Contents GazetteLawSociety

Regulars Cover Story Cybersquatting: What’s in a name? President’s message 3 12 In the Internet era, cybersquatting has become a hazard for high- profile personalities such as Madonna. Niall O’Hanlon discusses a News 4 recent Virtual Victory for the Material Girl

Letters 9

Viewpoint 11 Family law and the European convention Tech trends 30 16 When it’s finally adopted here, the European Briefing 33 convention on human rights will have far- reaching ramifications, particularly in the Council report 33 family law area. Muriel Walls looks at the parts Committee of the convention that are likely to have the reports 35 biggest impact Practice notes 36 Legislation update 37 Outsourcing: what do lawyers look for? In a corner 40 20 Why do organisations with in-house legal teams turn to hired guns Personal injury – and what are they looking for? A new survey from the Law judgments 42 Society’s Corporate and Public Sector Committee probes the factors FirstLaw update 45 behind the decision to outsource legal work to solicitors’ firms Eurlegal 50

People and Talk is cheap places 54 24 After five years operating in this Obituaries 57 country, the Centre for Dispute Resolution has sold the Apprentices’ page 60 mediation message to a number of sectors, including the Professional information 61 government. But, as Barry O’Halloran reports, the business community hasn’t been as quick to jump on the bandwagon

Busy doing nothing? 28 Slackers, take heart: a recent ruling from the European Court of Justice has redefined just what constitutes ‘working time’. Ciaran O’Mara explains the court’s decision in the SIMAP case and the impact it could have on Irish employees

Editor: Conal O’Boyle MA. Assistant Editor: Maria Behan. Designer: Nuala Redmond. Editorial Secretaries: Catherine Kearney, Louise Rose. Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel/fax: 837 5018, mobile: 086 8117116, e-mail: [email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial Board: Pat Igoe (Chairman), Conal O’Boyle (Secretary), Eamonn Hall, Mary Keane, Ken Murphy, Michael V O’Mahony, Vincent Power

The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, Editor or publishers. The Editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter.

Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4801. Volume 95, number 1 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: £45

1 President’s message

You can’t always get what you want

t would be nice to start the year with a positive themselves with faint message. It would be nice to be able to say that praise. If that’s the case, commonsense and justice always prevail. But we then in my opinion they all know that’s not the case. And so, as a should go back to the Iprofession, we find ourselves on the wrong end drawing-board and of three adverse decisions. devise a scheme that is Let’s start with the Committee on Judicial ‘more transparent’. After Conduct and Ethics, which was established in the the seismic shocks that wake of the Sheedy affair. It has finally published its rocked the judiciary two long-awaited report on regulating the judiciary in years ago, nothing less this country. As expected, it recommends the creation than maximum of a Judicial Council to deal with complaints about transparency will do. the judiciary (it will also consider other issues such as judges’ pay, working conditions and training). We can Fighting for core principles ‘The proposal have no problem with that. The Law Society has The second setback we suffered was the rejection of been calling for just such a mechanism for a very our submission on the Miley case. We had accepted an to exclude long time – after all, as the largest single branch of invitation from Mr Justice Frederick Morris to join those of us the legal profession, many of whose members work ourselves as a notice party to the judicial review in the courts on a daily basis, it is in our interest (as initiated by solicitor Stephen Miley of certain orders who are well as the interest of wider society generally) that made against him by the Flood Tribunal. The tribunal most directly there be some formal means of reviewing the conduct wanted Mr Miley to furnish information and of judges. It might be opportune here to stress once documentation about his clients. The Law Society affected again that the Law Society believes that this country Council was keen to join as a notice party to defend by the has been very well-served by its judiciary over the the principle of solicitor/client privilege from any years. possible future erosion. That was our only interest in sometimes So far, so good. But we are all aware of instances the case. We were not supporting either party but erratic where those sitting on the bench have overstepped acted in an amicus curiae capacity. Unfortunately, the the mark by engaging in bullying, condescending or court found that the scope of what is protected by behaviour of just plain rude behaviour, to solicitor, barrister and legal professional privilege in Ireland is even narrower judges seems client alike. than we thought. I have no doubt that, on behalf of our clients, we will be revisiting this issue many times inexplicable’ Not so transparent in the months and years ahead. So we welcome the creation of this new forum in And so finally to the unjust. The government’s which issues of judicial misconduct can be aired. But proposal to abolish the ceiling on employers’ PRSI, that’s where the problem starts. announced in the budget in December, will have a The report recommends that a three-person direct and adverse impact on the profitability of our ‘Panel of Inquiry’ be charged with investigating practices. Finance minister Charlie McCreevy complaints made about judges, and that panel should justifies the abolition on the grounds that he is consist of two judges and a lay person (appointed by substantially reducing corporation tax as a balancing the attorney general). measure. A fat lot of good that is to solicitors, who The Law Society has strongly argued that any are prohibited from incorporating their practices. We body investigating judicial conduct should include have protested in the strongest terms to the minister, representatives of the solicitors’ and barristers’ but don’t hold your breath waiting for a u-turn. professions. The proposal to exclude those of us who You win some, you lose some. But we’ll keep on are most directly affected by the sometimes erratic fighting anyway – on your behalf and on behalf of behaviour of judges seems inexplicable. The our clients. committee defends its decision on the basis that it would make the process ‘no more transparent’. This Ward McEllin, seems a rare case of those on a committee damning President

3 News RTÉ’s Mary Wilson wins society’s media award

TÉ’s legal affairs obtain a church annulment. Rcorrespondent Mary In the Magazine category, Wilson has been named the Justice Award went to Overall Winner of the Law Mairead Carey of Magill for Society’s Justice Media Awards her article on people who competition. This competition have been involuntarily aims to reward outstanding detained in mental institutions journalism in the printed or and the state’s tendency to use electronic media which medical intervention as a form contributes to the public’s of criminal detention. understanding of the law, the A Certificate of Merit was legal system or any specific awarded to Stephen Brady of legal issue. Consumer Choice for his Wilson won the top prize articles on ‘children’s rights’ for her exclusive interview and ‘the status of people with with former nun Nora Wall, disabilities’. who was sentenced to life Overall Winner of the Justice Media Awards Mary Wilson with In the Books category, the imprisonment for rape in her husband, RTÉ sports correspondent Tony O’Donoghue, Justice Award went to Liz and Law Society Deputy Director General Mary Keane 1999, only to be freed five Walsh and Rita O’Reilly for days later on the instructions their book on the case that of the Director of Public electrified this country for Prosecutions. At a ceremony story and filled in the back- • Michael Foley of the Irish months, The People versus in the Law Society’s Blackhall ground to what could have Times for his article Catherine Nevin, published by Place headquarters, been another tragic miscarriage Replacing the ritual on libel Gill & Macmillan. Immediate Past-President of justice’. reform with imagination, Paul Cullen of the Irish Anthony Ensor presented the The winners in each of the examining the ‘ritual Times won a Certificate of prize to Wilson, whose report five other categories in the debate’ about our Merit for his monograph was broadcast on RTÉ’s Would competition won a Justice defamation legislation that entitled Refugees and Asylum you believe? programme. As Award, comprising a Dublin arises every couple of years. seekers in Ireland, published by Overall Winner, she received Crystal Joyce plate (and a £500 Cork University Press in its a Dublin Crystal vase and a cheque), with the runners-up The winner of the Justice Undercurrents imprint. cheque for £1,000. receiving a Certificate of Merit Award in the Non-Daily In the Radio category, the Explaining the judges’ (and a cheque for £100). Newspapers category was Justice Award went to Barry decision, Law Society The winner of the Justice Mark O’Connell of the Cummins of Today FM for a Director General Ken Award in the Daily News- Sunday Business Post for an series of interviews called Murphy said: ‘This was a papers category was Nuala article on the state’s failure to Giving victims a voice, powerful story that yet again Haughey of the Irish Times for accommodate children with featuring the reactions of held a mirror up to our her series of articles on the special behavioural problems. people to court cases in which society and its shortcomings. experience of refugees and A Certificate of Merit was they have had a personal In this compelling interview asylum-seekers in Ireland. awarded to Jimmy Woulfe of involvement. with the painfully shy woman Certificates of Merit went to: the Limerick Leader for his The Justice Award for who was vilified in the press as • Mary Dundon of the Irish article outlining the Television was presented to “Sister Anti-Christ”, Mary Examiner for her article procedures that married Diarmuid Peavoy for a report Wilson gently and expertly entitled Who judges the couples have to go through on RTE’s Nationwide encouraged her to tell her judges? under canon law in order to programme examining the legal issues facing fathers seeking access to and Help for those setting up in practice guardianship of their children. The judges he Law Society’s Guidance With the assistance of the staff who are setting up for the first described this entry as ‘a Tand Ethics Committee has at Blackhall Place, all the time but also to new partners powerful, passionate and recently published a free necessary information has been in existing firms and all intelligent piece that gave a information booklet for brought together in one solicitors who are principals or voice to a group which is solicitors setting up in private booklet. partners in private practice’. rarely heard’. practice. While the necessary Commenting on the Copies of the booklet are Annette O’Donnell of RTÉ information has always been publication, Law Society available, free of charge, from News won the Certificate of readily available within the President Ward McEllin said: Anne Collins at the Law Merit for her coverage of the society, a solicitor had to speak ‘I believe this booklet will be Society, tel: 01 8681220 or e- Moriarty Tribunal in Dublin to several different people. useful not only to solicitors mail: [email protected]. Castle.

