (IBF) and the Irish Mortgage which include Council the majority of the (IMC), lending institutions involved residential in mortgage lending in Ireland, have agreed the text of a standard, combined mortgage deed/charge. A which dual will be version, issued initially, is suitable for use for residential

F T

ber of complaints relating to un- dertakings. While many of these complaints are solved, the investigation of them ultimately re- suggests that many members of the profession still fail to under- stand the obligations upon imposed them when they undertaking.is note practice This give an to remind practitioners that non- compliance with an undertaking amounts to misconduct. S 2009 issue of the tion to the above matter (entitled ‘New special condition of sale’, Conduct of Relations Committee Ireland (2nd edition), Complaints and Client Make Make sure that undertakings The recipient of an undertak - therefer to and available Have ate registry “as soon as cable but in any practi- event within four months”. Good management Principals are responsible for un- dertakings given by staff, whether qualified or not. Clear should guidance be given to all staff as to who is permitted to give or accept undertakings. You should consider also drawing forms up of approved undertakings to that are be agreed. used unless otherwise are not overlooked, ing by on the file - indicat that an undertak- ing has been given and its date. You could, for example, print off a copy of different-coloured the paper, or keep undertaking on a separate register of undertak- any- to apparent be should It ings. one taking over a matter that an undertaking is still outstanding. reasonable make to entitled is ing enquiries as to the discharge of the undertaking, and you therefore ensure that such enqui- must ries are not ignored. current Law Society publications on the subject, in particular the Guide to Professional addition in is note practice this as to, rather than in substitution for, that material. Practice notes are not legal advice; they are notes issued by the Law Society for the use and benefit of its members. The Law Society will not therefore accept any legal liability in rela- tion to them. Solicitors in ontact: Contact: David Rowe at Outsource 01 6788 490 [email protected] You You should not accept care- A solicitor cannot assign the Do not treat the Law Society’s or to transfer the the of completion the on company management development. A distinction must always be made between those issues that are in the contract/ lease and are to be dealt with by the vendor/developer, and those - un an of subject the be to are that dertaking solicitor. their by given lessly worded undertakingsprovide missing to plans, planning documents or deeds, which are often outside the control of vendor’s solicitor. theAn undertaking partiesthe upon binding to only is it. It cannot compel a third party to do anything. If a document is not available, consider - transac the closing be should you whether tion without it at all. burden of an undertakingclaim to (and be obligations) released without the from express its agreement of the recipient of the undertaking. The recipient undertakan of benefit the assign - can ing, but you should be cautious of accepting such an assignment unless there is a why the good original undertaking reason has not been complied with. For this reason, you should not accept a ‘chain of undertakings’, as these could prove to be unenforceable. approved form for of residential undertaking ing as mortgagea mere formality. In giving lend- that undertaking, you undertake, among other things, that you “are in funds to discharge all duty stamp and registration fees”, that you will lodge the deed for stamp- ing “within the time prescribed by law” and, following receipt of the deed stamped, lodge it and the mortgage deed in the appropri - You should not pay out monies You Particular care should also be Litigation Do not ask other solicitors to pro- vide an undertaking in terms you would not give yourself. This - ap plies particularly to undertakings expect or give, not Do costs. to as another solicitor to give, an open- ended undertaking to pay costs. Refer to specific bills if possible provision make least at not, if but, for the costs to be “taxed in de- fault of agreement”. It should be clear from the terms of the under- taking when and how such costs are to be paid. due to your client on the - success ful conclusion of a case without ensuring that you have sufficient funds to discharge undertakings that may have their behalf. Make sure been that such given on undertakings have with been your given client’s written ment, agree- and that they understand that these monies do be repaid out have of their to damages/ should settlement. think You very carefully before giving what may amount to a financial guarantee for your client. Conveyancing Make sure that an undertaking to discharge a mortgage specifies exactly which mortgage(s) you in- tend to discharge. Vague replies may result in you being liable to discharge all mortgages, whether you know of them or not. Particu- lar care should be taken with ‘all sums due’ or ‘all monies’ mort- gages. purchasera for acting when taken of a property/apartment in a new undertakings Vague development. are often given to deal with conveyance of the common areas the Solicitor looking to acquire an interest or general in a litigation practice with a turnover between €100-150K per annum in the greater Dublin area. This would suit a practitioner who wishes to retire this in 1-2 yrs time, working alongside Solicitor in the meantime. Undertakings should refer to Do not give “the usual under- Undertakings should be Undertakings should indicate Particular care should be tak- an undertaking or so, do instructedto been have because cli- your in longer you no is it because ent’s interests. a particular task or action that is clearly identified and defined. Do not give general such undertakings, as an undertaking to charge “all dis- outstanding mortgag- es on a property” or “pay costs case”. on the conclusion of the taking”, or think in terms of ‘rou- tine’ or ‘standard’ undertakings. An undertaking to pay out of monies a fund should fied by the be proviso that the fund quali- comes into your hands, and that it is sufficient. achievable at the time they are given. You must consider care- fully whether you will be able to under- an Likewise, it. implement taking should only be accepted if it relates to matters under the direct control of the person - giv events undertaking.any the If ing must happen before you will be able to comply with your under- spell to practice good is it taking, undertakthe in events - those out ing, and only give a qualified un- dertaking. when they will be complied with. In the absence of term, an there express is an implied that an term undertaking will be pre - formedreasonablea within time. deeds, title hold to agree you if en documents, cheques, or anything else on money, accountable trust receipt or ‘to the order’ of as party,third or solicitor another you may well be deemed to have given an undertaking to do so. www.lawsocietygazette.ie DECEMBER 2009 DECEMBER Gazette Society Law

briefing 50 briefing 51 50 € G

. r AN OPTION.

. and Director of Regulation r AN OPTION. www.lawsocietygazette.ie

John Elliot, Registrar of Solicitors ing your username and password www. visit please assistance for – lawsociety.ie/help). Alternatively, the form can be completed signing for out printed and screen on- and returning to the Society with also may You fee. appropriate the request a form to be emailed to you by emailing m.mcdermott@ lawsociety.ie or - n.darby@lawsoci ety.ie. areIf you ceasing practice If you have recently ceased prac- prac- cease to intending are or tice no- please year, coming the in tice accordingly. tify the Society ofAcknowledgement formsapplication Please note that it Society’s is policy to not acknowledge the receipt of application forms received. as Duplicate practising certificate of number increasing an Recently, solicitors have requested a dupli- cate practising certificate for the purpose of presenting their - prac tising certificate to the firm’s re- porting accountant. A fee of will be payable in respect of each duplicate practising certificate is- sued for any purpose. IS NOT A IS NOT Act A AT . . r r AT AN OPTION. AN OPTION.

DECEMBER 2009 DECEMBER Gazette Society Law safe secure data centre. fsite Backup. T .keepitsafe.ie safe secure data centre. s largest online backup provide fsite Backup. T .keepitsafe.ie s largest online backup provide www 1890 222 587 mendment) Amendment) ( Solicitors : www 1890 222 587 ► Online, Of ► Fully managed and monitored solution. ► Each day your data is automatically backed up to the keepI ► Data encrypted with bank level security procedures ► Ireland’ ► Professionally Indemnified. : Studies indicate that only 37% of Solicitors actually test their internal tape backups regularly, and of those that did, an alarming 77% found they were unable to fully recover data by using tape backup methods. keepITsafe eliminates the need to manually backup by providing a secure and automatic online backup solution, guaranteeing successful recovery of your data. CALL: VISIT WHEN LOSING D ings for an order under section 18 section under order an for ings the of 2002 to prohibit them from - prac illegally. tising areIf you solicitor an employed Solicitors who should note that are it is the - statu tory employed obligation of every solicitor who requires a practising certifi- has she or he ensurethat to cate a practising certificate in from the force commencement of the year. Employed solicitors cannot absolve themselves from this re- em- their on relying by sponsibility procureto practisingployers their certificates. However, it Society’s is the recommendation that all employers should pay for the practising certificate of solicitors employed by them. Some of your details are already on the application form The practising certificate cation appli- form will be issued certain with information each relating solicitor’s practice to already completed. What can you access on the website (www.lawsociety.ie)? A blank application form practising for certificate a loadable from is the practising cer- down- tificate section in the members’ area (which is accessible by us- cate 2010: tificate IS NOT IS NOT ► Online, Of ► Fully managed and monitored solution. ► Each day your data is automatically backed up to the keepI ► Data encrypted with bank level security procedures ► Ireland’ ► Professionally Indemnified. Studies indicate that only 37% of Solicitors actually test their internal tape backups regularly, and of those that did, an alarming 77% found they were unable to fully recover data by using tape backup methods. keepITsafe eliminates the need to manually backup by providing a secure and automatic online backup solution, guaranteeing successful recovery of your data. CALL: VISIT WHEN LOSING D A A !DVERTFOR'AZETTEPDF SECURE BACKUP FOR THE LEGAL PROFESSION !DVERTFOR'AZETTEPDF SECURE BACKUP FOR THE LEGAL PROFESSION SECURE BACKUP FOR THE LEGAL AT AT + # - 9 #- -9 #9 #-9 # - 9 + #- -9 #9 #-9 . r AN OPTION.

