30/05/2012 21:54 June 2012

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Law Society Gazette • Vol 106 No 5 JUNE 2012 Law Society of Ireland cover june.indd 1 HALF DAY CONFERENCE Regulatory Reform for a 21st Century Legal Profession to be held on Friday 6th July 2012 at the Conrad Hotel, Earlsfort Terrace, Dublin 2

PROGRAMME AND SPEAKERS Chair: Professor Sandeep Gopalan, Professor of Law and Head of Dept. of Law, NUI Maynooth. 09.00 Registration and coffee. 09.30 Mr. Alan Shatter TD, Minister for Justice, Equality & Defence. 10.00 Professor Colin Scott, Dean of Law, University College Dublin. 10.45 Coffee Break 11.00 Mr. Steve Mark, Legal Services Commissioner, State of New South Wales, Australia. 11.30 Mr. Chris Kenny, Chief Executive, Legal Services Board for England & Wales. 12.00 Questions & Answers Session 13.00 Closing of Conference

Places are limited, so to register please email: [email protected]. CPD points will be awarded for attendance.

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Dublin Dun Laoghaire Cork Limerick 01 676 0301 01 230 3000 021 427 4014 061 468 690 www.jdh.ie Colum McNally Colum McNally Brian O’Loughlin Damien Morgan Law Society Gazette www.gazette.ie June 2012 PRESIDENT’S MESSAGE 1 finding equilibrium

here being no recent developments in relation to the That must surely be a matter Legal Services Regulation Bill, it makes for a pleasant for the executive, but it is Tchange to be able to write about something else in this obviously no easy task, and the message: Blackhall Place has, in the last short while, hosted problem is compounded in the three very different events, each of which was hugely successful internet age by reason of the and enjoyable. fact that different countries will The first of these was the Brown-Mosten client arrive at different solutions. consultation competition, an event that has its origins in It seems to me that it is the US going back to 1969. From humble origins as an more than a little bit disturbing international competition in 1985, when three countries that there is so little debate or participated, the competition has grown over the years. In discussion about the effect of “It is more than a all, 22 teams from educational institutions all over the world social media or technology, participated in this year’s event in Blackhall Place – the first generally, on the right to little bit disturbing time that it has been held in the Republic of Ireland. privacy. A recent, very well- that there is so The event ran over four days, with New Zealand the written article in the Irish eventual winners, followed by joint runners-up, China and Independent, headed ‘The little debate or Germany. It was a great honour for the organisers to bring the death of privacy’, highlighted discussion about competition to Ireland and great credit is due to Jane Moffatt the need to debate what privacy of the Law School for all the work she and her colleagues did should mean in today’s world. I the effect of social in arranging the event. hope that the Law Society may media or technology, promote debate on the issue by generally, on the Shifting the balance organising a conference on the The second event was the Annual Human Rights Lecture, held subject later in the year. right to privacy” at Blackhall Place on 10 May, which we were honoured to have delivered to us by the Lord Chief Justice of Northern Ireland, Calcutta Run Sir Declan Morgan. Sir Declan delivered a very stimulating The final event to which I wish to refer is, of course, the and topical speech on the subject of ‘Finding the equilibrium’. Calcutta Run, which took place in Blackhall Place on 26 He spoke about how the incorporation of significant elements May. For a change, the weather conditions were perfect, with of the European Convention of Human Rights into domestic law beautiful sunshine and a nice cooling breeze. More than 900 in Northern Ireland has caused a change in the relationship people took part. It is hoped to raise over €130,000 on behalf between the judiciary, the executive and the legislature. He of the two charities who benefit from the event, namely GOAL said: “It has inevitably shifted the balance between us, and each and the Peter McVerry Trust. of us must now try to identify how we achieve our point of I need hardly say that I am fully aware that these are very equilibrium.” straitened times, but if you can make a donation – if you have In a fascinating talk, he traced the history of the not already done do – it is still not too late. Donations can be development of administrative law in Northern Ireland sent to: Calcutta Run, Law Society of Ireland, Blackhall Place, through judicial review, and the impact of the Human Rights Dublin 7. Cheques should be made out to ‘The Calcutta Run’. Act 1998. More than 100 people are involved in organising this event and In looking at how the courts have responded to the I would like to thank them for giving of their valuable time to challenges created by the 1998 act, he analysed, among other ensure its success. things, very recent case law surrounding the development Each of these three very different events highlights what a of the right to privacy, including the now notorious ‘super wonderful resource we have in Blackhall Place and how it can injunctions’ cases. Inevitably, these cases led to the question: be used to promote knowledge, justice and collegiality within who determines public policy on privacy? the profession. Well done to all concerned. G

Donald Binchy President 2 contents Law Society Gazette www.gazette.ie June 2012

Law Society Gazette Volume 106, number 5 Subscriptions: €60/€90

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

Commercial advertising: Seán Ó hOisín, tel: 086 811 7116, RegularS email: [email protected] 4 News 55 One to watch: Social Welfare and For professional notice rates (wills, title deeds, Pensions Act 2012 employment, miscellaneous), see page 61. 12 Analysis 56 Regulation 57 Justis update Published at Blackhall Place, Dublin 7, 12 News feature: The recent PII survey tel: 01 672 4828, fax: 01 672 4877. results suggest that the future may not 58 Eurlegal: New EU data protection Email: [email protected] be so grim proposals; recent developments in Website: www.gazette.ie 16 Human rights watch: Diverting people European law Printing: Turner’s Printing Company Ltd, with mental-health problems away from Longford the criminal justice system 61 Professional notices Editorial board: Michael Kealey (chairman), 19 Comment 63 Recruitment advertising Mark McDermott (secretary), Mairéad Cashman, 19 Letters Paul Egan, Richard Hammond, Mary Keane, 64 Captain’s blawg Aisling Kelly, Tracy Lyne, Patrick J McGonagle, 20 Viewpoint: Part 2 of Lord David Ken Murphy, Andrew Sheridan Puttnam’s speech on justice and the citizens’ interests to the Law Society’s annual The Law Society of Ireland can accept conference no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions 46 People and places expressed are not necessarily those of the Law Society’s Council, save where otherwise 50 Student spotlight indicated. No responsibility for loss or distress occasioned to any person acting or refraining 52 Books from acting as a result of the material in 52 Book reviews: Contempt of Parliament, this publication can be accepted by the Irish Family Law Handbook and The Law authors, contributors, editor or publishers. The editor reserves the right to make publishing of Personal Injuries decisions on any advertisement or editorial 53 Reading room: Updates from the article submitted to this magazine, and to Law Society Library refuse publication or to edit any editorial material as seems appropriate to him. 54 Briefing Professional legal advice should always be 54 Practice notes sought in relation to any specific matter. 55 Legislation update: 6 April – 8 May 2012 64 FSC independently certified wood and paper products used by the Law Society Gazette come from ecologically managed forests. Visit: www.fsc.org

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The Law Society Gazette is a full participating member of the Press Council of Ireland and M supports the Office of the Press Ombudsman. R e s c ne This scheme, in addition to defending the free- ycl azi e Mag dom of the press, offers readers a quick, fair and free method of dealing with complaints that they may have in relation to articles that appear on our pages. To contact the Office of the Press Ombudsman go to: www.pressom- budsman.ie or www.presscouncil.ie. 47 49 Law Society Gazette www.gazette.ie June 2012 contents 3

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• Vol 106 No 5 No 106 Vol • Gazette Society Law cover story Mammoth task The results of the Law Society’s survey of members on PII issues A little knowledge The implications of the Mahon Tribunal for corporate governance To boldly go Fundamental changes in the EU’s data 22 The director’s cut protection regime

Claire Loftus is only the third DPP in the history of LawGazetteGazette Society the State – and the first solicitor to serve in the role.

€4.00

In an exclusive two-part interview, she speaks to June 2012

JUNE 2012 2012 JUNE Mark McDermott about getting from there to here features the director’S 26 Soul searching Ireland of Society Law Exclusive interview with the cut new DPP Claire Loftus

The recent Damache case represents a cover june.indd 1 38 laudable decision by the Supreme Court

to strike down a questionable statutory 30/05/2012 21:54 provision, writes Dara Robinson 30 I know nothing! 38 Pick ’n’ mix The Mahon Report is likely to have an The current employment rights impact beyond the world of property dispute-resolution system is too development, local government and complicated, takes too long and elected politicians: businesses are set to costs too much. Major reform is on feel the brunt of the tribunal recom- the way. Ailbhe Murphy gets digging mendations. Paul Egan surveys the fallout 42 Making the adjustment 34 Using your discretion Pension adjustment orders often A discretionary trust can be a useful tool cause difficulties for family law in succession planning, but it is fraught practitioners, but they are also a with dangers from a legal and taxation complex area for pension specialists. perspective. Aileen Keogan reviews some Donagh McGowan and Tommy recent changes Nielsen deliver the crash course 42

HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. Get more at lawsociety.ie Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] Gazette readers can access back issues of the magazine as far back as Jan/Feb 1997, right up PROFESSIONAL notices: send small advert details, with payment, to: Gazette to the current issue at lawsociety.ie. Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. You can also check out: All cheques should be made payable to: Law Society of Ireland. • Current news • Forthcoming events, including the IWLA Gala COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, Dinner in the Presidents’ Hall, Law Society, tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] Blackhall Place, on Saturday 30 June HAVE YOU MOVED? Members of the profession should send change-of-address details to: • Employment opportunities • The latest CPD courses IT Section, Blackhall Place, Dublin 7, or to: [email protected] … as well as lots of other useful information 4 news Law Society Gazette www.gazette.ie June 2012 Nationwide Compiled by Kevin O’Higgins Kevin O’Higgins has been a Lilywhites’ Council member A top debater at work of the Law waterford new leaders

Society since PIC: G KILDARE

1998 arrett The bar association’s new

F president is Sharon Murphy, it

zG assisted by Eva O’Brien, David erald Osborne, Andrew Cody, Helen

P Coghlan, Luke Hanahoe and Conal

New executive hotography Boyce. takes the helm At the AGM, Conal Boyce updated colleagues on court MEATH delays, publican/special restaurant licences and a The newly appointed members precedent statutory declaration on the Meath Solicitors’ Bar on annual certification of the Association are president: James President of Waterford Law Society Gerard O’Herlihy presents winner Kyle building regulations, changes to Walsh (Keaveny Walsh & Co), O’Sullivan (left) with a medal at the WIT Law Society Debate on 27 March the lodgements procedures and secretary/treasurer: Elaine Byrne the criminal list in the Circuit (Regan McEntee & Partners Court. Solicitors), PRO: Audrey O’Reilly (McGovern Solicitors), and committee members: Monitoring the Mediation Bill Declan Brooks (Brooks & DUBLIN Good for Lee Solicitors), Mark Dillon The Irish Women Lawyers’ attended a round-table discussion on (Dillon, Geraghty Solicitors); our souls Association (IWLA) celebrates the bill and its implications for people Claire Lehane (NAS advocate, GALWAY its tenth anniversary this year. In working in the field. This was a Ronan O’Reilly (Steen O’Reilly collaboration with Law Society novel initiative involving several key The Citizens’ Information Solicitors) and William O’Reilly Skillnet and the Bar Council of stakeholders. The convener has since Centre consists of volunteers (Steen O’Reilly Solicitors). Ireland, it is hosting a gala dinner written to David Stanton TD, who from the Galway business entitled ‘Women celebrating women chairs the Oireachtas committee for community. It oversees the lawyers’ on 30 June at Blackhall carriage of the bill, and has indicated provision and organisation of Place, which is open to solicitors a constructive engagement. fortnightly general legal advice Get your and barristers. Booking can be made Forthcoming seminars on nights and the weekly family through the IWLA website. Honorary technology (12 June) will be of law and employment law advice hiking boots membership of IWLA will be conferred interest to those who have always nights at the centre on Augustine by the association’s president, Ms threatened to master the power Street. Colleagues give their on! Justice Maureen Clark, on: of the internet. The workshop will time voluntarily. Bar association • Mary Robinson (former President deal with website design, online president, James Seymour, would MAYO of Ireland and founder and chair of marketing and how best to utilise like to hear from anyone who Mayo Solicitors’ Bar the Mary Robinson Foundation for social media. On 13 June, the DSBA would to get involved for two Association is undertaking Climate Justice), Probate and Taxation Committee are hours every six weeks. a charity climb of Croagh • Catherine McGuinness (former hosting a seminar on issues relating Says James: “On a personal Patrick in aid of the Children’s Supreme Court judge and member to contested wills, a CAT update note, I have been involved with University Hospital, Temple of the Council of State), and a look at how best to store and this service since 1998 and I have Street, on Saturday 14 July. • Susan Denham (Chief Justice of the maintain wills in your cabinet. On 20 found it very good for the soul.” (For full details, see ‘Letters’, Supreme Court), June, the Commercial Law Committee An exhibition of the works page 19.) The climb will take • Claire Loftus (Director of Public is putting on a topical seminar on the of renowned local artist Jim place on Saturday 14 July Prosecutions), new personal insolvency regime. All Kavanagh will take place in 2012. • Eileen Creedon (Chief Prosecution seminars take place in the Radisson, Galway Court House on 14 Anyone who would like to Solicitor), and Golden Lane. June at 6.30pm. Fifty percent get involved for this worthy • Deirdre Curtin (professor of On matters social, the DSBA of the proceeds from the sale cause should contact Evan European Law at the University of midsummer ball takes place in the of paintings will go to CROI O’Dwyer at e.odwyer@cocod. Amsterdam). Mansion House on 16 June. A black- (the West of Ireland Cardiology com or tel: 094 963 0011, tie event, the guest speaker will be Foundation). or contact Brid Miller at: The DSBA continues to monitor the Minister for Justice Alan Shatter. Advance notice is given for [email protected]. Mediation Bill. Geraldine Kelly and Tickets are available from the bar association’s Galway other council members recently maura@dsba. Races event on Monday 30 July. Law Society Gazette www.gazette.ie June 2012 news 5

In News this month... Having a laugh with 7 The YDS holds its first seminar 9 Conveyancing Conflicts Task 8 Update on the Legal Service Force publishes key findings the Legal Regulation Bill 2011 10 MIBI gets tough 8 Qualifying in Britain 10 Job Seeker Support Programme Services Bill

Colin Daly – District Court Joint table quiz scores New judicial great result for charity appointments Solicitors Colin Daly, Mary Larkin, and John O’Connor have been nominated for appointment to the District Court. Paul McDermott Justis Publishing is introducing SC and Iseult O’Malley SC have Justis Irish Cases to its Irish been nominated for appointment portfolio. To mark the launch, to the High Court. there will be an evening of topical In other news, the new Chief debate to be hosted by comedian Prosecution Solicitor is to be Peter and former solicitor, Keith Farnan, Mullan (Sheehan and Partners). at Dublin’s Shelbourne Hotel from 6pm on 12 June. Hotly debating the Legal Services Regulation Bill will be barrister and journalist Kieron The SYS, with the Chartered children. The event raised €3,550 Wood, James McDermott BL, Accountants of Ireland Young – over €1,000 higher than last Dr Gerald Kean, and former Professionals, got together to year’s efforts! Law Society president Patrick hold a joint table quiz in aid of The organisers wish to express O’Connor. For more information, the Irish Kidney Association and their appreciation to main see www.justis.com/dublindebate. The Ark, which is a Temple Bar- sponsors, recruitment company based cultural learning centre for Brightwater. Important Dispute notice on the Fry partner wins international resolution Run-off Fund client choice award seminars in The attention of practitioners is drawn to a special notice on the John Larkin, a partner in William Dublin Run-off Fund (ROF) and run-off cover Fry, is the only solicitor in Ireland Dispute resolution gurus in the ‘Practice Notes’ section of to win an International Law CEDR Ireland are hosting an this issue (see page 56). Office Client Choice Award for arbitration seminar on 12 June Firms ceasing practice, who his work in the insurance sector. in the Ormond Meeting Rooms, have renewed their professional The award, chosen by in- Dublin, from 5 to 7.30pm. indemnity insurance for the house lawyers following a Topics include costs under the current indemnity period – survey process, recognises John’s Arbitration Act 2010 and the subject to meeting eligibility extensive expertise built up over future of adjudication in the criteria, including that there is no 20 years advising the insurance construction sector. succeeding practice in respect of sector in Ireland. His practice The following day, there is the firm – will be provided with run- focuses on assisting insurance and to be a one-day conference on off cover through the new ROF. reinsurance companies to establish mediation at the same venue. The relevant regulations, in Ireland and advising on cross- For more information or to documentation and more detailed border passporting issues. book a place at these events, information on the ROF can be found John is a member (and former email Nicola White at nwhite@ on the Society’s website at www. chairman) of An Taoiseach’s IFSC cedr.com. lawsociety.ie/Pages/PII. Insurance Group. Summer BB TEAM BUILDING EVENTS @ BLACKHALL PLACEQ

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Full inclusive Event & Catering Package for only €62pp Experience the exhilaration of beating your colleagues at the Celtic Challenge, or the Eliminator Challenge in the historic grounds of The Law Society of Ireland. Package pricing includes: Catering - 2 Choice Menu option • Selection of chefs summer salads • Dessert of the season Fun & Games - Choice of two team building events - The Celtic Challenge or The Eliminator • Full event management on the day • Scoring of each teams Exclusive Venue Hire - Outdoor space at The Law Society • The Blue Room or The Presidents Area (numbers dependent) • Minimum Number - 60 people.

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For further details contact Christina Schoeman, Sales Executive, Blackhall Place telephone: (01) 672 4918 or email: [email protected] Law Society Gazette www.gazette.ie June 2012 news 7 Young Dublin Solicitors Committee seeks your support The Young Dublin Solicitors Committee (YDS) is a committee of the DSBA and represents the interests, both professionally and socially, of the younger and most recently qualified members of the profession, from newly qualified up to five years qualified. The YDS organises low-cost CPD seminars, lectures and other events and have a wide mix of committee members from all sectors – large, mid-sized and small firms, sole practitioners, in-house solicitors and solicitors in other roles. The committee held its first (Above) Caitriona McGonagle seminar on 23 February 2012 (William Fry, sponsor), Eamonn entitled ‘Effective networking Sayers (founder, Sports Charitable and business development skills Trust), Ray Houghton (FAI ambassador) and Carol Eager (YDS and a CV workshop’. Speakers Chairperson) included Peter Cosgrove (director, CPL Recruitment) (Left) Speakers at the Networking and Karen Sutton (career Seminar included (l to r): Carol support executive at the Law Eager, Peter Cosgrove, Karen Sutton Society). and Eamonn Shannon A second seminar on 18 April 2012 dealt with the Commissioner) and Andrea topic ‘Social media and data Martin (consultant, Eugene F protection law’. Speakers were Collins). Billy Hawkes (Data Protection To date, over 150 young solicitors have attended seminars. The YDS thanks all New guide for in-house solicitors launched the speakers gave up their time to speak at the events.

Euro 2012 on the big screen The YDS is teaming up once again with the Sports Charitable Trust by staging the upcoming big screening of the Euro 2012 Ireland v Spain match on 14 June 2012. This event will be hosted in the Sugar Club, Dublin, and is kindly sponsored by the William Fry CSR Programme. The event is open to members and non-members. Tickets are only €10 and all proceeds raised will be donated to charity. The match kicks off at 7.45pm. Doors open at 6.30pm. To register for this event just At the launch of the new version of the Guide for Solicitors Employed in the Corporate and Public Sectors were (front, l to r): Donall King, Maureen Synnott, Mary Cummins (chairman), Louise Campbell (secretary), Mary O’Connor and log on to the following link: Caroline Dee Brown.(Back, l to r): John Healy, Leon Atkins, James Kinch and Brian Connolly www.eventelephant.com/ ydseuro2012. 8 news Law Society Gazette www.gazette.ie June 2012 outlaws AND INLAWS Update on Legal Services Lives less ordinary Regulation Bill 2011 Margaret conservation. These include MullaRney the Irish Architectural Archive, Move4 the Birr Scientific and Heritage Parkinson’s Foundation and the Irish Margaret Landmark Trust. Mullarney He was a co-author of qualified Vanishing Country Houses in 1978 of Ireland, which beautifully and, after documented hundreds of great qualifying, worked in-house Irish houses, most of which are with Irish Life & Permanent. now demolished or in ruins. Margaret founded a not-for-profit In 1996, Nick published organisation – Move4Parkinson’s Edmund Burke: a Life in – earlier this year, having been Caricature, a study of Burke’s diagnosed with Parkinson’s in life and career through 2004. Last October, Margaret contemporary political cartoons. was awarded the inaugural Dara Calleary: elicited information Dublin Lord Mayor’s Medal after Catherine completing the Dublin City Cosgrave The latest information on the response to the parliamentary Marathon. Immigrant Legal Services Regulation Bill 2011 question, Minister Shatter said: Move4Parkinson’s provides Council of is that the committee stage of the “It remains my objective … support and advice for the Ireland bill will not take place, other than that the committee stage of the 10,000 plus people in Ireland Catherine commencing very briefly, before Legal Services Regulation Bill living with this progressive started autumn 2012. commences before the summer neurological disorder. On 20 her legal The information was elicited recess.” June, they are hosting a ‘patient career as from a reply to a parliamentary However, it seems certain empowerment day’ to coincide a barrister, but transferred to question submitted by Dara now that the bill will not become with the international Movement the solicitors’ profession in Calleary TD. an act before 2013 – and, indeed, Disorder Society conference 2008. She joined the Immigrant In his reply to Deputy it may not commence until well taking place in Dublin. Council of Ireland in 2004. Calleary, Minister for Justice into the New Year. There are The day has five key She manages the ICI legal Alan Shatter refers specifically many complex issues in the bill themes: nutrition, exercise, services and provides advice and to his closing statement on the unresolved as yet. medication, emotional wellbeing representation to migrants and second stage of the bill on 23 It is acknowledged, also, and additional supports. their families. February 2012 and his speech to that the controversial, complex Move4Parkinson invites people In addition, Catherine also the Law Society Conference on and Troika-demanded Personal with Parkinson’s, their families contributes to migration policy, 14 April 2012. Nothing much has Insolvency Bill is a much higher and carers to attend. Contact undertakes research projects changed since then. priority for the minister and the www.move4parkinsons.com or and makes policy submissions At the conclusion of his department at present. tel: 01 524 2781. to Government departments and domestic and international Nicholas K committees. Qualifying in Britain – Robinson She teaches refugee, Historian immigration and citizenship significant development and law at the Dublin Institute A date has been set for the from the Society’s Regulation cartoonist of Technology and is also new training course in English Department). Husband the author of a number of and Property Law, to run over This training course, leading to to Mary publications, including Family an intensive two-day period at a Certificate in English and Welsh Robinson, Matters: Experiences of Family Blackhall Place in September. Property Law and Practice, has Nick Reunification in Ireland (2006) Irish solicitors who successfully been organised by Law Society Robinson qualified as a solicitor and Living in Limbo: Migrants’ complete this course will be able Skillnet and takes place on 14 and in 1974 and, over the past four Experiences of Applying for to bypass the QLTS system that has 15 September. decades, has helped to establish Naturalisation in Ireland been in place in England and Wales The course will especially numerous bodies focused on (2011). for the past two years. facilitate Irish solicitors living Solicitors who complete the abroad who wish to qualify in Do you live a life less ordinary? Or do you know an outlaw? If you course will be able to qualify Britain. Full details are available or someone you know has trained or practised as a solicitor, but are by completing one simple form, on the Society’s website, at www. now working in another field, please let us know your story. Write to: paying £100, and providing Garda lawsociety.ie/Certificate_in_ [email protected] clearance and a certificate of good English_and_Welsh_Property_Law_ standing (available free of charge and_Practice_2012.aspx. Law Society Gazette www.gazette.ie June 2012 news 9 Conveyancing Conflicts Task Force publishes key findings The report of the Conveyancing voluntary transfers adopt the draft regulation. Conflicts Task Force has just should be treated on the Presidents or secretaries of been published. It has been sent same basis. It therefore bar associations are requested electronically to every member recommends an outright to communicate the views of the profession for whom the prohibition on one of their bar associations to Society has email addresses. solicitor or firm acting the Society by 3 July 2012, Among the key findings, the for both vendor and which should be emailed to: task force recommends the purchaser in transactions conveyancingconflictsTF@ total prohibition on a solicitor for value, with two lawsociety.ie. or a firm acting for both sides exceptions. in a voluntary conveyancing • The wording of these Wide consultation transaction, subject only to one two exceptions is drawn President of the Law limited exception. In addition, from existing statutory Society Donald Binchy has it recommends an outright provisions. They congratulated the task force prohibition on a solicitor or can be interpreted for its extremely hard work: firm acting for both vendor and based on objective “The depth of their research purchaser in transactions for criteria and empirical Conveyancing Confl icts and analysis is most impressive, value, with two exceptions. evidence. One of Task Force and I want to thank the the exceptions is Report members of the task force for Terms of reference where both parties their outstanding work on this In November 2010, the Council are ‘qualified complex issue.” of the Law Society established parties’ as defined The report’s contents are the task force with terms of in the proposed regulation on page 45 of the report. based on wide consultation reference (as subsequently by reference to the definition Members are requested to let both inside and outside the slightly amended) as follows: of ‘qualified investor’ in the the Society have their views no solicitors’ profession, together “To review the Society’s existent Prospectus Directive Regulations later than 5pm on Tuesday 3 July with in-depth research of rules, guidance and regulations of 2005. 2012. This is so that they may regulations, legislation, and relating to solicitors acting for be considered in advance of the jurisprudence in relation to both vendor and purchaser The Society is now seeking Law Society Council meeting on conveyancing conflicts, both in conveyancing transactions members’ views, in particular on Friday 13 July 2012, when the in Ireland and in jurisdictions (including voluntary transactions) the draft regulation that appears Council will consider whether to around the world. and to examine also the systems in other jurisdictions with a view to making any recommendations for change considered Law School of the Year! appropriate.” In its report, the task force, chaired by Catherine Treacy, concluded that: • In the case of voluntary transfers and transfers manifestly below market value, there should be a total prohibition on a solicitor or firm acting for both sides in a voluntary conveyancing transaction, subject only to one limited exception. This exception is recommended in recognition of the special statutory treatment afforded to the transfer into joint names of the family home and shared home in line with the Family Home Protection Act 1976 and the Civil Partnership and Certain Rights and Obligations of The Law Society’s diploma programme won the ‘Law School of the Year’ award at the inaugural Irish Law Awards Cohabitants Act 2010. 2012. Pictured are (front, l to r): Jane Callaghan (diploma administrator), Freda Grealy (diploma manager), Rory O’Boyle (diploma co-ordinator), Deirdre Flynn (diploma executive) and Tina Dwyer (diploma administrator). (Back, l • Having completed its review, to r): TP Kennedy (director of education), Paul Mooney (IT executive), Loretto Kennedy (diploma administrator) and the task force concluded Geoffrey Shannon (deputy director of education) that transfers for value and 10 news Law Society Gazette www.gazette.ie June 2012 MIBI gets tough on uninsured drivers who cause accidents It will be of interest to solicitors for Munster, Connacht and who act for clients who have Donegal). caused accidents driving while The MIBI counterpart uninsured that the Motor organisation in Britain has a Insurers’ Bureau of Ireland similar programme in operation (MIBI) has now entered upon in Northern Ireland and both a more intensified programme bureaux cooperate fully on of financial recovery from such accidents with a cross-border drivers. dimension. The Gazette has learned that The MIBI says that it wishes the new programme involves to urge solicitors who act for the MIBI’s solicitors writing to uninsured drivers to engage with uninsured drivers within a short its solicitors in the best interests time of the accident and, based of their clients and of the wider, on a professional case estimate compliant motoring public who, of the amount of compensation through their annual insurance and associated costs likely to be premiums, are the ultimate payable to the innocent victims payers of claims caused by of the accidents, quoting a figure uninsured drivers. that, if paid promptly by the The bureau says that failure uninsured driver, will have the at a very early stage, to afford The new programme will be to use the new opportunity effect of settling the MIBI’s claim him/her one opportunity to operated on behalf of the MIBI to engage with the MIBI and against the uninsured driver. accept responsibility, and to pay by two expert recovery firms, its agents at an early stage According to the MIBI, the a fair settlement figure to the namely Mason Hayes & Curran “may result in many years of purpose of the new programme is MIBI in order to avoid further (solicitors for Dublin, Leinster stressful litigation, judgment and to bring home the consequences civil litigation or pursuit for debt and Cavan/Monaghan) and enforcement action against the of the uninsured driver’s actions recovery into the future. Pierse & Fitzgibbon (solicitors uninsured client”.