4 News

WOMEN OF THE WORLD Law Society slams ‘unfair’ PRSI hike Former US Secretary of State Madeline Albright, CNN he Law Society has added However, solicitors are journalist Christiane Tits voice to the chorus of prohibited from incorporating Amanpour and the first disapproval over the their practices and, woman president of the government’s proposal to accordingly, reductions in International Bar Association abolish the ceiling on corporation tax are irrelevant Dianna Kempe QC will be employers’ PRSI, announced to them. among the speakers at the in the budget in December. ‘The very substantial level first-ever World Women In a strongly-worded letter of employment growth in Lawyers’ conference, which to Minister for Finance solicitors’ firms will inevitably will take place on 1-2 March Charlie McCreevy, Law be hit by this proposed in London. Organised by the Society Director General Ken measure. The society hereby International Bar Association, Murphy says that the proposed calls on you to reconsider this the conference will give measure ‘will add greatly, proposal and delete it from women lawyers an opportunity McCreevy: unnecessary and unfairly and unnecessarily to unfair tax burden on solicitors your plans for the Finance Bill, to meet, learn and network. the tax burden of solicitors 2001, either in total or at least For further information, tel: who are proprietors of the abolition of the ceiling on insofar as it applies to 0044 (0) 20 7629 1206. 1,850 solicitors’ firms in the employers’ PRSI is that it is partnerships or individuals state’. counterbalanced in the same who are obliged to conduct CONSULTATION ROOM And he continues: ‘One of budget by your proposed their practices/businesses CHARGES: A CLARIFICATION the arguments which you have substantial reduction in the without the benefit of There appears to have been offered as a justification for the rate of corporation tax. incorporation’. some element of confusion over the new charges for the Refugees Law Society’s Four Courts Portobello graduates’ consultation rooms, lawyers’ AGM announced in December. The he Refugee Lawyers’ case struck out charges are as follows: TAssociation is holding its hortly before Christmas, Following a lengthy cross- • £25 for one hour or part AGM on 28 February at 6.30pm SMr Justice Iarfhlaith examination of a witness for thereof (subject to in the Blue Room of the Law O’Neill in the High Court the plaintiffs by one of the immediate payment by Society’s Blackhall Palace heard an action by the society’s counsel, Dermot cash/cheque/credit card) headquarters. For further University of Wales, Portobello Gleeson SC, an application was • £35 for one to two hours or information, contact Gráinne College and others against the made by consent and granted part thereof Malone on tel: 01 451 0123. Law Society, in which certain that the plaintiffs’ claims be • £110 for a full day. holders of degrees in law struck out on the basis that the obtained in 1995 from the society should not seek any LAW SOCIETY ECHR Courts Service University of Wales by costs against them. CONFERENCE keys up for graduates of Portobello It remains the case that the The Law Society is hosting a College, Dublin, sought to be eight subject FE-1 conference in its Education new project dealt with in the same manner examination must be sat and Centre on Saturday 10 ince the start of the as law graduates of other passed by all candidates February 2001, entitled SHilary law term, the universities, who had previously seeking entry to the society’s ‘The implementation of the Courts Service has been obtained exemptions from the law school, other than certain European Convention on piloting the use of new Society’s FE-1 examination for law graduates who benefited Human Rights into Irish law: methods of recording those seeking entry to the from High Court decisions in effective remedies under the criminal trials with a view to society’s law school. 1995 and 1996. ECHR’. There will be no reducing waiting times for charge, but advance transcripts for appeals. End in sight for solicitor shortage registration will be necessary. The project will run in Contact Barbara Joyce at tandem with existing he current drought of • 1999 professional practice the society on tel: 01 672 arrangements for taking Tapprentice solicitors is due to course: 300 due to qualify 4802 or e-mail: shorthand notes and will come to end, with over 1,000 between August and [email protected]. operate in Court 2 in the new solicitors set to qualify over December 2001 Four Courts in respect of the the next two years. The • Spring 2000 PPC: 300 due LAW SOCIETY RETIREMENT Central Criminal Court and apprentices will graduate in three to qualify between TRUST SCHEME in two criminal circuit courts tranches between August this September 2002 and Unit prices: 1 January 2001 also. According to the Courts year and July 2003. The schedul- January 2003 Managed fund: 377.648p Service, the pilot project will ed qualification dates should be • Autumn 2000 PPC: 360 to All-equity fund: 112.342p not in any way impede trials. of interest to overworked qualify between March and Cash fund: 182.613p solicitors everywhere: July 2003. Pension protector fund: –

5 News Two cheers for proposed Judicial Conduct Body

he Law Society Council has should be represented, in and the Bar Council, in Tissued a general welcome – addition to other lay members, addition to three non-lawyer with one major reservation – on the proposed new lay members, sit with the for the report of the Committee on Judicial judicial majority as members of Committee on Judicial Conduct and Ethics. This was both the Courts Service Board Conduct and Ethics, chaired by viewed by the Council as an and the Judicial Appointments Chief Justice Ronan Keane, important element to ensure Advisory Board. No writes Ken Murphy. that solicitors would have justification whatever could be The Council considered the confidence in the proposed seen for the proposed new report in some depth at its new body dealing with body not following the same meeting on 26 January 2001, complaints of judicial design. the day after the report’s misconduct. The society will make its publication. It was generally It was pointed out that the view on this matter known to accepted that the establishment very successful Judicial legislators, who will create the Chief Justice Ronan Keane: of the proposed Judicial Commission of New South chaired committee on judicial statutory basis for the proposed Council would represent Wales in Australia, a body conduct new Judicial Council and its progress in view of the absence whose model was generally Committee on Judicial of any formal means of having approved and adopted in the president, Ward McEllin, was Conduct and Ethics. the conduct of a judge reviewed report’s recommendations, asked to write to the chief at present. provided for representation by justice to enquire where The report was produced by However, the Council the practising profession. The opposition to this had come the Committee on Judicial deeply regretted that the chief Law Society Council did not from, and on what arguments Conduct and Ethics, whose justice and his colleagues had understand why the report it had been based. members were: rejected the society’s arguments recommended against this in The Council noted that • Mr Justice Ronan Keane, that solicitors and barristers Ireland and the society’s members of the Law Society chief justice • Mr Justice Frederick Morris, CONCLUSIONS AND RECOMMENDATIONS OF THE COMMITTEE ON president of the High Court • Mrs Justice Susan Denham, JUDICIAL CONDUCT AND ETHICS chairwoman of the Working 1. The existing structures for dealing with concerns equality and law reform. Where any allegation of Group on Courts as to judicial conduct are inadequate misconduct is found to have been established, Commission 1995-1998 • Mr Justice Declan Budd, 2. There should be established in Ireland a body to the panel of inquiry should recommend that president of the Law be called ‘The Judicial Council’. This body would action be taken in any of the following forms: Reform Commission i) A private reprimand to the judge be somewhat similar to the Judicial Commission • Mr Justice Esmond Smyth, of New South Wales. All judges would be ii) A public reprimand to the judge president of the Circuit members of the Judicial Council and the board iii) A recommendation that both houses of the Court of the council would consist of: Oireachtas consider the removal of the judge • Judge Peter Smithwick, i) The chief justice, the president of the High from office. president of the District Court, the president of the Circuit Court and 4. Sanctions should be moral rather than legal in Court the president of the District Court nature • Michael McDowell SC, ii) Four ordinary judges from each of the 5. There should be a recording device in every attorney general jurisdictions elected by the members of the court relevant court 6. A general code of judicial ethics should be iii) A judge to be co-opted to the board for a term drafted and approved Under the of four years 7. A Judicial Studies Committee should be set up 3. Established under the board of the council would to, among other things, establish a sentencing influence be a Judicial Conduct and Ethics Committee. Any information system, similar to that in existence he fourth lecture in the member of the public would be entitled to make in New South Wales Tseries of Hugh M a complaint to this committee concerning the 8. A general committee should be set up to keep Fitzpatrick lectures in legal conduct of any member of the judiciary. A under constant review questions of remuneration bibliography will be held in serious compliant made to this committee and the working conditions of judges Trinity College, Dublin, on 14 should be referred to a panel of inquiry 9. The Judicial Council should have a full-time March. Morris Cohen, consisting of three members, two of them executive officer emeritus professor of law, Yale judges, and the third a lay person. There should 10. An annual report should be produced Law School, will discuss Irish be an established pool of three lay persons who 11. The Judicial Council should be on a statutory influences in American law should be people of standing in the community basis books. Those interested in appointed by the attorney general after 12. All judges should be subject to the proposed attending can request a place consultation with the minister for justice, judicial council system of conduct and ethics by contacting Hugh Fitzpatrick on tel: 01 269 2202.

7 Letters Letters

Fighting our corner with the attorney general From: Manus Sweeney, Dublin be less capable of giving an While the majority of the who would be willing or asked refer to the correspondence opinion than a relatively legal profession are solicitors and to draft opinions on complex Ibetween the Attorney General inexperienced barrister in while there are many positions in matters concerning international Mr McDowell and the Director practice for four years the public service open to them, law and constitutional issues General Mr Murphy recently 2) Experienced solicitors have the ‘plum jobs’ in the attorney after four years at the bar – published in the Gazette already been appointed to the general’s office are not. And it is including possibly two years (November, pages 6-7; Circuit Court and are about to well known that staff in the ‘devilling’. A valuation on December, page 7). be appointed to the High Court, attorney general’s office are well quantum in a ‘running down’ It is heartening to know that where they will be giving placed to move on to exciting might be the height of it. our director general is prepared detailed judgments – not just jobs in Europe, for instance. Many young counsel learn to fight our corner in respect of ‘opinions’ Experienced solicitors are from solicitors as well as their an inequity that directly affects 3) One of the main planks deemed eligible to be judges of masters. few, but indirectly affects all of (hardly relevant to whether or the District, Circuit and High The perpetuation of this the solicitors’ profession. In my not a solicitor is qualified for a courts, as well as county inequity casts a shadow on all opinion (shared by solicitors and position in the attorney general’s registrars, taxing masters, the advances that have been barristers with whom I discussed office) in Mr McDowell’s coroners, state solicitors and made by the solicitors’ the issue), the attorney general is argument is that solicitors sheriffs. But they are not profession in relation to rights mistaken for the following already have enough jobs open deemed capable of giving advice of audience, appointments to reasons: to them in the public service. and drafting opinions in like the bench and so on. 1) He is effectively stating that a The counter-argument has been manner to a barrister practising To paraphrase another ‘Mac’ highly-experienced solicitor in more than efficiently made by four years. (John McEnroe): Mr McDowell, practice for, say, 30 years, would the director general. I cannot think of one counsel you cannot be serious! Getting more solicitors to cross the Threshold From Russell Chapman, Dublin eviction, harassment or pay for legal advice or These firms have been services co-ordinator, Threshold compensation. Many of our assistance. It is these people willing to advise and very often hreshold works for justice clients would be in a position who are most vulnerable to take action (such as injunctions, Ton housing and to pay for the services of a unscrupulous landlords. or a phone call/letter) without homelessness throughout solicitor, especially if We currently refer to and being paid in advance. Often Ireland. We currently advise compensation negotiations are get advice from three or four this is in expectation of the between 800 and 900 clients a required or their income was different firms of solicitors and other party having to pay or in month. Many of these sufficient. they have proved invaluable, foregoing payment, if the time enquiries are based on legal Our concern would be that especially in helping us take on cost is not too great. This precepts and we advise many of our clients are on low cases where there is inequity in arrangement Threshold accordingly. There are, incomes or social welfare and the two parties’ options and gratefully acknowledges, but we however, circumstances when are often not in a position to ability to enforce rights. are also aware of impinging too we need the advice of a much on the time of firms solicitor. The first is when whose priority has to be paying there are ancillary legal matters DUMB AND DUMBER clients. of which we have no From: Macarten O’Gorman, ‘To my wife, I leave her lover, and It is for this reason that I experience, or when there is a Anthony F O’Gorman Solicitors, the knowledge that she was not would like to appeal to any Co Wexford the fool she thought me; to my great deal of complexity. In solicitors or firms of solicitors quote from a hospital record son I leave the pleasure of these circumstances, an advice Iobtained on behalf of a patient: earning a living. For 20 years he who would be willing to worker from Threshold would ‘inform the patient of all thought the pleasure mine; he provide a point of contact for need to talk to a solicitor to get procedures whether conscious or was mistaken’. us to address the above needs. a more informed opinion. The not, giving explanations’. How would that stand up to The more solicitors we can call second situation is where a the rigours of the Succession on in times of need, the less client needs to take action From: Tony Diamond, Dublin 3 Act? time each firm has to devote eading an extract from old against a landlord who is acting and the less likely we are to RIllinois wills, I came across Macarten O’Gorman wins the illegally. This may be the following: bottle of champagne this month become an unacceptable drain concerning distress, illegal on their resources.