safe secure data centre. safe secure data centre. safe secure data centre. fsite Backup. fsite Backup. T ising Cer Pract T Please note that, again dur- The Regulation of Practice .keepitsafe.ie .keepitsafe.ie What happens if you apply late? happens if you What Any applications for certificates that practising are received af- ter 1 February 2010 will result in the practising certificates being dated the date of actual receipt rath- Solicitors, of Registrar the by er than 1 January 2010. There is period any allow to power legal no circumstances any under grace of whatsoever. ing 2009, a number of solicitors went to the trouble and expense of making an application to the cer- Courtpractising High their for Janu- 1 to backdated be to tificate ary because their practising cer- tificate application was received after 1 February. Committee is the committee of the Society that has responsibil - ity for supervisingwith practising certificate require- compliance ments. A special meeting of this committee will be held on a date after 1 February 2010 (to be de- cided) to consider any late or un- resolved applications for practis- ing certificates. At this meeting, have who solicitors practising any not applied by then for a practis- ing certificate will be considered for referral forthwith to the Solici- Disciplinarytors will and Tribunal, be informed that the Society re - serves the right to take proceed- s largest online backup provide s largest online backup provide IS NOT icitors actising sol all pr Notice to A AT Court, www www 1890 222 587 1890 222 587 : : safe secure data centre. fsite Backup. T George’s .keepitsafe.ie ► Online, Of bank ► Data encrypted with security procedures level ► Ireland’ ► Professionally Indemnified. ► Fully managed and monitored solution. automatically backed up to ► Each day your data is the keepI ► Data encrypted with bank level security procedures ► Ireland’ ► Professionally Indemnified. ► Fully managed and monitored solution. up to ► Each day your data is automatically backed the keepI ► Online, Of Studies indicate that only 37%Studies indicate test of Solicitors actually tape backups regularly,their internal that and of those 77% found theydid, an alarming to fully were unable by using tape backuprecover data methods. eliminates the needkeepITsafe by to manually backup automaticproviding a secure and solution, online backup recoveryguaranteeing successful of your data. s largest online backup provide Studies indicate that only 37%Studies indicate that only actually test of Solicitors regularly,their internal tape backups and of those that theydid, an alarming 77% found unable to fully were backuprecover data by using tape methods. needkeepITsafe eliminates the manually backup by to automaticproviding a secure and solution, online backup recoveryguaranteeing successful of your data. Lane, Dublin 7; DX VISIT CALL: CALL: VISIT www WHEN LOSING D WHEN LOSING D 1890 222 587

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CALL: VISIT WHEN LOSING D When you must apply A practising certificate must be applied for on or before 1 Febru- ary in each year in order to January1 dated be and year that of thereby operate as a qualifica- tion to practise from the mencement com- of the year. It is a legal requirement for a practis- ing solicitor to deliver or cause to be delivered to the Registrar of Solicitors, on or before 1 Feb- the in application ruaryan 2010, prescribed form, duly completed and signed by the applicant so- licitor personally, together with the appropriate fee. The onus is on each solicitor to ensure that his or her application form and fee is delivered by 1 2010. February Applications should delivered to the be new address of the Regulation Department the Society of at: Why you need a practisingWhy you need certificate It is misconduct and a offence criminal for a solicitor (other than a solicitor in the full-time service of the state) to practise without certificate.practising a solici- Any tor found to be practising without a practising certificate is liable to referredDisci- be Solicitors the to plinary Tribunal. George’s 1025 Four Courts.

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!DVERTFOR'AZETTEPDF SECURE BACKUP FOR THE LEGAL PROFESSION + 9 - # #9 -9 #- #-9 + 9 - # + 9 - # #9 -9 #- #9 -9 #- #-9 #-9 ontact: Contact: David Rowe at Outsource 01 6788 490 [email protected] - Copyright Companies Acts of the Copyright and Related RightsCopyright and of Seizure)Act 2000 (Notice 2009Regulations Number: SI 440/2009 Contents note: Prescribe the form of the notice, to be given at the time of seizure, owner, to occupier the or person charge in of the place where in- fringing copies, illicit record- ings, protection-defeating - de vices, or articles associated with making infringing copies or il- licit recordings, as the case may be, are seized under section 133 or section 257 of the . and Related Rights Act 2000 Commencement date: 5/11/ 2009 Data Protection Act 1988 (Section 5(1)(d)) (Specifica- tion) Regulations 2009 Number: SI 421/2009 Contents note: Section 5(1)(d) of the act empowers the min- ister, by regulations, to restrict access to personal data kept by statutorywith bodies or persons functions designed to prevent financial loss to members of the public where such access would perfor the prejudice to likely be mance of those functions. These functions. those of mance functions the specify regulations under the Director of Corporate - Enforce of Director the of officers ment, in- and Enforcement Corporate spectors appointed by the High Court or by the Corporate Enforcement for the Director of purposes of the restrictions set out in section 5(1)(d) of the act. Commencement date: 21/10/ 2009 European Communities (European Cooperative Society) Regulations 2009 Number: SI 433/2009 thefor Provide note: Contents co- European a of establishment Treaty Treaty Y Treaty Treaty on the Functioning of European Union and the Establishing the European Com- munity (which will be renamed the the European Union, signed Lisbon on 13/12/2007. at Date enacted: 15/10/2009 Commencement date: 15/10/ 2009 SELECTED STATUTOR INSTRUMENTS of Authority Broadcasting Ireland Day) (Establishment Order 2009 Number: SI 389/2009 Contents 1/10/2009 note: as the establishment day Appoints for the purposes of part 2 (ss5-38), sections 49 and 157 and part 12 (ss174-179) of the Broadcasting Act 2009. Part establishes 2 the Authority Broadcasting of Section Ireland 49 (BAI). provides that BAI must, within six months of the for scheme a prepare order, this the exercise of the right to re- ply in respect of persons whose been have reputation or honour in- of assertion an by impugned a in information or facts correct provides 157 Section broadcast. main- and establishment the for tenance of a fund of paid to, monies and expended by, the BAI under part 10 (ss153-159) of the act, and part vides for the dissolution 12 of the pro- Broadcasting Commission of Ireland and the Broadcasting Complaints Commission and for the vesting of their assets, rights, obligations and liabili- ties in the BAI. Cluster Munitions and Anti- Personnel Mines Act 2008 Order2009(Commencement) Number: SI 410/2009 Contents note: Appoints 8/10/ 2009 as the date for all sections of the act. commencement - - Treaty Treaty Central Treaty on Treaty poses of acquiring bank assets from credit institutions as des- ignated by the Minister for Fi- nance; transferring those assets to the agency; holding, manag- ing and realising those assets; and facilitating the restructur ing of credit institutions of sys- econo- the to importance temic my. Provides for the valuation of the assets concerned and the review of any such valuation. Gives NAMA certain powers and other functions in respect of land or an interest in acquired land by NAMA, including powers relating to the develop- ment of land. Provides for the issuing of debt securities by the Minister for Finance and NAMA in by the performance of Pro- act. the under functions its vides for certain legal proceed- ings relating to assets acquired by NAMA, amends the Bank Act 1942 and provides for related matters. Date enacted: 22/11/2009 Commencement date: Com- mencement order(s) to be made (per s1(1) and (2) of the act) of Amendment Twenty-Eighth the Constitution Act 2009 Contents note: Amends article 29.4 of the Constitution to en- able the state to ratify the the amending Lisbon, of Date enacted: 27/10/2009Date enacted: Commencement date: 27/10/ 2009 for s8 force (continuation of in certain statutory struments); in- order(s) to commencement be made for other act) sections (per s9(3) of the National Asset Management Agency Act 2009 Number: 34/2009 Contents note: Provides for the establishment of the Na- tional Agency Asset (NAMA) for the pur Management

- - ovember 2009 22 November 13 October – legislation update legislation Lisbon Treaty Treaty on Lisbon Treaty Lisbon Treaty of Lisbon Treaty Treaty Establishing Treaty Treaty on European on Treaty ASSED Treaty Treaty Establishing the Euro- and provides for the continua- tion in force in domestic law of certain statutory giving instruments effect to EU directives, regulations or decisions. amending the the amending Union and the the European , Community signed at Lisbon on the 13/12/2007, domestic in law of the In state. accordance with the ’s conferral Treaty of explicit le- gal personality on the European Union, provides that references in any enactment (other this act than and the 1972 act) to the European Communities shall be construed as references the to European Union and that references in any enactment to the pean Economic Community or the Treaty Establishing the European Community shall be construed as references to the the Functioning of the European Union. Provides for powers of un- Oireachtas the of houses the the of terms the der Details of all bills, acts statutory and instruments since 1997 are on the library cata- logue – (members’ and www.lawsociety.ie students’ ar eas) – with updated mation on the infor current stage a bill has reached commencement and the date(s) each act. All of recent bills and acts (full text in PDF) are on and www.oireachtas.ie recent statutory instruments are on a link to electronic statutory instruments from - www.irish statutebook.ie. ACTS P European Union Act 2009 Number: 33/2009 Contents note: Amends European the Communities Act 1972 to give effect to provisions of the the relevant www.lawsocietygazette.ie DECEMBER 2009 DECEMBER Gazette Society Law briefing 52 briefing 53 Taxes Taxes Prepared by the by Prepared Finance (No 2) Act Law Society Library G www.lawsocietygazette.ie the the run-off cover period mandatory and the run-off premium, the suspension of the cover next the for Pool Risks Assigned indemnity period, and misrep - resentation or non-disclosure in placing the insurance. (See article on p22 of the November .)2009 Gazette Commencement date: 1/12/ 2009 Consolidation Act Taxes 1997 (Accelerated Capital Allowances for Energy Efficient Equipment) (Amend- ment) (No 2) Order 2009 Number: SI 393/2009 Contents note: Amends Taxes the Consolidation Act (Accelerated 1997 Capital Allowances for Energy Efficient Equipment) Order 2008 (SI 399/2008). Up- dates, in accordance with provisions of the s285A of the (amended1997 Act Consolidation by s37 of the 2008), those products whose capital energy-efficient cost will be eligible for accelerated capi- tal allowances, and updates the energy-efficient criteria used to determine eligibility for inclu- sion on those product lists. The accelerated capital scheme allowance involves quarterly up- dates to those product lists. Commencement date: 28/9/ 2009