Getting back to work with Job Seeker Support Programme Law Society Skillnet and Law in 2011 have secured full-time Society Finuas Network have employment. secured funding from Skillnets The JSSP initiative is funded Ltd to run its Job Seeker Support by Skillnets Ltd and is managed Programme (JSSP) in 2012. The and delivered by Law Society first course will start in June. Skillnet and Law Society Finuas Additional courses will run Network. The Society’s Policy, throughout the summer months. Communications and Member This is a significant opportunity Services department and its for solicitors who are out of career support service is work and are unable to access providing work-placement support employment in the area that they and training services for these traditionally have worked or networks. trained in. Solicitors interested in The Skillnets Job Seeker taking part in these training Support Programme was and work-placement courses – established to open up new either as a trainee job-seeker opportunities through cross- or as an employer who would training, and to help people to get like to take on someone for work started in new work areas where • Funds management, Society and its networks received experience – should make job opportunities exist – either • Islamic finance, two ‘Outstanding Achievement’ contact with the Law Society through providing training and • Social policy, and awards from the Irish Institute Skillnet and Law Society Finuas work experience placements. • Litigation. of Training and Development for Networks, by emailing: jssp@ The Skillnet JSSP initiative the quality of the JSSP and the lawsociety.ie. opens up opportunities for Courses run by the Law Society innovative use of technology in The eligibility criteria for solicitors to move into work Skillnet and Finuas Networks delivering training. trainee jobseekers and employers areas, such as: in 2011 assisted solicitors in To date, almost one third of all can be found at the Skillnets Ltd • Legal officer roles, finding employment in all of the those who participated in both website at: www.skillnets.ie/job- • Compliance and regulation, above areas – indeed, the Law training and work placement seekers/eligibility-criteria. Law Society Gazette www.gazette.ie June 2012 representation 11 news from the law society’s committees and task forces ECLA meeting looks at bribery and diversity

IN-HOUSE AND PUBLIC SECTOR COMMITTEE

A member of the In-House sub-contractors, employees, The most recent piece of and Public Sector Committee subsidiaries, suppliers, joint legislation, the Equality Act represented the Law Society at venture partners or companies. 2010, extends public-equality the meeting of the European No awareness is needed for duties that cover race, disability New guide Company Lawyers’ Association guilt, but there is a defence and gender, to include religion/ (ECLA) in London on 16 if it can be shown that there belief, sexual orientation, age for in-house March 2012. The Law Society were ‘adequate procedures’ and gender reassignment. of England and Wales hosted to prevent bribery. Guidance Private companies delivering a solicitors the meeting. Over 20 delegates suggests that companies should public service are often required IN-HOUSE AND PUBLIC attended. adopt procedures with the to meet the public-equality duty SECTOR COMMITTEE Counsel from Shell contractual counterparty and through explicit terms. International Ltd provided ask them to adopt procedures The impact of these duties on The new version of the Guide insight on Britain’s Bribery Act with the next company in the private companies is that, when for Solicitors Employed in the 2010, which replaced previous chain. delivering contracts for the Corporate and Public Sectors bribery laws and extends to Senior officers of a body public sector, they need to meet has just been published. all private sector transactions. corporate can be convicted equality duties in terms of: Produced by the In-house and (Previously, focus was on where they are deemed to have · Specific contract performance Public Sector Committee in transactions with public officials given consent or connivance measures for various conjunction with Society staff, and their agents.) There are four for bribes involving a foreign protected characteristics, the guide will prove useful to separate offences under the act: public official (section 14). · Supplier and subcontractor existing in-house solicitors · General offence – offering, Regarding the act’s territorial management, including (who represent 16% of the promising or giving a bribe reach, sections 1, 2 and 6 processes for equality of Law Society’s membership) and (section 1), apply to conduct both in opportunity and engaging prospective in-house solicitors. · General offence – requesting, Britain and abroad where the diverse businesses, often The guide was distributed at agreeing to receive or person involved has a “close through ‘flow down’ clauses a committee panel discussion, accepting a bribe (section 2), connection” with Britain (for around equality and diversity ‘Managing the recession – the · Bribing a foreign public example, incorporation or performance, evolving role of in-house official to obtain or retain residence). Section 7 applies to · Monitoring and reporting lawyers’, on 16 May. It is business (section 6), bodies incorporated in Britain on the equality impact of available on the committee’s · New strict liability offence or carrying on a business or employment policies, FAQ page at www.lawsociety.ie/ for commercial organisations part of a business in Britain, · Any reasonable contract Pages/Committees/In-House- – failing to prevent bribery regardless of where the bribery provision designed to assist and-Public-Sector/FAQ. by those acting on their takes place. the public body to achieve its If there is a matter of interest behalf (‘associated persons’) equality objectives. or concern to you that you where bribery was intended Diversity and inclusion would like to raise with the to obtain/retain a business A representative of the Law The Law Society of England committee, please contact advantage (section 7). Society of England and Wales and Wales has a procurement Louise Campbell, committee gave an overview of diversity protocol that may be used by secretary, Law Society of ‘Associated persons’ is broadly and inclusion legislation. This purchasers of legal services to Ireland, Blackhall Place, Dublin defined (section 8) and can area of the law has developed encourage better equality and 7; tel: 01 881 5712, or email: include intermediaries, agents, over a number of years. diversity in practice. [email protected]. Seminar on using technology for a more efficient practice technology COMMITTEE

‘Working smarter, not longer! development skills. a practitioner’s own story of Kane and Co, Solicitors), Using technology for a more The seminar will examine technology use. The seminar John Kennedy (editor of efficient practice’ is the title of a the use of various devices and will also address security issues siliconrepublic.com) and Colm Technology Committee seminar emerging technologies – in in using mobile devices and Fagan (Espion Intelligence). that will take place from 1.45pm particular, cloud computing innovative applications, and will Opening remarks will be by to 5.30pm on Friday 29 June – and how they can make for provide practical guidance on Frank Nowlan (chairman, 2012 at Blackhall Place. more efficient use of your data protection and other issues. Technology Committee). See The fee is €95 and features working time. It will examine Main speakers will include advert in this issue (page 18) a total of 3¼ CPD hours of the practical use of various Adrian Weckler (Sunday for further details and management and professional mobile devices and will provide Business Post), Joe Kane (Joseph application form. G 12 ANALYSIS Law Society Gazette www.gazette.ie June 2012

at the end of the storm...

After several disastrous years, the professional indemnity insurance market is starting to look better for solicitors. Stuart Gilhooly delves into recent survey data and predicts an immediate future with a little less rain

here’s a song. You’ll know it. It’s the one they live in Ireland for God’s sake: when is a storm ever sing in football stadiums. Usually Liverpool over?), but it has been reduced to sudden squalls and, Tfans, but Celtic seem to think they own a piece although the sky isn’t quite golden, the sun is at least as well (they don’t, but you can’t tell them: they get peeping through. annoyed when you mention it). And in the middle of the The last renewal was welcome for being a surprise first verse, there is a wonderful line – “at the end of the as much as for saving us all some money. Having been storm, there’s a golden sky...” accustomed to increases in high percentage terms, Stuart Gilhooly is By the end of November for the past three years, the prospect of status quo was some people’s idea of chairman of the many solicitors did feel that they were nirvana. But the market had different Law Society’s PII walking alone. Indeed, some were happy ideas. Committee and PII just to be walking at all, such was the “Insurers And here’s the thing. It’s all about the Task Force and is impact and general chaos of the PII aren’t wicked market. It always was. Insurers aren’t an award-winning renewal process. And that was before the wicked stepmothers who want to punish writer mammoth quotation caused you to take stepmothers who errant children. It’s much more simple out a second mortgage. If you could get want to punish than that. They just want to make a mortgage. If you didn’t already have a money. So when they are, they are very, second mortgage. Or a third. errant children. very nice. And when they are not, they You get the picture. The storm came, It’s much more are horrid. and it was a perfect one. Insurance costs And that’s what happened. The claims rose, business fell through the floor, and simple than that. have slowed from a torrent to a trickle, many solicitors’ pensions (their way out of They just want to many of the insurers that got burnt in the rat race) went south. They sought in the bad years have left the market, and vain for a way out, but a combination of make money. So the rest are starting to see black numbers expensive run-off and decimated pensions when they are, in the ledger. Basic economics tells you made staying in the only option. they are very, very that profits bring more competition into the market. And competition usually Here comes the sun nice. And when means lower prices. That was what we While it would be premature to feel, to say they are not, they saw last year. the least, that we have turned the corner, at least there is a hint of the sun breaking are horrid” Like a hurricane through the clouds. Yes, business is still But it’s all very well for me to say that woeful and pensions are still in the can, but at least it was a better renewal, so rather than rely on pure insurance costs are heading the right way for the first anecdote, we repeated what we did last year. The Law time in five years, and there is an exit strategy if you Society Council unanimously agreed that we needed want one. independent confirmation of the word on the street. In insurance terms, the storm isn’t quite over (we So, between 11 April and 2 May 2012, Behaviour & Attitudes polled every firm by email and received 225 SURVEY BACKGROUND AND OBJECTIVES responses. While this is considerably down on last year’s 770 • This is the Society’s second survey of the profession in relation to PII, and the replies, it’s generally accepted that an angry populace is survey was carried out by Behaviour & Attitudes. much more likely to elicit a response. As the response • As PII is required by solicitors’ firms rather than by individual solicitors, the survey rate is only 10%, the survey findings do come with a was conducted on a per firm basis and focused on firms’ experience of the PII health warning. However, they match the anecdotal renewal process. It was requested that the survey be completed by the managing evidence that many of us have heard from colleagues, partner or equivalent of each member firm, or a person nominated by the managing so I think it’s fair to say the findings are largely partner of the firm. accurate. • The research was conducted through an online survey using a questionnaire The most interesting statistic is that a whopping designed by the Society’s PII Task Force, and the results received were compared 88% were happy with the renewal process. In a country throughout to those from the 2011 PII survey. where one out of ten people would still have a gripe if • Fieldwork was conducted between 11 April 2012 and 2 May 2012, and 225 they won the Lotto, this is remarkable. Maybe it was responses in total were received from members. relief; perhaps it was surprise. Or else it could have been the common proposal form. Law Society Gazette www.gazette.ie June 2012 ANALYSIS 13

change insurer for pii B5: Did your firm change its insurer for compulsory PII cover for 2011/2012? 2012 2011 A total of 88% of respondents base: 225 base: 770 premium? Of those that Common proposal form were pleased with its responded this year, an average drop of 19% (from €23,132 to B11: Did you find having a introduction, and there is no Yes 40% €18,711) was noted. However, common proposal form enabled doubt that it improved matters changed 43% to a huge extent. It can get as the sample was only 10% you to access the various better, though, and a meeting of firms, a more appropriate insurers and effect your PII indicator might be the drop in cover more efficiently when took place in May with the No total premium received, which compared to the previous insurers to agree amendments to did not 60% 56% was from €45m to €32m, renewal? make the process even smoother. change or approximately 30%. And One of the big changes over No difference the course of the last two years to complicate matters even further, the average premium in 12% has been the curbing of our Considerable ‘switching’ last year’s survey (with a larger natural reluctance towards activity evident in 2012 change. Eddie Hobbs (I know; sample and not necessarily I can’t believe I’m referring to the same respondents) showed him in an article either) used to a huge 51% decrease in this tell us that, as a nation, we didn’t comparing quotes and playing year’s average (from €38,416 shop around. Well, now we sure them off other insurers. It down to €18,711). 88% as hell do. As with last year, produced huge savings for many All this tells us is that surveys only tell us so much – but we 40% changed insurers. One of solicitors. Yes, more efficient the great successes last year was So what was the drop in can safely surmise that the drop Ireland‘s Leading Provider of Professional Translation and Interpreting Service Telephone 1890 707 707 Email: [email protected]

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ISo27001:2005 1 890 222 587 keepitSafe is ireland’s only certified iSo 27001 backup company. www.keepitsafe.ie Law Society Gazette www.gazette.ie June 2012 ANALYSIS 15 was substantial, whichever way So all is rosy in the garden you look at it. It was good news then? No, not quite. As I have all round as well. Firms with been butchering twee analogies claims in the past five years, throughout this article, why stop while still paying more than now? Here’s another cautionary double the premium of those cliché – one swallow does not a without, were in fact receiving summer make. We need to build larger discounts, from 27% for on the last renewal and make those with claims down to 15% this one better again. Premiums for those without. still have a long way to go before they reach reasonable levels, but Don’t let the sun go down on me if more insurers enter the market And what about risk – and there is no reason why management? Does it do any they wouldn’t – you can hope for good? Our survey gave it an further reductions. overwhelming thumbs up. Some We have a responsibility 30% of firms had carried out here, though. a risk-management audit, and This is no time 25% had an accreditation. More for complacency. “Surveys only Mammoth quotation: ‘The prospect of Status Quo was some than three out of four of those The reason for people’s idea of Nirvana’ firms claimed the process was improvement is tell us so much good value and of benefit in the fewer claims. That – but we can renewal process. must continue. It’s to avail of this of reasons, we decided that we Risk management works. a simple enough safely surmise next November, should give the freedom-of- Over 75% of all firms now equation – fewer that the drop or indeed before, choice market one more chance. have formal risk-management claims equals less was substantial” please consult Thankfully, they delivered and procedures in place. It reduces premium. If that the Law Society’s the master policy has returned claims and makes insurers graph starts to go website for further to the back burner for the time happy. What’s not to like? It the other way, expect the skies to information. Needless to say, being. But the insurers are aware really is in your best interests – darken again very quickly. some terms and conditions that, if the current downward particularly if you are one of the But let’s finish on a bit of apply, so it’s important to plan trend is not continued, a 25% without formal procedures good news. One of the reasons for this in plenty of time. clamour for its return won’t be – to embrace it. It will not only many solicitors couldn’t retire far away. improve your premium, it will when they wanted in previous Riders on the storm The song ‘You’ll never walk transform your firm. years was the prohibitive cost And finally, what about the alone’ originated in the musical of run-off cover. Since the last much-discussed master policy? A Carousel. I would have said huge amount of work was done the last few years were more risk management audit renewal, anyone with a current policy who needs run-off may last year in preparing for the of a rollercoaster, but at least E2: Has your firm had a risk- now apply for it without any possibility of the introduction we’re not being taken for a ride management audit? further cost. So, if you wish of such a scheme. For a variety anymore. G 2012 2011 base: 225 base: 770 cost of pii insurance

Yes 30% 24% B8: What was the cost of your firm’s compulsory level of PII insurance for 2011/2012 (premium plus levy plus any other charges)? B9: What was the cost of your firm’s compulsory level of PII insurance for 2010/2011 (premium plus levy plus any other charges)?

No 70% 76% Members’ survey 2012 Members’ survey 2011 (Base: 225) (Base: 770)

2011/12 2010/11 Shift 2010/11 2009/10 Shift

Average € € +/- € € +/- cost of €1,858 €2,358 audit Cost of PII all firms 18,711 23,132 -19% 38,416 24,695 +56% 30% of members claim to PII claim – past five years have had a risk-management Yes 37,775 51,477 -27% 80,691 34,752 +132% audit in the 2012 members’ No 14,959 17,534 -15% 27,863 22,356 +26% survey. This rises to 57% of firms who have made a claim on their PII in the past five Average decrease in cost of PII based on figures from 2012 members’ survey is 19% (€18,711/€23,132). years. Decrease based on comparison between 2011 and 2012 members’ survey is 51% (€18,711/€38,416). 16 human rights watch Law Society Gazette www.gazette.ie June 2012

diversionary tactics

The Government recently convened an interdepartmental group to report on the issue of diverting people with mental-health problems away from the criminal justice system. Charles O’Mahony draws up a wish-list

he issue of diverting people provide access to treatment has been benefitted from considerably fewer with mental-health problems found to be in violation of the ECHR. safeguards than those placed under the Taway from the criminal The ECtHR, in the recent case Mental Health Act 2001. It noted that justice system has been a neglected entitled MS v the United Kingdom, the Criminal Law (Insanity) Act 2006 topic and has only recently begun issued a significant judgment. The court lacked provisions on the use of physical to be considered in Ireland. It is an held, unanimously, that there had been restraint, seclusion and inspection. opportune time to consider this topic, a violation of article 3 of the ECHR. Similarly, the mandate of the Mental Charles O’Mahony as the Government recently convened The case related to the detention of Health (Criminal Law) Review Board is a doctoral an interdepartmental group to report a man with a mental-health problem was limited compared with that of the candidate at on the issue by mid 2012, and in light in police custody for more than tribunal system under the 2001 act. the Centre for of the recent European Court of three days. The court found that the This criticism was reiterated in its most Disability Law Human Rights (ECtHR) decision in applicant’s prolonged detention without recent report, where the committee and Policy at NUI MS v United Kingdom in May 2012. appropriate psychiatric treatment had noted that the Central Mental Hospital Galway and legal Most, if not all, Council of Europe diminished his human dignity – even voluntarily applies the Mental Health officer (mental countries have special though there had been no Act 2001 provisions “as regards consent health) for Amnesty legal systems for intentional neglect on the to treatment and use of means of International people whose mental- “A comparative part of the police – and restraint and seclusion, to patients Ireland. The views health problem is analysis of amounted to “degrading placed under the 2006 Criminal Law expressed in this directly linked to their treatment”. The (Insanity) Act”. article are his own criminal behaviour. the provisions applicant remained in The CPT recommended that the It is clear from allowing for police custody for more Irish government introduce legally the case law of the than 72 hours, locked up binding safeguards in relation to ECtHR that, where the diversion of in a cell where he was consent to treatment, use of means of the justification of a offenders with very distressed, shouting, restraint, and seclusion for patients person’s detention is mental-health removing his clothing, detained under the 2006 Criminal Law based on the existence banging his head on (Insanity) Act. of a mental disorder, problems from the wall, drinking from then that person needs the criminal the toilet, and smearing Ireland’s obligations to receive treatment himself with food and As well as the ECHR, it is important in a therapeutic justice system faeces. that Ireland considers its obligations environment, such as a reveals that as it moves towards ratification of the hospital. Human-rights UN Convention on the Rights of Persons Nevertheless, in Ireland has very deficiencies with Disabilities (CRPD). The CRPD Ireland, large numbers underdeveloped The judgment of the contains many provisions that are of people with mental- Central Criminal Court relevant to people with mental-health health problems are law and policy” last year in DPP v B problems who come into contact with detained in prisons highlights the deficiencies the criminal justice system. – although their detention is justified in terms of the human rights of people The convention introduces the on punitive grounds. The ECtHR, in detained under the Criminal Law concept of ‘reasonable accommodation’ Keenan v United Kingdom, has clearly (Insanity) Act 2006, compared with into international human-rights stated that, when people with mental- people held involuntarily under the law, which it defines in article 2 as health problems are detained in 2001 act. These concerns have been meaning “necessary and appropriate prison, appropriate treatment has to be aired elsewhere, for example, by the modification and adjustments not provided. The case law of the ECtHR Committee on the Prevention of imposing a disproportionate or does not require diversion of such Torture (CPT) in its 2006 report on undue burden where needed in a people from the prison to a psychiatric Ireland, which stated that a comparative particular case”. Article 5(3) of the or hospital environment – even if the reading of both the Mental Health Act CRPD provides that failure to provide mental-health problem is treatable – 2001 and the Criminal Law (Insanity) reasonable accommodation will amount provided that the treatment is available Act 2006 indicated that patients to discrimination. Therefore, failure in the prison. However, the failure to placed under the 2006 act potentially to provide reasonable accommodation Law Society Gazette www.gazette.ie June 2012 human rights watch 17 diversionary tactics

“Other jurisdictions have developed effective diversionary procedures to those with mental-health to decision making and asserts that applied, which take through pre- Ireland has very problems who come into contact people with disabilities are entitled into consideration underdeveloped with the criminal justice system to make decision and have their the situation of the offending, pre- law and policy can amount to discrimination. decisions respected on an equal individual defendant”. arrest and arrest compared with The provision of reasonable basis with everyone else. Article However, the other common accommodation may also require 12(3) goes further, in requiring rationale underlying interventions” law jurisdictions. changes in practice and procedure, the state to provide supports to this position has There are so that people with mental-health people who need them in order not been clearly articulated. limited legislative provisions problems can navigate the system to exercise their legal capacity. In Presumably it is that the defence providing for the diversion and understand proceedings. this regard, participation in any strips a person of their legal of those with mental-health Article 13 of the CRPD on diversion programme should be capacity in being held accountable problems and there are few access to justice is also important, voluntary, and a person with a for their actions and, as such, is legislative powers open to as it specifically requires mental-health problem should incompatible with article 12. members of the judiciary to the provision of reasonable be able to decide what services or Alternatively, the rationale impose alternative disposals to accommodation for those who supports they need. A person with might be that the inevitable custodial sanctions. come into contact with the a mental-health problem should consequence of raising the insanity Unlike other jurisdictions, there criminal justice system. Article not be required to take medication defence is that the defendant is no official government policy in 13 requires state parties to the or any psychiatric treatment as a will be indefinitely detained and Ireland on this matter, although convention to ensure effective requirement of participation on treated in a psychiatric setting (as the Government seems interested access to justice for people with the programme. opposed to being released into in the notion, as evidenced by the disabilities, on an equal basis with It is also important that there is the community) and will likely creation of the interdepartmental others. Article 13(2) requires consideration of the implications spend longer in a psychiatric group. Other jurisdictions have that state parties, in realising of article 12 on the area of hospital had they served the developed effective diversionary their obligations in facilitating criminal responsibility. In the prison sentence for the offence(s). procedures through pre- access to justice, ensure effective thematic report on enhancing Regardless of the underlying offending, pre-arrest and arrest and appropriate training for all awareness and understanding of rationale of the OHCHR’s interventions, as well as court- those working in the area of the CRPD (2009), the UN Office proposition, it is important that linked and corrections-based the administration of justice, of the High Commissioner for the article 12 of the CRPD and its interventions. These procedures including police and prison staff. Human Rights (OHCHR) stated implications are fully considered are wholly underdeveloped in While there is much discussion that “in the area of criminal law, as the 2001 and 2006 acts are Ireland. There is a clear need to of article 12 of the CRPD in recognition of the legal capacity of reviewed and the Department of develop, fund and monitor these terms of replacing the wards- persons with disabilities requires Justice develops new legal capacity types of programmes. of-court system with the CRPD abolishing a defence based on the legislation. The lack of appropriate compliant legislation, there has negation of criminal responsibility services in the community and been little consideration of article because of the existence of a Diverting offenders diversionary measures at the 12 in respect of the criminal mental or intellectual disability”. A comparative analysis of the different points of the criminal responsibility of people with The OHCHR stated that provisions allowing for the justice system has resulted in the mental-health problems and article 12 requires “disability- diversion of offenders with over-representation of people with intellectual disability. neutral doctrines on the subjective mental-health problems from the mental health in the Irish prison Article 12 of the CRPD relates element of the crime should be criminal justice system reveals that population. G Working Smarter, Not Longer! Using Technology for a More Efficient Practice

Law Society Technology Committee Seminar Law Society, Blackhall Place, Friday 29 June 2012, 2pm – 5.30pm. Fee €95 CPD hours: 3¼ hours management and professional development skills

1.45 – 2.00 Registration

2.00 – 2.15 Opening remarks The fast pace of technological innovation – particularly that of social media Frank Nowlan, Chairman, Technology Committee applications – impacts on the working environment. Mobile devices can mean that there is no longer any office downtime. This seminar will look at 2.15 – 3.00 Where we are now and where we are going? Adrian Weckler (Sunday Business Post) the use of various devices and emerging technologies – in particular cloud A review of the current situation with use of computing – and how they can make for more efficient use of your working technology in legal practice. Adrian will consider time. It will examine the practical use of various mobile devices and will current business uses of emerging technologies, provide a practitioner’s own story of technology use. The seminar will also cloud computing and the development of mobile address security issues in using mobile devices and innovative applications, technologies as we move towards Web 4.0. As well as being a journalist and editor on digital affairs, Adrian and will provide practical guidance on data protection and other issues. is also well known as a broadcaster and commentator on technology issues.

3.15 – 3.45 Emerging technologies – what I did Joe Kane (Joseph Kane and Co, Solicitors) This session will look at practical uses and efficiencies made with the emerging technologies. Joe will explain how he came to make use of cloud computing and other easily available applications to make his working environment more efficient.

3.45 – 4.00 Coffee

4.00 – 4.45 Top ten apps and devices John Kennedy (editor of Siliconrepublic.com) John will provide a review of key apps and other generally available technologies and devices which can make the working environment easier.