9 Have you accessed the Courts Service website yet? http://www.courts.ie

The Content of the Website includes: Other sections planned or under construction:

• Home Page incorporating our new Corporate Identity • School/Education Section • A message from the Chief Justice • Historical Section • Courts Service News Magazine • Further information on provincial Court offices • Legal Diary • Judgments - Court judgments commencing with Supreme • Description of jurisdiction of each Court Court judgments Pilot Project. • Narrative on various Administrative Offices • Geographic ‘drill down’ map showing Courts nationwide • Interactive Map of Four Courts • Staff Directory • Links to other related Sites • User Feedback Section • Search Facility • Help Guides Viewpoint Nice work if you can get it The Treaty of Nice isn’t the most attention-grabbing of the EU treaties adopted so far, but it has serious implications for the architecture of the European courts – and the relative judicial clout of member states, writes Conor Quigley

rom the lawyer’s point of likely to affect the unity or Fview, the Treaty of Nice is consistency of EU law, it may probably the least interesting refer the case to the ECJ for a of all the EC/EU treaties ruling. Otherwise, decisions adopted to date. The meaty given by the CFI on questions issues concerned extending the referred for a preliminary reach of the European Union ruling may exceptionally be in defence matters and the re- subject to review by the ECJ weighting of votes of the where there is a serious risk of council in anticipation of the unity or consistency of EU enlargement of the European law being affected. It has still Union during the next decade. to be decided what effect such One issue which ought to be of a review procedure would have interest, but which received on the decision of the CFI in scant attention in the press, is the dispute between the the reform of the judicial parties. Conor Quigley: faster administration of justice architecture of the European courts. Chamber of horrors During 2000, much debate these reforms is intended to constitutional court. For The notion of the Grand was carried at the court and in lead to a faster administration various reasons, this option was Chamber also causes problems. interested groups concerning of justice by expanding the rejected. In particular, it was It is intended that the Grand the future of the European role of the CFI, while leaving accepted that the need to Chamber will consist of 11 Court of Justice (ECJ) and the the ECJ to deal with the more reflect all the national legal judges, with a quorum of nine. Court of First Instance (CFI). important matters. In addition, traditions in the deliberations However, it is unclear who will It was generally agreed that the new judicial panels will be of the ECJ was paramount. sit in the Grand Chamber. One burden of the ECJ’s case load created to hear the less Nevertheless, it was agreed possibility is that it will consist was excessive and had led to important matters currently that the workings of the ECJ of the presidents of the considerable delays, in heard by the CFI, such as needed to be reviewed. Two chambers of five judges and particular in the case of employment disputes between main planks of reform were that other judges will take it in references from national courts the EU institutions and their adopted. First, references for turn to sit. Given that for preliminary rulings. Various staff and, possibly, intellectual preliminary rulings, which presidents of chambers may be ideas had been mooted, property disputes concerning, until now have been the sole in that position for up to six including regional or roving for example, the EU preserve of the ECJ, will years, the fear is that some European courts and the trademark. henceforth also be heard by the judges will have a preferential appointment of a European law CFI. Second, the ECJ itself position in the ECJ, entitling specialist judge, possibly having One state, one judge will now generally sit in them to take part in all a role similar to an advocate In both the ECJ and the CFI, chambers, as is already the important decisions, while general, who would assist the number of judges has case, but a new concept of the other judges are relegated to a national courts to reach a always reflected the principle Grand Chamber has been secondary position. conclusion on issues of of one judge per member state. introduced for important There is a real fear that the European law without the need One of the most important matters, while the ECJ will bigger member states might for a reference. These issues debated last year was continue to sit in plenary seek to ensure that their judge possibilities were rejected, whether this should continue. session for particularly was always on the Grand primarily on the ground that The fear was that, with important matters. Each of Chamber while leaving judges the uniformity of EU law enlargement, an ECJ with 27 these reforms entails some from the small member states required that the European members would have the problems. to rotate. Indeed, this has been courts be sited in the same character of an assembly rather The CFI is to have the practice over the years in place so that the judges could than a college of judges. It had jurisdiction to give preliminary the appointments of advocates better interact with one been mooted that the ECJ rulings in specific areas to be general. Such a move should be another. should be limited, possibly to laid down in the Statute of the considered unacceptable. G Nevertheless, several matters as few as nine justices, as in the Court of Justice. Where the have been resolved in the Nice United States, and that it CFI considers that the case Conor Quigley is a barrister treaty. The combined result of would adopt the character of a requires a decision of principle practising in Brussels and London.

11 Cover story

In the Internet era, cybersquatting has become a hazard for high-profile personalities such as Madonna, but there are alternative solutions to this form of superhighway robbery besides going to court. Niall O’Hanlon discusses a recent Virtual Victory for the Material Girl

mitation may be the sincerest form of flattery but, as a large number of well-known companies and individuals can testify, when it comes to imitation on the worldwide web, in the form of cybersquatting, it is an unwanted compliment. ICybersquatting arises where one party registers a domain name which is identical or confusingly similar to a name in which another party has rights, the motivation being to extract a payment from the latter party in return for the transfer of the disputed domain name. One recent high-profile target of this activity was pop star Madonna. •ICANN is the Celebrities and others plagued by the recent spate of closest thing cybersquatting can, of course, take their cases to a court of competent to a global jurisdiction in an attempt to win back the right to their names. But regulator on there is an alternative way to deal with this unwelcome manifestation the Net • Many high- of entrepreneurial initiative in the case of generic top-level domains profile such as .com. The Internet Corporation for Assigned Names and individuals Numbers (ICANN), generally regarded as the closest thing have used its the Internet has to a global regulator, has recently procedures to adopted and approved a Uniform domain name dispute win back the resolution policy and Rules for the uniform domain name right to their dispute resolution policy (see panel page 14). Many high- names on the profile celebrities and organisations have used its web procedures to resolve cybersquatting disputes. • The ICANN procedures A recent example of proceedings under the new ICANN explained policy and rules is the decision in Madonna Ciccone p/k/a/

MAIN POINTS Madonna v Dan Parisi and ‘Madonna.com’, Case No D2000- CYBERSQUATTING: What’s in a name?

0847 (the ruling in this case is available at arbiter.wipo.int/domains/ decisions/html/d2000-0847.html). The self-styled Material Girl made a complaint, in accordance with the ICANN policy and rules to the World Intellectual Property Organisation’s arbitration and mediation centre last July. She was the owner of US trademark registrations for the mark Madonna for entertainment services

12 Cover story

and related goods and had used her name and mark professionally for entertainment services since 1979. The ICANN administrative panel appointed to decide the complaint was of the view that her music and other entertainment endeavours had often been controversial for featuring explicit sexual content.

Touched for the very first time The respondent was Madonna.com, the registrant for the disputed domain name, or Dan Parisi, the listed contact for the domain name. Parisi was in the business of developing websites. On or about 29 May 1998, Parisi through his business Whitehouse.com Inc, purchased the registration for the disputed domain name for $20,000 from a third party and on 4 June registered Madonna as a trademark in Tunisia. On or about 8 June, Parisi began operating an ‘adult entertainment portal website’ which featured sexually-explicit material. The website contained a notice which stated that ‘Madonna.com is not affiliated or endorsed by the Catholic Church, Madonna College, Madonna Hospital or Madonna the singer’. According to the administrative panel, it appeared that by 4 March 1999 he had removed the sexually-explicit material from the website and that by 31 May the site merely contained the above notice, the disputed domain name and the statement ‘Coming soon: Madonna Gaming and Sportsbook’. On 9 June, Madonna, through her lawyers, objected to the respondent’s use of the Madonna.com domain name and on 14 June the respondent’s counsel stated: ‘As I assume you also know, Mr Parisi’s website was effectively shut down before you sent your letter, and is now shut down altogether. He is in the process of donating his registration for the domain name’. After receiving Madonna’s objection, it appeared that Parisi had spoken to the Madonna Rehabilitation Hospital about transferring the domain name to the hospital, but the transfer had not taken place at the time these proceedings began. Parisi further admitted that he had registered a large number of other domain names, including names that matched the trademarks of others. Parisi did not dispute that his domain name was identical or confusingly similar to a trademark in which Madonna had rights and so the panel decided that the pop star had satisfied paragraph 4(a)(i) of the ICANN policy. Parisi did contest the assertion that he had no rights or legitimate interests in the domain name on a number of grounds. First, he argued (as provided for in paragraph 4(c)(i)) that his use of the domain name for an adult entertainment website involved prior use in connection with a bona fide offering of goods or services. But the panel believed that the respondent had failed to provide a reasonable explanation for the selection of Madonna as a domain name. Instead, it found that the name was selected and used with the intent to attract, for commercial gain, Internet users by trading on the fame of the complainant’s mark. Such a use could not constitute a bona fide offering of goods or services; to hold otherwise would mean that the