Solicitors DECEMBER 2009 DECEMBER Gazette Society Law Nursing Homes Nursing Homes Sup- he latest CPD courses, as well Recoveryof Repayable 2009 Regulations Amounts) SI 436/2009Number: Contents note: Provide the collection for and recovery of repayable amounts by the Rev- enue Commissioners, as agents Executive, Service Health the of in accordance with the provi- sions of the port Scheme Act 2009. Commencement date: 2/11/ 2009 Nursing Homes Support Scheme (Making and Discharge of Orders) Regulations 2009 Number: SI 437/2009 Contents note: the format of charging orders Prescribe made under the Support Scheme Act connection 2009 with in applications for ancillary state support and prescribe the format plications of and receipts for ap- the release or discharge of charging orders. such Commencement date: 30/10/ 2009 Solicitors Acts 1954 to 2008 (Professional Indemnity Insurance) (Amendment (No 2)) Regulations 2009 Number: SI 441/2009 number a Make note: Contents of amendments to the Acts 1954 to 2002 (Professional Indemnity Insurance) Regulations 2007 (SI 617/2007) relating to and t - Nursing visions visions of the act not already in the of sections (Other operation. act were brought into operation by SI 256/2009, SI and SI 394/2009.) 381/2009 SupportNursing Homes 2009Scheme Act (Commencement) (Specified Forms) Order 2009 Number: SI 394/2009 Contents note: Appoints 28/9/ date commencement the as 2009 for section 44 of the act. This section enables the Health Ser vice Executive to specify forms required under the scheme. Nursing Homes Support Scheme (Assessment of Capacity Report) Regulations 2009 Number: SI 409/2009 Contents note: Prescribe the submission for reports of format to the Circuit Court by medi- cal practitioners in accordance with section 21 of the Homes Support Scheme Act 2009. Section 21 of the act provides rep- care of appointment the for resentatives to act on behalf of two by assessed are who persons medical practitioners as lacking the capacity to make decisions sup- state ancillary to relation in port. Commencement date: 5/10/ 2009 Nursing Homes Support Scheme (Collection and Statute for

European Communi-

as lots of other useful information at lawsociety.ie. forthcoming events, employment opportunities You can also check out current can news, right up to the current issue at gazette.ie. You Gazette readers of the magazine as far back as Jan/Feb 1997 can access back issues Get more at gazette.ie Nursing Homes Support Scheme Act 2009 (Remaining (Commencement) Provisions) Order 2009 Number: SI 423/2009 Contents 27/10/2009 note: as the commence- pro- remaining all for date Appointsment Health (Miscellaneous Provisions) Act 2009 (Commencement) (No 2) Order 2009 Number: SI 401/2009 Contents note: Appoints 1/10/ 2009 as the date for part 3 commencement (ss15-25) of the act. Part 3 provides for the dis- Health Women’s the of solution Council and for the transfer of the council’s employees, liabili- etc, ties, to property, the Minis- ter for Health and Children. operative society, to be known as an SCE, in accordance with Council Regulation (EC) 1435/2003 no on the a European Cooperative Society. to is statute the of objective The facilitate cross-border activities by cooperative entities. (Em- ployee involvement in was provided for separately SCEs un- der EU Directive 2003/72/EC, which was transposed into Irish law by the Society) Cooperative (European ties (Employee Involvement) Regula- tions 2007, SI 259/2007.) Commencement date: 29/10/ 2009 7,500 to the €

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29 October 2009 T compensation fund, Pay the whole of the costs of Pay a sum of the Law Society of Ireland as taxed by a taxing master of the High Court in default of agreement. ety’s ety’s correspondence, and in let- particular to the Society’s ters of 6 May 2008, 25 June 2008, 7 July 2008, 11 August Oc- 28 2008, August 27 2008, tober 2008 in a timely man- ner or at all. Do stand censured, The tribunal ordered that the respondent solicitor: a) b) c) ribunal

lliot, Registrar of Solicitors, John Elliot, Registrar

Rathmines, Rathmines, Dublin 6, be struck from the Roll of Solicitors.

ribunal inquiries areribunal inquiries published by the undertaking given to ional Irish Bank and dated Nat- 16 November 2006 in respect of named properties in a timely complied only having manner, with same in April 2009, Failed to reply to the Soci- Delayed in complying with an with complying in Delayed

a) b) Law Society of Ireland (applicant) John B Harte solicitor) (respondent On 15 September Solicitors 2009, Disciplinary Tribunal the found the respondent solicitor prac- his in misconduct of guilty tice as a solicitor in that he:

250 towards € Take Take notice that, by Court order made on Monday 19 October 2009, of the High it was ordered that the name of Charles O’Neill, solicitor, of 10 Church Avenue, Co Regulated by the Solicitors Regulation Authority of England and Wales Solicitors Acts 1954-2008

advised, Pay a sum of the applicant’s expenses. the applicant’s The tribunal ordered that the that ordered tribunal The Do stand admonished and

a) b) [2259/DT53/09] In the matter of John B Harte, B John of matter the In a solicitor carrying on prac- tice as a partner in the firm of James Harte & Son, Solici- tors, at 39 Parliament Street, of matter the in and Kilkenny, the tice as a solicitor in that she pro- she that in solicitor a as tice duced misleading reports of her actions on behalf of her client. respondent solicitor:

O’Neill & eill, solicitor, O’Neill, solicitor, venue, Rathmines, Rathmines, venue, A R H COU HE HIG ICE: T NOT Cathal Charles Church Solicitors Acts 1954-2002 Publication 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 In the matter of practising as olicitors, 10 Solicitors, Dublin 6 olicitors DisciplinarySolicitors T Law Society of Ireland as provided by section 17 of the for in section 23 (as amended Act 1994 Act 2002) of the Solicitors (Amendment) Solicitors (Amendment) Reports of Solicitors Disciplinary of the outcomes T www.lawsocietygazette.ie In the McGovern, matter a of McGovern solicitor, Niamh of & Equity House, Dublin Road, Associates, Carrick-on-Shannon, Leitrim, and in the matter of Co the [6996/DT40/08] A named client of the - respond ent solicitor (applicant) Niamh McGovern solicitor) (respondent On 10 September Solicitors 2009, Disciplinary Tribunal the found the respondent solicitor prac- her in misconduct of guilty DECEMBER 2009 DECEMBER Gazette Society Law briefing 54 briefing 55 – habitual

Hague Conven- update – whether premises could be www.lawsocietygazette.ie

Finlay Geoghegan J held that held J Geoghegan Finlay landlord and tenant family tion for the return of the child to Latvia, as the alleged place of habitual residence of the child. residenthabitually was child the during the period in question in Ireland and had not acquired a habitual residence in The applicant had Latvia. failed to es- habitu- was child the that tablish ally resident in Latvia prior to the date of the alleged wrongful retention, and the application would be dismissed. G(U) (Minor) B(E) (applicant) v G(A) Court, 4/3/2009 [FL16506] , (respondent) High Recovery of possession Lease – dilapidated premises Circuit Court appeal – Landlord – and Tenant (Amendment) Act 1980 dilapidated. as recovered On appeal from a decision of plaintiffs the Court, Circuit the of possession recover to sought premises in Limerick, the sub- ject of a lease that had expired the were plaintiffs The 2004. in lessors. the of title in successors premises the that alleged was It re- of state deplorable a in were Child abduction Hague Convention residence – return of child – step- father – wrongful retention – Lat- via – Child Abduction and - En forcement of Custody Orders Act 1991. The applicant was the father of the child in question, and the stepfather of the child was the respondent. The mother of the child had died. The applicant sought an order article pursuant 12 of the to

- - real now a footage was was DECEMBER 2009 DECEMBER Gazette Society Law that there CCTV firstlaw footage footage, original CCTV Fennelly J (Denham and criminal Compiled by Bart Daly for FirstLaw unavailable. Hardiman JJ concurring) held that there was a real risk to the fairness of the trial in the cir cumstances of the case. defence was The simply unable to test the identification evidence of the state witnesses. This did not entail that still photographs were video missing a from taken generally inadmissible. The ap- peal would be dismissed the order of the High Court af- and firmed. McHugh cant) v Director of Public Pros- - (respondent/appli , (appellant/respondent) ecutions Supreme Court, 24/2/2009 [FL16305] and serious risk of an unfair tri- casethe if that, alleged was It al. prosecution the trial, to sent was - evi unusual on relying be would dence of identification recorded on Evidence Constitutional law – CCTV foot- age – identification – whether loss seri- and real in resulted evidence of ous risk of an unfair trial. or an obtained respondent The der of the High Court prohibit- ing his trial on a charge of theft. The had been obliterated. The sole issue arose as to that, whether established had respondent the in the absence of any possibility of access to the original moving CCTV of the Superior Courts and would make no order for costs. Korner Kranks of matter the In Limited (in voluntary dation) liqui- – McCarthy cant) v (appli- Gibbons , (respondents) & Gibbons High 19/12/2008 [FL16328] Court, Rules Companies News from Ireland’s online legal awareness service Rules of the Superior Finlay Geoghegan J held that held J Geoghegan Finlay , as amended – order order – amended as 1990, Act nies 99, rule 1, Rules of the Superior Courts. The applicant was the liquida- tor of the company that was the subject of the proceedings and provided a report to the Direc- tor of Corporate Enforcement pursuant to section 56 of Company the Law Enforcement Act letter by informed was He 2001. in 2005 that he was not relieved of his obligations to bring re- striction proceedings pursuant to section 150 of the Act 1990, as amended. The ap- plicant subsequently brought such proceedings in 2007. The issue arose as to whether company the was insolvent at the commencement of the winding respondents the whether and up had acted honestly and respon- sibly as directors as to the fairs af- of The the courtcompany. acted had directors the that held honestly and responsibly the and issue arose as to light costs, of the in silence of the 1990 act, as amended, in this regard and the application of order 99, rule 1 of the Courts. ap- make to failed liquidator the propriate enquiries before de- ciding to make a report to the director and had failed to give the respondents any opportu- nity of commenting on must have what been his determina- tion then. The respondents also failed to make all relevant en- quires before responding to the applicant The question. in letter was put to the expense of con- proceedings with deal to tinuing that might have been resolved at an earlier time by reason of this failure. The court exercise would its discretion pursuant to order 99, rule 1 of the

Arbi- Murphy J held that the - arbi company arbitration Practice and procedure Costs – section – 150 conduct of liquidator application – delay in taking s150 proceedings – directors found to have acted honestly and responsibly – Company Law En- forcement Act 2001 – Compa- Remittal of award Decision – award – misconduct – decision reasons – Arbitration Act 1954. The plaintiff was a contractor, and the second-named defen- dant made an award determin- ing liability. Five issues were put before an arbitrator and a sum was awarded. The plain- tiff alleged bias or misconduct on the part of the and sought arbitrator to have the award set aside and/or the arbitrator removed, pursuant to the tration Act 1954, or to have the award remitted to the arbitra- tor. The plaintiff that contended the arbitrator was bound to give reasons. trator had discretion under the reasons provide to rules relevant separate to the award. The doc- behind reasons the listing ument the award answered all but one of the issues prac- identified best with accord in To award. the tice, the arbitrator should make an explicit award on claims and should award The counterclaim. state reasons in sufficient detail. mat- the remit would court The ter for reconsideration by the arbitrator. JJ Rhatigan Limited (plaintiff) & v Paragon Contracting Company Limited dant), (defen- High Court, 13/2/2009 [FL16492] T R H COU HE HIG ICE: T NOT G