4.45 – 5.30 Is mobile technology secure? Colm Fagan (Espion Intelligence) The session will review some of the key practice issues that need to be considered when using mobile technologies. Colm will give an overview of general security, reliability, legacy issues and data protection. The session will also include a summary of Technology Committee advice in this area.

5.30 Questions and answers

Working Smarter, Not Longer! Using Technology for a More Efficient Practice Venue: Green Hall, Law Society, Blackhall Place, Dublin 7. Time: 2pm to 5.30pm. Date: Friday 29 June 2012. Fee: €95

Name: Firm:

Address:

DX: Phone:

Please reserve place(s) for me on the above course. I enclose cheque for €

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Please return to: Veronica Donnelly, Law Society of Ireland, Blackhall Place, Dublin 7. Law Society Gazette www.gazette.ie June 2012 LETTERS 19 NPPR penalties and loan sharks – a lot in common From: Sara McDonnell, Richard H Donnell, Solicitors, Market Square, Ardee, Co Louth; DX 59001 wonder if all practitioners are Iaware of the draconian measures introduced by the Government by means of non-principal private residence (NPPR) charges? This annual €200 tax was introduced in 2009 and, since the tax can be registered against a person’s property, it is obviously something we, as conveyancing practitioners, must be very careful with when buying or selling houses for clients. I am finding it increasingly difficult to explain to clients how a charge that started out at €200 per annum now amounts to over €2,000 (including penalties for late payment of €20 per month). In circumstances where the penalties for late payment of the recently introduced household excoriated for charging such an charge are just similar to those for interest rate. late payment of stamp duties, the Is there anything that can be Nuffield Farming Scholarship imposition of what seems to me done to persuade the Government From: Aisling Meehan, Rathlahine acquire land that is accessible (not being expert at maths) to be of the folly of their ways, Farm, Newmarket-on-Fergus, to the milking parlour will be in the region of 200% penalties on particularly in a stagnant market Co Clare a limiting factor in achieving late payment of NPPR charges is such as we are all experiencing at am a solicitor, tax consultant the target of a 50% increase outrageous. Loan sharks would be present? Iand qualified farmer in national milk production by specialising in agricultural law 2020. In addition, Food Harvest and taxation and was recently 2020 highlights the need to awarded a Nuffield Farming accelerate the restructuring Mayo solicitors to scale Scholarship to undertake a study process at farm level and entitled Access to Land – New includes the recommendation The Reek for Temple Street Legal and Tax Models. that any remaining obstacles to As part of my study, I have partnership formation, or other From: Evan O’Dwyer, Crean to lend their support – either by spent the last year networking new models of farming business O’Cleirigh & O’Dwyer, Bridge taking part, or by sponsoring a with industry representatives, structures, should be removed. Street, Ballyhaunis, Co Mayo colleague. including government It is against this highly positive his year, for the first time, The climb itself is not departments, farming lobby backdrop to research on the Tthe Mayo Solicitors’ Bar limited to members of the groups and farmers themselves facilitation of progress in Irish Association is undertaking a association, and it is hoped that to understand the deficiencies farm business structures that I charity climb of Croagh Patrick we will have a healthy turnout in Irish farm structures in terms am undertaking my study. in aid of the Children’s University from among family members, of age profile, farm size and As a member of the Law Hospital, Temple Street, Dublin. friends and supporters – from skill set. Society of Ireland, I would The climb will take place on near and far. It promises to be a The Department of Agriculture, welcome the opportunity of Saturday 14 July 2012, and we great get-together, free from Food and the Marine has meeting fellow members with an hope it will become an annual the shackles of work. After acknowledged that, in view of interest in improving the current event. the climb, we have arranged the structural deficits that still farming partnership model, Each member is being asked for a sponsored barbecue in exist and the ongoing threats to as well as introducing other to do their part in raising funds Campbell’s at the foot of The farm viability, there is a need ‘collaborative farming’ concepts, for this most worthy cause. Reek to cater for climbers and to implement appropriate policy to include share farming, contract Sponsorship cards are being supporters alike. measures to take advantage of farming, share milking, equity prepared and will be circulated Any assistance you can lend the many farm business-growth partnerships, limited companies to all members soon. The for the event would be much opportunities. and joint ventures. association is also compiling a list appreciated. Further details can In a recent Teagasc paper Many thanks in advance. I of corporate sponsors who will be had from either myself at: on the capacity to expand can be contacted by phone at be approached to assist in the [email protected]; tel 094 milk production, it is stated 061 368 412 or email aisling@ fund-raising drive. We are also 963 0011; or from Bríd Miller at that the ability of farmers to agriculturalsolicitors.ie. G asking our sister bar associations [email protected]. 20 viewpoint Law Society Gazette www.gazette.ie June 2012

‘a shining light in A dark world’

Continuing with his theme that ‘justice must serve the citizen’s interests’, we present part 2 of Lord David Puttnam’s speech to members of the Law Society at its annual conference on 13 April 2012

Part 1 concluded with Lord David an electoral commission) remain reputation of my own party, the “Sometimes I think there’s a man Puttnam quoting the distinguished the cornerstones of any modern British Labour Party, disintegrated behind a counter who says: ‘All lawyer, Helena Kennedy, who said: democracy worthy of the name. under the weight of a political right, you can have a telephone, but “But there are some areas of our atmosphere in which the ‘means’ you’ll have to give up privacy and lives – including the justice system – Visible justice were continually held to justify the the charm of distance. Madam, you where a reliance on economic drivers, Central to this is the relationship ‘ends’. may vote, but at a price. Mister, or populist desires, creates distortions, between ‘visible justice’ and an This confusion of ‘means and you may conquer the air, but the injustice, and outcomes that take no independent judiciary, entirely ends’ – or the clash of conflicting birds will lose their wonder, and account of the common good. Justice is free of any suspicion of partiality ideas of justice – has offered rich the clouds will smell of gasoline.’ not, and never can be, a commodity.” and corruption – free of any and pickings to serious filmmakers ever “Why did God plague us with all ‘political pressure’ – the type since the invention of the ‘talkies’ the power to think! Why deny the would argue that exactly the of pressure which, in the past, over 80 years ago. one faculty which lifts man above same holds true of the media. has sometimes been mistakenly Among the movies that most all other creatures on earth: the IProperly regulated, the media forgiven, or explained away, as influenced me as a young man was power of his brain to reason? What should be capable of safeguarding some form of Stanley Kramer’s other merit have we? that ‘plurality of public voice’, residual ‘tribal film, Inherit the “The elephant is larger, the which is one of the prerequisites loyalty’. “We have to stand Wind. This, horse is stronger and swifter, of a healthy democracy, ensuring This can all the story of the the butterfly more beautiful, the that all of a nation’s citizens too easily lead firm in the belief ‘Scopes/Monkey mosquito more prolific; even the are promptly, accurately and to a failure to that sustainable trial’, concerns simple sponge is more durable.” impartially informed. administer justice policies do not itself with the Bryan replies: “He’s a man, not a Recent events in Britain, as being by bringing right of a teacher sponge, but that if the Lord wishes revealed by the Leveson Inquiry, politicians, or flow from the back to discuss, in the a sponge to think, it will think.” demonstrate that when these officials in the of newspaper early 1920s, in his Darrow then inquires if a man principles are undermined, many public and private own classroom, has the same privileges as a sponge. of our shared notions of democracy sector, to book for headlines” Darwin’s ‘theory of When Bryan replies in the start to crack and fall apart. offences committed evolution’. affirmative, Darrow says, “Then In fact, as a result of the while holding positions of public In a final courtroom scene that this man wishes to be accorded (almost accidental) discovery of trust. I still find very moving, Clarence the same privilege as a sponge! He industrial-scale phone hacking, We have to stand firm in the Darrow [the lawyer] is confronted wishes to think!” a seemingly toxic relationship belief that sustainable policies by William Jennings Bryan between the media, the police do not flow from the back of [leading American politician and Cinema’s greatest moments and the government has been newspaper headlines. opponent of Darwinism], who The law, and questions of justice, revealed that’s already proving Sustainability, whether for demands of Darrow whether have given cinema some of its to have enormous political and our criminal justice system or the he believes in anything that’s greatest and most memorable social consequences – a scandal media, for education or for health sacred to the community. Darrow moments. The law often finds itself incidentally that was initially services, requires a vision that looks retorts emphatically “Yes!” – dealing with absolutes, but when denied by just about everybody well beyond the ‘quick and popular and continues: “I believe in the passionately filmed, its fundamental now found to have been involved. win’, to the longer-term needs of a individual human mind. In a child’s values can be absorbed directly And of course, it has uncomfortable healthy and informed society, one power to master the multiplication into the minds and hearts of the echoes elsewhere. in which everything flows from table, there is more sanctity than audience. It’s my belief that an the rights and responsibilities of in all your shouted ‘Amen’s!’ An Such films frame for us the independent media, together individual citizens. idea is a greater monument than a great questions of good and evil, with a fiercely independent In the years following 1997, cathedral... life or death, even conflicting judiciary and the capacity to hold I watched, initially bemused, “Gentlemen, progress has never concepts of right and wrong. They free, fair and regular elections but eventually horrified, as the been a bargain. You’ve got to pay also confirm for us, through their (if necessary, under the aegis of opportunities, along with the for it. imaginative presentation, the Law Society Gazette www.gazette.ie June 2012 viewpoint 21

“All of my reading of Collins tells me that he understood better than most that ‘old values and value of individual dreamers, in lawbreaker, it breeds contempt for capacity to become new beginnings’ of the education contrast to the everyday and more law, it invites every man to become exactly that. are not natural of women. As I expedient concerns of society. a law unto himself, it in fact invites Since coming to discovered during Mr Smith Goes to Washington; anarchy.” live here 24 years bedfellows” my seven years And Justice for All; Twelve Angry I think it’s fair to argue that, ago, I have always as president Men; The Caine Mutiny; Daniel in light of the unravelling of the badly wanted to believe that we of UNICEF, women are the (the story of the Rosenberg trial); economy in recent years, these can prove him right. As I see it, the fulcrum around which can be built The Trial of the Secaucus Seven; Billy words have a particular resonance world remains desperately in need educated and healthy families – Budd; Mutiny on the Bounty and, to all of us here in Ireland. of that ‘shining light’. and those families will invariably of course, To Kill A Mockingbird – Almost five years ago, on 15 The question that hangs over all be smaller, and better cared for. along with dozens more – each of May 2007, the then Taoiseach, of us is whether the country still There is absolutely no magic you will no doubt have your own Bertie Ahern, addressed a has the will to look deep into itself, in any of this. special favourite. Joint Session of both Houses and deliver on that ambition – not The reality is that a world- And how about those films that of Parliament at Westminster. just for our sake but for that of class education system can, celebrated the struggle of the ‘little During his speech, he referred to our children, and our children’s over time, deliver the economic man’, especially the early work a successful Ireland built upon, children. underpinning for world-class of Chaplin, Keaton, Ford, and as he put it, “old values and new health and social security, even Capra; notably Frank Capra’s It’s a beginnings”. Crucial lessons world-class judicial systems – the Wonderful Life and Mr Deeds Goes He made several references to With all of that in mind, if we reverse can never, ever be possible. to Town? the role of this country’s founders, are to navigate our way to the The good news is that this In almost every case, it was left people like O’Connell, Parnell type of society most of us would country continues to throw up to one or other representative of and Collins, and the legacy he wish to see emerge – in that ever- excellent people who instinctively the law to remind us of the value of felt he’d inherited from them. more difficult world I’ve been understand that education a single individual, and their right Three months later, this country’s describing – let me conclude by at every level will be both the to think and express themselves, ‘financial fiction’ began to come re-assessing the crucial lessons ‘cause and the consequence’ of any even at times in opposition to apart at the seams. I’ve learned during my 15 years possibility of regional, national or accepted norms and beliefs. Now I don’t know enough about working within the British global renewal. In an ideal society, the right of Daniel O’Connell or Parnell but, legislature. It’s just that people like me – independent thought constitutes living as I do in West Cork, I Unsurprisingly, in one way and and maybe people like yourselves the other half of a respective know a fair amount about Michael another, they all revolve around – need to get about more, and social contract, for each of us Collins. And all of my reading of education. become far more persuasive in has the right to demand that Collins tells me that he understood Firstly, like it or not, getting getting these messages across! the community in which we live better than most that ‘old values our education systems right is not I think we all now acknowledge maintain high standards, proper and new beginnings’ are not just one among a number of social that, as a human species, we know aims, and intelligent goals – natural bedfellows. and political priorities – education more than we’ve ever known goals that bind its members to it He understood that squaring is far closer to being ‘the whole ball about ourselves and our natural through an appreciation of the this particular circle involves a lot of wax’ for us and every ambitious environment; so, if I may, I’ll opportunities a just society offers of difficult decisions and, from nation on earth. leave you with a thought from the in the pursuit of happiness, liberty, time to time, some very tough Secondly, no education system environmentalist Stewart Brand justice, and truth. choices. He wanted to help build – and therefore no society – can that, while ostensibly flattering, is Fifty years ago, Justice Brandeis something that was, in his words, ever be better than the quality also very cautionary: “We are as said this: “Our government is “not like other nations” – an of the teachers it employs, and Gods; so we’d better start getting the potent, the omnipresent Ireland that could be “A shining the constantly improving standards good at it!” G teacher. For good or ill, it light in a dark world” – and it requires of them. teaches the whole people by its that in the raw human material, Finally, there needs to be an This speech is republished with the example. Crime is contagious. forged out of 700 years of mostly undisputed national and global kind permission of Lord David If the government becomes the bitter experience, Ireland had the acceptance of the importance Puttnam. 22 cover story Law Society Gazette www.gazette.ie June 2012 director’sthe

Mark McDermott cut is editor of the Law Society Gazette Claire Loftus is only the third DPP in the history of the State – and the first solicitor to serve in the role. In an exclusive two-part interview, she speaks to Mark McDermott about getting from there to here

laire Loftus is not a person you’d wish to play poker with. On meeting her for the first time, she plays her cards very close to her chest and ignores my attempts at ‘deflective’ humour. Her perspicacity, allied with a cautious and defensive nature, make Cher ideally suited to her relatively new role as Director of Public Prosecutions. During the week of our interview in early May, she was marking six months in office. She’s clearly clever, very adept, has vast managerial experience honed by several roles within the DPP’s Office, and undoubtedly possesses enviable amounts of political acuity. She’s abrupt – but not in a manner where you’d take offence. She seems keen to ‘stay on agenda’ and not be deflected in any way from the task in hand. When she doesn’t want to deal with a question, it doesn’t get dealt with. For instance, she pulls me up short on several occasions the Road, by Jonathan Hunter, she says it was one condition when I ask her questions relating to her personal life. She of moving from her office as Chief Prosecution Solicitor that is so assiduous about this that her answer to the question of this painting (and another one) should come with her. It’s a where she is from is simply: “Dublin. South Dublin.” modern piece, in muted colours, reminiscent of the West of Similarly, when I ask her about her secondary schooling, Ireland, but you’d be hard-pressed to identify any specific that’s off-limits too. I’m staring into the abyss of what features in it. It reminds me of the work of the French artist looks like being the journalistic equivalent of dying on Cézanne, but his Bend in the Road is considerably more stage. However, before delving into the business end of the colourful, more defined and warmer in tone. Maybe Claire’s interview, I’m drawn to ask her about an oil painting that painting is a portent of where we’re headed. hangs on the wall of her Merrion Street office. Titled Bend in Following the bumpy start, it’s clear that the DPP wishes Law Society Gazette www.gazette.ie June 2012 cover story 23 P ic : S iobhan

byrne

photography

Fast facts

> Claire Loftus is the first solicitor to serve as DPP > She qualified in 1992 and joined the only to discuss ‘business’, so business it will belt, but I’ve always felt you just simply have Chief State Solicitor’s Office in 1993, have to be. Given the ‘24/7’ nature of the job, to go for these things and, I suppose, I realised serving in the District Court Section for where she admits to being on the mobile phone that if I didn’t go for it at that stage, somebody seven years >> 365 days a year – “You know, I can’t just switch else might be in the position for ten years.” > In 2000, she was selected as off. If I go on holidays, they have to be able to The relative longevity of the previous Solicitor to the DPP, but had to wait ring me, so, from that point of view, it’s fairly incumbents means that Claire is only the until December 2001 before being full on” – why would anyone want the role? third DPP to have served in the history of the officially appointed Chief Prosection “Well, I suppose, I’ve always felt that jobs State. As she points out, the contract is now a Solicitor come along, not necessarily when it suits you. ten-year one. “Previously they were entitled > In 2009, she took on the role of Head You might prefer to have more time under your to stay until they were 65. I suppose, really, of the Directing Division 24 cover story Law Society Gazette www.gazette.ie June 2012

“I’ve always wanted to be a solicitor. I never wanted to be anything else. it was an obvious progression not just about bricks and Hayes, has recently restated his commitment [for me], but without any huge I wanted to be a mortar. It’s about bringing to Infirmary Road, the former Department of expectation of being successful, solicitor from the 190 staff together under Defence building, ultimately being our single but I felt I had to go for it.” one roof so that we can headquarters. Now it’s not clear when we will age of 12” actually achieve efficiencies all get onto that site. The OPW have told us Wish list and greater integration. that they’re aiming for a date towards the end So what’s her wish list, now that she has her It’s something that was recommended for the of June for the first phase of the move. So feet firmly under the DPP’s table? Office back in 1999, and we’re still working we’ll just have to see what transpires. “The big, big plan is that we would have a towards it. I’m very glad that the minister in “From my point of view, if during my time single headquarters, a single office. And that’s charge of the Office of Public Works, Brian as director I can manage to bring that to Law Society Gazette www.gazette.ie June 2012 cover story 25 After eight years serving as Chief view from above Prosecution Solicitor, she moved again, Claire served on the Law Society’s Criminal chair but, as soon as I was appointed DPP, taking on the role of Head of the Directing Law Committee from 2002 until her I stepped down.” Division in November 2009. appointment as DPP in November 2011. And her comment on being the first solicitor “That gave me a way back into very much Of her time on the committee, she says: to be appointed to the post? case-focused work. As Chief Prosecution “I really enjoyed it. I knew a lot of the “I’m very proud to be a solicitor, number Solicitor, I couldn’t really delve into very solicitors and I have to say we had very one. And there is a certain pride that comes many cases myself. Now, I did on occasion constructive discussions, and they respected with being the first solicitor DPP and, and, obviously, staff would come to me and the prosecution point of view. What was certainly, the Law Society have been very look for guidance. There were cases in which good about the committee was that it dealt good in terms of the goodwill that they’ve the director would ask me to have an input, with both the prosecution and defence shown towards my appointment. I’ve certainly for whatever reason. But really it wasn’t a perspectives.” got fantastic feedback from solicitors – both full-on caseload or casework everyday. She succeeded Dara Robinson (Sheehan criminal defence colleagues and across the “So, as the Head of the Directing and Partners) as chairman, serving from 2010 wider profession. So I’m certainly happy that Division, the focus shifted back very much to 2011. “I was meant to do a second year as this has happened.” to casework. Obviously, it was, and is, a management position. There are 25 lawyers working in the Directing Division. It did immerse me back into some of the most fruition, it will be a great success. Obviously best interests, on all fronts. The door was serious cases that the office deals with. As there’s a huge benefit from the point of always open to my master and his partner, you know, we have a system of pushing view of staff who are currently spread over Hugh O’Neill, to ask questions, which I did things up the line if they require further two locations. What it means is that we daily – day in, day out! I certainly feel that it consideration. I was effectively acting as the can bring the Directing Division out of the set me on the right road. I learnt that there’s main gatekeeper, along with deputy director Merrion Street building, together with the huge value to a very good apprenticeship, Barry Donoghue, for files that came in here District Court Section and the Circuit Court because, sometimes people may not necessarily to the former director – the cases that I felt Trial Section from North King Street in get as much as they’d like he needed to know about or Smithfield. That gives us opportunities to to out of it. As soon as I “I’ve always felt that that he needed to have an look at ways of streamlining our business.” qualified, I certainly relished input into. being allowed to go in and do jobs come along, not “I was literally in that Call of duty cases by myself in the District necessarily when it role for almost exactly two She says that she decided for law at a Court. I very much enjoyed years and then the position relatively early stage. Her father, Dermot the advocacy part of it.” suits you. You might for DPP came up. The Loftus, was a solicitor who served as the prefer to have more two years in the Directing last law agent for Co Dublin before Dublin In the public service Division gave me a great County Council was broken in three – Fingal, Before she had completed time under your grounding for this job so South Dublin and Dun Laoghaire Rathdown. her second year of post- belt, but I’ve always that, as I say, having been “I’ve always wanted to be a solicitor. I never qualification experience, one of the main filters of wanted to be anything else. I wanted to be a Claire applied to the Chief felt you just simply the work and issues that solicitor from the age of 12. In 1984, I did my State Solicitor’s Office for a have to go for these came across the director’s Leaving and I qualified as a solicitor in 1992. position there. So, was the desk, I had a very good Of course, the early ’90s were pretty bad public-service element the foil things” idea of what was involved. economically, but it really was all I wanted to that spurred her to apply for a And it certainly made the do. I personally didn’t see myself as being a role in the Chief State Solicitor’s Office? transition into this job back in November sole practitioner. The life of a barrister didn’t “Not immediately, but certainly I wasn’t last year a lot easier.” particularly appeal to me and, I suppose, I had averse to the idea of joining the Chief State Did she have any reservations about a big background in public service.” Solicitor’s Office, which I did in ’93. So, applying for the role, due to her relatively Following her Leaving Certificate, she did certainly, I had an interest in public service short stint as head of the Directing Division? a degree in history and politics in UCD and and I could see the merit in it.” “Well, in a way, it was a natural graduated in 1987. She admits to having a In 2000, the job of Chief Prosecution progression. Quite honestly, I never expected great interest in history. “I was delighted to be Solicitor to the DPP was advertised. Claire to be in this position, particularly just able to combine an arts degree with becoming was the successful applicant, being offered the coming up on nearly 20 years qualified. But a solicitor. I did the one-year Diploma in position in November that year. having done the Chief Prosecution Solicitor Law course in Rathmines, now the Dublin “There was something of a hiatus, because role, which gave me huge management Institute of Technology, and sat the Blackhall I was appointed to the post as a sort of experience and operational experience, Place entrance exam in November ’88 for the ‘solicitor designate’ and I was tasked with basically I was running a solicitor’s office Professional Practice Course.” creating a new solicitor’s office for the DPP. with 75 legal staff – the vast majority of She served her apprenticeship with Marcus I was officially appointed Chief Prosecution them solicitors – which, in Ireland, by any A Lynch and Son in Lower Ormond Quay. Solicitor in December 2001 because I spent standards, is a very large office; and then “It’s a very old family firm, established in a year getting the new office premises the directing role, it was an opportunity for the late 19th century. My master was Brian organised, recruiting the staff and transferring progression.” G F Lynch. I got fantastic training there, great staff from the Chief State Solicitor’s Office. mentoring and a great sense of what it was to There was a lot to go through before I could The second part of this interview will appear in be a family solicitor advising people in their officially take over.” the July Gazette. 26 constitutional law Law Society Gazette www.gazette.ie June 2012 soul searching The recent Damache case represents a laudable decision by the Supreme Court to strike down a questionable statutory provision, writes Dara Robinson

ost decisions of the Supreme Court was found on foot of the search. In part in reliance on that pass, relatively speaking, under the material, a prosecution was commenced. The original radar of many lawyers and the general investigation had concerned an alleged conspiracy to murder public. Every so often, however, a case a Swedish cartoonist who had lampooned the prophet announces itself with a thunderous Mohammad, a multi-jurisdictional case. Ultimately, Mr crash, causing considerable fallout in Damache was charged with an offence contrary to the the established legal order. One such case was the recent telecommunications legislation, by way of a menacing Dara Robinson M decision in the Damache case, a judgement handed down by message allegedly sent on a phone seized during the is a partner in the Supreme Court on 23 February 2012. impugned search. the Dublin law At issue in Damache was the constitutional inviolability of Prior to the case coming on for trial, judicial review firm Sheehan & the dwellinghouse, as protected by article 40.5 of Bunreacht proceedings were issued in respect of a challenge to Partners and a na hÉireann, which provides that “the dwelling of every the constitutionality of the section 29 warrant. While member of the Law citizen is inviolable and shall not be forcibly entered save the Supreme Court had certain reservations about the Society’s Criminal in accordance with law”. Substantial inroads have, of mechanics of the proceedings, they nevertheless were Law Committee course, been made into the asserted protection, and there prepared to determine the case, and the result was a finding are numerous powers that enable gardaí to secure a search of unconstitutionality in respect of the warrant-issuing warrant and enter the premises on foot of that warrant. power of section 29. The case was, on its own facts, a In the Damache case, the warrant used to gain entry to the legal ‘perfect storm’, combining issues touching on the premises was issued pursuant to section 29 of the Offences constitutional inviolability of the dwellinghouse and gardaí Against the State Act 1939, as amended. operating under the nemo judex in sua causa principle. The The offending provision, section 29(1) of the Offences outcome of Damache was despite the court observing Against the State Act 1939, as inserted by section 5 of the that, on a literal interpretation of the words of the statute, Criminal Law Act 1976, provides that “where a member of a superintendent in charge of an investigation was not An Garda Síochána not below the rank of superintendent precluded from issuing a warrant in a case in which he was is satisfied that there is reasonable ground for believing an investigator. This had been the finding in a previous case that evidence … is to be found in any building or part of a in the Court of Criminal Appeal (DPP v Birney). However, building … he may issue to a member of An Garda Síochána the Court of Criminal Appeal has no constitutional not below the rank of sergeant a search warrant under this jurisdiction, and thus was not able to pronounce on the section in relation to such place”. This provision has now constitutionality of the relevant provision. been deemed unconstitutional by the Supreme Court. The seeker Still haven’t found what I’m looking for The starting point for the inviolability of the dwellinghouse The facts of Damache, against a dramatic backdrop, were – was perhaps the Dunne case. In DPP v Dunne, Carney J in the ordinary operation of section 29 warrants – routine had described the constitutional protection given in article enough. A superintendent of An Garda Síochána issued a 40.5 as “one of the most important, clear and unqualified warrant for the search of a house in Waterford. Material protections given by the Constitution to the citizen”. Law Society Gazette www.gazette.ie June 2012 constitutional law 27