13 Cover story

pleadings in the case were consistent with the WHAT IS ICANN? respondent having adopted Madonna.com for the Set up in 1998 on foot of a US government specific purpose of trading on the pop star’s name and initiative, the Internet Corporation for Assigned reputation, which was a violation of US trademark Names and Numbers is, according to its website, a law as well as the ICANN policy. non-profit, private sector corporation. Although Citing Brookfield Communications Inc v West Coast ICANN specifically disclaims any mandate to ‘run the Entertainment Corp (174 F3d 1036, 9th Cir 1999), the Internet’, it is regarded by many as the closest thing panel held that the use of a disclaimer on the website there is to a global regulator of the Net. was insufficient to avoid a finding of bad faith. First, ICANN is managed by a board of 19 directors, the disclaimer might be ignored or misunderstood by five of whom were selected by a vote of Internet Internet users and, second, a disclaimer did nothing to users worldwide. It has assumed responsibility to dispel the initial confusion that was inevitable from co-ordinate the stable operation of the Internet in the respondent’s actions. key areas, including the domain name system. The policy required a showing of bad faith As part of its responsibilities, ICANN recently registration and use. Although Parisi was not the approved the Uniform domain name dispute original registrant, the record showed that he had resolution policy. acquired the registration in bad faith. The result was the equivalent of registration and was enough to fall within the policy. respondent could rely on intentional infringement to The facts of the Madonna decision were demonstrate a legitimate interest. distinguished from those of Gordon Sumner p/k/a Sting Second, Parisi contended that he had rights in the v Michael Urvan, Case No 2000-0596 (WIPO, 24 July domain name because he registered Madonna as a 1999), where there had been evidence that the trademark in Tunisia before notice of this dispute had respondent had made bona fide use of the name Sting been served. The panel held that mere registration of before getting the domain name registration and a trademark did not create a legitimate interest under there was no indication that he was seeking to trade the ICANN policy. To establish recognisable rights, on the goodwill of the singer. The panel noted that the overall circumstances had to demonstrate that the where no plausible explanation had been provided for registration was obtained in good faith for the adopting a domain name corresponding to the name purpose of making bona fide use of the mark in the jurisdiction where the mark was registered, and not obtained merely to circumvent the application of the THE NEW ICANN REGIME policy. In these circumstances, the trademark The ICANN policy was drafted to deal with the related problems of cybersquatting, registration was not evidence of a legitimate interest ‘blocking’ (which involves the registration of a domain name to prevent the owner in the disputed domain name. of a trademark or service mark from reflecting the mark in a corresponding Third, Parisi claimed that his offer to transfer the domain name), unfair competition, passing off and trademark infringement. It is name to the Madonna Hospital was a legitimate non- designed for incorporation into registration agreements between domain name commercial use under paragraph 4(c)(iii) of the registrars and their customers (the domain name holders or registrants). The ICANN policy. This submission was rejected; Parisi policy provides for an administrative panel to be appointed by an ICANN-approved had failed to disclose specific details of his proposed dispute-resolution service provider in applicable cases. arrangement with the hospital or that negotiations Paragraph 4(a) of the policy provides that a domain name holder (the had only begun after Ms Ciccone’s objection to the respondent) is required to submit to a ‘mandatory administrative proceeding’ in registration and use of the domain name. The panel the event that a third party complains to ICANN that: further held that the circumstances of the case did not i) The respondent’s domain name is identical or confusingly similar to a satisfy the requirements of paragraph 4(c)(iii) which trademark or service mark in which the complainant has rights, and applied where non-commercial or fair use was being ii) The respondent has no rights or legitimate interests in respect of the domain made of the domain name. It also held that the fact name, and that others could demonstrate a legitimate right or iii) The respondent’s domain name has been registered and is being used in bad interest in the domain name did nothing to faith. demonstrate that the respondent had such right or interest. Accordingly, it decided that Madonna had If the complainant succeeds in proving that each of these three elements is satisfied paragraph 4(a)(ii) of the policy. present, he is entitled to have the respondent’s domain name transferred to him or, alternatively, the cancellation of the name. Papa don’t preach The ICANN rules try to provide for a relatively quick decision, although, of Under paragraph 4(b)(iv) of the ICANN policy, course, the requirements for mandatory administrative proceedings do not prevent evidence of bad faith registration and use of a domain either the complainant or the respondent from going to court to resolve the issue, name includes a situation where, by using the domain either before the administrative proceedings begin or after they are finished. name, the respondent has intentionally attempted to The ICANN Uniform domain name dispute resolution policy is available at attract Internet users to its website for commercial www.icann.org/udrp-policy-24oct99.htm, while the Rules for the uniform domain gain by creating a likelihood of confusion with the name dispute resolution policy can be accessed at www.icann.org/udrp/udrp-rules- complainant’s mark as to source, sponsorship, 24oct99.htm. affiliation or endorsement. The panel held that the

14 Cover story of a famous entertainer, other panels had found a violation of the policy – as had occurred in Julia Fiona Roberts v Russell Boyd, Case No D2000-0210 (WIPO, 29 May 2000) and Helen Folsade Adu p/k/a Sade v Quantum Computer Services Inc, Case No D2000-0794 (WIPO, 26 September 2000). There was evidence on the record that tended to support Madonna’s assertion that Parisi’s registration of the domain name prevented her from reflecting her mark in the corresponding dotcom domain name and that he had engaged in a pattern of such conduct. However, the record was inconclusive on that basis for finding bad faith and the panel did not rely on that evidence for its conclusion. Parisi further asserted that the panel should reject the singer’s case because she had been disingenuous in claiming that her reputation could be tarnished by his actions. While stating that it did not rely on tarnishment as a basis for its decision, the panel did observe that even though Madonna had produced sexually-explicit content of her own, Parisi’s actions could nevertheless tarnish her reputation because they resulted in association with sexually-explicit content which she did not control and which might be contrary to her creative intent and standards of quality. Accordingly, it decided that the Madonna had satisfied paragraph 4(a)(iii) of the ICANN policy. It found in Madonna’s favour and decided that the ‘Possible purposes is limited by the fact that the decision disputed domain name should be transferred to her. concerned a domain name dispute rather than difficulties in cybersquatting per se. Further, despite the fact that it Get into the groove enforcing an was agreed by both sides that the outcome of the The ICANN policy and rules have proved popular application for interlocutory relief was likely to with victims of cybersquatting; indeed, there are a Irish judgment determine the dispute, there was no agreement to number of decisions of particular domestic interest, against a treat the hearing of the motion as the trial of the including R&A Bailey & Co v WYSIWYG, Case No action. Consequently, in accordance with Campus Oil, D2000-0375 (WIPO, 4 July 2000), Esat Digifone Ltd v foreign the court was not entitled to inquire into the merits of John Butler, Case No D2000-0601 (WIPO, 13 defendant may the case or to consider the probabilities of success of September 2000), Esat Digifone Ltd v Michael Fitzgerald any party at the trial of the action. t/a TELCO-Resources, Case No D2000-0602 (WIPO, 2 argue in favour August 2000) and Jefferson Smurfit Group plc v Stephen of the Which route to take? Davidson Inc, Case No D2000-1117 (WIPO, 15 When confronted by the problem of cybersquatting, December 2000). However, the courts have also mandatory determining which route to take will obviously proved willing to provide relief in appropriate cases. administrative depend on the specific facts of the case. Relevant In the leading British case on cybersquatting, factors will include the perceived likelihood of British Telecommunications plc v One in a Million Ltd procedure under success, the length of time likely to pass before ([1999] 1 WLR 903; [1998] 4 All ER 476), the UK the ICANN effective relief is obtained and the associated costs. Court of Appeal found that the defendant’s activity Possible difficulties in enforcing an Irish judgment constituted passing off and consequently granted a policy and against a foreign defendant may argue in favour of the permanent injunction to the plaintiffs. In Ireland, rules’ mandatory administrative procedure under the High Court proceedings between Dublin solicitors LK ICANN policy and rules. But against that, a putative Shields and EMC-Englefield Management Consulting complainant will need to ensure that his action will Ltd were settled and made a rule of court on 29 May come within the terms of the ICANN policy. 2000. The terms of the settlement provided that EMC The Internet has been heralded as the ‘information would undertake, first, to make no further use of the superhighway’, but deterring highway robbery will name LK Shields or any imitation thereof and, second, remain a challenge for regulators. In the domain of to transfer the domain name lkshields.com to the names at least, courts and panels seem to be ensuring solicitors’ firm. that rewards come from innovation, not imitation. G In Local Ireland Ltd and Nua Ltd v Local Ireland- Online Ltd and Con Daly t/a Daly Financial (High Niall O’Hanlon is a practising barrister, a chartered Court, 2 October 2000), Mr Justice Herbert granted accountant and an associate of the Institute of Taxation. an interlocutory injunction to the plaintiffs. But while He is editor of Irish business law and of JILL, the Law this case is of interest, its usefulness for present Library’s judgments database.