Marleasing Road Traffic Peart J held that there was High Court, that article 1 of the of 1 article that Court, High effect. direct had directive third The issue arose as to whether the High Court was under an obligation to read Irish law in light of the directive, pursuant to Case C-106/89, SA v La Comercial Internationale ECR ([1990] SA Alimentacion de I-4135). no dispute but that, at the date of the accident in third 1999, directive the had not transposed into been Irish law. The objectives thereof were clear. very The objectives of earlier directive were clear that the an exclusion of liability as here was void. The amendment in section 65 of the Act 1961 was in conflict with these objectives. The was required to read section 65 court of the 1961 act, as amended, in light of the third directive. The clause contained in policy the of insurance was void. disentitling FBD from relying thereon to refuse to indemnify the first and second defendants for the loss of the plaintiff. Smith (plaintiff) Meade, v FBD Meade, Insurance Ireland and the Attorney Gen- Plc, eral (defendants), High Court, 5/2/2009 [FL16478] This information is taken FirstLaw’s legal current awareness from service, published every day on the internet at www.firstlaw.ie. - - - ([1990] ECR Road Traffic Act 1961 Act Traffic Road Farrell Farrell v Whitty ([2007] Road Traffic Road Act Traffic 1961, as Alimentacion Alimentacion SA – I-4135) – Council Directive 72/166/EC, Council Directive 84/5/EEC and Council Directive 90/232/EEC (first, second, third directives on insurance for civil liability in - re spect of motor vehicles). The plaintiff was 1999 when injured the car in which he in was a passenger, owned by the by driven and defendant second colli- in was defendant, first the sion with another vehicle. The plaintiff was in part of the vehi- cle not designed and - construct accommodation seating with ed and FBD, the insurer, sought to refuse to indemnify the de- fendants pursuant to section 65 of the amended. Section 65 provided per excepted of definition a for sons who were not required to be covered in a policy of insur ance. Three directives were of relevance, Council Directives 72/166/EC, 84/5/EEC 90/232/EEC. The and second - di rective deemed void insurance exemption clauses in instances, certain and the third direc- tive covered liability for per sonal injures to all passengers and sought to protect injured insurance. in gaps from persons been not had directive third The transposed into Irish law 1999. The Court of Justice had by held in arising decision a I-3067), ECR from a referral from the Irish - [FL16501] qua solicitors. Law Society of Ireland, Blackhall Place Contact OUR catering manager Laffoy J held that an order road traffic happy to act for the plaintiff on on plaintiff the for act to happy account of a professional - neg ligence allegation made against the defendants The plaintiff made a complaint to the Law Society about the conduct of her affairs by former the solicitors and sought to her. the transfer of papers would be granted referring the bill of costs delivered by former the solicitors to the - plain tiff for taxation. There would plain- the directing order an be tiff to take all reasonable steps to facilitate the taxation pro- cess, subject to an undertaking receive, to solicitors new the to inter alia, all files, documents lien the preserve to papers, and over those items, to notify the former solicitors when ceedings were finalised, and pro- to prosecute the proceedings in an active manner. The court would make an order referring the bill of costs for taxation on basis. solicitor-and-own-client (plaintiff) Treacy v Roche and Roche (defendants), Court, 27/2/2009 High EU law Direct effect – indirect effect – ar ticle 234 EC referral – – insurer indemnification – exclusion exemption – – transposition – Case C-106/89, Marleasing SA v La Comercial Internationale de

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Landlord Landlord and Wedding ceremony and reception Wedding ceremony and reception Clark J held that the plaintiffs the that held J Clark practice and procedure www.lawsocietygazette.ie mer solicitors were no longer solicitors. The plaintiff was the daughter of the testatrix and the defen- dant solicitors were the execu- tors of the will. The plaintiff sought an order directing the former solicitors to deliver all files, documents and papers to had Proceedings solicitors. new been commenced in 2001 and were reconstituted. The for olicitor’s lien Solicitor’s lien Professional negligence – taxa- tion – lien – transfer of orders to files be – made for transfer of new to papers and documents files, had established good and suffi- cient reason in that the tenants had failed to keep the premises in good repair and were unable to do so. The plaintiffs entitled were to recover possession out set as premises entire the of in the civil bill. McCarthy, Bolding, bridge Cam- (plaintiff) v (defendant), Larkin High 18/2/2009 [FL16502] Court, pair. pair. The building was alleged not to be rented in light capable of its condition. of being The plaintiffs sought to on rely good and sufficient reasons for refusing to renew the lease, pursuant to the Act 1980. (Amendment) Tenant DECEMBER 2009 DECEMBER Gazette Society Law briefing 56 briefing 57 - www.lawsocietygazette.ie ‘Collective behaviour’ covers behaviour’ ‘Collective lateral behaviour. There must be some form of cooperation between separate undertakings. Where self-employed profes- a agree to together come sionals provide, they services the for fee ashas it where prohibited is this its object or effect the preven- tion, restriction or distortion of competition. It is not just obvi- fixing price as such activities ous that are caught by section 4 and article 81. Also caught are ac- tions where undertakings unite to withdraw the as provision known customer, a to services of a collective boycott. Undertak- ings can come together sepa- rately, but often do so through such as in a representative body, the form of the IPU. Such rep- resentative bodies or trade as- to deemed usually are sociations be associations of undertakings and thus any decision of such a body that has as its object or ef- fect the prevention, restriction or distortion of competition is The4. section under prohibited practical difficulty, of course, is that individual undertakings may consider it more desirable and efficient for their sentative body repre- to negotiate on their behalf on various matters. However, from a competition law perspective, the danger is that any decisions reached may fall foul of section 4 and/or ar ticle 81. This results not simply in technical breaches of the law, anticompet- real a have may but itive result, in that higher fees otherwise would than set be may ne- individual where case the be gotiations take place with each separate undertaking. not just agreements between - legal eur contains a contains Competition Competition DECEMBER 2009 DECEMBER Gazette Society Law EC Treaty Treaty EC Essentially, Essentially, both section 4 provision of agreement the was not contrary to contractor section 4(1) of the Act 2002 because it was simply con- to obligation contractual a sult in advance of a unilateral determination of the rates of payment by the minister. Fol- lowing an investigation, Competition the Authority initi- ated a public consultation to extent the into 2008 October in which independent pharmacy contractors could act tively - collec in respect of setting including conditions, and terms of fees, for the supply of services by community pharmacies un- der the various drugs schemes administered by the HSE. Legal context Section 4(1) of the Act 2002 prohibits agreements between undertakings, sions of deci- associations of under takings, and concerted practices effect or object their as have that the prevention, restriction within competition of or distortion Article it. of part any or state the the of 81(1) similarly worded provision that prohibits such practices where they affect trade between mem- de- is undertaking An states. ber fined in section 3 of the act as “a person being an individual, a unincorpo- an or corporate body rated body of persons engaged for gain in the production, sup- ply or distribution of goods or Thus service”. a of provision the any self-employed professional, such as a pharmacist, would be regarded as an undertaking. collective prohibit 81 article and behaviour, as opposed to uni- - - - Health Act News from EU and International the Affairs Committee in that it addresses a more par ticular situation relating to the community drugs scheme, with the state acting as purchaser. Background the notice to The HSE is charged a under the public body macists, the Irish Pharmaceu- tical Union (IPU). The HSE maintained that competition law prevented with the IPU. Numerous phar consultation macists threatened to withdraw from the provision of commu- nity pharmacy services, and a pro- court commenced number ceedings against the HSE. In (2007), HSE v Others and Hickey the High Court ruled that the pay- fees in reduction unilateral able to pharmacists breached the relevant contractor agree- ment on the basis that the min- ister did not consult prior setting the to new rate. The court further ruled that the relevant 2004 with the and management delivery of personal social services health in the and state. It administers a variety of schemes for the provision of public, the to drugs prescription known as the community drugs schemes. It does this through a series of contractor ments. On 17 September 2007, agree- the HSE informed pharmacists 1 of as altering, be would it that pay- mark-up the 2008, January able for the reimbursement of prescription drugs provided by community pharmacies under the community drugs schemes. Historically, the terms of the contractor agreement, includ- ing the fee paid, were negoti- ated between the HSE and a representative body for phar Edited by TP Kennedy, Director Law Society of Ireland of Education, Edited by TP Kennedy,

- Col of Respect in Notice

n 23 September, the - Com n 23 September, petition Authority pub-

In the past number of years, The notice is not the first O lished its lished lective Action in the Community Pharmacy Sector. The provides guidance notice on the ap- plication of competition law to pharmacists by action collective and other health professionals Health the with engaging when Service Executive. This article examines the notice and re- with provides it clarification any permissible of scope the to spect collective action in relation to the setting of prices and other terms in the health sector. the Competition Authority has investigated and considered a number of instances involving collective negotiation within the medical profession. In Sep- tember 2005, it concluded an investigation into fees for con- sultants’ services with negotiated private health In May 2007, it insurers. reached settle- Med- Irish the with terms ment ical Organisation following an investigation into allegations of price fixing by the IMO in relation to the provision of pri- vate medical attendant reports. In October 2007, it launched an investigation into collective from pharmacies by withdrawal the methadone programme. piece of guidance by the Com- collective on Authority petition negotiations in the health sec- In tor. January 2007, the Com- petition Authority published a similar notice on collective set- the to relating negotiations ting of medical fees of consul- tants. The notice is published in a different context, however, ollective action in the pharmacy action in the Collective sector