Fast facts

> The issue in Damache was the constitutional inviolability of the dwellinghouse and the operation of section 29 search warrants > The decision has the potential to upset existing convictions,>> but concluded cases will be permitted to be reopened by the court only in limited circumstances > The Criminal Justice (Search Powers) Bill 2012 appears to meet the criticisms searching whereby the Supreme Court found the existing statutory provisions wanting

In Damache, at paragraph 47, the Supreme high standard for a search warrant process”, for a search warrant. Morris J, it should be said, Court noted that “the procedure for and confirmed the necessity for a neutral merely articulated what many defence lawyers obtaining a search warrant should adhere arbiter to be involved in the process of issuing a had already privately believed. to fundamental principles encapsulating an search warrant. The State moved quickly to repair the independent decision maker, in a process damage caused by the Damache decision. The that may be reviewed. The process should Search and destroy Criminal Justice (Search Powers) Bill 2012 was achieve the proportionate balance between the Damache should have come as no surprise rapidly drafted and moved in the Oireachtas, requirements of the common good and the to the State. The fundamental proposition addressing the most obvious shortcomings of protection of an individual’s rights. To these that a member of An Garda Síochána the impugned section 29. The new bill still fundamental principles as to the process there might be able to issue a search warrant to entitles a warrant to be issued by a member of may be exceptions, for example circumvent the inviolability An Garda Síochána, but only in circumstances when there is an urgent of the dwellinghouse, in an of urgency – not in an investigation in which matter.” “Presumably, the investigation in which he that member is involved or in charge of – and Matters that featured DPP will review himself was involved, was a warrant should be valid only for a period of large in the Supreme Court’s subject to severe criticism 24 hours when issued in such circumstances. At deliberations were nemo judex all existing files, from Mr Justice Morris in the first glance, this appears to meet the criticisms and a strong thread of Canadian as no doubt will Morris Tribunal. whereby the Supreme Court found the existing case law that was critical of The potential abuse intrinsic statutory provisions wanting. similar powers in Canadian defence teams, for in such a situation needs no legislation. The Supreme Court evidence secured elaboration. In the ‘Burnfoot Hard to find of Canada, in Hunter v Southam module’ of the Morris Tribunal However, while the bill may address Inc, struck down a similar under section 29 Report (2008), at paragraph prospective search warrants, the retrospective provision in Canada, noting warrants in pending 6.22, Morris J expressed effect of the finding of unconstitutionality that “for the authorisation himself satisfied that “there is a had to be dealt with, and already the fallout of procedure to be meaningful, cases, and act danger that the power to issue the Damache case has been seen. An unknown it is necessary for the person accordingly” a section 29 warrant thereby number of cases, which were pending for authorising the search to be becomes a mere formality trial at the time of the decision, have been the able to assess the conflicting in which the investigating subject of applications by the DPP for nolle interests of the state and the individual in an sergeant might as well be empowered to issue prosequi (meaning that the charges have been entirely neutral and impartial manner”. In that a search warrant to himself”, and, at paragraph withdrawn) on the basis that most, if not all, of case, it found that the relevant investigatory 6.23, described himself “satisfied that it is the relevant evidence against the accused has body made decisions that “do not accord with preferable that the power to issue a warrant been secured on foot of the section 29 warrant the neutrality and detachment necessary to should be vested in a judge”. He saw no reason, process. Presumably, the DPP will review all balance the interests involved”. in the context of today’s technology and existing files, as no doubt will defence teams, This was described by Denham CJ on behalf communications, why a judge would not easily for evidence secured under section 29 warrant of the Supreme Court as “an appropriately be contacted for the purpose of an application in pending cases, and act accordingly. Law Society Gazette • Vol 106 No 5 Mammoth task A little knowledge To boldly go The results of the Law The implications of Fundamental changes Society’s survey of the Mahon Tribunal for in the EU’s data members on PII issues corporate governance protection regime Law Society Law GazetteGazette€4.00 June 2012

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Please return to Law Society Gazette, Blackhall Place, Dublin 7. Law Society Gazette www.gazette.ie June 2012 constitutional law 29 However, the decision also has the potential to upset, in certain circumstances, existing convictions. In the recent case of DPP v Cunningham, the appellant succeeded in an appeal on the basis that his premises also had been searched on foot of a section 29 warrant, and property was found that led to him being prosecuted and convicted. The Court of Criminal Appeal quashed the convictions and directed a retrial. The judgment, by Mr Justice Hardiman, is notable in that it deals with many arguments raised by the State as to the extent of the Damache fallout and clarifies many of the circumstances in which the Damache finding will affect or not affect warrants previously issued. In a wide-ranging review of jurisprudence from comparable jurisdictions, both within and outside Europe, Hardiman J underlined the constitutional necessity to interpose a judicial authority “between the citizen and the police”. Some of the language used is rather apocalyptic, including references to Nazi Germany, but the import of “The case was, the judgment will be most helpful in enabling advisors to on its own facts, assess the prospects for cases a legal ‘perfect that have previously resulted in storm’ combining convictions. Perhaps most importantly, issues touching on Finding Nemo judex in sua causa the A case was approved by the constitutional Hardiman J, in that, in A, represent the triumph of a laudable decision by the Supreme Court, the applicant had pleaded inviolability of the abstract logic over the dictates in striking down a questionable statutory guilty and had never appealed dwellinghouse and of justice and the practical provision. It is perhaps unfortunate that more until, in an unrelated case, administration of society.” attention was not paid to the observations the relevant section whereby gardaí operating By contrast, however, made in the Morris Tribunal, but it is he had been convicted was under the ‘nemo the court made it clear submitted that Damache represents a triumph declared unconstitutional. Mr that a declaration of of constitutionality over expediency, and A sought to ‘piggyback’ on foot judex in sua unconstitutionality “will (in all certainly represents more than a mere nod to of a Supreme Court decision causa’ principle” probability) be applied in future Bunreacht na hÉireann. G (CC v Ireland), subsequent to similar cases”, and further his own guilty plea, declaring observed that “article 15.4.2 unconstitutional the statutory provisions of our Constitution … provides clear textual Look it up relating to the offence of unlawful carnal evidence that such a finding of an invalidity knowledge, but was prevented from doing must apply to third parties, certainly so far Cases: so on the basis that he had acquiesced in his as current and prospective transactions are • A v Governor of Arbour Hill Prison [2006] original prosecution, to the extent that he concerned”. IESC45 had pleaded guilty, had not appealed, and had • CC v Ireland [2006] 4IR1 raised no issue as to defence in his prosecution. Turkey in the straw • Damache v DPP [2012] IESC11 Critically, Hardiman J observed that his case It is clear, therefore, that concluded cases will • DPP v Dunne [1994] 2 IR 537 had “been finally adjudicated”. be permitted to be reopened by the court • DPP v Birney [2007] 1 IR 337 The concept of ‘final adjudication’, com- only in limited circumstances, and almost • DPP v Cunningham [2012] IECCA64 bined with the fact that section 29 was never never when it can be said that an accused (Court of Criminal Appeal, 11 May 2012) impugned by an accused in the course of his person ‘acquiesced’ in acknowledging the • Hunter v Southam Inc [1984] (2SCR145) trial, is likely to be fatal to a potential flood of validity of the impugned section. Even where (Supreme Court of Canada) applications on foot of the Damache decision. cases have not technically concluded, such as Dealing succinctly with the ‘appalling vista’ having an appeal outstanding, it is anticipated Legislation: scenario, Judge Hardiman observed that a that defence teams will have some trouble in • Bunreacht na hÉireann, article 40.5 declaration of unconstitutionality “does not persuading the Court of Criminal Appeal to • Criminal Law Act 1976, section 5 necessarily mean that all actions, decisions permit them to add an additional ground of • Criminal Justice (Search Powers) Bill and transactions taken in good faith on foot of appeal unless, at a minimum, some protest 2012 that [now declared] unconstitutional law must had been made during the trial concerning the • Offences Against the State Act 1939, be unravelled, even if that invalidity operates validity of the search warrant. section 29 ab initio. Any other conclusion would simply For all that, Damache must surely represent 30 CORPORATE GOVERNANCE Law Society Gazette www.gazette.ie June 2012 I KNOW nothing! The Mahon Report on corruption in the planning process is likely to have an impact beyond the world of property development, local government and elected politicians. Businesses, generally, are set to feel the brunt of the Mahon Tribunal recommendations. Paul Egan surveys the fallout

Paul Egan is a partner in Mason he final report of the Mahon Tribunal, The overall purpose of the provisions recommended must Hayes & Curran, officially the Tribunal of Inquiry into be “to ensure that there is a comprehensive scheme for Solicitors, and a Certain Planning Matters and Payments, regulating payments to public officials so as to minimise member of the was published on 22 March 2012, the risks of corrupt payments being made, the abuse of Company Law arriving 15 years after the tribunal had public office and/or the appearance of corruption”. Review Group been initiated under original tribunal For solicitors in practice, and for people in business Tchairman, Mr Justice Flood. The bulk of generally, it will be the last of these three the report concerns the varying degrees of focuses that will have the greatest impact. greed, evasion, incompetence and folly that “Employing a have underpinned the interaction between bagman to stuff Proposed Criminal Justice (Corruption) Bill various actors in the property development Irish law on bribery and corruption is business, politics and local government. money into contained in a series of statutes dating Some consequences may come to the pockets of from 1889, with a collective citation of those found guilty, in a court, of criminal the Prevention of Corruption Acts 1889- wrongdoing – if the infrastructure to politicians and 2010. The law is not clear in places and is prosecute that wrongdoing can creak into officials will, to difficult to navigate. Some wrongful acts action. But that will concern a relatively can be prosecuted under several separate small number of people, some of whom are the extent that provisions; other unethical acts are not dead and many of whom will, no doubt, it was ever an regulated at all. claim prejudice to any jury trial by reason In an answer to a parliamentary of trial by media. option, no longer question on 23 February 2012, Tánaiste Chapter 18 of the report sets out a series be one beyond the Éamonn Gilmore promised to bring to of recommendations as to what kind of Government the heads of a bill to reform stable doors we should have in the future arm of the law” and consolidate the existing law before in order to forestall a continuance or Easter 2012. The stated objective of the recurrence of the behaviours that gave rise to the tribunal new bill would be to clarify, consolidate and reform the in the first place. seven different enactments that make up the Prevention of Corruption Acts. A short time after the publication of the A triad of recommended measures Mahon Report, Minister for Justice Alan Shatter spoke in The tribunal’s recommendations are focused on what it favour of implementing the report’s recommendations as describes as a triad of measures: they affect those acts. · Regulating political donations, Most recently, Minister Shatter, speaking at the OSCE · Regulating conflict of interests affecting politicians and Economic and Environmental Forum in Dublin on 24 public officials, and April 2012, stated his objective for a new Criminal Justice · Strengthening the laws concerning bribery and (Corruption) Bill to clarify and reform the anti-corruption corruption. laws so that the relevant measures are made clearer Law Society Gazette www.gazette.ie June 2012 CORPORATE GOVERNANCE 31 nothing!

Fast facts

> The Mahon Report (chapter 18) seeks to forestall a continuance or recurrence of “The overall purpose the behaviours that gave rise to the Mahon of the provisions Tribunal > It recommends the establishment of a recommended comprehensive scheme>> for regulating must be ‘to ensure payments to public officials in order to that there is a minimise corruption > a new Criminal Justice (Corruption) Bill comprehensive has been proposed by the Minister for scheme for Justice > the changes advocated by Mahon on three and more accessible for regulating payments by Mahon on three key everyone. The Government issues that will affect key issues will affect business generally, plans to publish the general to public officials business generally: including: bribery by intermediaries; defective corporate governance that scheme of the Corruption so as to minimise · Bribery by intermediaries, Bill (it is understood, in · Defective corporate facilitates bribery; and whistleblowing the near future) in order to the risks of corrupt governance that facilitates allow all concerned to make payments being bribery, and an input before the bill is · Whistleblowing. drafted and introduced. As made, the abuse of c) i) Introducing a pan-sectoral whistleblower well as implementing the public office and/or Specifically, the report protection act protecting all those Mahon recommendations, recommends the following: reporting suspected offences and/ the minister aims to ensure the appearance of a) Introducing a specific or breaches of regulatory measures that “trading in influence” corruption’ ” offence of making from any form of liability, relief and/or is addressed in a “robust, payments to a third party, penalisation arising from that report. discrete offence provision in the forthcoming where the payer (‘P’) knows or is reckless to ii) Extending existing whistleblower bill”. the fact that that party intends to use some protection under the Prevention of or all of those payments to pay bribes for Corruption (Amendment) Act 2010, to The report’s recommendations the purpose of furthering P’s interests. protect independent contractors who Unsurprisingly, most of the report’s b) Introducing a new offence criminalising report suspicions of corruption from recommendations are focused on law and a commercial entity for failing to take penalisation. procedure to do with planning, political adequate measures to supervise or control iii) Removing the existing limit on the finance, lobbying, bribery, corruption individuals carrying on activities on its amount of compensation that may in office, money laundering and asset behalf, where that individual commits be awarded to those penalised for confiscation. bribery in the context of those activities and whistleblowing and, under the Criminal However, it will be the changes advocated that bribery is to the benefit of the entity. Justice Act 2011, to cover those reporting      

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

32 CORPORATE GOVERNANCE Law Society Gazette www.gazette.ie June 2012

or giving evidence on offences under the The director of Britain’s Serious Fraud as Mahon now recommends. In Britain, a Public Bodies Corrupt Practices Act 1889. Office has stated that “a foreign company commercial organisation is guilty of an offence that carries on business or any part of its if a person associated with it bribes another The report recommends a small extension business within the United Kingdom is within person intending to obtain or retain business of the circumstances where a payment to a the scope of the Bribery Act in respect of any for the organisation, or to obtain or retain an politician or public official is corrupt, as well of its activities anywhere in the world. The advantage in the conduct of its business. as extra penalties for those found guilty of phrase ‘carrying on business’ is a very general In Ireland, at present, there is no such bribery and corruption. one and the SFO is adopting a very wide automatic imputation to a company of the acts interpretation of these words … It would be of an employee, officer or agent. It turns on Recent British law very dangerous for [businesses] to use a highly the extent that it could be argued on the facts In 2010, Britain passed its Bribery Act, which technical interpretation of the law to persuade that liability is imputed under the identification was brought into force on 1 July 2011, themselves that they are not within the Bribery doctrine or attribution doctrine. (For a detailed accompanied by detailed official guidance Act and that it is permissible for them to carry examination of this issue, see Horan, Corporate for companies and for prosecutors. Irish on using bribery.” Crime, published by Bloomsbury Professional companies carrying on business in that (2001), p23.) jurisdiction (which we must remember can Effect on governance In Britain, as a counterbalance to the new include commercial activities in Northern The key change in British law is to corporate liability, a commercial organisation Ireland) have had to become compliant with automatically impute the improper act of a has a defence if it can prove it had in place the new law already. company’s employee or agent to the company, “adequate procedures designed to prevent persons associated with [it] from undertaking such conduct”. Six principles for adequate procedures The practical effect of this is to compel

The British Ministry of Justice published 3) The organisation must assess the nature and businesses to establish and monitor official guidance on how theseHealth ‘adequate extent of its exposure to potential external procedures. Failure to do so will mean that an procedures’ should be designed by commercial and internal risks of bribery on its behalf by employee on a ‘frolic of his own’ will attract organisations, and articulatedSupport six principles persons associated with it. The assessment criminal liability to the employer.  that should underpin the procedures and their must be periodic, informed and documented. operation: and Advice 4) The organisation must apply due-diligence No more ‘head in the sand’ 1) An organisation’s procedures to prevent procedures, taking a proportionate and The Mahon proposal to deal with intermediary bribery by persons associatedfor with it should risk-based approach, in respect of persons behaviour is consistent with the requirement be proportionate to the bribery risks it faces who perform or will perform services for or for adequate procedures; it will not be enough and to the nature, scaleLawyers and complexity of on behalf of the organisation, in order to for an individual or company to put its head the commercial organisation’s activities. mitigate identified bribery risks. in the sand and pretend it knew nothing. They should be also clear, practical, 5) The organisation must seek to ensure that its Employing a bagman to stuff money into the  accessible, effectively implemented and bribery prevention policies and procedures pockets of politicians and officials will, to the enforced. are embedded and understood throughout the extent that it was ever an option, no longer be 2) The top-level management of an organisation organisation, through internal and external one beyond the arm of the law. (be it a board of directors, the owners, or communication, including training, that is One of the challenges that faces companies  any other equivalent body or person) must be proportionate to the risks it faces. doing business overseas is navigating what committed to preventing bribery by persons 6) The organisation must monitor and review can be euphemistically called ‘local culture’. associated with it. They must foster a culture procedures designed to prevent bribery ‘Grease’ payments or facilitation payments within the organisation in which bribery is by persons associated with it and make (to get public officials to do something they never acceptable. improvements where necessary. should be doing anyway) are illegal under the British model, whereas they continue to be      Law Society Gazette www.gazette.ie June 2012 CORPORATE GOVERNANCE 33

‘Bribery and corruption’

‘Bribery and corruption’ is an offence at common law, defined in Murdoch’s Dictionary of Irish Law as: “Corruptly to solicit, promise, give, receive or agree to receive a bribe (that is, a reward) in order that any public official should either: a) Act contrary to a duty he has to do something in which the public has an interest, or b) Show favour in the discharge of his duty and function.” accommodated under comparable US law. This will be a challenge also for those drafting the Irish law. The Mahon whistleblowing proposals go further than the protections to employees proposed in the draft Protected Disclosures in the Public “The new Criminal Interest Bill 2012, published on Law (Corruption) Bill 27 February 2012, by proposing their extension to independent is almost certain contractors. to make it easier ‘You know nothing about the horse’

Corporate governance for commercial compliance statement organisations, in order to protect against this The law that is likely to emerge organisations to for such companies to be risk. In that context, it will be one short step from the consideration of the appended to the annual to add the proposed anti-corruption law to the Mahon recommendations become criminally accounts, but concerning directors’ compliance statement. will inevitably impose greater liable for corrupt tax law and company law As well as being an annual wake-up call duties on companies and other only. This was with a view on the subject, it will have the effect of commercial organisations. payments made to relieving companies communicating that a satisfactory anti- There is a public and, it has by its employees from the requirement to corruption system in a commercial organisation to be said also, a growing and agents. This try to contemplate what is an integral part of good governance. G corporate mood in its favour. other bodies of law they When, in 2003, company law will make anti- ought to be considering was amended to require large corruption systems and declaring compliance Look it up companies to have a directors’ with. This CLRG approach compliance statement, it imperative for those is reflected in the draft Legislation: generated considerable organisations, in consolidated companies · Bribery Act 2010 (Britain) controversy, on the grounds legislation currently in · Criminal Justice Act 2011 that it was requiring order to protect circulation. · Ethics in Public Office Act 1995, section such companies to adopt against this risk” The new Criminal Law 38 disproportionate procedures (Corruption) Bill is almost · Prevention of Corruption Act 1906 to ensure compliance by the certain to make it easier · Prevention of Corruption Act 1916 company with an undefined body of law. for commercial organisations to become · Prevention of Corruption (Amendment) Act The Company Law Review Group criminally liable for corrupt payments made 2001 (revamped the 1906 act) published a special report in 2005 suggesting a by its employees and agents. This will make · Prevention of Corruption (Amendment) Act more focused approach, requiring a directors’ anti-corruption systems imperative for those 2010 (revamped the 1906 act) · Proceeds of Crime (Amendment) Act What are the Prevention of Corruption Acts? 2005, part V · Protected Disclosures in the Public The Prevention of Corruption Acts comprise the 38 (extends law to special advisers of Interest Bill 2012 following: ministers). · Public Bodies Corrupt Practices 1889 · Public Bodies Corrupt Practices Act 1889 · Prevention of Corruption (Amendment) Act · Public Bodies Corrupt Practices Act 1889 (outlaws the bribery of public officials). 2001 (revamped the 1906 act). · Prevention of Corruption Act 1906 (outlaws · Proceeds of Crime (Amendment) Act 2005, Literature: bribery and corrupt payments generally). Part V. · Horan, Corporate Crime, Bloomsbury · Prevention of Corruption Act 1916 (presumes · Prevention of Corruption (Amendment) Professional 2001 certain payments made to be corrupt). Act 2010 (revamped the 1906 act; added · Murdoch’s Dictionary of Irish Law, · Ethics in Public Office Act 1995, section whistleblower procedures). Bloomsbury Professional 2009 34 TAXATION AND TRUSTS Law Society Gazette www.gazette.ie June 2012

A discretionary trust can be a useful tool in succession planning, but it is fraught with dangers from a legal and taxation perspective. Aileen Keogan reviews some recent changes to the discretionary trust taxation regime

Fast facts

> there were significant changes to the discretionary trust taxation regime under section 111 of the Finance Act 2012 that led to a reversal of the result of the Irvine case > Now, where a discretionary>> trust is created under a will (or codicil) of a deceased person, the property is deemed to become subject to the trust at the date of death of the deceased

Aileen Keogan is a solicitor and tax consultant. She is the author of The Law of CAT, published annually by the Irish Tax Institute, and co-author of The Law and Taxation of Trusts (Tottels, 2007) using your discretion Law Society Gazette www.gazette.ie June 2012 TAXATION AND TRUSTS 35

he discretionary trust Tax Consolidation Act 2003, the property was in Irvine. Now the legislation provides that structure in its various not subject to the discretionary trust until the date of death is the chargeable date for forms is used regularly in the extent of the residue was ascertained. the initial levy. This will have a significant cases where young children Therefore, the chargeable date for the initial impact on the management of estates where are involved, where a levy was the date of the ascertainment of discretionary trusts are involved. beneficiary has special the residue. Only after that date would the Tneeds and, in some cases, as a form of what is annual levies arise. New position colloquially known as ‘asset protection’ – for The practical effect of this case was that, Under section 111 of the Finance Act 2012, example, protecting the assets from creditors where there was a long administration which takes effect in relation to deaths or estranged spouses. It is also perceived as a period in an estate – for example, where arising on or after 8 February 2012, where a structure that can minimise tax. there was litigation in the discretionary trust is created under a will (or Recently, there has been estate or very complicated codicil) of a deceased person, the property is a significant change to “It was assets to deal with, resulting deemed to become subject to the trust at the the taxation regime for successfully in the administration taking date of death of the deceased. (As clarified by discretionary trusts. The a number of years to sort the Revenue manual revised April 2012; eBrief Finance Act 2012 introduced argued by the out – the levies would not no 19/12. The legislation merely refers to changes in a reversal of the trustees that, as accumulate. Typically, in the date of the section coming into effect, but >> result of the Irvine case. cases where there was no does not specify whether this relates to the there were no These changes to the taxation discretionary trust and the date of death or the valuation date.) position of discretionary trusts assets vested in administration of the estate In this way, the charge arises at the date of do not affect lifetime trusts, but them until the took a number of years, death of the deceased, albeit that the valuation only those created under a will the benefits passing to the date for the payment of the tax remains the or codicil. ascertainment of residuary beneficiaries might same (in the case of trusts of the residue, that the residue, there be delayed for CAT purposes, is usually the date of ascertainment of the Discretionary trust levies as it would not be known, residue). An initial levy of 6% generally was no charge for example, until the end Therefore, if it takes a number of years to arises on the creation of to the initial levy of the litigation what each administer an estate, levies can accumulate a discretionary trust. An beneficiary was to receive. during those years (see example in panel). annual levy of 1% arises on until that date” The decision in the Irvine case The valuation date is the relevant date for the 31 December each year after, followed this logic, so that, in purposes of calculating the levy. The values at so long as that trust remains discretionary. the case where discretionary trustees took the the date of death or each 31 December in the These levies are collectively also known as residuary benefit, in a similar manner, they course of the administration are not relevant ‘discretionary trust tax’. would not be charged with the levies until at that point. The date of death is merely a Two significant changes to the treatment the ascertainment of that residue. trigger for the tax, while the valuation date is of the levies have arisen in recent years: the However section 111 of the Finance Act the date used for deciding what is to be taxed Irvine case, and its reversal under section 111 2012 has reversed the effect of the decision and the timing of the payment of the tax. of the Finance Act 2012. In Irvine, a will made provision for the residue of the estate to pass on discretionary a practical example trust. The case dealt with the issue of when the initial levy and annual levies Mary dies on 10 June 2012, leaving her Taxes arising after administration of estate: were chargeable (as opposed to payable). residuary estate on discretionary trusts. • Valuation date for residue: 3 February 2015, It was acknowledged by all that the The estate is valued at €800,000 at date of • Value of assets at that valuation date: €500,000, valuation date for the levies was the date death. There are no principal objects under • 6% of €500,000 initial levy (10/6/12), of the ascertainment of the residue (thus age 21 or other exemptions. A claim is taken • 1% of €500,000 annual levy (31/12/13), triggering the calculation and payment by a child of Mary against the estate under • 1% of €500,000 annual levy (31/12/14), date). The Revenue Commissioners argued section 117 of the Succession Act 1965. • Total: 8% of €500,000 (€40,000), payable that the chargeable date was the date of The claim is settled in January 2015, and within four months of 3/2/15. death. Accordingly, the annual levies would the executors finalise the estate, appointing accumulate from the date of death, resulting €500,000 in value of assets to the trustees Additional taxes: in a number of levies (the initial levy and the to hold on discretionary trust on 3 February • 1% of €550,000 annual levy (31/12/15), payable accumulated annual levies) being payable 2015. The trustees retain the assets for two within four months of 31/12/15, within four months of the valuation date. more years, appointing them out in full to a • 1% of €585,000 annual levy (31/12/16), payable However, it was successfully argued by the child on 5 July 2017. As at December 2015, within four months of 31/12/16, trustees of the trust that, as there were no the trust assets were valued at €550,000 • CAT on benefit of €60,000 for child payable by assets vested in them until the ascertainment and, as at December 2016, the trust 31 October 2017, of the residue, there was no charge to the assets were valued at €585,000, but were • No refund of initial levy available, as initial levy initial levy until that date. In accordance €560,000 at 5 July 2017. arises more than five years ago (10/6/12–5/7/17). discretion with section 20 of the Capital Acquisitions Celebrate your Wedding at The Law Society