15 Human rights

When it’s finally adopted here, the European convention on human rights will have far-reaching ramifications, particularly in the area of family law. Muriel Walls looks at some of the articles in the convention that are likely to have the biggest impact

t the time of writing this article, the interpreted in a manner consistent with the state’s European convention on human rights has obligations under the ECHR and that statutory still not been incorporated into Irish powers and the exercise of public law functions by law. Indeed, the bill pledged by justice state agencies should be carried out in a manner Aminister John O’Donoghue has not conformable with the ECHR’. The government has even been published yet. It is regrettable that chosen the latter approach. Ireland, as one of the first signatories to the Whatever the method of incorporation, there will convention in 1953, should be the last of the 41 be an impact on family law and children. The countries to incorporate it. convention has wide-ranging rights which will affect At a Law Society conference last October, almost every area, but the particular emphasis here is Attorney General Michael McDowell discussed the on family law and children. options open to the government. The first was The following articles are likely to have an impact simply to enact a law that purported to incorporate on the family law area. the convention as law and in doing so to repeal all inconsistent prior law. The other was to provide that Article 2: The right to life ‘subject to the constitution and to the constitutional Article 2 guarantees the most basic human right, the prerogatives of the legislature and the judiciary, right to life. The protection of the right to life is statute law and rules of common law should be more than merely refraining from taking life FAMILYLAW and the

• The convention has wide- ranging rights that will affect family law • The articles most likely to have an impact examined • Possible conflicts between the articles MAIN POINTS

16 Human rights

intentionally. The state is enjoined to take person for non-compliance with the lawful order of a court’. appropriate steps to safeguard life. For example, An exception is also made for the detention of issues in the area of medical care might arise in the minors by lawful order for the purposes of future involving those suffering from a permanent educational supervision or their lawful detention for vegetative state or anorexia nervosa where they reject the purposes of bringing them before the competent treatment. Or there could be cases where a mother legal authority. These provisions are likely to be of rejects treatment when there is an immediate risk to significant interest to cases involving unruly and the life of her baby or, alternatively, proposes to take disturbed children for whom there are at present drugs that may have a harmful effect on her baby. very few secure places which are safe for them and In addition, article 2 has evoked questions over where, in many cases, they are held in inappropriate abortion and the right to life of the unborn. Issues surroundings, such as cells in garda stations. also arise as to whether the natural father has rights The article is also likely to be of interest in family to determine the right to life of his unborn child. law matters as it covers cases of civil contempt. The Other right-to-life issues concerning the unborn ECHR has, in one case, upheld the detention of a relate to reproductive techniques. Forms of birth person for failure to make a declaration of assets in control and sterilisation are also likely to arise as compliance with a court order. issues under this heading. Article 6: The right to a fair trial Article 3: Freedom from inhuman treatment In the determination of civil rights and obligations, Article 3 has been invoked in cases concerning or of any criminal charge, everyone is entitled to a corporal punishment in the school and in the home. fair and public hearing within a reasonable time by A significant case in the European Court of Human an independent and impartial tribunal established Rights (ECHR), A v UK, held that the treatment by law. inflicted by a stepfather on a nine-year-old boy The ‘civil rights and obligations’ refer to rights reached a level of severity prohibited by article 3 and and obligations in private law and have been concluded that the state should be held responsible interpreted widely. They include: for the boy’s beating. The court held that a state ‘is • Family private law cases required to take measures designed to ensure that • Public law decisions such as placing children in individuals within their jurisdiction are not subjected to care and adoption torture or inhuman or degrading treatment or • Child abduction European convention

punishment, including such ill-treatment administered by • Domestic violence cases, and private individuals. Children and other vulnerable •Ancillary relief applications. individuals in particular are entitled to state protection in the form of effective deterrents against such serious Article 6 also guarantees the following rights: breaches of personal integrity’. • The right of access to a court There is likely to be a conflict between articles 2 • The right to a fair hearing and 3. In some cases, compulsory medical treatment • The right to a hearing within a reasonable time will be necessary, and this could be construed as • The right to an independent and impartial inhuman or degrading simply by reason of the lack of tribunal established by law, and consent. Provided the treatment is in accordance • The right to a public hearing and the public with established principles of medical practice and pronouncement of judgment. necessary to prevent death or serious injury, it is unlikely to be held in contravention of article 2. But Within this category, particular attention should be other, more controversial, decisions in relation to paid to the right to a hearing within a reasonable compulsory sterilisation are likely to be in breach of time. While the delays in our courts now are not as article 3. bad as they were some time ago, it is clear to anyone who works within the system that the volume of Article 5: The right to liberty and security work now being processed and likely to be processed of the person in the future will add a further strain on the system. The right to liberty is not an absolute right, and the The reasonableness of the length of time will involve primary exception is the ‘lawful arrest or detention of a the complexity of the case, the conduct of the parties,

17 Human rights

‘There thus the manner in which the matter was dealt with by against the prosecution’s decision not to pursue administrative and judicial authorities and the criminal charges, amounted to a failure on the part exists between importance of what is at stake for the applicant. of the state to secure respect for her private life. the child and Particular emphasis must be placed on those cases Private life is also likely to encompass protection involving children, be they childcare cases or cases against compulsory medical intervention such as parents a bond under the Hague convention. compulsory blood tests in paternity actions. In X v amounting to The right to a fair hearing also includes: Austria, the applicant complained that the • The principle of equality of arms obligation upon him to submit to a blood test in family life, even •Freedom from self-incrimination affiliation proceedings was in violation of article 8. if at the time of • Access to justice The commission held that the medical intervention, •Presence in court although of minor significance, must be considered his or her birth • Adversarial argument, and as an interference with this right. the parents are • Reasons for the judgment. Personal information. Access to and protection of personal information also falls within the ambit no longer In this regard, the most interesting point may be of private life. This is particularly relevant to cohabiting or the reasons for the judgment. A fair hearing personal information gathered by way of medical requires the court to give reasons for its judgment. data and medical reports. their relationship It should ‘indicate with sufficient clarity the grounds on Paternity. Private life has also been held to has ended’ which it based the decision so as to make it possible for a include issues such as whether a putative parent is party to exercise usefully the right of appeal available to the parent of a child. him’. Name. Names have been held to constitute a A potential area of family law where the right of means of personal identification, a link to a family access to the courts under article 6 may have an and to involve the right to establish and develop impact includes providing for the wider relationships with others within that family, and so representation of children so as to give them a fall within the concept of private life. In various greater voice in private law proceedings. cases, the court has afforded a wide margin of appreciation as to the restrictions on permissible Article 8: The right to respect for private changes of name. and family life Article 8 also guarantees the right to respect for This article directly concerns family law and will ‘family life’. Although there has been no definition have an important influence on its future of family life in the convention, family has been development. Article 8(1) provides that everyone interpreted widely by the ECHR. In Keegan v has the right to respect for his private and family Ireland, the court held that ‘the notion of the life, his home and his correspondence. Article 8(2) family’ is not confined solely to marriage-based sets out the conditions in which the state may relationships and may encompass other de facto interfere with the enjoyment of these rights. Private families where the parties are living together life has been defined as the right to establish and outside of marriage. A child born out of such a develop relationships with other human beings. relationship is part of that family unit from the There are also various categories of private life moment of birth and by the very fact of it. There which have been interpreted widely to include the thus exists between the child and parents a bond following. amounting to family life, even if at the time of his Gender. The ECHR has held in previous cases or her birth the parents are no longer cohabiting or that there was no obligation on the state to change their relationship has ended. In the case of X, Y and the birth certificate of transsexuals to reflect their Z v the UK, various criteria were laid down for new identities. determining whether a relationship can amount to Sexual life. In Norris v Ireland and Dudgeon v the family life, taking into account a number of relevant UK, the court described sexual life as the most factors such as whether the couple live together, the intimate aspect of private life. In the cases in length of their relationship and whether they have question, the applicants had complained that under demonstrated their commitment to each other by the law in force at the time they were liable to having a child together or by any other means. The criminal prosecution on account of homosexual existence therefore of family life is a question of conduct, whether it took place in public or in fact. private and irrespective of age or consent. The The traditional family relationship of husband court stated that the legislation constituted a and wife are central to family life, but family life continuing interference with the applicants’ right to does not cease on separation or divorce of the respect for their private lives. parents. A parent includes a natural parent where Physical and moral integrity of the person. In there has been a cohabitation or other factors the case of X and Y v the Netherlands, the court which show a relationship sufficient to come within found that the absence of a practical and effective the definition of family life. However, a natural criminal remedy in circumstances where a 16-year- parent who donates a sperm or an egg for the old mentally-handicapped girl was sexually purposes of artificial insemination does not have a assaulted, but had no legal capacity to appeal right to respect for family life solely by that fact.

18 Human rights

Unmarried fathers are not in the same position as Article 12: The right to marry and found a family married fathers or unmarried mothers. In a number Article 12 lays down the general principle, subject of other cases involving grandparents, the to such factors as the formalities of marriage, commission has examined each of the cases on its questions of capacity and minimum age. The court facts to determine whether there are sufficient links has refused a transsexual applicant the right to alter to amount to family life. There have been other his birth certificate and it was held that the right to cases covering relationships between siblings and marry guaranteed by article 12 refers to traditional uncles and nephews. Adoption has been held to marriage between people of the opposite biological create a family life between the adopted child and sex. Article 12 does not give the right to marry to a adoptive parents. transsexual under his or her new gender or to Family life has also been held to include the homosexuals to marry one another. It does give a relationship between foster parent and foster child, right to found a family, which is an absolute right in although the court noted that the content of family the sense that the state has no right to interfere life may depend on the nature of the fostering with it. The state, however, does not have to arrangements. Homosexual unions do not currently provide opportunities for a couple to found a fall within the scope of the right to respect for family. family life. The court has interpreted the words This is intended as an overview of the likely ‘respect for family life’ widely. In addition, the impact of the European convention on human rights article guarantees the right to respect for the home when it is finally implemented. In the meantime, and correspondence. Correspondence has been we await the government’s bill with interest. Many interpreted to include written and telephone other articles in the convention and the protocols communications. In the case of Klass v FRG, may impact on family law cases, and undoubtedly telephone tapping was held to constitute a violation the convention is likely to have a significant impact of article 8. This provision may in future be on the management of childcare cases. G relevant in those cases where taped telephone conversations are sought to be adduced in evidence, Muriel Walls is a solicitor with the Dublin law firm for example, in private law cases and ancillary relief McCann FitzGerald and is vice-chair of the Law applications. Society’s Family Law and Civil Legal Aid Committee.