Cipolla and and Arduino Meloni), which However, it However, goes on to state The notice further states Hickey) that there is nothing professionals, professionals, the notice points out that there is a real risk that lead may process consultation a to anticompetitive - coordina tion. that the provision in the 2009 act merely reiterates the - exist ing position in law (as set out in wrong with an association of undertakings being consulted as to what might be an - appro final the as long so price, priate decision is not made by agree- ment with that This line of association. thinking follows the ‘Italian lawyers’ decisions of the European Court of Jus- C-35/99 (Case tice Joined Cases C-4/04 and C-202/04 held that, where a professional undertakings representing body that fees of tariff draft a prepares when only compulsory becomes approved by the state, competi- because infringed not is law tion the tariff was not the result of a discretionary decision of the professional body; rather, the fix- in role decisive the has state ing the tariff. This means that the professional body cannot agree fees with the state, as an agreement of this nature means decision the is party one no that maker. Such thinking has also been given the imprimatur of EU competition commissioner Neelie Kroes in response to a question from the Parliament European on this issue. She indicated that the state cannot simply rubber stamp ments or a agree- decision of a lective body; col- it must have the power to alter or change proposal. the that section 9(10) exempt does collective not response in action professionals health by to changes in remuneration for services provided, beyond the communication and discussion of proposed changes. It indi- cates that, while section 9(8) of the 2009 act gives health pro- fessionals a right to terminate

- - chose to issue guidance on its current thinking as regards the legal position in this area. Limits on collective action The notice reiterates the - posi tion of the Competition Au- thority as set out in the con- sultation, while account also of the taking impact of 2009 the act. It provides specific examples relating to the phar price of type the of sector macy fixing that is section prohibited 4. by This includes agreement any between pharma- cists on the dispensing fee or rate of remuneration for drugs dispensed, where the macists intend that the phar agreed price will be imposed on the purchaser (in the this HSE). Also instance, mentioned as prohibited are an agreement to threaten a collective with- agree- an and services of drawal ment that reduces competition through non-price factors such range the and hours opening as Coordinated available. drugs of conduct that does not from result an actual agreement also is included in this context. Although both the contractor agreement between the HSE and pharmacists and section 9 of the 2009 act make provision for consultation among health - - - The Competition Author the act, or a declaration pursu- ant to section 4(3) of the to act the effect that a category of specified agreements, deci- sions or concerted does not, in its opinion, breach practices the act for meeting the exemp- tion criteria of section 4(5). On the ground, there was action on more the part of pharma- cists when, in March of year, pursuant this to section 9 of com- minister the act, 2009 the menced a consultation on fees payable to health-care profes- sionals and subsequently intro- duced changes to the remuner the under pharmacists for ation community drugs schemes. In response, a substantial number of pharmacists withdrew ser vice to the HSE. Services were sub- a by resumed subsequently stantial majority of these. ity received four submissions to its consultation, including from the HSE and the In IPU. its notice, the Competition Authority stated that, having reviewed the submissions, was it unable to issue a declara- tion pursuant to section 4(3) of the act, as there was nothing in them to indicate that collective negotiations in the nity pharmacy commu- sector fulfil the exemption criteria. Instead, it Financial Another relevant legal - pro Section 4(5) of the act and Emergency Measures in the Public the in Measures Emergency Interest Act 2009, section 9(1) of which provides for the uni- lateral reduction by the Minis- ter for Health and Children of professionals health to paid fees for services provided for or on behalf of the state. The section makes further provision consultation by for the minister, including with representatives of health professionals, when carrying out such reductions. Section 9(10) also contains rather a interesting and unusual reference that “nothing in the Competition Act 2002 shall pre- vent participation by that min- ister or any such representative in such consultations, or communication the and discussion of the outcome of such consul- tations by the representatives with the health professionals they represent”. Follow-up to the consultation The purpose of the consulta- tion was to allow the Competi- tion Authority to better assess whether to issue a notice on the issues guidance presented, pursuant to section 30(1)(d) of vision, insofar as is the concerned, notice is the article 81(3) allow for the sav- ing of what would amount otherwise to a breach of section 4(1)/article 81(1) where conditions, four or exemption - cri teria, are met. Where these are satisfied, it is considered that any pro-competitive of the effects agreement or decision of association of undertakings outweigh its effects. anticompetitive undertakings undertakings and decisions of associations of undertakings, but also concerted practices. A concerted practice is a form of joint conduct by undertakings that does not result in an actual undertakings the yet agreement, involved “knowingly substitute practical cooperation between them for the risks of competi- ). tion” (ICI v Commission www.lawsocietygazette.ie DECEMBER 2009 DECEMBER Gazette Society Law

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Notice Notice on Activities of www.lawsocietygazette.ie Rosemary O’Loughlin is a solicitor with the Commission for Commu- nications Regulation. This was no doubt prompted by the scope of the Competi- tion Authority’s examination over the last few years in rela- tion to the conduct ciations of of asso- undertakings. This very a is guidance general more useful supplement for anyone wishing to have an overview of applicable law in this area and contains some useful thetical and hypo- past competition enforcement examples. Both notices can be obtained on the Competition Authority’s web- site, www.tca.ie. the the Competition published additional Authority guidance on this area on 9 November, entitled Trade Associations and Compli- ance with Competition Law. principle of equal treatment (in article 141 of the differencesprovidesfor code be- treaty). The tween male and female workers with regard to pensionable age and minimum length of service. there that dispute not did Greece were differences in but treatment, submitted that pension systems, as the a statutory Greek not does scheme, security social treaty, the of scope the within fall but under Directive 79/9. This directive provides for the equal treatment of men and in women matters of but permits social member security, states exclude to from its scope the termination de- of pensionable age. The ECJ noted state that member each that provides the treaty is to ensure that the principle of equal pay for male applied. is and work equal female for workers ‘Pay’ means the wage or salary or cash in payment other any and in kind that the worker receives, of respect in indirectly, or directly employ- the from employment his - - DECEMBER 2009 DECEMBER Gazette Society Law Commission Civil and Military Code infringed the Employment Case C-559/07, v Greece, 26 March 2009. The commission brought ings proceed- against that Greece,the Greek arguing Pensions offers are commercial acts that form part of an operator’s com- mercial strategy and rectly relateto promotion and its sales di- development. Thus, they consti- tute commercial practices within the meaning of the directive and fall within its scope. The directive fully harmonises the rules on un- fair commercial practices at EC statesmember Accordingly, level. may not adopt stricter rules than directive, the in for provided those even in order to achieve a higher level of consumer protection. By establishing a presumption unlawfulness of combined offers, of national legislation such as this does not meet the requirements of the directive. the broad drafting of section 9 would as such is act 2009 the of provide scope for the develop- ment of a messenger model for provided services for setting fee by health professionals. Conclusion The notice serves the purpose of useful providing guidance in relation to the specific situ- ation of the setting of fees and terms in relation to the com- munity drugs schemes. Such guidance is useful for all par ties involved. At a wider level, it serves as for useful collective guidance negotiations in the health sector. Even more generally, the notice gives an indication of the Competition Authority’s and the European current Commission’s thinking on the limits of collective bar gaining. In fact, subsequent to the publication of the notice, - . The 13 March 2007 vis-à-vis other service Flair issue of the magazine contained a voucher entitling the holder to a reduction on products sold in various lingerie shops. Galatea brought an action order seeking prohibiting an that cial commer- practice, arguing noma had that infringed Belgian law. Sa- The Antwerp Commercial Court, which was seised of both cases, referred a question to for the a preliminary ECJ ruling. It asked whether the directive is to be in- terpreted as precluding national legislation, such as the Belgian pro- general a imposes which law, hibition of combined offers made by a vendor to a consumer. The ECJ pointed out that combined to discontinue that commercialwas it groundthat the on practice a combined offer prohibited Belgian by law. A separate dispute was before the Belgian between courts Galatea, a runs a lingerie firm shop in Belgium, that and Sanoma, a Finnish publisher that published the weekly maga- zine tion Authority. The question here would be whether a such series of withdrawals would practice. concerted a to amount Finally, the notice highlights the ‘messenger model’ as per mitting a degree of collective input by service providers into au- The state. the by setting fee model this recommends thority as being within the boundaries of competition law, provided appropriate safeguards are in place. The messenger model allows for a third party or mes- senger to obtain individually from each service provider the level of fees that provider the service would require from the state. It uses this to devise a fee scale. All communications the and messenger the between service providers remains con- fidential providers. The Competition Authority is of the view that

otal T Unfair Galatea BVBA AB NV v VTB-V Recent developments in EuropeanRecent developments law consumer law Belgium NV and Joined Cases C-299/07, C-261/07 and v Sanoma Magazines NV, 23 Belgium April 2009. The Commercial Practices Directive (2005/29) prohibits unfair com- mercial practices likely to distort consumers’ economic behaviour. It also lays down rules leading or on aggressive commercial mis- practices. Annex 1 lists commer- arethat practices cial allin unfair circumstances. Total Belgium is a company that sells fuel at fill- ing stations. Since early 2007, it has offered free breakdown ser- vices for a period of three weeks to consumers who are Club Total cardholders with every purchase of at least 25 litres a of car or fuel at for least ten litres for motorcycle. a VTB, an undertaking that operates in the breakdown service sector, brought an action courtsBelgian seeking the before an order requiring Total Belgium their contract with the where their state remuneration has been reduced, any agreement between undertakings or deci- undertak- of association by sion ings to collectively withdraw services following a refusal by the buyer to als made adopt to it in the propos- course of a consultation would be likely to be contrary to section 4(1) and article 81. In evi- no relation is there where situations to between agreement an of dence an of decision a or undertakings the undertakings, of association widespread that provides notice fol- undertakings by withdrawal lowing a decision by the buyer to fix a fee different from that undertak- the by recommended ings, in circumstances that are likely to give rise to a reason- able suspicion that the action is collective, might trigger an investigation by the Competi- US application G