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For further details contact: Christina Schoeman, Sales Executive, Blackhall Place. telephone. 01 672 4918 or email. [email protected] www.lawsociety.ie Law Society Gazette www.gazette.ie June 2012 TAXATION AND TRUSTS 37

points of interest regarding tax and discretionary trusts

• Discretionary trusts are widely defined. apply to the inheritance by the trustees. Once income is capable of accumulation or • There are exemptions to the levies under if there is discretion retained over who is to certain conditions. benefit from the income and/or capital, there • The annual levies do not arise until the is a discretionary trust. initial levy is chargeable. • The definition of discretionary trust has • The annual levy cannot be charged within 12 been extended under the Finance Act 2012 months of the initial levy arising. to include entities similar to discretionary • Distributions from the trust are generally trusts, for example, Jersey foundations, chargeable to CAT, even where they are Swiss stiftungs and Liechtensteiner anstalts. income distributions. • The levies do not arise until there are no • Where income is earned in the trust and it principal objects under age 21 in the trust is not distributed within a certain period, and, in the case of lifetime trusts, the settlor a discretionary trust surcharge of 20% is has died. incurred in addition to the standard rate • The trustees are deemed to take an income tax charged. inheritance of the trust assets for the • Capital gains tax can arise within the trust purposes of calculating the levy. Therefore, when assets are sold, and also when deemed the usual CAT rules (with adjustments) will disposals arise on certain events. The benefits passing to the residuary beneficiaries might be delayed for cat purposes

Revenue has updated its internal guidelines possession has expired. Refund of part of initial levy within five years: on the effect of section 111 of the Finance For instance, if a discretionary trust arises The change to the date of charge to the Act 2012 by way of eBrief no19/12, and after, say, a life interest (‘to A for life and then property under the Finance Act 2012 affects practitioners should check www.revenue.ie to trustees to hold on discretionary trust’), the the refund of half of the initial 6% levy (its accordingly. annual levies would accumulate for the period reduction to 3%). If a discretionary trust is of the life interest. This could, in the case of wound up within five years of the initial levy Tips and traps a life interest lasting a period of, say, 25 years, arising, the initial levy is reduced from 6% to It’s not just about the residue: While section 111 result in the trust being subject to a 30% levy 3%. reverses the effects of the Irvine case decision, (6% plus 24x1%) on the date of death of the As the five-year period starts at the date of which concerned a residue passing to a life tenant before making any appointments death rather than the valuation date, if the discretionary trust, the section out, which in turn would be valuation date is more than five years from also applies to all discretionary liable to the additional 30% the date of death, the initial levy cannot be trusts created under a will “If it takes a rate of CAT (total 60% tax). refunded, even in the case of a trust being (or codicil). Therefore, a Revenue have verbally wound up immediately after the date of specific legacy of assets into a number of years indicated to me that this ascertainment of the residue. discretionary trust will also be to administer an was not the intention of the Given that usually the trustees would need charged with the levy at the legislation and that this will to know the level of the funds available to date of death and, once the estate, levies can be clarified in the next Finance them to determine if they wish to wind up the trustees are entitled to retain accumulate during Act. Pending this, the Revenue trust and obtain the refund, this appears harsh that legacy, the valuation date manual revised in April 2012 and against the spirit of the refund provisions will arise. those years” has confirmed that the taxation of section 18 of the Capital Acquisitions Tax Warn your executors: Where of such future trusts is not Consolidation Act 2003. A submission has been a discretionary trust is created under a will changed by the Finance Act 2012. Comfort made to Revenue on this point. G or codicil, as practitioners, we should ensure can be taken from the reference in the manual that the executors are made aware of the that no charges to discretionary trust tax importance of administering the estate in arise while a person is beneficially entitled in Look it up a timely manner in order to minimise the possession to a limited interest in the trust accumulation of levies. property. Cases: Warn the trustees: The executors may Four month payment rule still applies for levies: • Revenue Commissioners v Executors wish to inform the trustees of the fact that While the Finance Act 2010 took away the and Trustees of Jeannie Hammett Irvine, there may be levies accumulating so that four-month rule for both CAT and the levies Christie & Others [2005] no 172R (High the trustees can seek advice on how best to and replaced the CAT payment dates to what Court; Laffoy J). minimise the levies and pay the tax within the is now 31 October in each year in respect short four-month period post-valuation date. of valuation dates arising on or before 31 Legislation: It is no longer possible to plan to avoid the August in that year, the payment date for the • Capital Acquisitions Tax Consolidation Act initial levy in these cases. levies was removed in 2010 but not replaced 2003, sections 15 (as amended), 18, 20 Prior interests in possession/future trusts: until the Finance Act 2012. This act has now and 30 The legislation as drafted appears to capture restored the four-month payment rule, so that • Finance Act 2010 discretionary trusts that are created under the levies must be paid within four months • Finance Act 2012, section 111 wills but that are not intended to come of the valuation date (see the example in the • Succession Act 1965, section 117 into effect until after a prior interest in panel). 38 employment law Law Society Gazette www.gazette.ie June 2012 pick ’n’

The current employment rights dispute-resolution system is too complicated, takes too long and costs too much. Major reform is on the way. Ailbhe Murphy gets digging

mix“If we had a blank page, I doubt anyone would draft the The minister promised a major reform of the existing system that we have today.” institutions, including a plan to rationalise the current Ailbhe Murphy array of bodies into an integrated and simple two-tier specialises in hese are the comments of Minister structure. The intention is to build on the recognised employment law for Jobs, Enterprise and Innovation strengths of the first-instance functions currently and litigation with Richard Bruton about our employment performed by the Labour Relations Commission Daniel Spring rights dispute- (LRC), the National Employment & Company. resolution system, Rights Authority (NERA), the Equality In addition to made in an address “The absence Tribunal and the Employment Appeals the Circuit and Tto the pithily titled ‘High Level Tribunal (EAT), by forming a merged, Superior Courts, Conference on the Resolution of of face-to-face first-instance body – the Workplace she regularly Individual Employment Rights mediation in the Relations Commission (WRC). In appears before Disputes’ at UCD in July 2011. addition, the minister proposes to the Rights He noted that the system was “too predominantly centralise all of the appellate and Commissioner complex and onerous”, “takes too long desk-based Early interpretative functions of the Labour Service, the to navigate” and “costs too much”, Court and the EAT within a single, Equality Tribunal, summarising the position as follows: Resolution Service upper-tier body. the Labour • Approximately 30 different pieces may make it Court, and the of employment law and many more unworkable, or at We can work it out Employment statutory instruments, The overall objectives of reform are the Appeals Tribunal • Five redress/enforcement bodies, least paper-heavy early resolution of disputes, the creation • At least six websites, including that and unfocused” of a more user-friendly system, and of his own department, the reduction of costs. A consultation • Upwards of 35 different complaint period began in August 2011, and forms, submissions were received from 67 • A range of different time limits within which to pursue parties, including trade unions, legal professionals, a claim, and employer representatives, NGOs and individuals. • A waiting time of anything up to 80 weeks, depending Since then, the changes have begun. on which route is taken. There is now an integrated, albeit interim, website Law Society Gazette www.gazette.ie June 2012 employment law 39

Fast facts

> Major reform of existing employment rights dispute-resolution institutions is underway > the plan is to rationalise the current array of bodies into an integrated and simpler two-tier structure>> > the new system will build on the ‘Mr Murphy’s afraid you’ll make a claim if you take a fall…’ recognised strengths of the first-instance functions > all of the appellate and interpretative (www.workplacerelations.ie) that aims to and although you need to print it off, sign functions of the Labour Court and ultimately replace those of the five existing it, and post it to the Workplace Relations Employment Appeals Tribunal will be bodies. The site is user-friendly and contains Customer Services Department in Carlow, centralised within a single, upper- information on employment, equality and ultimately they envisage an entirely online tier body, to be called the Workplace industrial relations legislation, including experience. To find the new form, you Relations Commission guidance notes to assist the claimant in simply log on to the new website, select the > the overall objectives are to ensure the making a complaint. ‘services’ heading located on the website’s early resolution of disputes, install a A single first-instance complaint form has home page and then go to ‘how to make more user-friendly system, and reduce been launched. It is clear and well designed, a complaint’. Multiple complaints can be costs 40 employment law Law Society Gazette www.gazette.ie June 2012

and Innovation, has responsibility for the receipt and registration of all first-instance complaints and will deal with queries in relation to the status of those complaints and associated procedures. The minister recently claimed that all first-instance complaints are now acknowledged, and the employer notified, within five working days of lodgement. This is a huge improvement.

Working up a sweat The next major step is to establish the two- tier structure. From the end of 2012, it is envisaged that “The Labour two statutorily independent Court may well bodies will replace the current be overstretched, five. Work has already begun on drafting the Workplace expanding from Relations (Law Reform) Bill three divisions 2012 to give effect to this new structure, and it is intended to to four to deal have this legislation enacted with an estimated by autumn this year. It will provide for the orderly wind 56% increase down of the LRC, NERA, made within the same form, by simply 2011. It is important to note, in caseload and the EAT and the Equality clicking on the ‘new complaint’ bar each also, that the time limits that Tribunal – and the transfer time a complaint has been entered. currently apply to the lodging with no internal of the services of the LRC, Practitioners should note that the new of complaints under the division of NERA and the Equality form is not to be used when appealing or various Employment Acts still Tribunal, together with the seeking the enforcement of a decision or apply to the lodging of this responsibility first-instance functions of determination made under employment, new form. for dealing the EAT and the Labour equality, equal status and certain industrial Finally, a single point of with industrial Court, to the Workplace relations legislation, or when referring contact has been established Relations Commission. The a collective dispute for decision by the and has been fully operational relations matters” appellate functions of the EAT relevant authorities. Due to technical since the beginning of will be amalgamated into a difficulties, it also cannot currently be used this year. This new service, called the reconfigured Labour Court. when making a complaint to the Equality Workplace Relations Customer Services The minister recently published a Tribunal under the Equal Status Acts 2000- of the Department of Jobs, Enterprise Blueprint to Deliver a World-Class Workplace

new structures and plans for reform

The Workplace Relations Commision: commenced. This service will assist parties lodged. The process will be confidential to • All complaints would be made to the WRC, to a dispute to resolve the issue themselves the parties and, if agreement is reached, it where three options for resolving the dispute with the assistance of a case resolution will be binding and enforceable in the civil would be available – early resolution, officer. A number of officials in the minister’s courts. inspection and adjudication. department have already participated in • All WRC hearings would be heard by a single • A time limit of six months for initiating all case-resolution-officer training and have adjudicator in private, within three months complaints requiring adjudication would be begun delivery of the pilot service. There of lodging the complaint. A request for a introduced, as would consistent criteria under is a dearth of information as to how this public hearing could be made by either party, which such time limits might be extended to service will operate, other than that a range in writing, in advance of the hearing, and 12 months in exceptional circumstances, of intervention tools will be used, including the other side would be consulted by the across all legislation. email and telephone communication and, adjudicator before any decision is made. • Any complaints found to be incomplete, in exceptional circumstances, tripartite • The inspection service currently provided out of time or wrongly grounded would be meetings. by NERA would be supplemented by a rejected or redirected by a registrar, who • Parties availing of the voluntary early number of improved provisions so as to would be a qualified lawyer. The reasons for resolution service will not lose their right encourage a culture of compliance, with any decision to dismiss a complaint without to progress to full hearing or inspection if compliance officers being appointed to a hearing would be communicated to both unsuccessful, nor will they lose their place in carry out workplace inspections and to parties in writing, affording them the right to the queue. Where availed of, it is anticipated educate employers in relation to employment appeal the decision to the Labour Court. that the process would conclude within a law compliance. Mechanisms such as • A pilot ‘Early Resolution Service’ has timely two months of the complaint being compliance notices, Labour Court orders Law Society Gazette www.gazette.ie June 2012 employment law 41

Relations Service (April 2012), which sheds need to be given further consideration. an estimated 56% increase in caseload and further light on the shape of the new There is currently no requirement for with no internal division of responsibility structures and his plans for reform, adjudicators, either at first instance or for dealing with industrial relations matters including many administrative on appeal, to be legally as opposed to employment-rights-based and operational changes. qualified. The absence of disputes. It is worth consideration “The minister face-to-face mediation in Finally, the constitutionality of rejecting in its entirety – see the the predominantly desk- claims without any hearing, or the closing panel for some of the most proposes to based Early Resolution off of appeals deemed not to be ‘sufficiently immediate areas of interest to centralise all of Service may make it meritorious’, remains in doubt. practitioners. unworkable, or at least The minister is making the right noises, the appellate and paper-heavy and unfocused. but the details of the plan need some urgent Don’t forget your shovel interpretative The Labour Court may fine tuning. G While the majority of reforms well be overstretched, proposed in the blueprint are functions of the expanding from three welcome, some aspects will Labour Court and divisions to four to deal with Look it up the EAT within a single, upper-tier Legislation: body” • Employment Acts • Equal Status Acts 2000-2011 • Industrial Relations Acts 1946-2004

Literature: • Address by the Minister for Jobs, Enterprise and Innovation, Richard Bruton, at the opening of the High Level Conference on the Resolution of Individual Employment Rights Disputes’ at the School of Law, University College Dublin (1 July 2011) • Blueprint to Deliver a World-Class Workplace Relations Service (April 2012) • Consultation on the Reform of the State’s Employment Rights and Industrial Relations Structures and Procedures (October 2011) • Workplace Relations Reform Quarterly Newsletter (April 2012) • www.workplacerelations.ie (publications/ workplace relations reform) We said pick ’n’ mix, not pecan mix

and fixed-charge notices would be introduced • Appeals would be heard de novo and in public of the Labour Court and the LRC under the to reduce the need to resort to prosecution. by a three-person tribunal, with the only Industrial Relations Acts 1946-2004 would further right of appeal being to the High Court not be altered by the new arrangement. The Labour Court: on a point of law. • All decisions would be in writing and required • The Labour Court would continue to deliver to contain greater detail in terms of issues all of its existing services (other than a small General: identified, findings made and the reasons for number of first-instance functions transferring to • The provision of information, so as to avoid same, with a searchable database of decisions the WRC), in addition to taking on the appellate disputes in the workplace, would remain being maintained and categorised on the new functions of the EAT and a role in dealing with a priority. Online tools to aid employers in website. complaints brought by compliance officers, as developing appropriate terms and conditions • It is planned that 90% of decisions would be set out above. of employment and sample codes of practice communicated to the parties within 28 days of • Either party may appeal a WRC decision to the for dealing with workplace disputes would the hearing, with copies being published on the Labour Court within 42 days, unless they failed be made available free of charge on the new website within ten days of notification. to attend (or be represented at) a WRC hearing website. • A new and more efficient system for the without reasonable cause. • The existing Code of Practice: Grievance and enforcement of awards is promised, though, • The notice of appeal would require applicants Disciplinary Procedures, SI no 146 of 2000 as yet, no detail is available as to what precisely to provide specific grounds of appeal, allowing (under the Industrial Relations Act 1990) is contemplated. The idea of introducing the Labour Court to examine whether a claim is would also be revised, strengthened and its a modest administrative fee for making a ‘sufficiently meritorious’ to proceed to an appeal use promoted. complaint/ lodging an appeal is also still hearing. • The statutory mediation and conciliation remit under consideration. 42 PENSIONS Law Society Gazette www.gazette.ie June 2012

making the adjustment Pension adjustment orders often cause difficulties for family law practitioners, but they are also a complex area for pension specialists. Donagh McGowan and Tommy Nielsen deliver the crash course

istribution of pension benefits is pension policy can be transferred like any other asset, inherently difficult, due to the fact but only matures at the retirement age of the that they are deferred in nature. Quite beneficiary. apart from these intrinsic difficulties, it is particularly important to take care, Assets distributed by PAO because early specialist financial advice When the practitioner, in proceedings for divorce or mayD need to be obtained. judicial separation, completes the list of matrimonial assets Donagh McGowan The key to dealing with pensions is to understand the available for distribution between the parties, it is essential is a partner in the nature of the pension benefit. There are two types of to take note of pension assets, as these appropriately are family law unit of pension benefit in Ireland: distributed by separate pension adjustment order (PAO). Mason Hayes & • Defined benefit (DB) schemes, where the pension payable There has been some discussion as to the type of Curran and vice- is predetermined as defined by a formula in the scheme retirement benefits that may be distributed in this manner. chair of the Law rules, generally as a percentage of final salary, and It seems clear that they include all benefits under: Society’s Family • Defined contribution (DC) schemes, where the pension • An occupational pension scheme (DC and DB), Law Committee payable depends on the contributions paid into the • A personal pension, scheme and investment performance. • A personal retirement savings account and public sector schemes. The benefits of DB and DC schemes can generally be categorised as follows: However, social welfare pensions, such as the old-age • Benefits payable post-retirement, typically referred to as pension, are excluded. ‘retirement benefits’, which usually include: There is, however, nothing in the legislation to exclude i) A lump-sum payment on retirement, post-retirement schemes like pension annuity products and ii) A pension paid to the scheme member, or to the approved retirement funds (ARFs). Indeed, with regard to member’s spouse and/or dependants, should the ARFs, Revenue has indicated that only ARF assets passed Tommy Nielsen member die post-retirement. to a spouse under a PAO are tax-exempt. By extension, is a director of • Benefits payable if the member dies while still working an ARF distributed under the terms of, say, a property Independent and still a member of the scheme, otherwise known adjustment order would be treated as a drawdown from the Trustee Company, as ‘contingent benefits’. Unlike retirement benefits, scheme and, accordingly, would be subject to income tax. a provider of contingent benefits become payable upon the death of Therefore, if such funds are to be transferred other than self-administered member, not at the member’s retirement age. These by PAO, Revenue guidance should be sought in advance. pensions benefits typically include: i) A lump-sum payment, Get the information ii) A pension payable to the member’s spouse and/or The biggest danger when dealing with pensions in marital dependants. disputes is usually failure to get information regarding the nature of the pension benefits involved. It is strongly Pension policies, as opposed to pension schemes, recommended that the following information should be are essentially DC arrangements of assets, which obtained early in the process: the beneficiary can avail of upon retirement. The • Name of the scheme (or policy number), Law Society Gazette www.gazette.ie June 2012 PENSIONS 43 making the adjustment

Fast facts

> The Society’s Pensions Sub-Committee launched a template pension adjustment order in November 2011, which was published in the Society’s November Maurice found his Harrod’s iPad captivating 2011 eZine > In proceedings for divorce>> or judicial separation, it is essential to take note of • Name of the member or beneficiary, to the fact that the court may make orders pension assets, as these appropriately • Names and addresses of scheme trustees, affecting the scheme or policy. are distributed by separate pension • Normal retirement age, Notification is also designed to allow the adjustment order • Current pensionable salary, trustees to make representations to the court, > Given the many steps required to deal • Period of membership of the scheme, although this is rare in practice. The notice with pension assets, the advice is to • Most recent benefit must be filed in court and served consider the pension benefits of both statements, on the other party. Beware spouses at an early stage in the process • Details of additional “There is of various court rules making voluntary contributions, significant wealth provision for the timing of the • Details of additional service of the notice. The advice benefits arising from a in Irish pension is to serve notice as early as circumstances as the spouses cohabiting prior transfer of accrued rights funds – and possible. to the marriage. The relevant period cannot go from another scheme, and beyond the granting of the decree of judicial • A copy of the rules of the the retention Drafting the PAO separation or divorce. The order must specify pension scheme. or distribution The parameters of the PAO the commencement date and cessation date of of those assets are limited to two. The first the reckonable service, not just a period. The trustees are obliged to consideration is the period of The second element of the order is the disclose all such information, requires due reckonable service – that is, relevant percentage, that is, the percentage of as referred to in section 54 of and early the period over which retirement the retirement benefits accrued during the relevant the Pensions Act 1990. benefits were earned. This is period, which will be allocated to the applicant Once all the relevant consideration” typically the period of the spouse. It can range from 0.001% to 100% information has been collated, marriage, but does not have to depending on the circumstances. the next step is to deal with the requirement be so exclusively. The period can obviously If the aim of the parties is to disregard the to serve a notice on the trustees of the scheme not extend to a time prior to the beginning of pension or ensure that neither spouse has an or policy. The notice is akin to a third-party scheme membership. However, it is possible interest in the pension scheme of the other, a notice and is intended to alert the trustees to lengthen the relevant period, due to such nominal PAO must be sought. A provision in “As a society, perhaps the most sensitive measurement of our maturity is the manner in which we care for those who are facing the ultimate challenge – the loss of life.”

(Report of the National Advisory Committee on Palliative Care, 2001) QUALITY Over 6,000 people use hospice care each year. Hospice care involves the total care of patients and their families at the stage in HOSPICE a serious illness where the focus has switched from treatment aimed at cure, to ensuring quality of life. It seeks to relieve the symptoms of illness and cater for a CARE FOR person’s entire needs – physical, emotional, psychosocial and spiritual. ALL The demand for hospice care is growing. While the service has expanded in recent years, much more needs to be done to ensure quality end-of-life care for all.

Please remember the Irish Hospice Foundation when drafting a will.

Irish Hospice Foundation, Morrison Chambers, 332 Nassau Street, Dublin 2 Tel: 01 679 3188; Fax: 01 673 0040 www.hospice-foundation.ie

No-one should have to face death without appropriate care and support.

        Law Society Gazette www.gazette.ie June 2012 pensions 45 a separation agreement will not suffice, as that is merely an agreement between the parties and not an order binding the pension trustees. A nominal pension adjustment order would be for perhaps one day at the beginning of the period of reckonable service and a percentage of 0.001%. The order should contain a clause to exclude the application of future variations of the order. Any other way could leave the member spouse open to the future revisiting of the matter and professional exposure of the practitioner. Further guidance is contained in the Society’s Pension Sub-Committee precedent PAO, issued with the eZine of November 2011. Where the scheme rules provide for both retirement benefits and contingent benefits, it is necessary to draft separate orders in respect of both types of benefit.

Court ruling The accepted practice is to agree a draft order between the parties and then to submit the draft to the trustees. There is varying practice among trustees regarding the approval of such “If the aim of drafts. Some trustees will approve the parties is to a draft, others will acknowledge receipt of the draft, but not offer any disregard the comment on the substance of the pension or ensure It wasn’t the first time that Robin had felt the power of Batman’s fist draft itself. In either event, a letter that neither spouse or email should be obtained from the trustees (or the administrators of has an interest in the trustees. A copy of After service, it is prudent of the the scheme) confirming that a draft the pension scheme the order is then made practitioner to liaise with the trustees and order has been received. Pension available to the parties. the client’s financial advisor to ensure that orders must then be filed in court, of the other, a Generally, the scheme the PAO is properly implemented. In the ideally with an approval letter from nominal PAO must or policy trustees same manner that practitioners would the trustees. will write to both the attend to the conveyancing of real estate be sought” scheme member and assets following the granting of a property Service and implementation to the beneficiary of adjustment order, the practitioner should Once filed in court, the court office will the order to confirm that a PAO has been secure the client’s pension rights upon the finalise the order and serve it directly on received. granting of a PAO. Given the many steps required to deal with pension assets, the advice is to consider the TERMS AND CONDITIONS APPLY pension benefits of both spouses at an early stage in the process, not as an after-thought. It is prudent to advise the non-member client are held, may determine if the non-member There is significant wealth in Irish pension who stands to benefit from a PAO to seek, at spouse should pursue a strategy of funds – and the retention or distribution an early course, independent financial advice transferring a separate benefit to another of those assets requires due and early about the options available to the client once provider. consideration. In addition, and depending the order has been made. In particular, the • The funding situation of the pension scheme on the complexity of the pension assets, it client should be advised to seek financial – where a scheme is under-funded, the may be prudent to take specialist advice in advice as to whether or not to take a transfer client may wish to seek a benefit transfer to relation to the valuation of pension assets, of a separate benefit from the member spouse’s secure the benefits. how those assets may best be distributed, and pension to a separate pension scheme in the • In-specie transfer. Depending on the nature the drafting of PAOs. G client’s own name. In that regard, a number of of the scheme, it may be possible to transfer issues may be considered: assets in specie. • The financial performance of the existing • In the case of many self-directed or Look it up scheme or policy. If the financial small company schemes, the spouse or a performance is poor, the client may wish to family member is often one of the trustees Legislation: transfer out to a different pension provider. and, therefore, the client may feel more • Family Law Act 1995, section 12 • The financial standing of the pension comfortable transferring the benefits out of • Family Law (Divorce) Act 1996, section 17 provider, and the manner in which assets that scheme. • Pensions Act 1990, section 54 46 PEOPLE AND PLACES Law Society Gazette www.gazette.ie June 2012 Midlands welcome for Law Society president Midland Bar Association

The Midland Bar Association (MBA) held a meeting on 4 April 2012 at the Bridge House Hotel, Tullamore. Special guests were Law Society President Donald Binchy and Director General Ken Murphy. In attendance were (front, l to r): Brian O’Sullivan, Marcus Farrell, Joahanna McGowan (honorary secretary, MBA), Donald Binchy (Law Society President), Raymond Mahon (President, MBA), Ken Murphy (Director General), Hilary Cahalan (committee member, MBA) and Patrick Caulfield. (2nd row): Bernadette McArdle, Marianne Deely, Joanne Bane, Dermot Scanlon, Louis Kiernan and Dermot Murphy (honorary treasurer, MBA). (3rd row): Michael Byrne, Aisling Maloney, Verona Smith and Shane Johnston. (4th row): Patrick Turley, Oisín M Casey and Sandra Mahon. (5th row): Caren Farrell, Matt Johnston, Thomas Farrell and Tom Woods. (6th row): John Cummins, Dermot Mahon and Jane Farrell

First graduates in Diploma in Islamic Finance

Graduates of the first ever Diploma in Islamic Finance were presented with their parchments by Minister of State Brian Hayes at a ceremony at the headquarters of the Chartered Institute of Management Accountants (CIMA) on 26 April. The programme was delivered by the Law Society Finuas Network in partnership with CIMA. The minister is pictured with graduates and representatives from Law Society Finuas Network, Skillnets Ltd and CIMA Ireland

Getting your message across The Society’s PR Committee interviewed by local radio held a communications day stations and newspapers, and to event for bar association inform bar associations about presidents and PROs at Blackhall a Law Society initiative to help Place on 3 May 2012. them advertise cost-effectively on The purpose was to encourage their local stations. a greater level of communication Feedback from the presidents between bar associations and and PROs added significantly their local media organisations, to the value of the occasion. to impart some of the media Future similar events are being skills required when being planned. Law Society Gazette www.gazette.ie June 2012 PEOPLE AND PLACES 47 ‘Roman Holiday’ for Cavan solicitors Cavan solicitors travelled in significant numbers to Rome from 27 to 29 April 2012, all for the sake of CPD! This was the third such foreign trip in recent years, following in the footsteps of Berlin and Amsterdam. The 33 practitioners – all members of County Cavan Solicitors’ Association – attended lectures by fellow members on the topics of: · Appearing before the Employment Appeals Tribunal, · Recent developments in personal injury litigation, and · Anti-money-laundering obligations in the light of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010.