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19 Survey OUTSOURCING: what do lawyer

Why do organisations that already have an in-house legal team turn to hired guns – and what are they looking for? A new survey from the Law Society’s Corporate and Public Sector Committee looks at the factors behind the decision to outsource legal work to solicitors’ firms

ou have a speciality in a particular field but lawyers have a core competence, there are situations you are also a good all-rounder. Your where work needs to be outsourced to an external clients have been satisfied with previous law firm. Almost all of the respondents to the survey work you have done for them. You respond reported that they outsourced at least some of their Yquickly and ensure that your clients have legal work. The vast majority outsourced in the prompt access to a partner. If you and your law firm region of 25% to 50% of legal work and an average meet these criteria, then in-house lawyers who have of six law firms were instructed by each organisation. more on their plates than they can handle will want to The main reasons given for outsourcing were do business with you. These are just some of the (unsurprisingly): findings of a recent survey of corporate and public • Insufficient staff or internal resources, and service solicitors undertaken by the Law Society’s •The need for specialised advice/lack of expert Corporate and Public Sector Committee, the first of its knowledge. kind ever undertaken in Ireland. Organisations hire in-house lawyers for a variety of The committee’s survey set out to find answers to reasons. Expertise in a specialist area, immediate access three key outsourcing questions: to advice and the lawyer’s ability to understand fully • Who makes the decisions on outsourcing? the organisation’s business needs are the main ones. It • What legal work tends to be outsourced? is generally accepted, however, that while in-house • What are the criteria used for selecting a law firm?

1. Is any legal work outsourced by your organisation?

Outsourced – all 10% 4% 10% 3 Outsourced – /4

1 Outsourced – /2

1 24% Outsourced – /4

Outsourced – nil 52%

2. What would be the most important reason why your organisation’s legal OF QUESTIONNAIRE work is outsourced? 4% 9% Insufficient staff resources 35% Need for specialist advice/lack of expert knowledge 12% Lack of knowledge of or advice required in another jurisdiction

Volume of legal work 14% Size/nature/complexity of transaction 26% Obtain non-core legal advice externally RESULTS

20 Survey rs look for?

Defining the decision-makers ‘As would be the survey and respondents were asked whether they In all the key areas (for example, the decision as to were outsourced: a) rarely, if ever; b) sometimes; or c) which law firms to instruct), at least 50% of the expected of a frequently. In many areas, there was a reasonably decision-makers on outsourcing are the in-house core in-house balanced spread of answers so that, for example, there lawyer or law department. The company secretary was no major divergence between the number of handled the decision in 9% of responding companies; activity, those who outsourced commercial litigation, the same amount said decision-making authority outsourcing of employment law and mergers and acquisition work rested with the financial controller or finance officer. frequently and those who outsourced rarely, if ever. A manager or head of function made the call at 15% company law There was, however, a slight bias in favour of of the enterprises surveyed, and the balance came and corporate outsourcing personal injuries litigation and from other management categories. commercial conveyancing. On the other hand, there A similar pattern emerged with the other compliance was a slight trend against outsourcing residential outsourcing questions: work was conveyancing, company formations, tax and • Who instructs the law firm? (In-house lawyer/law intellectual property work. department: 52%) found to be As would be expected of a core in-house activity, • Who decides in the organisation when to infrequent’ outsourcing of company law and corporate outsource? (In-house lawyer/law department: 51%) compliance work was found to be infrequent. • Who supervises the law firm’s work? (In-house lawyer/law department: 62%) The criteria for selecting a law firm The survey identified 21 criteria for selecting a law Interestingly, on the last question, 9% of respondents firm and respondents were asked whether each said that no-one supervised the law firm! criterion: • Does not apply to the organisation’s selection What work is outsourced? procedure for a law firm The main areas of legal practice were identified in • Applies to some extent

3. Who in your organisation decides what firms to use? 5. Do you use more than one law firm for your external 2.5% 2.5% In-house lawyer legal work? If so, how many? Average of 6.3 law firms 6% A manager or head of function 6% Company secretary 6. Are you in attendance at all meetings between your 9% Financial controller/finance officer organisation and the law firm? 50% Organisation’s board or executive Yes: 20% No: 80% 9% A head of function with consent of in-house solicitor 7. Do you brief junior or senior counsel directly (by-passing Chief executive 15% a law firm?) Insurers to the organisation Yes: 68% No: 32%

4. Who in your organisation instructs the law firm? 8. Who in your organisation decides when to outsource?

In-house lawyer 5% In-house lawyer 7% 3% 5% 7% A manager or head of function 7% A manager or head of function Financial controller/finance officer Financial controller/finance officer 10% 14% 52% Company secretary 51% Company secretary Chief executive Chairman/chief executive

17% Business unit 22% Organisation’s board/executive/ management

21 Survey

9. Who supervises the law firm’s work? 11. What are the criteria your organisation adopts for

In-house lawyer selecting a law firm? 6% PROCEDURE SELECTION APPLY TO OUR DOES NOT SOME EXTENT APPLIES TO PROCEDURE OUR SELECTION APPLIES TO DEFINITELY SELECTION CRITERION IN IS A KEY NO RESPONSE 6% A manager or head of function 6% Financial controller/finance officer Criterion 9% Company secretary Price 26% 44% 15% 4% 4% 61% 12% Chairman/chief executive Commitment to fixed-fee work 41% 33% 11% 4% 11% Speciality in a particular field 4% 4% 30% 62% 0% Organisation’s board/executive/ management Expertise in all main areas of legal practice 19% 26% 19% 26% 10% Speed of response 11% 7% 26% 52% 4% 10. What legal work do you outsource? Prompt access to a partner 7% 26% 7% 53% 7% Size of firm 33% 30% 19% 7% 11% Legal Work RARELY NO Ranking of firm by SOMETIMES RESPONSE IF EVER FREQUENTLY independent assessment 70% 11% 0% 4% 15% Personal injury litigation 26% 15% 40% 19% The other clients the firm Commercial litigation 30% 26% 40% 4% services 66% 15% 4% 0% 15% Residential conveyancing 51% 15% 19% 15% Recommendation 44% 38% 4% 7% 7% Commercial conveyancing 22% 30% 44% 4% Inertia (‘we’ve always dealt Contracts 30% 36% 19% 15% with them’) 48% 33% 4% 0% 15% Employment law 19% 48% 22% 11% Satisfaction with previous job Pensions 33% 26% 22% 19% undertaken 4% 18% 37% 37% 4% Mergers & acquisitions 33% 7% 41% 19% Location of firm (near to my Company formations 29% 26% 19% 26% organisation) 59% 19% 7% 4% 11% Tax 30% 30% 15% 25% Firm has offices in other Corporate compliance 62% 19% 0% 19% jurisdictions 59% 26% 0% 0% 15% Company law 30% 51% 0% 19% Firm is part of international Intellectual property 32% 30% 19% 19% network 63% 15% 0% 7% 15% Regular client information Notes on the survey bulletins 63% 22% 0% 4% 11% 1. 28 survey responses were obtained from in-house solicitors from both the corporate sec- tor (ranging from private companies to publicly-quoted enterprises) and the public service The firm is a client of ours 70% 11% 4% 0% 15% which, while not comprehensive, is an adequate representational group. ISO 9002 or other quality 2. Questions 2, 3, 4, 8 and 9 were open-ended questions. Accordingly, the answers in some cases identified more than one person involved in the particular decision/activity. Where a standard 70% 15% 0% 0% 15% combination was given, each person or function in the combination was counted in the Our relationship with a result. 3. Reference to ‘in-house lawyer’ in the results may be to the lawyer in charge of a legal particular solicitor in the firm 19% 44% 11% 11% 15% department, the legal department or the lawyer handling the case. Firm doesn’t act for our 4. All questionnaire responses have been handled in strict confidence. Any identifying refer- ences that may have been inserted by respondents were removed prior to the information competitors 44% 30% 4% 7% 15% being collated. Access to free advice initially 70% 19% 0% 0% 11%

• Definitely applies to the selection procedure The question of fees was also canvassed in the • Is a key criterion in selection. survey, and it seems that law firm selection is not price sensitive. Price was a key criterion, or There was very little middle ground in the definitely applied, for a mere 26% of respondents, responses. As stated at the outset, in-house lawyers and this dropped to 15% with regard to a law firm’s are looking for a speciality in a particular field, commitment to fixed-fee work. In-house lawyers are speed of response and prompt access to a partner. not looking for free advice either. Some 70% of Also, it should come as no surprise that satisfaction respondents stated that free initial advice was not a with previous jobs was identified by the vast factor at all in the selection process. majority as either a definite factor or a key criterion. Finally, those glossy client information bulletins What is much more intriguing is the analysis of apparently have little impact. Of those who the factors that tended not to apply. For example, responded to the survey, 63% said that client ranking by an independent assessment body such as bulletins did not apply to their selection process, ISO 9002 or other quality-standard programmes while 22% stated that they applied to some extent. had no relevance to the vast majority of respond- Only 4% indicated that bulletins were a key criterion ents. Nor was location of the firm or the fact that it or definitely applied. G might have an international network or offices in another jurisdiction. Of course, this is a survey of Kevin Finucane is a solicitor and director of Coyle Irish in-house lawyers. Clearly, lawyers instructing Hamilton Limited, employee benefits consultants. He is Irish firms from other jurisdictions might take a chairman of the Law Society’s Corporate and Public different view. Sector Committee.

22 ADVERTISEMENT Ireland’s First Home Equity Release Scheme Launched

A new Home Equity Release Scheme – the first pure home equity release product on the Irish market,– received a very positive welcome from the public and the media when it was launched by Residential Reversions Ltd., in December.