ery, opposed the It relied registration. on earlier international trademarks and appellations of origin, including the word ‘Bud- OHIM beer. for registered weiser’ had rejected the identical was it that basis the on to the earlier word particularin in mark protected weiser’, ‘Bud- Germany and Austria. The goods in the application were identical to the goods (‘beer of any kind’) trademark. earlier the by covered OHIM also upheld brewery’s opposition the for malted Czech non-alcoholic drinks, in view of the and marks the of identity the obvious similarities of the goods concerned. Anheuser-Busch - ap Courtthe to decision this pealed of First Instance. The CFI noted that Budvar had proved the va- lidity of its the proceedings trademark before during Budvar had submitted OHIM. advertise - ments and invoices bearing the earlier trademark addressed to potential customers in Germany and Austria dating years before back the publication of five the appellant’s application for a community trademark. The CFI advertisementsthose that found of proof constituted invoices and genuine use by the Czech brew - ery of the earlier trademark. Ac- cordingly, Budvar was entitled to rely on that trademark for the registration opposing of purpose for beer of the plied trademark for by ap- Anheuser-Busch. In respect of malted non-alcoholic beverages, the CFI found these were that similar to the goods (‘beer of any kind’) covered by the earlier trademark. ‘Beer of any kind’ malted would a is which beer, alcoholic include non- non-alcoholic beverage. similarity gives Such rise to a hood likeli- of confusion on the partof German and sumers. Austrian They may con- believe that malted non-alcoholic beverages ‘Budweiser’ mark the under sold come from the same source as beer sold under the trademark ‘Budweiser’. Anheuser-Busch US brewery Anheus- OHIM, 25 March 2009. In intellectual property state. state. The ECJ confirmed that a - tak as such measure,protective ing into care of children, may be decided by a national court - un der article 20 of the regulation. If the measure is urgent, it must be taken in respect of persons in the member state concerned and it must be provisional. The taking of the measure and binding its nature are determined in accordance with national law. has measureprotective the After courtnational the taken, been is not required to transfer the case to the court of another member state having jurisdiction. protectionthe as of insofar ever, How- so child the interestsof best the requires, the national court that has taken protective measures courtinformthe must another of member state having tion. The jurisdic- referring court mem- courta a of whether asked finally jurisdiction no has that state ber no has it declarethat must all at jurisdiction or transfer the case to the court of another member state. The ECJ held that, in such circumstances, the court must declare of its own motion that it has no jurisdiction, but is not re- an- to case the transfer to quired other court. However, insofar as the protection of the best inter- requires,so the child the of ests national court that has declared of its own motion that it has no jurisdiction must inform, directly or though the central authority, the court of state having jurisdiction. another member Case T-191/07, Case Inc v 1996, the er-Busch applied to the for Harmonisation in the Internal Office Market (OHIM) for registration of the word sign ‘Budweiser’ as a community trademark for beer, ale, porter, malted alcoholic and non-alcoholic beverages. Bude- jovický Budvar, a Czech brew- II bis Regulation Brussels mer holiday there. the In family Finland, lived on and with relatives, campsites and the chil- dren did not go to school there. In November 2005, the children were taken into care and placed into a childcare unit. This unsuccessfully was challenged the mother and stepfather. They by appealed, and the appeal court referred a number of questions to the ECJ on the interpretation of the (2201/2003). The first question asked was whether the regula- tion applied to the enforcement of a public law decision concern- ing the immediate place- his/her and child a of taking care into ment outside the home. The ECJ held that this had already been dealt exact with and question The apply. did regulation the that court had also asked for ance on guid- the concept of habitual regu- the of article8 in residence lation. In this case, the children had a permanent residence stay- were but state member one in with- state member another in ing out a fixed place of residence. The ECJ held that the of concept ‘habitual residence’ must be interpreted as meaning that re- that place correspondsthe to it integration of degree some flects family and social a in child the by environment. The duration, regu- larity, conditions and for the stay reasonson the territory of a member state, and the family’s move to that state, the child’s nationality, the place and - condi tions of attendance at linguistic school, knowledge, and family and the social relationships of the child in that state be taken into consideration. It is must for the national court to the estab- of residence habitual the lish child, taking account of all the circumstances specific to each individual case. The court asked, if a child’s habitual referring residence is not in the member state, on what conditions an ur- gent measure (such as into taking care) may be taken in that , 2 April 2009. April 2 A, Civil and Military Pen- Code are not of a nature family law Three children lived in Finland with originally their mother (A) and their stepfather, but moved to Sweden in December 2001. In summer 2005, they back to Finland, with the original moved purpose of spending their sum- Case C-523/07, Case er. er. The concept of pay does not include social security schemes directly governed by legislation, but does include benefits paid under a pension scheme relate to the employment that of the person concerned. The pension paid under the Greek code com- plies with the three criteria en- de- court’slaw, the case by fined abling it to be classified as pay. It is applied to a wide and varied groupcalculated is it workers, of on the basis of length of service completed, and it is calculated on the basis of the final salary. contraryis to it that held ECJ The the principle of equal treatment to impose for the grant of a re- tirement pension paid in relation to employment age conditions and rules on minimum periods of service required according that to sex differ for workers in identical or comparable tions. situa- This does a not member preclude state from measures applying providing for specific facilitate to intended advantages the exercise of a activity by the under-represented professional sex or from preventing or - com pensating for disadvantages in professional careers. National measures, covered by the prin- ciple of equal treatment, must contribute to on life professional their conduct helping women an equal footing with men. The ECJ held that the provisions of the Greek sions to offset the disadvantages to which the careers of female civil servants and military personnel are exposed by helping them in their professional life. www.lawsocietygazette.ie DECEMBER 2009 DECEMBER Gazette Society Law

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Wicklow, Co Gazette: 144.50 from Law Society Gazette Society Law Arklow, 33 extra € rates Road, Cheques should www.lawsocietygazette.ie

it – Vale above-named deceased please contact Fish- and Fisher of Gilfedder Michael er, Solicitors, 9 John 028 Mitchel tel: 2BS; BT34 Down, Co Newry, Place, 3026 1811, fax: 028 3026 6695 O’Brien, Thomas (deceased), late of who died on 21 August 2008. Would willa of knowledge having person any made by the above-named deceased - Gazette office on tel: 01 672 Deadline for Jan/Feb publication. box around The price of advertising for all other professional The section applies to a person holding a lien. This The application shall be on notice by the applicant 31 is applications of lodgement for date last The Where the certificate is claimed to be lost or de- must authority the as lengthy, be can procedure This DECEMBER 2009 DECEMBER Gazette Society Law €144.50 (incl VAT at 21.5%) ice Not (usually four to five times longer than sional notices). other profes- notices will remain January unchanged 2010 until further notice. at € Registration of lien created through deposit or pos- session of land certificate 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 lien in such manner as the authority may determine. a lodge to undertaking of letter solicitor’s a include may land certificate or certificate of charge. to the registered owner and must be accompanied the original certificate (see section 73(3)(c)). by date that after lodged Applications 2009. December ensure therefore must Applicants accepted. be not will that the prescribed notices are served in good time, as the application may only be lodged after the expiration of 26 days from such service. 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.

- - €144.50 (incl VAT at 21.5%) prior to tant Notice: tant putting a by Society of d. Irelan whereabouts of a will above-named made by deceased the please tact Aoife Sheehan con- of John Sherlock & Co, Solicitors, 9-10 Main Clondalkin, Dublin 22 Street, King, Mary (deceased), late Clontigora of Road, 13 Newry, Co Down, BT35 8DR. any Would solicitor/per son having knowledge of the wherea- bouts of any will in relation to the paid for €289 per deed (incl VAT at 21.5%) Impor

Law be €144.50 (incl VAT at 21.5%) your notice Registration of Title Act 2006 - pro in the ional Profess notice section e ar as follows: Registration of Title Act 1964. The sec- Registration of Title payable to Lost land certificates – Wills – Title deeds – Employment/miscellaneous –

289 per notice, reflecting the significantly • • • • Highlight rates Law Society Gazette has found it necessary to 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 Abolition of land certificates and certificates of charge 20 January 2010. For further information, contact the 4828 (fax: 01 672 4877) be made All notices must onal ional profess ices announcement Professional Not The increase the price of advertising ‘Title deed’ notices in the professional notices double to € section. The price will greater amount of space that such notices consume Section 73(1) of the vides that the Property Registration Authority shall (PRA) cease to issue land certificates and certificates charge under the of tion commenced on 1 January 2007. 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. O’Reilly & Co, Solicitors, 9/10 South Great Georges Street, Dublin 2; tel: 01 679 3565, email: michael.oshaugh- [email protected] Gooney, Christopher (deceased), late of 35 Neilstown Park, Clondalkin, Park, Neilstown 35 of late Dublin 22 and formerly of 343 Gal- timore Road, Drimnagh, Dublin 12, who died on 18 any June person 2007. having knowledge Would of the Co Co Kil- d dare 23055F; lands: Robinstown barony of and Ida; Co Kilkenny; Kilkenny Mill, Kill, Naas, Co Kildare; folio: 1354F; lands: townland of Ardkill and barony of Carbury; wills lost lan lost certificates Gleeson, Nora (otherwise Hano- ra) (deceased), late of Sacre Coeur Nursing Home, Station Road, - Tip perary, Co Tipperary, and formerly of 98 Crumlin who Road, died Dublin on any person Would having knowledge 12, 10 December 2007. of a will made by the deceased above-named please O’Shaughnessy, solicitor, contact Patrick F Michael Farrell, Thomas (deceased), of late 122 Briarfield Road, Dublin Kilbarrack, 5. Would any ing person knowledge hav- of the of a whereabouts will made by the deceased, above-named who died on 18 2009, October please contact email: Edel [email protected] Farrell; or 291 6299 087 Fahy, Fahy, Teresa (deceased), Kilderry late of Loughrea, Co (otherwise Galway, who died on 20 April Keelderry), 2009. having Would knowledge of any a will made person by the above-named contact Office the General Solicitor’s deceased please for Wards of Court, Courts Service, 15/24 Phoenix Dublin 7; tel: 01 888 6231 Street, Smithfield, Regd owner: Richard Murphy; folio: Regd owner: Peter Farrelly, Old Registration of Deeds and Title Acts 1964 and 2006 from received been has application An the registered in the owners schedule hereto for mentioned an dispensing order with the land issued certificate in respect of the lands speci- fied in the schedule, which land original certificate is stated to have been lost or inadvertently destroyed. The land certificate will be dispensed with unless notification is received in the registry within 28 days from the date of publication of this notice that the original certificate is in existence and in the custody of some person other than the registered owner. Any such notification should state the grounds on which the certificate is being held. Property Registration Authority, Chan- cery Dublin 7 Street, (published 4 December 2009)