As expected, there was an appropriate balance of work Members of the County Cavan and play. Cavan’s solicitors were Solicitors’ Association are seen here privileged to be hosted at a private with the Irish Ambassador to Italy, Pat Hennessy, and on a walking tour reception in the Villa Spada by at the famed Spanish Steps the Irish Ambassador to Italy, Pat Hennessy, and his wife Pauline. The Villa Spada was purchased by The ambassador was presented the Irish Government in the 1940s with a specially commissioned, and was the official residence of framed photograph of Clough the Irish Ambassador to the Holy Oughter Castle, taken by Paddy See until the recent Government Bush (brother of legendary singer decision to shut the embassy. It is Kate Bush), together with a now the official residence of the separate book of watercolours of Irish Ambassador to Italy. Co Cavan.

Sleet fails to stop play at Heritage Hotel The spring outing of the Lady last three-ball made it back safely Solicitors’ Golf Society took place to the club house. at The Heritage Hotel and Golf After several warming Resort, Killenard, Co Laois, on preprandials and lively ‘catching- 20 April. After coffee and scones up’ chat, dinner was served and in the clubhouse, 25 happy prizes presented. Jeanne Cullen golfers stormed down the first was the very worthy winner of first fairway, buoyed up by the cool but prize and the O’Connor Cup. It was unexpectedly benign conditions. a late night. Before you could say ‘hole in The next outing will be held one’, a sleet-filled blizzard blew in Knightsbrook, Trim, Co Meath in from The Heath of Maryborough, (‘only an hour from Dublin’) on 7 buffeting the now less-than-happy September. This is the captain’s band across the bleak terrain. outing and the overall winner will Frozen beings! Judge Petria McDonnell and Anne Delaney confront sleet at Some struggled on, others fell be presented with the Quinlan Rose the outing of the Lady Solicitors’ Golf Society on 20 April away and were retrieved later. Bowl. We are reliably informed A brandy-and-port-filled silver that the weather on the day will be most welcome. events, please email Anne Delaney hip-flask, left on the 17th by a Mediterranean. All colleagues, past For details of society at [email protected], or tel: 086 person who cares, ensured that the and present, including trainees, are membership and forthcoming 828 9094. LETLET THE THE Opening doors for homeless people Opening doors for homeless people GAMESGAMES BEGIN! BEGIN!

Nominate a team of your best athletes to represent your organisation in:

Nominate a team of your best athletes to represent your organisation in: THE DAY: Friday 29 June 2012 PROCEEDS

THE ARENA: The Wanderers RFC, Each team must provide a minimum contribution Merrion Road, of €1000. Proceeds go towards Peter McVerry Ballsbridge, Dublin 4 Trust’s services for young homeless people. THE TIME: 6pm – 9.30pm THE GAMES: Human Table Football Wheel Barrow Race Bungee Run Egg & Spoon Race Three Legged Race PROCEEDS THETHE ULTIMATE DAY: Rumble in Fridaythe Jungle, 29 June 2012 CHALLENGE: a130ft in atable assault course. THE ARENA: The Wanderers RFC, Each team must provide a minimum contribution Merrion Road, of €1000. Proceeds go towards Peter McVerry Ballsbridge, Dublin 4 Trust’s services for young homeless people. THE TIME: 6pm – 9.30pm THE GAMES: Human Table Football Wheel Barrow Race Bungee Run Egg & Spoon Race Three Legged Race THE ULTIMATE Rumble in the Jungle, CHALLENGE: a130ft in atable assault course. Law Society Gazette www.gazette.ie June 2012 people and places 49

1,000 runners going for GOAL Close to 1,000 runners and primarily comprises solicitors walkers took their place at the from A&L Goodbody and staff starting line for the 14th Calcutta from the Law Society, as well Run on Saturday 26 May. It was as over 100 helpers and stewards a blistering day for a change and who volunteered to help on the highly festive atmosphere the day. at Blackhall Place added to the Law School trainees were atmosphere. extremely well represented, The run from Blackhall Place to with over 100 PPCI and PPCII the Phoenix Park and back again students participating or Traffic Management Services. was followed by the usual after- helping out in other ways. They In 14 years, this one-day event event monster barbecue, with thoroughly enjoyed the after-party has raised over €2.5 million – an bar, music, bouncy castles and festivities! extraordinary amount – thanks even a fire-engine demonstration largely to the support of law for the kids. There was a strong €150k target firms who supply over half of temptation to rehydrate with beer! While the final amount of the participants. It is estimated RTé’s Michael Lester fired the sponsorship raised is not yet that over 70% of the sponsorship starting gun following a warm-up known, the target is €150k – or raised comes from these runners. by the team from One Escape, €75k for each charity. This goes As with all events since 2008, while 98FM provided pumped-up a long way to helping street kids fundraising is getting more music to heighten the adrenalin. in Calcutta and homeless boys in difficult. People have less to give Calcutta Run winner, In his short address to the eager Dublin. and more charities than ever are Brian Murphy runners, Law Society President The event’s success is due, competing for funding. After 14 Donald Binchy congratulated also, to the huge support of a years, it is time to radically review and is something of which it can them on their efforts to run and wide range of sponsors, including what the Calcutta Run does and be justly proud. walk the route – but primarily primary sponsors Bank of Ireland how the patronage of the legal Anybody with any thoughts on their efforts to fundraise for and Irishjobs.ie who gave financial profession can be leveraged to or suggestions about the the event’s two charities, GOAL and logistical support. Other continue to make this one of potential future direction of and the Peter McVerry Trust. valuable sponsors were: DX the primary fundraising events the Calcutta Run should email: He expressed his thanks to the Ireland, Legal Panel, One Escape, in Ireland. This type of event is [email protected]. organising committee, which Filestores/Kefron and TMS – unique to the legal profession – Here’s to next year!

(L to r): Eoin MacNeill (A&L Goodbody), Donald Binchy (Law Society President), Ronnie Feeney (Bank of Ireland) and Lisa O’Shea (GOAL) No monsters were harmed in the making of the ‘monster barbecue’ 50 student spotlight Law Society Gazette www.gazette.ie June 2012 Kiwis capture client consultation competition trophy The Kiwis aren’t just great at rugby – they have budding lawyers, too, who could teach longer-established colleagues a thing or two about client consultation. Rob Clarke and Alex Boock from the University of Otago, New Zealand, took on the might of 21 international competitors and came out clutching the Brown- Mosten International Client Consultation Competition Trophy. This year, the event was held from 18 to 21 April at Blackhall Place, Dublin, with over 100 delegates, teams, coaches and national representatives taking part from 22 countries. Competitors travelled from as far afield as Australia, Cambodia, Canada, China Alex Boock and Rob Clarke with the trophy (finalists), England and Wales, Finland, Germany (finalists), clients. A lively céilí music and An integral part of the the world. The cultural exchange India, Indonesia, Jamaica, dancing session followed, which competition is the fostering of was well and truly cemented at Malaysia, the Netherlands, New thoroughly broke the ice. friendships and the exchange of the awards dinner when many Zealand, Nigeria, Northern Two days of very competitive legal experience and cultures. of the male competitors, ably Ireland, Puerto Rico, Russia, rounds followed, with the On the first afternoon, Áine taught by the winning New Scotland, Sri Lanka, Turkey and nine teams going through to Hynes (St John Solicitors) and Zealand team, performed a hair- USA. the semi-finals on Saturday John Costello (past-president) raising Hakka! A number of international morning. In the afternoon, facilitated a master class on the The organising committee observers also attended from China, Germany and New topic of ‘Dealing with vulnerable wishes to express its thanks Sweden, Switzerland and, for Zealand interviewed their clients clients’. General discussion to solicitors from around the the first time, the Iran Central before a panel of five judges in followed a role play, which country who gave of their time Bar Association Educational and front of a packed lecture theatre. outlined how these matters to judge at the competition, Professional Centre Law School. The eventual 2012 would be dealt with across the including the 2007 international They hope to enter teams in the champions, Rob Clarke and Alex different jurisdictions. winners, Michelle O’Mahony 2013 competition, which will Boock, were presented with the At Friday’s cultural evening, (David J O’Meara and Sons take place in Scotland. trophy by Mark Hope (Norman each team had the opportunity Solicitors) and Melanie Evans Law Society President Manley Law School, Jamaica) – to share and enjoy each other’s (Fitzgerald Solicitors). Also Donald Binchy and Education a member of last year’s winning culture: you could learn to deserving of thanks are the Committee chairman Michelle team. Cheques were presented bongo-dance with the Dutch, dedicated staff and student Ní Longáin warmly welcomed by the International Bar dance Bollywood-style with the volunteers who worked tirelessly everybody, while Mr Justice Association representative for Indians, walk like a Jamaican, to ensure a successful event – and Michael Peart delivered a highly Ireland, Michael Greene (A&L listen to Chinese poems, and who were treated to a standing inspiring speech on interviewing Goodbody). sample delicacies from around ovation on awards night! Law Society Gazette www.gazette.ie June 2012 student spotlight 51 Ireland’s top negotiators: talking their way to the top Ireland’s top negotiators are coveted national cup, which now two PPCI trainees at Blackhall resides in the Education Centre Place, Deirdre Toner (GJ at Blackhall Place. Moloney, Cork) and Frank The International Wall (Holmes O’Malley Negotiation Competition is Sexton, Limerick). They won a law student competition the National Negotiation in which a team of two law Competition, which was held at students representing a party/ King’s Inns on 11 May. client negotiates either an They will now represent international transaction or the the Republic of Ireland at the resolution of an international International Negotiation dispute with an opposing team Competition, which will be of two law students. hosted by the Institute of Teams from Australia, Professional Legal Studies at Canada, Denmark, England Queen’s University, Belfast, and Wales, Hong Kong, India, from 3 to 7 July. Japan, New Zealand, Northern Deirdre and Frank competed Ireland, Puerto Rico, Scotland, against five other teams from Deirdre Toner and Frank Wall (PPCI trainees) are presented with their Singapore, South Korea and the the Law Society, King’s Inns and certificates to mark their victory in the National Negotiation Competition USA will also take part in the NUI Maynooth to claim the by Jane Moffatt (course manager, education centre) 2012 competition.

A ‘York’ a day helps you work, rest and play! P ic

The Law Society’s PPCI : L

football team travelled to incs

the College of Law, York, for P hoto its annual Legal Sports Day on 19 April, writes Bryan Sweeney. The tournament comprised teams from various law colleges across England and Wales, as well as many law firms such as DLA Piper, Walker Morris and Squire Sanders. The event was a great networking opportunity to meet fellow trainees in Britain. The PPCI team fared reasonably well before their luck ran out against the College of Law, Bloomsbury, being beaten 2-0 in a disappointing semi-final. The Law Society has facilitated trainee solicitors in Ireland to qualify in England and Wales, with the introduction of English property law on the PPCII course. It has emerged as an important The Society’s PPCI team reached the footie semi-finals in York (back, l to r): Keith McAndrew, Richard Margetson, Joseph jurisdiction for newly qualified O’Rourke and Conor Rock. (Front, l to r): Wayne Kenny, Brian Dagg, Peter Cronin, Bryan Sweeney and Cian McGinley solicitors. The relationships built with British law firms may Kennedy and the Education Centre, McAndrew for their commitment participate at next year’s event. In prove useful to those who wish who were very supportive in helping throughout the year. a year when sport is very much in to practise outside of Ireland with the organisation. Thanks, also, Finally, our gratitude goes the news, let’s hope that we can in the future. to the hard-working management to the College of Law, York, for build our relationships with the Special thanks goes to of Bryan Sweeney, Peter Cronin, giving us such a warm welcome. British legal sector through our Director of Education TP Brian Dagg, John Kearns and Keith We were delighted to be invited to mutual love of sport. G 52 book reviews Law Society Gazette www.gazette.ie June 2012 Contempt of Parliament Kieron Wood. Clarus Press (2012), www.claruspress.ie. ISBN: 978-1-9055-364-36. Price €28 (paperback), €23 (e-book). Kieron Wood is well known to of parliament by members of standing orders. There is a Gazette readers. A broadcaster parliament and strangers, and the specific chapter on Ireland in and journalist, he subsequently relevant punishments are of great the book. became a practising barrister. significance. Kieron Wood has succeeded His published works include Leaving aside the advantages in writing a most informative, The High Court – A User’s Guide, of this book for other legislatures, highly readable and universal The Kilkenny Incest Case and in Ireland, the language of account of contempt of Divorce in Ireland (as co-author). article 15.10 of the Constitution parliament and breach of The functioning of implies that each House of the parliamentary privilege. parliamentary democracy, how a Oireachtas has a quasi-criminal parliament deals with breach of jurisdiction to punish persons Dr Eamonn G Hall is principal privilege in parliament, contempt who have infringed rules and of EG Hall & Co. Irish Family Law Handbook Deirdre Kennedy and Elizabeth Maguire. Bloomsbury Professional (4th ed, 2011), www.bloomsburyprofessional.com. ISBN: 978-1-8476-693-22. Price: €120.

The Irish Family Law Handbook relevant EU legislation, such as amendments contained in could be given the more the Brussels II bis Regulation and the Civil Law (Miscellaneous appropriate title of the ‘Irish the recent European Communities Provisions) Act 2011, which some Family Law Legislation (Maintenance) Regulations 2011. practitioners might not have Handbook’, for that is precisely It also includes a section covering been aware of. I should also point what it is. The book does the relevant Circuit Court out that the area of child care is not contain any case law or and Superior Court rules and not covered in this book, which explanatory notes. However, it provides various precedent forms. is disappointing. However, it is is an extremely useful tool for However, the book does not certainly a handy resource for any any family law practitioner, as include forms used in the District family law practitioner, and this it includes most general family Court. is evident from the fact that this law statutes, together with other The big benefit to a book is now in its fourth edition. relevant pieces of legislation, practitioner in using this book such as the Taxes Consolidation is that the legislation is updated David Taylor is an associate solicitor Act 1997. to include all recent legislative at Comyn Kelleher Tobin, Solicitors, This book also includes amendments, including the 29 South Mall, Cork.

The Law of Personal Injuries Colin Jennings, Barry Scannell and Dermot Sheehan. Thomson Reuters (2011), www.roundhall.ie. ISBN: 978-1-8580-062-53. Price: €265. In recessionary times, a rise in the Motor Insurance Bureau of Ireland. precedents, which can be adapted number of personal injury claims The first two chapters deal with for most proceedings. The authors has been noted, and it would procedural issues and contain send a word of caution in relation Just published appear that the timing of this book some excellent reminders in to PIAB application, which was is especially relevant. relation to certain rarely used being updated at the time of It is laid out in 14 chapters: sections of the Courts Act 1981, as publication, and practitioners each opens with a succinct amended by the Courts Act 1991. should therefore refer to the synopsis of the area of law to The following chapters deal with website for the most up-to-date be dealt with, and it is current the significant issues of negligence forms. It would be the icing on achieved this aim with a thoughtful, as of September 2011. The text and the various forms of liability. the cake if these precedents well laid out, practical handbook brings one from the procedures The chapter on damages is were provided by way of CD-ROM. that will be of use to any solicitor for submitting an application to informative and well laid out, Appendix 2 contains the 2009 MIBI wishing to practice in the area or the Personal Injuries Assessment and the text ends with a chapter agreement. update their knowledge. G Board through to filing procedures, dealing with insurance-related The aim of the text is “to provide dealing with liability related issues and the Motor Insurance an authoritative account of the Berni Fleming is a solicitor in the issues, negligence, handling Bureau of Ireland. law and procedures relating to the Law Department of Dublin City insurance related claims, and the Appendix 1 sets out useful area” – the authors have clearly Council. CPDC AD [60X252]-ARTWORK_Layout 1 28/05/2012 Law Society Gazette www.gazette.ie June 2012 reading room 53

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This title is an essential brief-case companion providing detailed analysis in an accessible, user-friendly style. • Provides a thorough examination of the jurisdiction of the District Court, TOP OF THE POPS including the limits of same, the categories of offence triable summarily Over the last 12-month period, March 2011 and the procedure where offences are to March 2012, the most frequently requested to be returned for trial on indictment loans, ranked in order of popularity, were: • Gives a detailed treatment of a whole 1) Laffoy’s Irish Conveyancing Precedents range of procedural issues that arise in (Bloomsbury Professional) the context of a criminal prosecution, 2) Cassidy on the Licensing Acts (Clarus including bail, disclosure, amendment of proceedings, hearings etc. Wifi is availableAsk Press) in the library. • Includes a useful chapter dedicated 3) Nesbitt & Wallace, Irish Commercial to frequently prosecuted offences at the desk for Precedents (Round Hall) log-in details. including: Public Order Offences; 4) Regan, Employment Law (Bloomsbury Theft and Fraud Offences; Road Traffic Professional) Offences; Offences involving violence; Library services include: 5) Spierin, Wills: Irish Precedents and Possession Offences; Failure to Appear • Book loans, Drafting (Spierin) • Is accompanied by a number of useful • Online catalogue plus app, 6) Woods, Liquor Licensing Laws of Ireland appendices, setting out, for example, • Enquiry service, (Woods) those offences which constitute “serious • Precedent service, 7) Delany, Equity and the Law of Trusts in offences” for the purposes of the Bail • Document delivery, Ireland (Round Hall) Act 1997 • Judgments alerter. 8) Keating on Probate (Round Hall) 9) Shannon, Child Law (Round Hall) Further details on any of these services are 10) Law Society Manual on Employment law OFFER available by contacting the library on tel: 01 (OUP) PRICE €202 672 4843/4, email: [email protected]. G SAVE €23

Just published Published December 2011 New books available to borrow Price €225 • Cooper, John, Inquests (Oxford: Hart, in Energy and Regulated Markets (Dublin: Offer closes 31 July 2012 2011) ICEL, 2011) • England, Paul, Expert Privilege in Civil • Mansfield, Barry, Arbitration Act 2010 and Evidence (Oxford: Hart, 2010) Model Law (Dublin: Clarus Press, 2012) PLACE YOUR ORDER TODAY • Goulding, Paul, Employee Competition: • O’Connor, Michael, VAT on Property Covenants, Confidentiality and Garden Made Simple (2nd ed) (Haywards Heath: VISIT www.roundhall.ie Leave (2nd ed) (Oxford: OUP, 2011) Bloomsbury Professional, 2012) EMAIL [email protected] • Hogan, Gerard, The Origins of the Irish • Wareham, Philip (ed), Competition Law CALL 1 800 937982 (IRE) or Constitution (Dublin: Royal Irish Academy, and Shipping: the EMLO Guide to EU +44 (0) 1264 388570 (INT) 2012) Competition Law in the Shipping and Port Please quote ref: 1021501A • Irish Centre for European Law, Competition Industries (London: Cameron May, 2010) 54 PRACTICE NOTES Law Society Gazette www.gazette.ie June 2012 briefing Practice notes New arrangements for legal aid schemes CRIMINAL LAW COMMITTEE The Legal Aid Board has pub- 1 July 2012, only claims sub- the claim), should be submitted in relation to individual claims lished updated guidance notes mitted on the new form will to the Legal Aid Board, Attor- or the implementation of the At- in relation to the operation of be accepted for processing. ney General’s Scheme, Criminal torney General’s Scheme may be the Garda Station Legal Advice Completed GLAS1 forms should Legal Aid Section, at the board’s directed to the above address or Scheme and has introduced a be submitted to the Legal Aid Mount Street address. Queries to tel: 01 644 1913. single application/claim form – Board, Garda Station Legal Ad- GLAS1 – in place of the previ- vice Scheme, Criminal Legal Aid ous GSAS1, GSAS2 and GSAS3 Section, 47 Upper Mount Street, Sale of repossessed properties forms. The guidance notes and Dublin 2 (DX 139 Dublin). new GLAS1 form are available Also, the administration of the CONVEYANCING COMMITTEE to download from the members’ Attorney General’s Ad Hoc Legal It has come to the attention of the fusal to reply to the standard req- area of the Society’s website Aid Scheme will be transferred Conveyancing Committee that uisitions on title (these are matters (www.lawsociety.ie) and from the to the Legal Aid Board with ef- many solicitors acting for vendors that are specified in the definition Legal Aid Board website (www. fect from 1 June 2012. The com- in the sale of repossessed proper- of ‘good marketable title’ in the legalaidboard.ie). The Legal Aid pleted Ad-hoc Legal Aid Scheme ties are restricting the information standard undertaking for residen- Board also intends furnishing (Attorney General) Claim Form that they furnish and are restrict- tial mortgage lending) hard copies of the GLAS1 form to (which is available on the Law ing the general conditions and If the solicitor is not in a posi- solicitors’ practices in due course. Society and Legal Aid Board web- warranties that apply under the tion to give an unqualified certifi- Members should note that, sites), together with copy initiat- standard contract. cate of title, then the qualifications while claims will still be accepted ing and final orders and original Solicitors for a purchaser should required should be agreed in writ- on the old forms for a limited invoices (setting out itemised advise their client of the implica- ing with the lender before con- period, it is envisaged that, after accounts for the various aspects of tions of the restrictions. tracts are signed. In some cases, the client may be If the restrictions cannot be ad- in a position to obtain the neces- equately explained or resolved, the Stamp Office – change of sary information before contracts dangers of proceeding should be are signed (for example, by em- explained to the client. opening hours ploying an engineer to prepare a The solicitor will have to con- LITIGATION COMMITTEE certificate of compliance). sider whether he/she is in a posi- The solicitor will have to con- tion to continue to act in the mat- The Courts Service has advised changed hours has been closely sider whether he or she is in a posi- ter. that the recently changed opening monitored. On foot of feedback tion to give an unqualified certifi- The issue of a lender having hours of the Stamp Office have from customers of the Stamp Of- cate of title (a) in light of any lack power of sale will remain under again been modified, with effect fice and representations made by of information on the title itself, review by the committee. Solici- from Monday 14 May 2012. the Litigation Committee, the and/or (b) in light of any refusal on tors acting for purchasers of repos- Since the introduction of re- opening hours are now as follows: the part of the vendor to utilise the sessed properties should be careful vised opening hours at the end of 10am to 12.30pm and 1.30pm to standard contract of sale without to ensure that vendors have the January 2012, the operation of the 4pm. significant amendment or any re- necessary power to sell. New licensing regime for auctioneers, estate agents and letting agents LITIGATION COMMITTEE Under the provisions of the first time, licence management is no longer necessary to place Property Services (Regulation) agents. The authority will take newspaper notices in advance of Act 2011, the licensing of over the licensing of auctioneers/ lodging the licensing application. auctioneers, estate agents estate agents/letting agents and Applications for licences may be and letting agents has been introduce the new licensing made to the authority from 30 transferred from the courts and regime for management agents May 2012. the Revenue Commissioners to with effect from 6 July 2012. Further information, the Property Services Regulatory Practitioners should note that application forms and guidance Authority. one of the features of the new notes are available on the The authority will also, for the application procedure is that it authority’s website, www.npsra.ie. G Law Society Gazette www.gazette.ie June 2012 legislation update 55 briefing Legislation update 6 April – 8 May 2012

Details of all bills, acts and statutory instruments since 1997 One to watch are on the library catalogue – www.lawsociety.ie (members’ and students’ area) – with updated information on the current stage a bill has reached and the commencement date(s) of each act. All One to watch: new legislation recent bills and acts (full text in PDF) are on www.oireachtas.ie Social Welfare and Pensions ers of social welfare inspectors to and recent statutory instruments are on a link to electronic Act 2012 make enquiries of landlords where statutory instruments from www.irishstatutebook.ie. Recent The Social Welfare and Pensions rent supplement is being paid, and statutory instruments are available in PDF at www.attorney Act 2012 gives legislative effect powers to make enquires at ports general.ie/esi/esi_index.html to a number of changes to the and airports to ensure that certain social welfare code announced in social welfare claimants comply the Budget statements of 5 and 6 with the residency requirements. selected statutory including family law proceedings. December 2011. This includes a The Social Welfare and Pensions instruments Commencement: 10/4/2012 change in the method of calculat- Act amends the Pensions Act Circuit Court (Fees) Order 2012 ing the daily rate of Jobseeker’s 1990. From 2016, defined ben- Number: SI 109/2012 Planning and Development Benefit (payment will be based efit pensions schemes must hold Provides for the fees to be charged (Amendment) Regulations 2012 on a five-day week rather than a a risk reserve that will act as a buf- in Circuit Court offices with effect Number: SI 116/2012 six-day week); a curtailment on fer in assisting pension schemes from 10/4/2012. In addition, the Amends the Planning and Devel- access to the Mortgage Interest to absorb financial shocks in the order provides for the exemption opment Regulations 2001 to reduce Supplement Scheme for the first future. This obligation will require from fees of certain proceedings, the period prior to the event that 12 months, while a person engages trustees of the pension schemes to including family law proceedings. an application for a licence for an in the mortgage arrears resolution produce an actuarial funding re- Commencement: 10/4/2012 outdoor event must be made, from process; and, for new recipients of serve certificate. The act also pro- 16 weeks to ten weeks. the One-Parent Family Payment, vides that the annual revaluation Commencement: 4/4/2012 District Court (Fees) Order 2012 the age limit for the youngest child of defined pension benefits for Number: SI 108/2012 will reduce on a phased basis to deferred scheme members (that Provides for the fees to be charged Rules of the Superior Court seven years by 2014. is, former employees) can take ac- in District Court offices with effect (Bankruptcy) 2012 The act further amends the pro- count of negative changes in the from 10/4/2012. In addition, the Number: SI 120/2012 visions relating to PRSI liability in Consumer Price Index. order provides for the exemption Substitutes a new order 76, sub- the case of people who qualify for The act increases the minimum from fees of certain proceedings, stitutes certain forms in Appen- income tax relief under the Special number of voluntary contributions including family law proceedings. dix O, principally to facilitate the Assignee Relief Programme and in from 260 to 520 contribution Commencement: 10/4/2012 operation of Council Regulation relation to share-related remunera- weeks, reconciling it with the re- 1346/2000 on insolvency proceed- tion. quired minimum for the state pen- ings and provides a new form of Supreme Court and High Court The act also makes a number of sion (contributory). The increase in statement of affairs. (Fees) Order 2012 other miscellaneous amendments requirements will be implemented Number: SI 110/2012 Commencement: 20/4/2012 to the social welfare code, includ- on a phased basis from April 2013 Provides for the fees to be charged ing the strengthening of the pow- to April 2015. in the Office of the Registrar of Rules of the Superior Court the Supreme Court, the Central (Criminal Procedure Act 2010) Office, the Examiner’s Office, the 2012 Office of the Official Assignee in Number: SI 114/2012 Bankruptcy, the Taxing Master’s Amends orders 58, 85, 86 and 87 Rules of the Superior Court certain forms in Appendix M, prin- Office, the Accountant’s Office, to prescribe new procedures and (Winding-up of Companies and cipally to facilitate the operation of the Office of Wards of Court, the forms consequent upon the com- Examinership) 2012 Council Regulation 1346/2000 on Probate Office and District Pro- ing into operation of certain provi- Number: SI 121/2012 insolvency proceedings. bate Registries. In addition, the sions of the Criminal Procedure Act Substitutes a new order 74 and Commencement: 20/4/2012 G order provides for the exemption 2010. substitutes and inserts various pro- from fees of certain proceedings, Commencement: 28/4/2012 visions of order 75A, substitutes Prepared by the Law Society Library consult a colleague 01 284 8484 The Consult a Colleague helpline is available to The service is assist every member of the profession with any completely confidential and totally independent problem, whether personal or professional of the Law Society 56 REGULATION Law Society Gazette www.gazette.ie June 2012 briefing