The new scheme called the Homeowner’s Extra Income Plan allows home owners to raise a cash lump sum or a guaranteed monthly income for life, by transferring part of the value of their property to Residential Reversions. The equity transferred is based on the present open market value, agreed with the Company after both parties have carried out their own independent valuations. The home owner choos- es which percentage of the value of the property they wish to apportion to Residential Reversions. This will be a minimum of 25% of the open market value, to a value of at least IR£75,000, and there is no maximum Pictured at the launch announcement of Ireland’s first home equity release scheme were Ciaran Deeney, Managing Director, Residential limit. Reversions Ltd., Dr. Tom Moffatt T.D., Minister for Older People and Joe Wyse, Director and Secretary, Residential Reversions Ltd. The percentage transferred to the Company will be secured for the benefit of Residential Reversions by a Residential Reversions is an Irish Company legal deed. This share can then be used to provide supported by private and institutional investors. the home owner with a capital lump sum and/or Managing Director, Ciaran Deeney, A.I.A., said generate extra income payable for the remainder of the applicant’s life. If there are two partners applying, “A number of companies provide a similar it will apply to the lifetime of the partner who lives service in the UK but this is the first time a genuine the longer. All life income payments will be routed Home Equity Release Scheme has been offered in through corporate trustees, a very secure arrangement. Ireland. It is not a loan or a mortgage and there are no repayments to make. The portion of the property The home owners continue to occupy their home not released is, effectively, ring-fenced, so the home rent free for as long as they continue to live in their owner is totally secured by the arrangement. Our home and security of tenure is guaranteed. Because market research over the past two years indicates the scheme is based on equity release, there is no tax that there is a huge pent-up demand for such a to pay on the extra cash raised. The home owner product and we would expect to handle about 300 may opt to sell a further share in the property to the transactions in the first year, with a value of between Company at a further date. IR£20 million and IR£30 million”. Once the property is vacated or sold, the proceeds of the share purchase by Residential Reversions pass- Initially, to qualify, an applicant needs to be age es to the Company, and the owner and/or their Estate 70 years or older, or a couple both aged over 70 years, receives the balance. owning a property worth at least £150,000.

For further information or explanatory brochures please contact: Residential Reversions Limited 13 Gandon House, Lower Mayor Street, IFSC, Dublin 1. Telephone: 01 672 1850 Fax: 01 672 1849 www.residentialreversions.ie e-mail: [email protected] Arbitration Talk is c After five years operating in this country, the Centre for Dispute Resolution has successfully sold the mediation message to a number of sectors, including the government. But, as Barry O’Halloran reports, the business community has been slower to catch on

uring last month’s British Airways’ action for malicious falsehood against Irish airline Ryanair in the English High Court, the judge declared that he found Dit ‘immature’ that two companies should be litigating in the first place. Whether or not the issue could have been settled any other way is debatable, but Justice Jacob’s remark indicates that UK judges increasingly expect companies to use the courts as a last resort after other methods of settling their differences have failed. Alternative dispute resolution (ADR) has been used regularly in Britain for the last decade to settle commercial, public sector and even civil issues. The courts there are so anxious to promote ADR that a recent judicial practice statement demands that where litigants could have availed of it and did not, judges must take that failure into account when considering the question of costs. Indeed, under the new Civil Procedure Rules introduced in Britain in 1999, courts are increasingly ordering that parties use mediation, even if they are not willing to do so in the first place. Judges can also decide in the course of a hearing that a particular point, or points, can be dealt with more effectively by a mediator, and adjourn the case pending the outcome of that process. Obviously, that puts pressure on the parties to ensure that the issue in question is cleared up before they return to court.

• Alternative dispute resolution is now part of the legal system in Britain • The Dublin-based Centre for Dispute Resolution introduced mediation for commercial and public sector cases five years ago • It has won converts in government and the workplace, but it is still meeting resistance MAIN POINTS

24 Arbitration heap

In a nutshell, ADR involves employing a mediator to help parties settle disputes. In most situations, the mediator operates by first hearing everybody involved individually, and then bringing them together in a bid to find common ground. The process is faster than going to court and – importantly from the point of view of many potential litigants – it’s confidential. Nothing that is agreed by any of the parties needs be made public, unless they decide to do so. It’s also cheaper than going to court, and costs are borne by everybody involved, so there’s no risk of being left with a large bill for court costs at the end of the process. In most cases, ADR does not cut lawyers out of the loop. In Britain, for instance, parties who agree to go through ADR almost always have their lawyers present, and in many cases it is the lawyers who do the talking. In the UK, those involved in commercial or public sector disputes are put in touch with mediators through the Centre for Dispute Resolution (CEDR) in London. This is a non-profit organisation, funded by membership fees, which was set up a decade ago to promote ADR. It is five years since its Irish sister organisation, the Centre for Dispute Resolution (CDR), opened for business on Dublin’s Merrion Square. It is run by a board of five members, and employs between five and ten mediators. Mediators already play a big role in family law. But the CDR’s executive director, John Hyland, wants to promote the use of ADR in other areas, particularly commercial and employment law. According to Hyland, ADR can be used in almost any dispute that could potentially lead to a court case. However, it cannot be used as a substitute for injunctions, nor can a constitutional issue be settled through ADR. The concept has caught on here to a certain extent. Section 78 of the Employment Equality Act, 1998 allows for some cases to be referred to an equality mediation officer. Since the act came into force last year, a number of Department of

25 SOCIETY OF YOUNG SOLICITORS IRELAND (sponsored by Bank of Ireland Trust Services and Osborne Recruitment) SPRING CONFERENCE 2001 9–11 March 2001 at Faithlegg House Hotel, Co Waterford See www.sys.ie for further details

Friday 9 March 19.30–20.00 Drinks reception

20.00–21.30 Registration 20.00 till late Banquet (black tie ); DJ

21.00 till late Delegates meet in residents’ bar; musical Sunday 11 March entertainment Until 11.00 Breakfast Saturday 10 March 12.00 Check out 10.30 SEMINAR SESSIONS Notes: Employment law: advising clients on e-mail 1. Solicitors wishing to attend this conference must apply through the and Internet misuse in the workplace. SYS. Demand will be high. The application procedure will be Kevin Langford, Mason Hayes & Curran applied strictly. 2. Accommodation is limited and will be allocated on a strictly first- come, first-served basis and in accordance with the procedure set 11.00 Coffee out below. 11.15 Short presentation by Bank of Ireland Trust 3. The conference fee is £170pps and includes Friday and Saturday Services and Osborne Recruitment night accommodation, two breakfasts, reception, subsidised events, banquet and conference materials. A non-accommodation 11.30 Tax and property transactions. Paraic rate of £60 per person is available, to include banquet and con- Madigan, Matheson Ormsby Prentice ference materials. 4. One application form must be submitted per room per envelope together with cheque(s) for the appropriate conference fee and a 12.00 Discovery. Eoin Dee, Nolan, Farrell & Goff self-addressed envelope. All applications must be sent by ordinary pre-paid post. Only applications exhibiting a post mark of 12 13.00 Subsidised lunch February 2001 or after will be processed. Rejected applications will be returned in due course. 14.00 Activities 5. Applications cannot be accepted without appropriate payment. Cheques payable to SYS, please. Names of delegates to whom the Impressive leisure centre, swimming pool, cheque(s) apply must be written on the back of the cheque(s). 6. Cancellations must be notified to [email protected] on or before 26 aromatherapy treatment and massage, golf February 2001. Cancellations after that date will not qualify for a and horse riding (details from hotel recep- refund. tion). A golf competition will be organised 7. Confirmation of booking by e-mail only. You must therefore provide (details available from the website). your current e-mail address.

APPLICATION FORM Please use block capitals. One form per room per envelope.

Name 1: Name 2: Firm 1: Firm 2: E-mail: E-mail: One contact address: Phone: (H) (O)

ACCOMMODATION IN FAITHLEGG HOUSE HOTEL: £170pps Please tick Double Twin NON-ACCOMMODATION: £60pps I enclose cheque(s) in the sum of £170/£340 or £60/£120 and I enclose self-addressed envelope. Application to The Treasurer, SYS, PO Box 7255, Dublin 4. Arbitration

Enterprise, Trade and Employment staff have been ‘While it cannot satisfaction, and it has resulted in a 50% overall appointed to these positions. The CDR was reduction in costs’, he claims. He does not say if this contracted to train them. be used in saving is passed on in premium reductions. The CDR has been involved in multi-party constitutional He also suggests that ADR could result in disputes and negotiations. For instance, the centre’s increased business for lawyers, as it could encourage mediators played a key role in the negotiations that cases, individuals and businesses who are in dispute – but finally developed the Bantry Bay charter. This is a alternative who do not want to go to court for fear of losing the coastal zone-management strategy aimed at case – to come forward. ‘Some cases do not surface developing Bantry Bay in West Cork. The charter, dispute because the parties are afraid that if they go to court, now formally adopted by Cork County Council, was resolution may they run the risk of losing and will end up worse off drawn up by the local authority, business interests, than before’, he says. the public sector and local groups. The CDR, led by have some part While ADR is an established part of the English its founder, the late Jim Coleshill, mediated between to play in cutting system, it still has its detractors. Wags in London these groups. Hyland is now beginning a similar commercial firms maintain the initials stand for process involving residents and groups from Dublin’s down the ‘alarming drop in revenue’. And critics of the northside and Dublin Port, which is planning to general level of process say that it can add to the cost of resolving a reclaim and develop around 22 hectares from the dispute. They point out that if the parties have gone Irish Sea. The first phase of mediation in that case civil litigation into court, and are then ordered to go into has been completed, he says. against the mediation, it creates another layer of expense. They While it cannot be used in constitutional cases, also warn that showing your hand during mediation alternative dispute resolution (and the CDR itself) state’ could weaken your case if you are eventually forced may have some part to play in cutting down the into court when ADR fails, which, they maintain, it general level of civil litigation against the state. ‘The will in many cases. government is looking at ways of cutting down the cost of claims against the state’, Hyland says. English resistance ‘Hopefully, within that there would be a role for There are no figures available for the volume of mediation’. But he stresses that it will not affect any cases handled by the CDR in Dublin, but there is no party’s right to go to court if they wish. question that the system is meeting a lot of resistance across the water. The CEDR in London Insurance claims has made only a small dent in the volume of Another area where ADR might come into play is litigation in the UK. According to a recent Financial bullying in the workplace. This problem was Times report, the centre mediated 462 commercial highlighted recently when it emerged that departed cases in the year to last March. Figures from the RTÉ executive Andrew Burns was brought before a Lord Chancellor’s Department for 1999 show that disciplinary committee to answer allegations of 110,000 claims were started in the Chancery and bullying a staff member. The case was not proved, Queen’s Bench divisions of the English High Court. but at a more general level the issue is now On that basis, not even 0.05% of these disputes ends beginning to concern insurance companies, which up being handled by the CEDR, though it does have noticed a growing number of claims arising claim an 80% success rate. from allegations of bullying. A government task force One high-profile case that was managed and established last year to look at this issue is due to settled at the centre in early 1999 saved the parties report soon, and Hyland is confident that mediation more than a year in court. It arose from British & will form at least part of the solution to this problem. Commonwealth Holdings’ acquisition of Atlantic While ADR has won fans in some sectors, Hyland Computers in 1988. Atlantic later went into says that businesses have been slower to recognise its liquidation with multiple claims against it. It was set virtues. ‘Business is not as responsive as other sectors, down for hearing this year, which could have taken despite the fact that there is increased awareness of up to 20 months. Instead, the parties opted for the centre and its mediators’, he says. ‘There is not mediation, which took one month. the same commitment to it as there is in other areas. The time-saving element is one of the key What it actually needs is further encouragement advantages, according to one ADR advocate, Martin from business leaders and the legal profession. ADR Hayman, general counsel with Standard Chartered is cost-effective; it saves time and money; it’s Bank in the City of London. In the British press confidential; and it ensures that business relations recently, he warned that in-house lawyers should be between the parties are maintained after the dispute pushing for alternatives to litigation. He pointed out is settled, which they often are not after litigation or that it is in the parties’ interests to avoid going to arbitration’. court, and argued that managers should be getting on Hyland argues that the experience in other with managing their businesses and not wasting time jurisdictions clearly underscores ADR’s advantages. on litigation if it can be avoided. That’s a sentiment In the US, for example, many insurance disputes are that John Hyland would definitely echo. G now settled in this way. ‘They have a 90% success rate, that is, nine out of every ten cases that go to Barry O’Halloran is a staff reporter with Business & dispute resolution are settled to both parties’ Finance magazine.