- - - appro- Landlord Landlord and In particular, such persons who are In default of any such notice be- And take notice that Patrick Murphy Patrick that notice take And In particular, any persons having an In default of any such notice being sition sition of the freehold interest and intermediate interests in the - aforemen all tioned property, and any party - assert ing that they hold a superior in interest the aforesaid upon to furnish property evidence of title to the are called aforementioned premises to the below named. entitled to the interest of Justin - McCa deceased, rthy, pursuant to a lease of 9 - McCa Justin between 1891 September rthy by his committee of John George McCarthy of the one part and William Joe Shinkwin of the other part, term of for 200 years from a 1 March 1892, in the property known Main Street in the city of Cork, as should 77 North be- the to title their of evidence provide low named. ing received, the Leader applicants, and Catherine Patrick Leader, intend to proceed with the application before the county registrar and will apply to the county registrar for the county of Cork for directions as may be priate on the basis that the person persons or beneficially entitled to the su- perior interest, including the freehold in the premises, are unknown and as- certained. Date: 4 December 2009 Signed: Babington, Clarke Solicitors (solicitors & for the Mooney, applicant), 48 South Mall, Cork In the matter of the and in the matter of an matter applicationthe in and Murphy Patrick by Cattlemar 2 at situate premises a of ket Street in the city of Cork Take notice that any interest in person any estate having in the following property: 2 Cattlemarket Street (other wise Cattlemarket), formerly known as 2 Glen Ryan Road in the parish of St Mary and Shandon and city of Cork. is applying to the Circuit Court for the reversionary lease in asserting the party any and property, above-men- tioned that they hold a superior interest, and in particular in fee simple or any supe- rior leasehold interest in the property, are called upon to furnish evidence of the title to the below named. 1869 September 27 of lease a in interest between Rosa Anne Chambers of the otherthe of Russell James and part one part, in respect of premises at Cattle- market Street in the parish of St Mary and Shandon and the city of Cork for a term of 100 years from 29 of March 1869 at a rent of £21, evidence of title to the below named. should furnish received, the applicant intends to pro- ceed with the application Cir the to apply will and Court Circuit before the cuit Court for directions as maybe ap- Tenant (Amendment) Acts 1980-1994 Acts (Amendment) Tenant - - un- Landlord Landlord and Landlord Landlord and Tenant licence Selling or Buying Selling or a seven-day liquor a seven-day Contact 0404 42832 Contact 0404 Take notice that Patrick Leader and Leader Patrick that notice Take Take notice that Patrick Leader and Take In particular, such persons who are In default of any such notice - be est in the freehold estate or any other estate of the following of Cork. North Main Street in the city property: 76 Catherine Leader intend an application to to the submit county registrar for the county of Cork for the acqui- sition of the freehold interest and intermediate all interests in mentioned and property, any party as- the afore- serting that they hold a superior inter est in the aforesaid property are called upon to furnish evidence of title to the aforementioned premises to the below named. entitled to the interest Augusta of Julian, Elizabeth Elizabeth Sylvia Geraldine Julian, Francis Marjorie Julian and Ruth Donal McCarthy, pursuant to a lease dated 11 June 1952 between Elizabeth Augusta Julian, Geraldine Sylvia Julian, Elizabeth Francis Mar McCarthyDonal and Julian Ruth jorie & Murphy J James and part one the on Co Ltd of the other part, for a term of 99 years from 29 September 1951, in the property known as 76 North Main Street in the city of Cork, should pro- below the to title their of evidence vide named. ing received, the Leader applicants, and Catherine Patrick Leader, intend to proceed with the application before the county registrar and will apply to the county registrar for the county of Cork for directions as may be appro- priate on the basis that the person or persons beneficially entitled to the su- perior interest including the freehold in the premises are unknown and ascertained. Date: 4 December 2009 Signed: Babington, Clarke Solicitors & (solicitors for Mooney, the applicant), 48 South Mall, Cork In the matter of the Tenant Acts 1967-2005 and in matter the of the (Ground Rents) (No 2) Act 1978 and in the matter of Douglas an Belair, 20 of Leader application Patrick by Road, Cork and Catherine Leader of 23 Chesterton Court, Knockrea Lawn, Cork notice Take any person having an in- oth- any or estate freehold the in terest er estate of the following property: 77 North Main Street in the city of Cork. Catherine Leader intend an application to to the submit county registrar for the county of Cork for the acqui-

- Landlord Landlord and Landlord Landlord and - Ten any person having inter care in Ireland. For information: el: 021-4812222 A Caring Legacy: T www.robinhillclinic.com bequests to The Carers Emma at 057 9370210. Rushbrooke, Cobh Co Cork LL CLINIC ROBIN HI or www.carersireland.com. www.corknaturalfertility.com Association (CHY10962) help to support home-based family miscellaneous title deeds [email protected] Relax and heal in a time warp, set in beautiful roundings tranquil sur- Harbour. overlooking Two accommodation Cork options self-catering available. Massage and pamper or B&B treatments tailored to help you unwind. Specialist clinics retreat and packages available. Reduce your overheads – outsource – overheads your Reduce - your bookkeeping/accounts. West side Bookkeeping cialising in Services. all aspects accounts/payroll. of Experienced Spe- book- solicitors’ keeper available on a contract basis – available. references Excellent site. on Contact: Michelle Ridge at 087 293 0347, email: [email protected] For sale: complete set, bound acts of the Oireachtas 1922-2006 other and law books. Contact: Hugh Fitzpatrick, M library and consultant, information 9 Upper 66101 fax: 2202, 269 01 tel: 2; Mount Dublin Street, 9239, email: [email protected] In the matter of the Tenant Tenant Acts 1967-2005 and in the matter of the ant (Ground Rents) (No 2) Act 1978 and in the matter of an application by Patrick Leader Catherine and Cork Road, Douglas of 20 Leader Belair, of 23 Knockrea Lawn, Cork Chesterton Court, notice Take

late of 4 Fermoy or website: ? MARKET R, PI COVE el: 01 8725622 moranryan.com tel: (01) 2454800, T ISO 27001 certified; Email: sconnolly@ email: [email protected] www.wpg.ie/docstore.htm INING IN A DECL Wood Printcraft DocStore’s Wood service from €500 per GB. DS ETC OVERHEA Dublin 7. 35 Arran Quay, D ABOUT WORRIE Moran & Ryan Solicitors, Contact Seamus Connolly professional e-discovery support Thinking of retiring, sizing down- or disposing of earnto want still but practice your income from your files? We have devised an innovative “Fileshare Scheme” so that you can still get the value of your files without the stress Con- practice. a managing of more. out find to today us tact with treated be will replies All the strictest of confidence. www.lawsocietygazette.ie please contact Cooke & Kinsella, So- licitors, Wexford Road, Arklow, Wicklow; Co tel: 0402 32928, fax: 0402 32272 or email: - fergus@cookesolici tors.ie Saich, Herbert (otherwise Bertie) John (deceased), Road, Mitchelstown, Co Cork, who died on 1 March 1969 Would Cork. Co Mitchelstown, at Road, 4 Fermoy any person having knowledge of the whereabouts of a will above-named deceased made please contact by the Sheena Lally, Office of the Solicitor General for Minors Court, and Wards Court of Services, Phoenix House, 2nd 15-24 Floor, 6231, 888 01 tel: 7; Dublin Smithfield, Phoenix St, fax: 01 872 2681 Wilson, Kevin Joseph (deceased), late of Orwell Lodge Nursing Home, and6, Dublin Rathgar, Lodge, Orwell also Tudor House, Woodlands Park, Mount Merrion, Co Dublin. Would any person having any knowledge of a will made by the 2009, above-named February 10 on de- died who ceased, please contact Michael O’Hanrahan, solicitor, William J Brennan & Solicitors, 33 Co, Upper Merrion Street, Dublin 2; tel: 01 440 4890/440 4802, mohanrahan@ email: 4891, 440 01 fax: williamjbrennan.com DECEMBER 2009 DECEMBER Gazette Society Law

briefingprofessional notices 62 briefingprofessional notices 63 - Landlord Landlord www.lawsocietygazette.ie In In default of such notice being - re o n ties under section 10 of the 1978 (no 2) act, and any they party hold asserting a that superior interest aforesaid in premises the (or any of is called them) upon to furnish evidence of the title to the aforementioned - prem ises to the below name within 21 days notice. this of date the from ceived, the applicants intend to - pro ceed with the application before the county registrar and the days end from the date of of this notice and 21 will apply to the county registrar for the county/city of Dublin for ba- the on appropriate be direc- may as tions entitled beneficially person the that sis to the superior interest including the freehold reversion in properties the are unknown aforesaid or unascer tained. 2009 Date: 4 December for (solicitors Co & Kennedy Kelly Signed: the applicant), 22 Upper Mount Street, Dublin 2 In the matter and of Tenant (Ground the 1967-2005 Rents) and in Acts premises the matter situate of at (formerlyStreet McCurtain 14 and numbers 12 county the in Fermoy Street), King of Cork, and in the application matter by of Thomas an O’Driscoll and Olive O’Driscoll i - a t i o c ss DECEMBER 2009 DECEMBER Gazette Society Law A a r d s Card B the christmas eve ball Contact: C Take notice Take that the applicants in- r m : o e n e v o l e n t North, Terenure, North, Dublin Terenure, 6: an ap- Limited Inns Camrose by plication Take notice that any person for time the being entitled to or interest having in the an freehold estate or su- perior intermediate interests of following the property situate at Terenure 94/96 Road Dublin North, 6: property no Terenure, 94 Road North, held under an indenture Terenure of lease dated 3 April 1924, made - be first the of Barry Joseph Patrick tween part, the Irish Civil Service (Perma- nent) Building Society of the second part, the Munster and Leinster Bank of the third part, and of Patrick the J fourth part, Fox for a term of 130 years from 18 January 1924, subject to yearly rent of £20; and property no Road 96 North, Terenure held under an indenture of lease dated 11 1920 June and made between Patrick Jo- seph Barry of the first part, the Irish Civil Service Building Society of the second part and Alfred Samuel Rus- sell of the third part for a term of 135 years and five months from 25 March 1920, subject to the yearly rent of 12 pounds (£12). tend to submit an application to the county registry for the county/city of Dublin for the acquisition of the free- interme- superior all and interest hold proper aforesaid the in interests diate f

c a r d pack(s) of card B @ €125.