Solicitors Disciplinary Tribunal Notice: the high court Reports of the outcomes of Solicitors Disciplinary Tribunal High Court – 2012 no 19SA May 2012, it was ordered that inquiries are published by the Law Society of Ireland as provided In the matter of Alexander M the name of Alexander M Gibbons for in section 23 (as amended by section 17 of the Solicitors Gibbons, a solicitor of Scartagh of Scartagh House, Clonakilty, (Amendment) Act 2002) of the Solicitors (Amendment) Act 1994 House, Clonakilty, Co Cork, and in Co Cork, be struck off the Roll of the matter of the Solicitors Acts Solicitors. 1954-2011 John Elliot, In the matter of Margaret Tan- Scotland on 30 November Take notice that, by order of the Registrar of Solicitors, sey, a solicitor practising as 2005, in respect of borrow- High Court made on Monday 21 24 May 2012 Bruce St John Blake & Com- ings to be secured on a named pany, Solicitors, Ross House, premises in Athlone, leaving Merchant’s Road, Galway, the property secured to the two and in the matter of the So- banks, The tribunal ordered that the re- [7406/DT27/11] licitors Acts 1954-2008 [6373/ b) Gave two undertakings to Na- spondent solicitor: Named client (applicant) DT24/11] tional Irish Bank on 27 Febru- a) Do stand advised, Patrick Delaney (respondent Law Society of Ireland ary 2007 to secure a first legal b) Pay a sum of €500 to the com- solicitor) (applicant) charge on a named property in pensation fund, On 6 March 2012, the Solici- Margaret Tansey (respondent Athlone and failed to register c) Pay the costs of the Law Soci- tors Disciplinary Tribunal found solicitor) the National Irish Bank mort- ety of Ireland of appearing be- the respondent solicitor guilty of On 1 March 2012, the Solicitors gage as soon as practicable to fore the tribunal. misconduct in his practice as a sol- Disciplinary Tribunal found the ensure that the bank obtained a icitor in that he breached the Law respondent solicitor guilty of mis- first legal charge on the prop- In the matter of Patrick Del- Society’s code of conduct for solic- conduct in her practice as a solici- erty, and failed, despite the aney, principal solicitor of itors by breach of section 68 of the tor, in that she: undertaking, to ensure that the P Delaney & Co, Parkside Solicitors (Amendment) Act 1994. a) Gave undertakings to AIB on clients had executed a deed of House, Main St, Castleknock, The tribunal ordered that the 20 April 2005 and to a named mortgage prior to negotiating Dublin 15, and in the matter respondent solicitor do stand cen- firm of solicitors for Bank of the loan cheque. of the Solicitors Acts 1954-2008 sured. G

NOTICE Firms ceasing practice: Run-off Fund and run-off cover Firms ceasing practice that have separate from any additional cesses will be applied to firms provided that it includes the in- renewed their professional indem- excesses that may be applied in commensurate with any failure formation contained in the Notice nity insurance for the current in- certain cases. to meet these cessation obli- of Closure Form. Any notification demnity period, subject to meeting 4) Firms obtaining run-off cover gations. There will be no pay- of closure must include a copy of eligibility criteria, including that through the ROF will not be re- ment by insurers of excesses for the firm’s most recent completed there is no succeeding practice in quired to bear any additional claims by financial institutions. proposal form and its most recent respect of the firm, will be provid- excesses for run-off cover, 6) Run-off cover will commence at policy of qualifying insurance. The ed with run-off cover through the provided they meet the follow- the end of the expiring cover- written notice of closure must be new Run-off Fund (ROF) under the ing cessation obligations in the age period for a firm, not at the provided to the SPF manager by following terms: required timeframes: date of cessation of practice of whichever is the earliest of the 1) Run-off cover should be pro- a) Notification of closure to the the firm. following: vided indefinitely for so long as Special Purpose Fund (SPF) 7) Anti-abuse provisions are in • At least 60 days prior to ceas- the freedom-of-choice model is manager, place to prevent ‘phoenix firms’ ing practice, or retained or master policy is in- b) Provision of last proposal (that is, firms ceasing in prac- • At least 60 days prior to the ex- troduced in future. form and policy document to tice in order to put claims into piry of its coverage period. 2) The cost of providing this run- the SPF manager, the ROF and then reopening un- off cover will be recovered by c) Adherence to close-of-prac- der another identity). Further information insurers through general premi- tice guidelines, The SPF manager is Capita Com- ums collected, rather than by d) Meeting a common minimum Notice of closure mercial Insurance Services and way of an additional premium risk-management standard, With regard to notice of closure, can be contacted by phone on paid by the firm ceasing prac- as assessed by risk-manage- a firm that intends to cease prac- 0044 207 397 4539 or by email: tice. ment audit, tice must provide the SPF man- [email protected]. 3) All firms will carry the same e) Prompt notification of claims ager with a written notice of its The relevant regulations, docu- self-insured excess into run-off to the SPF manager, and intention to cease practice in mentation and more detailed in- that they had in their last cov- f) Cooperation with the conduct the form of the Notice of Closure formation on the ROF can be found erage period in practice, and of claims. Form (available on the Society’s on the Society’s website at www. this standard excess will be 5) Additional self-insured ex- website) or in any written form, lawsociety.ie/Pages/PII. Law Society Gazette www.gazette.ie June 2012 JUSTIS UPDATE 57 briefing Justis update News of Irish case law information and legislation is available from FirstLaw’s current awareness service on www.justis.com Compiled by Bart Daly

CRIMINAL order to enable him to properly respondent that the application plicant’s aftercare needs pursuant Extradition address the issue raised by him for discovery was a fishing expe- to section 45 of the Child Care Abuse of process in his challenge to the applica- dition. The points of objection Act 1991 and had failed to so. An – whether the tion for his surrender. The ap- raised in paragraphs 17 and 18 order of mandamus was sought, documents that plicant appealed from the order contained allegations of serious compelling the respondent to were the subject of the High Court directing him illegality but were not supported exercise its discretion pursuant of the discovery to make discovery of documents by any evidence. Consequently, to section 45 of the Child Care application related to any matter regarding all requests to the those paragraphs ought to be Act 1991 to properly care for properly in question in the proceed- authorities in this jurisdiction, struck out as an abuse of process. the applicants. The respondent ings and, if so, whether their discov- and responses to such requests Finally, the respondent was not contended that there had been a ery was necessary for disposing fairly from the Republic of Lithuania entitled to a recommendation failure to exhaust the alternative of the issues in the proceedings – Eu- or Britain or Northern Ireland pursuant to the Attorney Gen- remedy of complaint under part ropean Arrest Warrant Act 2003 for the provision of assistance in eral’s scheme. 9 of the Health Act 2004. – Rules of the Superior Courts respect of the respondent relat- Minister for Justice, Equal- Gilligan J refused the reliefs (European Arrest Warrant Act ing to the offences referred to in ity and Law Reform (appli- sought. Unaccompanied minors 2003 and Extradition Acts 1965- the European arrest warrant, and cant/appellant) v McGuigan entering the State were subject 2001), SI no 23 of 2005. copies of all records maintained (respondent), Supreme Court, to section 8(5)(a) of the Refugee The respondent in the substan- and authorities granted in re- 23/2/2012 Act 1996 (as amended by the Im- tive proceedings objected to his spect of interception and surveil- migration Act 1999). In accord- surrender, on foot of a European lance of the respondent. JUDICIAL REVIEW ance with the regulations, the arrest warrant, to the authori- The Supreme Court (Mur- Immigration respondent should have put in ties in the Republic of Lithu- ray J; Denham CJ, Hardiman, and asylum place a care plan for the appli- ania. The respondent’s points of Macken, Finnegan JJ) allowed Health Service cant, setting out the aims and ob- objection claimed that the war- the appeal and set aside the High Executive – ob- jectives of the placement. While rant did not comply in form or Court order, holding that the ligation to put there might have been a breach substance with the requirements only issues purportedly raised in place a care of the regulations, the applicant of the European Arrest Warrant by the respondent in the points plan – delay in bringing application did very well and nothing of sig- Act 2003 and that his surrender of objection to which the docu- – whether HSE failed to properly nificance turned on the failure should be refused under section ments sought to be discovered provide services to applicants and to have in place a care plan. The 37 of the act due to the poor could be considered directly rel- to comply with the Child Care Act applicants appeared to have lost conditions in places of detention evant were those set out in points 1991 – Refugee Act 1996 – Rules sight of the fact that they entered in Lithuania and because there 17 and 18 of the points of addi- of the Superior Courts 1986, or- the State as unaccompanied mi- were fundamental defects in the tional objection. All of the docu- der 84 – Child Care (Placement nors and had been provided for criminal justice system in Lithu- ments that were the subject mat- of Children in Residential Care) both while they applied for refu- ania. Further additional points ter of the High Court order for Regulations 1995, SI 259/1995. gee status and their further ap- of objection were filed and, in discovery related to matters that Both applicants were subject plication to stay on humanitarian particular, points 17 and 18 al- occurred within this State. Con- to the immigration process. The grounds. From the moment they leged that the requesting state sequently, those documents were first-named applicant had arrived stepped onto Irish soil, the ap- intended to rely on evidence of not relevant to issues concern- in the State as a minor and was plicants became involved in the an agent or agent provocateur ing the criminal justice system taken into the care of the re- asylum process pursuant to the of Britain’s military intelligence in Lithuania nor the conditions spondent pursuant to the Refugee Refugee Act 1996 and were still agency, and evidence against the of detention there. Points 17 and Act 1996 and attended school. involved in the process. Section respondent that emanated from 18 amounted to serious allega- When the applicant attained her 45 of the Child Care Act 1991 did an unauthorised operation con- tions of allegedly unlawful acts majority, she applied for asy- not create a separate system for ducted by that service within this done with the knowledge and/or lum status, which was refused. aged-out minors, separate from State, and that, consequently, connivance of individuals in the Subsequently, the applicant was the asylum and immigration pro- the surrender of the respondent employ of the State. However, transferred to different accom- cess. While the decision of the amounted to a device whereby those allegations were mere as- modation in Galway. Owing to respondent to transfer the appli- the provisions of the Constitu- sertions, and there was no evi- deep unhappiness at the situa- cants to Galway might have been tion and/or the law of this State, dence whatsoever put forward to tion, both applicants were trans- insensitive, it was one that the insofar as they relate to the ad- support those contentions. Con- ferred back to Dublin under the respondent was entitled to make mission of evidence, could be sequently, those matters could umbrella of a voluntary organisa- in the exercise of its discretion. avoided or defeated. The re- not be properly considered to be tion. Judicial review proceedings Esther Natasha Enguye and spondent applied for discovery in issue in these proceedings. In were brought, contending that Nana Ama Twumasi (joined cas- of various documents, which any event, it was clear from the the Health Service Executive es) v The Health Service Execu- he claimed he was entitled to in affidavits filed on behalf of the was obliged to consider the ap- tive, High Court, 26/10/11 G 58 EURLEGAL Law Society Gazette www.gazette.ie June 2012 briefing Eurlegal Edited by TP Kennedy, Director of Education Data dilemmas – new EU data protection proposals Data protection law is about to un- based their European, Middle dergo its most fundamental change Eastern and African headquar- in 15 years. The EU’s Justice Com- ters in Ireland. Under the new missioner, Viviane Reding, an- regime, the Irish Data Protection nounced in January a proposal for Commissioner will be their data reform of the EU data protection protection regulator. This change regime. If passed into law, the pro- should be beneficial for multina- posed changes would require busi- tional companies with a trans-Eu- nesses to make some significant ropean presence, as they should changes in how they currently pro- no longer have to deal with mul- cess and use personal data. The new tiple data protection regulators. rules will represent nothing less than • Rules on consent will be consid- a complete overhaul of the current erably enhanced, with few op- data protection regime. portunities for data controllers Assuming the proposed reforms to rely on implied consent. This are adopted, many of the changes development has already attracted will not take effect until 2015 at the criticism as, while it is a truism earliest. Thankfully, this gives busi- that consent is key to data pro- nesses a reasonable period of time tection compliance, consumers to explore how they can integrate often express frustration at being the legal changes into their opera- repeatedly asked for consent in tions with minimum disruption. Of their interactions with businesses. course, the far-reaching implications Conducting business online and of the new rules mean that signifi- electronically will become less cant lobbying from interest groups dynamic and more cumbersome is now likely to occur, even though in the absence of implied consent. the measures were published after a • The introduction of a mandatory long public consultation. In the 24th century, Data can protect himself security breach notification obli- gation to data protection regula- What are the key points? 2% of a company’s global turn- to move it freely (for example in tors, which may need to happen • A single European data protec- over in serious cases. Even for a commonly used format such as within 24 hours of an organisation tion regulatory framework is pro- businesses that had feared that PDF). This, no doubt, will have becoming aware that a breach has posed. This will involve repealing a 5% fine was in the pipeline, an impact on suppliers of cloud- occurred. Anyone who has ever the 1995 Data Protection Directive, this is clearly a ‘game-changing’ computing services who may been involved in a large-scale which is in current operation, and provision aimed at ensuring data need to redesign their storage security breach will know that replacing it with a regulation that protection compliance is taken systems to allow easy data extrac- this can be extremely onerous. will be automatically effective seriously. tion. In many cases, several days can in all EU member states. This • The introduction of a new ‘right • Businesses with more than 250 elapse while the scope and extent means that, unlike the Data Pro- to be forgotten’ will be of partic- employees, as well as some other of the breach is being determined. tection Directive, member states ular interest for businesses in the personal data-intensive busi- • The introduction of a ’privacy by will not need to implement their social media space, but, it is not nesses, will be obliged to appoint design’ principle will mean that own laws to transpose the new limited to that area. If a customer a data protection officer for a data protection safeguards must measures. This change is signifi- contacts a business to ask it to minimum two-year term. They be taken into account at the plan- cant, and aims to ensure that the remove their details from its da- will also be obliged to resource ning stage when companies are same law applies across the EU, tabase, it will be obliged to do so, that person to enable him/her to designing products and services. as currently the implementation unless it has a legitimate reason carry out their functions. Again, Systems currently in design will of the Data Protection Directive to retain their data. This is likely this is likely to attract a great deal need to be future-proofed to en- can differ across member states. to be one of the most controver- of attention from lobbyists, given sure they meet the requirements However, this uniformity may not sial aspects of the regulation and the potential cost of compliance. of the new regime, taking account be easily achieved, given that the will be the subject of much lob- • Companies will only need to of the new rights such as the ‘right regulators of each member state bying. deal with a single data protec- to be forgotten’ and ‘data porta- may still adopt and apply different • The introduction of a ‘right to tion regulatory authority in the bility’. interpretations of the new law. data portability’ for data subjects member state in which they have • Increased fines will be available to will mean customers must be their main establishment. Many Jeanne Kelly is a partner in the Com- national regulators, on a sliding able to receive data from busi- technology companies involved mercial Department of Mason Hayes & scale of up to €1 million, or up to nesses in a way that allows them in foreign direct investment have Curran. Law Society Gazette www.gazette.ie June 2012 eurlegal 59 briefing Recent developments in European law Data dilemmas – new EU data protection proposals CONTRACT whether contract terms drafted for job and had suffered less favour- EU law. It must take account of all Case C-472/10, Nemzeti Fog- general use are unfair and, where able treatment than another on the the circumstances of the dispute in yasztóvédelmi Hatóság v Invitel appropriate, to have those terms grounds of her gender, age and eth- order to determine whether there Távközlözlési Zrt, 26 April 2012 prohibited. The directive does not nic origin. She brought an action is sufficient evidence for a finding Directive 93/13 on unfair contract seek to harmonise the penalties ap- before the German courts seeking that the facts, from which it may be terms provides that consumers are plicable in the event of a term be- compensation from the company presumed that there has been such not bound by such terms used in ing found to be unfair in proceed- for employment discrimination discrimination, have been estab- a contract with a seller or a sup- ings brought by those persons or and also the production of the file lished. Among the facts that may be plier. In Hungary, the applicant, organisations. Terms declared to of the person who was hired, to en- taken into account is the refusal by the national consumer protection be unfair should not be binding able her to prove that she was more Speech Design to give Ms Meister authority, may apply to the court on consumers. Thus, the Hungar- qualified. The Federal Labour any access to the information that for a declaration that an unfair ian legislation is entirely compat- Court asked the CJEU whether she sought to have disclosed. Ac- term used in a consumer contact ible with the directive. It is for the EU law entitles a worker in these count can also be taken of the fact is void if the use of such a term by national courts to assess the unfair circumstances to have access to that the employer did not dispute a seller or supplier affects a sig- nature of the term. information indicating whether that Ms Meister’s level of expertise nificant number of consumers or the employer employed another matches that referred to in the job causes substantial disadvantage. EMPLOYMENT candidate and, if so, on the basis of advertisement and that, notwith- The declaration of invalidity of an Case C-415/10, Galina Meister what criteria. It also asked whether standing this, Speech Design did unfair term by a court, following v Speech Design Carrier Systems the fact that the employer does not not invite her to a job interview such an action, is applicable to any GmbH, 19 April 2012 disclose the requested information after the publication of the two consumer who has entered into a Directive 2000/43 prohibits dis- gives rise to a presumption that vacancy notices. A worker who contract with a seller or supplier in crimination on the grounds of sex, the discrimination alleged by the has a plausible claim that he meets which that term is used. age and ethnic origin in recruit- worker exists. the requirements listed in a job The authority received a large ment procedures. Where people The CJEU pointed out that advertisement and whose applica- number of complaints from con- consider themselves wronged be- the person who considers himself tion was rejected is not entitled to sumers concerning the company cause the principle of equal treat- wronged, as equal treatment has have access to information indicat- Invitel, a fixed-line telephone net- ment has not been applied to them, not been applied, must initially es- ing whether the employer engaged work operator. Invitel had unilat- they must establish, before a court tablish the facts from which it may another candidate at the end of the erally introduced a term into the or other competent authority, facts be presumed that there has been recruitment process. However, it general business conditions of its from which it may be presumed discrimination. It is only where cannot be ruled out that a refusal subscriber contracts, granting it that there has been discrimination. he establishes those facts that the to grant any access to information the right retroactively to charge It is then for the opposing party to defendant must then prove that may be one of the factors to take customers ‘money order fees’ (fees prove that there has been no in- there has been no breach of the into account in the context of es- applied in the event of payment fringement of that principle. Mem- principle of non-discrimination. tablishing facts from which it may of invoices by money order). The ber states are required to take such The assessment of the facts from be presumed that there has been method by which those fees were measures as are necessary, in accor- which it may be presumed that direct or indirect discrimination. It calculated was not specified in the dance with their national judicial there has been discrimination is a is for the referring court to decide contracts. The authority took the systems, to ensure the application matter for national judicial bodies. whether that is the case in the pro- view that this was an unfair con- of that principle. EU law does not specifically entitle ceedings in question, taking into tract term. It brought an action Ms Meister is a Russian national persons who consider themselves account all the circumstances of the in the Hungarian courts seeking a born in 1961. She holds a Russian to be the victim of discrimination case before it. declaration that the contested term degree in ‘systems engineering’, to information in order that they was void and an order requiring the which has been recognised in Ger- may establish facts from which it FREE MOVEMENT OF PERSONS reimbursement to Invitel’s custom- many as the equivalent of a Ger- may be presumed that there has Case C-83/12, Minh Khoa Vo, ers of the ‘money order fees’. The man degree awarded by a univer- been discrimination. It is not, how- 10 April 2012 Hungarian court asked the CJEU sity of applied science. A company, ever, inconceivable that a refusal of Regulation 810/2009 lays down whether the legislation allowing Speech Design, published two disclosure by the defendant, in the measures on the crossing of exter- any consumer concerned to benefit successive advertisements seeking context of establishing such facts, is nal borders and on the procedures from the legal effects of a declara- to recruit an ‘experienced software liable to compromise the achieve- and conditions for the issuing of vi- tion of invalidity of an unfair term, developer’. Ms Meister applied ments of the objective pursued by sas by member states. The objective following an action brought in the in response to the two successive that directive and, in particular, is to facilitate legitimate travel and public interest, is compliant with advertisements. Her applications to deprive that provision of its ef- tackle illegal immigration through the directive. were rejected without her being fectiveness. It is for the German further harmonisation of national The CJEU pointed out that the invited to interview or being told court to ensure that the refusal of legislation and handling practices at directive allows a consumer organ- on what grounds her applications disclosure by Speech Design is not local consular missions. The com- isation to bring an action for an in- were unsuccessful. She argued that liable to compromise the achieve- petent consulate when examining junction to obtain a decision as to she met the requirements for the ment of the objectives pursued by an application for a visa must de- 60 EURLEGAL Law Society Gazette www.gazette.ie June 2012 briefing

termine whether the conditions for Federal Court of Justice asked the law, the application of which might man newspapers were primarily the entry into EU territory of a na- CJEU whether it is contrary to well jeopardise the effectiveness or distributed in Germany with some tional of a non-member state have EU law for provisions of national consistency of EU legislation. Of additional distribution in Austria. been satisfied. Particular attention law to make aiding and abetting its nature, a prosecution (in which The question arose as to whether has to be given to assessing whether illegal immigration punishable by it may be necessary for the inves- the Austrian court could take ju- the applicant presents a risk of ille- criminal penalties when nationals tigation to be secret or confiden- risdiction for the infringements in gal immigration or a risk to the se- of non-member states who have tial and for urgent measures to be Germany and Austria. curity of the member states. If there infiltrated EU territory hold visas taken) will not always be able to Article 6 of the Brussels Regula- are serious grounds for believing obtained by fraud that have not yet satisfy a requirement of previous tion allows co-defendants in differ- that a visa was obtained fraudulent- been annulled. annulment of visas by the compe- ent member states to be sued in a ly, it must be annulled. It is, in prin- The CJEU observed that EU tent authorities. single state “provided the claims ciple, annulled by the member state law governs the conditions for the are so closely connected that it is of issue. However, it can also be issue, annulment or revocation of INTELLECTUAL PROPERTY expedient to hear and determine annulled by another member state, visas, but does not lay down rules Case C-145/10, Eva-Maria them together to avoid the risk of in which case the member state of providing for criminal penalties Painer v Standard Verlags GmbH irreconcilable judgments result- issue must be notified. if those conditions are breached. and others, 1 December 2011 ing from separate proceedings”. In Mr Vo, a Vietnamese national, However, the visa application form A freelance photographer claimed Case C-593/03, Roche Nederland v was prosecuted in Germany in contains a section informing the infringement of her copyright in Primus, the CJEU had ruled that criminal proceedings in which he applicant that any false statement portrait photographs. She had a close connection requires the was charged with facilitating illegal will lead, among other things, to made a series of photographs of same situation of law and of fact. immigration. He was a member of the annulment of the visa and may Natascha Kampusch at her nursery In this case, the court held that organised Vietnamese gangs that also render him liable to prosecu- at the age of six. The child was later the fact that the claims against the assisted other Vietnamese nation- tion. In addition, Framework De- abducted and held for eight years defendants concern infringements als to enter Germany illegally. cision 2002/946/JHA obliges every by her kidnapper. The photog- of territorially distinct copyrights They persuaded the Hungarian member state to take the measures rapher gave prints of the portrait for Germany and Austria does not consulate in Vietnam that those necessary to ensure that infringe- photographs to the parents and the of itself preclude the possibility of Vietnamese nationals were part of ments in this field are punishable police. Some of these were subse- consolidating them on the basis of tourist groups. They would follow by effective, proportionate and dis- quently released by the Austrian article 6. This is the more so if the a tourist programme for a few days suasive criminal penalties. Thus, authorities during the search for applicable laws in the two states are and were then transported to other not only does EU law not prevent a her. Her escape after eight years very similar. German and Austrian states, primarily Germany. Those member state from prosecuting any became a major international news law on copyright and related rights concerned paid from $10,000 to person intentionally assisting a per- story. The defendant newspapers is very similar for photographs. $15,000 for this. The network also son who is not a national of a mem- published the old portrait pho- The other issue to be deter- used Sweden as a state of entry. ber state from entering unlawfully tos without the permission of the mined was that of copyright. The Sweden allowed Vietnamese citi- into its territory, but it is expressly photographer or without crediting court decided that a photograph zens to stay several months in the obliged to do so. Member states are her. Using these photographs, they enjoys the same protection as that Schengen area if they held work faced with two duties. The first is published a simulated ‘photo-fit’ of conferred by copyright on any oth- visas permitting them to pick ber- not to act in such a way as to hin- what she might look like in 2006. er work, as long as it expresses the ries. Once the work visa was ob- der the free movement of persons The photographer commenced author’s creative abilities. The me- tained and sums between €500 holding visas unless the visas have proceedings in the Austrian courts. dia may publish such a photograph, and €2,000 paid to ‘couriers’, the been duly and regularly annulled. The question arose as to whether without the consent of its author, Vietnamese travelled on to Ger- The second is to provide for and there was copyright in these photo- if the object of its publication is to many. Some of these people were enforce the criminal penalties for graphs and what the scope of such assist the police in a criminal inves- found in Germany when they were persons committing such infringe- protection would be. The proceed- tigation or to find a missing person. seeking to settle and work there. ments. These obligations must be ings that led to a preliminary refer- Works that have already been law- Mr Vo, as a member of the im- performed, giving the provisions of ence were against five newspapers fully made available to the pub- migration network, was arrested EU law their full effectiveness. If – one established in Austria and lic may be quoted, provided that in Germany and sentenced to a need be, national courts are bound the other four in Germany. The the source (including the author’s term of imprisonment of four years to seek solutions achieving a proper Austrian newspaper was only es- name) is indicated – unless that and three months. The German balance in relation to provisions of tablished in Austria, while the Ger- turns out to be impossible. G Are you getting your e-zine?

The Law Society’s e-zine is the legal newsletter of the on the Law Society’s website at www.lawsociety. solicitors’ profession. The e-zine issues once every ie. Click on the ‘e-zine and e-bulletins’ section in the two months and brings news and information directly left-hand menu bar and follow the instructions. You will to your computer screen in a brief and easily-digestible need your solicitor’s number, which is on your 2010 manner. If you’re not receiving the e-zine, or have practising certificate and can also be obtained opted out previously and would like to start receiving it by emailing the records department at: again, you can sign up by visiting the members’ section [email protected]. Law Society Gazette www.gazette.ie June 2012 Professional notices 61 notices

wills Rates Brady, Brendan (deceased), late of Springtown, Granard, Co Longford, who died on 31 De- Professional notice rates cember 2011. Would any person rates in the Professional notices section are as follows: having knowledge of the where- abouts of any will made by the • Wills – €147 (incl VAT at 23%) above-named deceased please con- • Title deeds – €294 per deed (incl VAT at 23%) tact Field Solicitors, Office Unit 4, • Employment/miscellaneous – €147 (incl VAT at 23%) Manor Mills Centre, Maynooth, Co Kildare; tel: 01 629 5511, Highlight your notice by putting a box around it – €33 extra email: [email protected] All notices must be paid for prior to publication. Cheques should be made Brady, Frank (deceased), late of payable to Law Society of Ireland. Deadline for July Gazette: 20 June 2012. For Springtown, Granard, Co Long- ford, who died on 29 June 1990. further information, contact the Gazette office on tel: 01 672 4828 (fax: 01 672 4877) Would any person having knowl- edge of the whereabouts of any will made by the above-named de- ruary 1996. Would any person Phibsboro, Dublin 7. Would any ceased please contact Field Solici- having knowledge of the where- person who has any knowledge of Fagan John (deceased), tors, Office Unit 4, Manor Mills abouts of any will made by the any will executed by the above- late of 37 Deanstown Park, Centre, Maynooth, Co Kildare; above-named deceased please named deceased, who died on 31 Finglas West, Dublin 11 and tel: 01 629 5511, email: info@ contact Field Solicitors, Office January 2012 at the Mater Hospi- 4th Field Artillery Regiment, fieldsolicitors.ie Unit 4, Manor Mills Centre, tal, Dublin, please contact Brian Mullingar Barracks, West- Maynooth, Co Kildare; tel: 01 D O’Brien & Co, Solicitors, 23 meath, who died on on 1 April Brady, Mary (otherwise known 629 5511, email: info@fieldsolici- Main Street, Swords, Co Dublin; 2012. Would any person as Molly) (deceased), late of tors.ie tel: 01 840 1447, fax: 01 840 with information concerning Springtown, Granard, Co Long- 7264, email: sharon.devine@ the last will and testimony of ford, who died on 6 February Candon, Margaret Lillian (de- bobsolicitors.ie the above-named deceased, 1991. Would any person having ceased), late of 5 Carrignafoy please contact David Fagan knowledge of the whereabouts of Terrace, Cobh, Co Cork. Would Fagan, Anne (deceased), late of of 14 Deanstown Avenue, any will made by the above-named any person having knowledge of 18 Munster Street, Phibsboro, Finglas West, Dublin 11; deceased please contact Field So- a will made by the above-named Dublin 7. Would any person hav- email: [email protected], licitors, Office Unit 4, Manor deceased, who died on 27 Sep- ing knowledge of a will made/ tel: 086 839 4270 Mills Centre, Maynooth, Co tember 2011, please contact executed by the above-named de- Kildare, tel: 01 629 5511; email: Frank Kelleher, solicitor, Frank ceased, who died on 10 April 2012, [email protected] Kelleher & Co, Solicitors, 1 please contact Cullen & O’Beirne, Faherty, Barbara (orse Bairbre Pearse Square, Cobh, Co Cork Solicitors, Suite 338B, The Capel Ní Fhatharta) (deceased), late Brady, Thomas (deceased), Building, Mary’s Abbey, Dublin 7; of Claremount, Oughterard, Co late of Springtown, Granard, Co Convey, Mary (deceased), tel: 01 888 0855, fax: 01 888 0820, Galway and also Kilroe, Spiddal, Longford, who died on 19 Feb- late of 7 Great Western Villas, email: [email protected] Co Galway and Coill Rua, In- dreabhain, Co Galway, who died on 2 September 2011. Would LAND REGISTRY any person with any knowledge MAPPING SERVICE of a will executed by the above- from €129 + VAT named deceased please contact NI Employment and Equality up to 31st May Messrs Padhraic Harris & Co, Law Specialists Offices in Solicitors, Merchants Gate, Mer- Contact Matt Barnes Belfast and Warrenpoint chants Road, Galway; tel: 091 e: [email protected] • Unfair Dismissal 562 066, fax: 091 566 653, email: m: 087 2544443 • Discrimination [email protected] • Breach of Contract • Equal Pay O’Boyle, Angela (deceased), Is your client interested A Caring Legacy: • Judicial Review late of 39 Harold’s Cross Cot- bequests to The Carers • Human Rights tages, Dublin 6W, who died in selling or buying a on 30 March 2012. Would Association (CHY10962) help Contact: 7-day liquor licence? to support home-based family any person having knowledge [email protected] of the whereabouts of any will care in Ireland. If so, contact Liquor [email protected] made by the above-named de- ceased please contact Creavin & Licence Transfers For information: Call us direct on 04841759900 Emma at 057 9370210. www.solicitorsni.net Co, Solicitors, 18 Lower Kilma- cud Road, Stillorgan, Co Dublin, Contact [email protected] or www.carersireland.com. tel: 01 283 2922, fax: 01 0404 42832 www.twitter.com/employmentlawni 283 2847, email: solicitors@ creavinco.com 62 Professional notices Law Society Gazette www.gazette.ie June 2012 notices

O’Flaherty, Joan (deceased), 2) An order determining the pur- on, Co Dublin (‘the property’) tion before the county registrar at late of Aisling, Oranmore, Co chase price to be paid by the ap- Take notice that any person hav- the end of 21 days from the date Galway, who died on 15 Decem- plication for the said fee simple ing an interest in the freehold es- of this notice and will apply to the ber 2011. Would any person hav- and any intermediate interests. tate or any intermediate interests said county registrar for the city of ing knowledge of the whereabouts 3) If necessary, an order appor- in the property, being the prop- Dublin for such directions as may of a will executed by the above- tioning the said purchase price erty held under an indenture of be appropriate on the basis that named deceased please contact between the holder of the fee lease dated 21 February 1956 be- the person or persons beneficially Edon Byrnes of Colman Sherry, simple and any such intermedi- tween Francis Henry Wilson and entitled to all superior interests Solicitor, The Square, Gort, Co ate interests. Charles Henry Mather of the one and all intermediate interests in Galway, tel: 091 631 383 4) An order pursuant to the pro- part and The Deerpark Cinema the property up to and including visions of section 8(3) of the Limited of the other part, more the fee simple in the said property O’Shaughnessy, Kathleen (de- Landlord and Tenant (Ground particularly described in the first are unknown and unascertained. ceased), late of Apartment 2, Rents) Act 1967 appointing an part of the schedule to the lease Date: 8 June 2012 Thornfield, Stillorgan Road, officer of the court to convey as “all that and those that piece or Signed: Gartland Furey Solicitors in the city of Dublin, who died on behalf of any unknown or plot of ground being part of the (solicitors for Declan Taite, receiver on 2 October 2011. Would any unascertained person holding lands of Mount Merrion, other- of Flanagans of Buncrana Limited, person having knowledge of the any intermediate interests. wise Callary, situate in the half in receivership), 20 Fitzwilliam whereabouts of any will made by 5) Further and other reliefs. barony of Rathdown and county Square, Dublin 2 the above-named deceased please of Dublin, with the cinema or contact Eoin O’Shea of O’Shea Which said application will be theatre offices erected thereon, In the matter of the Landlord Solicitors, 3 Chancery Place, grounded upon the notices of in- which premises are particularly and Tenant Acts 1967-2005 and Dublin 7; tel: 01 677 7495, fax: 01 tention to acquire the fee simple delineated, measured (be the same in the matter of the Landlord 878 2347, email: e.oshea@oshea- dated 9 March 2012, the nature more or less) and described on and Tenant (Ground Rents) (No business.ie of the case and the reasons to be the map or plan drawn on these 2) Act 1978 and in the matter of offered. presents and are thereon edged an application by Mary Mulchi- White, Brede (née Maher) (de- Schedule: All that and those the red and held for a term of 250 nock and in the matter of the ceased), late of 118 Seskin View premises situate at Pound Street, years from 25 March 1953 and dwellinghouse and premises Road, Tallaght, Dublin 24 (for- Leixlip, in the county of Kildare, subject to the yearly rent of £435 situated at the western side of merly Shinrone, Co Offaly), who being (lot 1) the part of the prop- (€541.52) and the covenants and Main Street, Buttevant, in the died on 9 September 2010. Would erty described in folio 1865 of the conditions therein contained”. county of Cork any person having knowledge of register county Kildare, registered Take notice that the applicant, Take notice that any person hav- the whereabouts of a will execut- on folio 6655L of the register Flanagans of Buncrana Limited ing an interest in the freehold es- ed by the above-named deceased county Kildare, and being (lot (in receivership), acting by its tate or any intermediate interests please contact Bernadette Man- 2) the property described in fo- receiver, intends to submit an ap- of that part of the property situ- nion of John L Mulvey & Com- lio 55193F of the register county plication to the county registrar ated at the western side of Main pany, Solicitors, Main Street, Tal- Kildare, both lot 1 and lot 2 held for the city of Dublin at Áras Uí Street, Buttevant, Co Cork, held laght, Dublin 24; tel: 01 451 5055, under lease made 15 May 1934 Dhálaigh, Inns Quay, Dublin 7, under an indenture of lease made email [email protected] between Elizabeth Wogan of the for the acquisition of the free- on 15 January 1878 between one part and Richard O’Neill of hold interest and all intermedi- the Right Honourable Charles MISCELLANEOUS the other part for the term of 250 ate interests in the property and George, Earl of Egmont, on the Seven-day liquor licence for years from 1 May 1934, subject to that any party asserting that they one part and Thomas Ryan of sale. Please contact Donncha the yearly rent thereby reserved hold the said freehold interest or the other part (hereinafter ‘the O’Connor, Johnson & Johnson, and the covenants and conditions any intermediate interests in the lease’) for a term of 61 years from Solicitors, Ballymote, Co Sligo; therein contained. property are hereby called upon 29 September 1877 at the annual tel: 071 918 3304 Date: 8 June 2012 to furnish evidence of title to the rent of £3.10 shillings and subject Signed: LC O’Reilly & Co (solici- property to the under-mentioned to the covenants and conditions TITLE DEEDS tors for the applicant), The Harbour, solicitors within 21 days from the therein contained. In the matter of the Landlord Kilcock, Co Kildare date of this notice. Take notice that Mary Mulchi- and Tenant (Ground Rents) Acts In default of any such notice nock intends to submit an applica- 1967-1984: Hannigan Holdings In the matter of the Landlord being received, the applicant in- tion to the county registrar for the Limited (applicant) and Tenant Acts 1967-2005 tends to proceed with the applica- county of Cork at the Courthouse, Take notice that application will and in the matter of the Land- Washington Street, Cork, for the be made to the county registrar lord and Tenant (No 2) (Ground acquisition of the freehold inter- sitting at the Courthouse, Naas, Rents) Act 1978 (as amended) Fire Investigator with over est and all intermediate interests in the county of Kildare, at 11.30 and in the matter of an applica- 10 years of experience (over in the aforesaid property and that o’clock in the forenoon on 13 tion by Flanagans of Buncrana 300 cases) looking for any party asserting that they hold July 2012 or the next opportu- Limited (in receivership), act- employment. Registered with nity thereafter, for the following ing by its receiver, Declan Taite, International Association of Arson Investigators and Fire relief: insolvency practitioner of RMS Please remember The Sick Investigators Association of 1) An order determining the en- Farrell Grant Sparks, Molyneux and Indigent Roomkeepers’ Ireland (N 0113). titlement of the applicant to House, Bride Street, Dublin 8 Society (oldest Dublin charity) acquire the fee simple and any (‘the receiver), and in the mat- Web: msfireivestigation.com 74 Upper Leeson Street, Dublin 4 intermediate interests in the ter of the property known as Tel: 051 345174 when writing your will. premises, more particulars de- ‘Flanagans Furniture Shop’, 66 Mob: 087 7739348 Telephone no: 01 667 6213 scribed in the schedule hereto. Deerpark Road, Mount Merri- Law Society Gazette www.gazette.ie June 2012 Professional notices 63 notices

the fee simple or any intermediate 1907, subject to the yearly rent property adjacent to 8 Bloom- interest and all intermediate in- interest in the aforesaid property of £8 thereby reserved and to the field Park, Dublin 8, in the city terests in the aforesaid property is called upon to furnish evidence covenants and conditions therein of Dublin and known as 8A and that any party asserting that of title to the said property to the contained. Bloomfield Park, Dublin 8 they hold the fee simple or any below-named solicitors within 21 Take notice that Carmel Julia Take notice that any person hav- intermediate interest in the afore- days from the date of this notice. Dunne intends to submit an ap- ing an interest in the freehold es- said property are called upon to In default of any such notice plication to the county registrar tate or any intermediate interests furnish evidence of title to the being received, Mary Mulchinock for the county of the city of Dub- of the property situate at the rear said property to the below-named intends to proceed with the appli- lin for acquisition of the freehold of 14 Longwood Avenue, South solicitors within 21 days from the cation before the county registrar interest in the aforesaid prop- Circular Road, Dublin 8, being date of this notice. at the end of 21 days from the date erty, and any party asserting that also the property adjacent to 8 In default of any such notice of this notice and will apply to the they hold a superior interest in Bloomfield Park, Dublin 8, and being received, Sheila Dorrington county registrar for the county of the aforesaid premises (or any of known as 8a Bloomfield Park, intends to proceed with the appli- Cork for directions as may be ap- them) are called upon to furnish Dublin 8, held under an indenture cation before the county registrar propriate that the person or per- evidence of the title to the afore- of lease made 13 March 1893 be- at the end of 21 days from the sons beneficially entitled to the mentioned property to the below tween George Elliott and Martha date of this notice and will apply intermediate interests, including named within 21 days from the Anne Elliott of the one part and to the county registrar for the city the fee simple, in the aforesaid date of this notice. Elizabeth Smith of the other part of Dublin for directions as may property are unknown or unas- In default of any such notice be- (hereinafter ‘the lease’) for a term be appropriate that the person or certained. ing received, Carmel Julia Dunne of 123 years from 1 March 1893, persons beneficially entitled to Date: 8 June 2012 intends to proceed with the appli- at the annual rent of £3 sterling the intermediate interests, includ- Signed: Matthew J Nagle & Co (so- cation before the county registrar and subject to the covenants and ing the fee simple, in the aforesaid licitors for the applicant), Broadview, for the county of the city of Dublin conditions therein contained. property are unknown or unascer- West End, Mallow, Co Cork for directions as may be appropri- Take notice that Sheila Dor- tained. ate on the basis that the persons rington intends to submit an ap- Date: 8 June 2012 In the matter of the Landlord beneficially entitled to the supe- plication to the county registrar Signed: Gartlan Winters Solicitors and Tenant Acts 1967-2005 and rior interest including the freehold for the city of Dublin at Áras Uí (solicitors for the applicant), 56 Low- in the matter of the Landlord reversion in the aforesaid property Dhálaigh, Inns Quay, Dublin 7, er Dorset Street, Dublin 1; DX 105 and Tenant (Ground Rents) (No are unknown or unascertained. for the acquisition of the freehold 004 Dorset St 2) Act 1978 and in the matter of Date: 8 June 2012 an application by Carmel Julia Signed: MacCarthy & Associates (so- Dunne and in the matter of the licitors for the applicant), 10 Upper recruitment property known as 182 Phibs- Mount Street, Dublin 2 borough Road, Dublin 7 NOTICE TO THOSE PLACING Take notice that any person hav- In the matter of the Landlord ing an interest in the freehold es- and Tenant Acts 1967-1994 and RECRUITMENT ADVERTISEMENTS IN tate of the property known as 182 in the matter of the Landlord THE LAW SOCIETY GAZETTE Phibsborough Road, Dublin 7, and Tenant (Ground Rents) (No Please note that, as and from the August/September 2006 issue held under an indenture of lease 2) Act 1978 and in the mat- of the Law Society Gazette, NO recruitment advertisements will dated 11 June 1908 between Anna ter of an application by Sheila be published that include references to years of post-qualification Maria Swanzy, Frances Cunning- Dorrington and in the matter experience (PQE). ham and Frances Burnell of the of the property at the rear of The Gazette Editorial Board has taken this decision based on legal one part and John Bermingham 14 Longwood Avenue, South advice, which indicates that such references may be in breach of the of the other part, for the term Circular Road, Dublin 8, in the Employment Equality Acts 1998 and 2004. of 200 years from 1 November city of Dublin (being also the job-seekers’ legal register vacancies For Law Society members seeking a solicitor position, For Law Society members to advertise for all their full-time, part-time or as a locum legal staff requirements, not just qualified solicitors Log in to the members’ register of the Law Society Visit the employment section on the Law Society website, www.lawsociety.ie, to upload your website, www.lawsociety.ie, to place an ad or CV to the self-maintained job seekers contact employer support by email on register within the employment [email protected] section or contact career or tel: 01 672 4891. You support by email on can also log in to the members’ [email protected] or area to view the job seekers tel: 01 881 5772. register. 64 captain’s blawg Law Society Gazette www.gazette.ie June 2012

wild, weird and wacky stories from legal ‘blawgs’ and media around the world Past president to practise presently Former French president Nicholas Sarkozy is swapping the glamour of the Elysée Palace for the daily grind of his old law firm, according to the Wall Street Journal. Roundly beaten by François Hollande, the former president will holiday with his family in the south of France before rejoining the law firm Cabinet Arnaud Claude et Associés, which he founded in the 1980s. The firm has fewer than 20 lawyers and specialises in property and construction law.

Rockers Juror Janet jailed after jetting off on junket A juror has been jailed for 56 days Baker’s summing up. Before jumping While Chapman was sunning reclaim after bunking off to Malta in the on a plane with her boyfriend, she herself, the trial was delayed while middle of a trial. Janet Chapman left a message for the court saying: police tried to track her down. She rights to (51) was nearing the end of a four- “Hello, this is Janet Chapman. I won’t was arrested on her arrival at John week armed robbery trial in Preston, be attending court for a period of up Lennon Airport in Liverpool and recordings Lancashire, when she decided that to two weeks. I have got to return to charged with contempt of court. Jim Peterik, who founded the a week in sunny Malta would be the doctor’s next Tuesday. I have got Judge Anthony Russell sentenced musical group Survivor, has more interesting than Judge Stuart sciatica. Thank you. Bye.” her to 56 days in the clink. put publishing company Warner/Chappell Music on notice that he intends to Bungling boozy burglar busted in bedroom reclaim the copyright to his songs. Peterik, now 61, co- A Scottish burglar was He had planned to rob the after smelling strong alcohol. wrote ‘Eye of the Tiger’, the apprehended after the owners couple of their cash and The hapless thief tried to flee theme song from the 1982 of the house he had broken into jewellery, but a combination the scene but was tackled to the movie Rocky III. discovered him asleep in their of booze, cocaine and ecstasy ground by the homeowners, The ABA Journal says that bed, AP News reported. caused him to fall asleep before who sat on him until the police he can reclaim copyright 24-year-old Mark McCole completing the job. arrived. to his songs within the next broke into the Al-Hamdanis’ He was woken by Mrs Al- McCole pleaded guilty and few years, thanks to the US house in Perth by smashing a Hamdani’s screams after she had was sentenced to six months in Copyright Act 1976, which glass pane in their back door. gone into the couple’s bedroom jail at Perth Sheriff Court. gives people the right to reclaim copyright to post-1977 music after just 35 years. Groovy granny gets gratuitous grounding The previous copyright law required artists to wait A Norfolk grandmother of six has that, should she sell her doll, she at least 56 years to reclaim been given a stern warning by Locog, could be staring a lawsuit in the their rights. Prior to 1972, the Olympics organising body, after face! sound recordings could not knitting an Olympics outfit – for a doll. “It’s Olympic correctness gone be copyrighted, so those Joy Tomkins (81) wanted to mad,” said Tomkins. A Locog recordings will always be contribute to her local church spokesman insisted that the owned by the record label. fundraiser, says rollonfriday.com, and organisation was “not like Big Rights to musical so knitted the small Olympics outfit Brother. We’ll take things on a compositions and master for a doll that she planned to sell case-by-case basis.” recordings from 1978 could for Stg£1. Having heard about the Incidentally, the ‘groovy granny’ return to musicians as early clampdown on the unauthorised use bears a tattoo on her back reading as 2013. of Olympic logos, she got in touch ‘PTO’ and one on her chest reading with Locog officials. They warned her ‘Do Not Resuscitate’!                     
                           
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Litigation You significant will -be Associate involved new instructions in to a Seniorrange of fromAssociate: transactions our clients acting in Privateon behalf Practice of both who domestic are actively and from SMEs to international companies requires litigators with commercial litigation expertise. international clients. searching for high calibre candidates.A signifi We set cant out Dublin below practice a selection is searching of current for excellent positions. candidates Full details with of Commercial - Senior Associate: Central Dublin practice is looking for a strong practitioner with an Commercialcommercial nous Litigation coupled with – Associate:the enthusiasm and drive to develop a fi rst rate client base. excellentthese and litigation other background. new opportunities can be found at our website www.benasso.com Leading Dublin practice requires a high calibre Corporate Finance – Assistant to Senior Associate: Strong practice with a client base ranging Commerciallawyer to deal withLitigation corporate - Associateadvisory work to including Senior Associate:mergers and acquisitions, joint ventures, management from SMEs to international companies requires litigators with commercial litigation expertise. buy outs, reverse takeovers and debt and equity fi nancings as well as advising on fl otations and fundraisings. A signifi cant Dublin practice is searching for excellent candidates with Commercial - Senior Associate:Our client is a fi rst class legal practice whose client base includes prestigious commercialEU/Competition nous coupled - Assistant: with the enthusiasm and drive to develop a fi rst rate client base. publicCommercial service property: and private Partner sector organizations operating bothEmployment: in the domestic Senior Associatemarket and internationally. You will be a Solicitor or Barrister with excellent exposure to EU and Competition Law, gained either in private CorporateCorporate: PartnerFinance – Assistant to Senior Associate:Employment: Leading AssociateDublin practice requires a high calibre lawyerpractice to or deal in-house. with corporate advisory work including mergers and acquisitions, joint ventures, management buy outs, reverse takeovers and debt and equity fi nancings as well as advising on fl otations and fundraisings. FundsEU/Competition: - Assistant/Associate: Partner Top ranking law fi rm requiresFunds: Assistant excellent to Funds Senior specialistsAssociate at all levels. You will advise investment managers, custodians, administrators and other service providers of investment funds on EU/CompetitionLitigation-Professional - Assistant: Negiligence: Our Partner client is a fi rst class Financiallegal practice Regulation-Insurance whose client base Advisory: includes Assistantprestigious publicestablishing service operations and private in Ireland.sector organizations operating both in the domestic market and internationally. You will be a Solicitor or Barrister with excellent exposure to EU and Competition Law, gained either in private Litigation-Financial Services: Partner InternationalHealthcare: law fi rm recently Assistant established to Associate in Dublin is searching practiceFunds -or Assistant in-house. to Senior Associate : for ambitious commercially-minded practitioners with strong exposure to investment funds. IP/IT: Senior Associate Funds - Assistant/Associate: Top ranking law fi rm requires excellent Funds specialists at all levels. You will advise investment managers, custodians, administratorsIP/IT: and Associateother service providers of investment funds on establishingIn House operations in Ireland. Banking: Associate to Senior Associate Insolvency: Associate to Senior Associate FundsSenior - LegalAssistant Advisor: to Senior Our Associateclient is searching : International for a senior law fi rmsolicitor recently or establishedbarrister with in Dublinexpertise is searching in equity forcapitalCorporate: ambitious markets, Senior commercially-minded corporate Associate fi nance, mergerspractitioners and acquisitionswith strongLitigation-White exposureor general to corporate investment Collar Crime: practice funds. Associate advising Irish or UK listed companies. TelecomsCorporate: Associate- Junior Solicitor or Barrister: Our clientTax: isAssistant searching for a junior solicitor or barrister to InworkCorporate Housewith a Insurance: growing team. Associate You towill Senior be dealing Associate with a varietyTax: ofAssociate Telecoms related matters. This is a new role Seniorwhich requires Legal strongAdvisor: people Our skills client and is business searching acumen. for a senior Fluency solicitor in Spanish or barrister is an withessential expertise pre-requisite. in equity capitalCompany markets, Secretary-Funds: corporate fi nance, Associate mergers and acquisitionsTax: or Senior general Associate corporate practice advising Irish or UK listed companies. PartnershipEU/Competition: Associate Pensions: Associate TelecomsOur clients include - Junior the leadingSolicitor Irish orlaw Barrister:fi rms. Signifi Ourcant clientopportunities is searching exist infor the a juniorfollowing solicitor practice or areasbarrister and to a workclient withfollowing a growing is not essential.team. You will be dealing with a variety of Telecoms related matters. This is a new role whichEmployment requires ; Funds strong ; Insolvencypeople skills ; Litigation and business ; Regulatory/Compliance acumen. Fluency in; Environmental Spanish is an &essential Planning pre-requisite. Partnership Our clients include the leading Irish law fi rms. Signifi cant opportunities exist in the following practice areas and a Forclient more followinginformation is noton theseessential. or other vacancies, please visitEmployment our website or; Funds contact ; InsolvencyMichael Benson ; Litigation bcl solr. ; Regulatory/Compliancein strict ; Environmental & Planning confi dence at: Benson & Associates, Suite 113, The Capel Building, St. Mary’s Abbey, Dublin 7. T +353 (0) 1 670 3997 E [email protected] For more information on these or other vacancies, please visit our website or contact Michael Benson bcl solr. in strict confi dence at: Benson & Associates, Suite 113, The Capel Building, St. Mary’s Abbey, Dublin 7. T +353 (0) 1 670 3997 E [email protected]