’ B s r d e r e a c h

O d e si t o r Fax: n i i

c Landlord Landlord and i Sample of overprinted text will be faxed for confirmation before printing. n t e d i Send order form and cheque to: o l p r Landlord Landlord and - Ten

g the New Year S n i With Best Wishes for Christmas and r e e t t h e G

Association, whose needs are In default of any such notice being work of the Solicitors’ Benevolent o f

Offaly Offaly for the acquisition of the simple fee and all intermediate interests in the aforesaid party asserting property, that they hold and the fee any simple or any intermediate interest in the aforesaid property is called upon to furnish evidence of title to same to the below named within 21 days from notice. the date of this received, Patricia Regina O’Brien in- tends to proceed with the application before the county registrar at the end of the 21 days from the date notice of and this will apply to registrar for the the county county of Offaly for such directions as may be appropriate persons or person the that basis the on beneficially entitled to the fee simple and any intermediate interest in the aforesaid premises are unknown and unascertained. Date: 4 December 2009 Signed: Brian P (solicitors Adams for applicant), & Cormac Street, Company Co Offaly Tullamore, In the matter of the Acts Tenants 1967-2005 and in the matter of the ant (Ground Rents) (No 2) Act 1978 and in the matter of the purchase of freehold estate intermediate interests of property or Road Terenure 96 and 94 at superior situate particularly acute at Christmas time This is an opportunity to support the This is an opportunity to support the h r i s t m a s d i - - a

n I C Landlord Landlord and Landlord Landlord and Tenant el: 842 6444. Contact: Amanda SBA Christmas Cards, Santry Printing Ltd, Unit 5, Lilmar Industrial Estate, Coolock Lane, Dublin 9. T . I enclose cheque for € payable to Santry Printing Ltd (€132 per pack) Address: DX: Tel: 50 cards. Each card sold in packets of 50 costing €125 (including overprinting of your firm’s name). Minimum order Add €7.00 for postage and packaging for each packet of 50 cards. I wish to order pack(s) of card A @ €125, Firm: Text to be overprinted: madonna and child Antonio Correggio Card A Take Take notice that Patricia Regina bane in the parish in Garrycastle of barony and of Tissann Wheery and the County, the King’s subject of an indenture of lease (hereinafter called ‘the lease’) dated 12 November 1923 between Ernest Hamilton and Browne Edward White of the one and part Bridget Fanning of part for the term the of 99 years from 1 other September 1923 at a yearly rent IR£5. of O’Brien, being the person currently entitled to the lessee’s der interest the un- lease, the county intends registrar of the to county of apply to (Ground Rents) Act 1967 and in the Patricia by application an of matter Regina O’Brien Any person having a freehold estate or any intermediate interest that and those the in piece or parcel of all ground situate in the town of Fer propriate propriate on the basis that a person or persons entitled to the superior inter Tenant Acts 1967-2005 and in the matter of the In the matter of the est in the property are unknown and unascertained. 2009 Date: 4 December Signed: Diarmaid Falvey, Solicitors (so- licitors for the applicant), Church Street, Cloyne, Co Cork

- -

Employment for all their legal W SOCIETY GAZETTE In default of any such notice being recruitment est in the aforesaid property is called upon to furnish evidence of same title to to the below-named within 21 this notice. the date of days from received, Richard R O’Hanrahan in - tends to proceed with the application before the Registrar of Titles at end the of 21 days from the date of notice this and will apply to the Limerick county registrar for such directions as may be appropriate on the basis that the person or persons beneficially en- titled to the superior interests includ- ing the freehold reversion in each of the aforesaid premises are unknown or unascertained. 2009Date: 4 December Signed: Richard R O’Hanrahan, Limer ick Law Chambers (solicitors for the ap- Limerick Street, plicant), 22 High rently entitled to the lessee’s interest under the said lease, intends to apply to the county registrar of the county of Limerick to obtain the fee simple and in any the party said as- property, inter superior a hold they that serting by hard-working, law graduate, highly soon to become AITI- qualified registered tax consultant. Passed FE1s, all trained typist, very and excellent work experience. confident 086 331 3039 Tel: Solicitor’s Solicitor’s apprenticeship sought - - NO recruitment advertisements will be published

Landlord Landlord and Gazette, Society members to advertise Landlord Landlord and Tenant TISEMENTS IN THE LA ITMENT NOTICE TO THOSE PLACING RECRU Law Editorial Board has taken this decision based on legal advice, advice, legal on based decision this taken has Board Editorial Gazette ADVER In default of any such notice - be Log in to the new expanded employment recruitment register in the employment opportunities section on the Law members’ Society area website, of www.lawsociety. the recruitment Murphy, Trina contact or ie, Cork Society’s Law the at administrator, office, tel: 021 422 [email protected] 6203 or email: For staff requirements, not just qualified solicitors. that include references to years of post-qualification experience (PQE). The referencessuch that indicates breachwhich in the be of may Equality Acts 1998 and 2004. Please note that, as and from the August/September 2006 issue of the Law Society FREE EMPLOYMENT RECRUITMENT REGISTER Tenant Tenant Acts 1967-2005 and in the matter the and1978 Act 2) (No Rents) (Ground in the matter of an application by Richard R O’Hanrahan Any person having a freehold estate thatall in interest intermediate any or and those the premises at 28 William Street, Limerick (formerly known as 22 William Street and Street), 46 the subject William of of an lease dated indenture 11 May 1836 between Timothy Bunton and George Cooke Bunton of the one part and William English and Thomas English of the other part, take notice that R O’Hanrahan, being the person Richardcur dence of title to the aforesaid property aforesaid the to title of dence to the below named within 21 days of this notice. ing received, James Cassidy before application the with proceed to intends the county registrar for the county of Monaghan at the end of the 21 days from the date of this notice and will apply to the county registrar for the county of Monaghan for such orders on appropriate be may as directions or the basis that the person or beneficially persons entitled to the interest including superior the freehold rever sion in the aforesaid property are un- known or unascertained. 2009Date: 4 December Signed: Wright Solicitors (solicitors for Monaghan Mill Street, the applicant), In the matter of the

all that and

a solicitor position, Take notice that James Cassidy, be- Cassidy, James that notice Take son, Henry Dawson, Richard Dawson Richard Dawson, Henry son, and the Reverend William Augustus Dawson of the one Warren part of the and other James part, subject to the yearly fee farm rent of 20 pounds, five shillings and five pence reserved thereby but primarily liable to £1.50 (late Irish currency) thereof and forever forming a portion of the ises - prem therein described as those that dwellinghouse and premises situate in Back Street tenement in the town of Monaghan, together with the back yard tenement and premises front in containing thereof, rear the in including one-half of the gate-way 39 feet and from front to rear 157 feet, all which tenements and premises are situate, lying and being in the parish, barony and county of Monaghan, and of leasepartially held under indenture Marybetween 1948 October 21 dated Josephine McEntee of the one and John Francis Owens part of the other part, for the term of 99 years from 5 December 1941, subject to a rent of yearly £11 and therein described as all that and those that dwellinghouse Street Dawson in situate premises and county and barony parish, town, the in of Monaghan containing in front to Dawson Street 11 feet and from front to rear 26 feet be the same less more together with a or back house at the incontaining premises said the of rear front including the steps 20 feet eight inches and from front to rear 16 feet ten inches be the same more or less. grantee’s the to entitled person the ing interest in the said fee farm grant as respects the said premises and to the lessor’s interest in the said lease, in- tends to submit an application to the county registrar for Monaghan for the the acquisition county of the of freehold interest and any intermedi- ate interest in the aforesaid property, and any party asserting that they hold a superior interest in property is called upon to furnish evi- the aforesaid -

1978: an FREE

the Landlord and

Landlord Landlord and Tenant Society members seeking

Law term of 999 years from 29 Sep- 29 from years 999 of term And further take notice that, in de- in that, notice take further And Take notice that any person having person any that notice Take full-time, part-time or as a locum. For Log in to the employment new opportunities self-maintained section on job the seekers’ members’ area Law register of Society in the the website, www.lawsociety. ie, or contact Trina Murphy, recruitment Cork Society’s Law the at administrator, office, tel: 021 422 [email protected] 6203 or email:

job seekers REGISTER www.lawsocietygazette.ie Tenant Tenant Acts 005 1967-2 and in the matter of the In the matter of (Ground Rents) (No 2) Act application by James Cassidy Take notice any person interest in the having freehold estate or an any intermediate interest in the property now known as no 2 Dawson Monaghan, Street, in the county aghan, of partially Mon- held, together other with lands, under dated 17 fee December 1852, farm made be- tween grant the Reverend Thomas Daw- fault, the said application will be listed be will application said the fault, registrar county the before hearing for of the county of Cork at such date as may be available for such hearing. Date: 4 December 2009 Signed: PJ O’Driscoll & Sons (solicitors for the applicants), 73 South Mall, Cork any superior interest in the said prem- said the in interest superior any ises is invited to make representations to the solicitors on behalf of the ap- plicants, namely Messrs PJ O’Driscoll & Sons, 73 South Mall, Cork. chase the fee simple and all intermedi- all and simple fee the chase ate interests in the subject premises, being part of the premises comprised in and demised by lease made on 19 an December 1800 be- indenture of tween John Anderson of the one part part other the of Hendley Mathias and the for tember 1800 at the yearly rent of £21 and all the premises comprised in and demised by a lease made on 8 January 1803 between John Anderson of the one part and John Minton of the Redman other part for the term of 999 years from 29 September 1802 at the yearly rent of £20. We desire to apply to the county regis- county the to apply to desire We topursuant Cork of county the of trar above-mentioned the of provisions the legislation in respect of the - above-de scribed premises for an order that the pur by acquire to entitled is applicant DECEMBER 2009 DECEMBER Gazette Society Law

briefingprofessional notices 64 Mako Search, T: 01 631 9126 Alexandra House, F: 01 631 9001 The Sweepstakes, E: [email protected] Ballsbridge, Dublin 4. W: www.makosearch.ie

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