27 Employment law

Good news for inveterate slackers: a recent ruling from the European Court of Justice has redefined just what constitutes ‘working time’. Ciaran O’Mara explains the court’s decision in the SIMAP case and how it could affect Irish employees

n 3 October 2000, the European Court an employees is ‘at his or her place of work or at his of Justice (ECJ) finally issued its long- or her employer’s disposal and carrying on or awaited judgment in the working time performing the activities or duties of his or her case brought against the Spanish work’. This definition has regarded working time as OHealth Administration by SIMAP, the cumulative, not disjunctive. union representing public health workers in the The SIMAP decision is disjunctive, and overrules Valencia region of Spain. The judgment accepted in the Irish and UK definitions. Agreements which full the advocate general’s opinion on the have used the ambiguity in the Irish definition to proceedings before the court, which had been issued allow employees to work consistently in excess of late last year, and in its key decision held that time the maximum 48 hours a week may now need to be spent by doctors on call in a hospital was to be re-examined. regarded as working time within the meaning of the In its judgment, the court clearly juxtaposed Working time directive. working time and rest periods and said that ‘the two Time on call away from the hospital is not to be are mutually exclusive’. In a key paragraph (48), it counted as working time because, according to the said: ‘In the main proceedings, the characteristic court, ‘in that situation doctors may manage their features of working time are present in the case of time with fewer constraints and pursue their own time spent on call by doctors in primary care teams interests’. The court also said that the ‘exceptions to where their presence at the health centre is the scope of the basic directive … must be required. It is not disputed that during periods of interpreted restrictively’ and ruled that even where a duty on call under those rules, the first two Busy doing no

collective agreement provided for flexibility in the conditions are fulfilled. Moreover, even if the activity application of the directive, the express permission actually performed varies according to the of the individual employee must be given. circumstances, the fact that such doctors are obliged The relevance of the ‘working time’ definition is, to be present and available at the workplace with a of course, that article 6 of the Working time directive view to providing their professional services means (section 15 of the Irish act of 1977) limits weekly that they are carrying out their duties in that • The ECJ has ‘working time’, including overtime, over a four- instance’. signalled that it will month average to 48 hours a week. The on-call ‘dynamically decision may benefit thousands of workers in the What is ‘working time’? interpret’ hospital and healthcare sectors who are expected to The court went on to say that the purpose of the working time stay over at their place of work without being directive was to safeguard the health and safety of legislation compensated for such time. workers by ensuring them minimum periods of rest • The SIMAP While initial reaction to the judgment has focused and adequate breaks and said that ‘to exclude on-call decision on its application in the hospital services – from working time if physical presence is required could benefit understandably so, as the reference to the court would seriously undermine that objective’. thousands resulted from a case brought by a group of public As already noted, this approach on the part of the of workers in the sector doctors – the concept of working time court would appear to raise questions about what healthcare outlined in the decision has implications for all exactly is to be regarded as working time. Clearly, sector industrial and services sectors. any time spent at the place of employment, other • Any time In a nutshell, the decision appears to mean that than on defined rest breaks, is to be regarded as spent at your any time spent at an employee’s place of working time. Clearly, also, time spent on call away place of work employment, with the exception of clearly-defined from the workplace is not to be regarded as work. could be rest periods, is to be regarded as working time, However, given that the court ruled that on-call defined as irrespective of whether or not the employee is work away from the place of employment was not to ‘working ‘carrying out his activities or duties’. Both the Irish be defined as work because the employees in time’ and UK legislation define working time as any time question ‘could manage their own time with fewer MAIN POINTS

28 Employment law

constraints and pursue their own interests’, time spent interpret’ the working time legislation as well. travelling on company business, at home or abroad, On the facts before it in the SIMAP case, the must now be regarded as working time because, in court held that time spent on call away from the such circumstances, the employee is not free to pursue place of employment was not to be seen as work for his or her own interests. the purposes of the directive. This, however, should Of course, most of the transport sector itself is not be taken as the end of the matter. As in other excluded from the Organisation of Working Time Act, cases of ‘on call away from the workplace’, 1997, although this will gradually change with the employees may not have such freedom and may be impact of the new 2000 directive. restricted in what they can do while on call. For Another factor is that most of the employees who example, they may have to stay within a certain undertake business travel may be defined, under the radius of their place of employment and may not be Irish legislation (section 3(2)(c)) as ‘a person the free to engage in certain social activities, such as duration of whose working time (saving any minimum having a drink. Presented with a different set of period of such time that is stipulated by the employer) facts, the court may hold that on-call work in such is determined by himself or herself, whether or not circumstances should be classified as working time. provision for the making of such determination by Further references to the court on this issue can be that person is made by his or her contract of anticipated. employment’. Employees who fall under this definition do not have to comply with the legislation’s Collective agreement provisions on the maximum working week or the In its judgment, the court also examined the issue of timing and extent of rest breaks. whether the consent given by trade union The Irish definition, however, is an extremely representatives in the context of a collective or other liberal interpretation of the directive’s language, agreement is equivalent to that given by a worker which refers in article 17 to workers in circumstances himself, as provided for in article 18 of the Working where ‘the duration of the working time is not time directive. Article 18 allows the member states measured and/or predetermined or can be determined not to apply article 6 of the directive, relating to the by the workers themselves, and particularly in the case maximum 48-hour weekly working time, and so allow individual workers to work more than 48 hours a week, provided they give their individual consent. The UK is the only member state to have taken advantage of this opt-out. According to the court, it is clear from the wording of article 18 that it requires the consent of othing? the individual worker if he or she is to work more than the 48 hours. The court goes on to say that, as had been pointed out by the UK government during of … managing executives or other persons with the hearings on the case, if the intention of the EU autonomous decision-making powers’. legislature had been to allow the worker’s consent to There is a significant difference between having be replaced by that of a trade union in the context of some flexibility with regard to the hours you work – a collective or other agreement, article 6 of that as many employees do, even at relatively junior directive would have been included in the list in levels in organisations – and being regarded as article 17(3) of the directive of those from which ‘managing executives or other persons with derogation may be made by a collective agreement autonomous decision-making powers’. In view of or agreement between the two sides of industry. the court’s insistence in its judgment that the main The court held that the consent given by trade purpose of the directive is to safeguard the health union representatives in the context of a collective or and safety of workers (not surprising in light of its other agreement is not equivalent to that given by earlier decision in UK v Council of the European the worker himself, as provided for in the first Union (1996), when it rejected a UK claim that the indent of article 18. What this appears to mean is Working time directive was an employment, not a that only an individual worker can give consent to health and safety, measure), and its further insistence work more than 48 hours and cannot be compelled that the scope for derogation is to be interpreted to do so because of a collective agreement. However, restrictively, it is extremely likely that, if asked, it as only the UK has adopted this provision, the will construe the definition of ‘managing executives ruling is only relevant to the UK. No other country or other persons with autonomous decision-making permits workers to work beyond the 48 hours. The powers’ narrowly. ruling does not appear to have any significance for With other health and safety and employment the derogations on the timing of rest breaks or the legislation, the court has thrown the net wide and period over which the 48 hours can be averaged, as sought to ensure that the original intent of various provided for in article 16. G laws was not undermined by national legislatures adopting restrictive definitions. In the SIMAP case, Ciaran O’Mara is a member of the Law Society’s it has clearly signalled that it will ‘dynamically Employment and Equality Law Committee.

29 Gadgets Tech trends By Maria Behan

Paper-a-go-go The whole world in eah, yeah, dirty work of digitally scanning your hands? Ywe’ve all and indexing your documents heard about the and files. The folks at Disc O itsubishi (the company MHz processor and can run paperless office. So Tech claim they can save you up Mbehind Trium phones) the wide range of Pocket PC why is it most of us are to 90% of the costs of document and Microsoft (the company programs. Available in the still drowning in paper? Mean- storage and retrieval and point behind pretty much everything next month or so, priced while, the cost of storage and out that you’re also likely to else) have teamed up to around £400. retrieval continues to grow, as save a lot of time. In one study, produce a device they call does the amount of time and a team of paralegals searching Mondo, which is a lot catchier effort it takes to find documents. 10,000 documents for a specific than their description: ‘the Tempting as it may be, no topic, author and date range latest GSM/GPRS phone- responsible solicitor can afford took 67 hours and found 15 enabled Pocket PC’. What that to solve the problem with a big documents; using a digital means is that you can use this bonfire in the garden, but you document management system, mobile phone-PC hybrid to can boil all that mess down to a the search took 4.5 seconds and make calls around the world, few sleek CD-ROMs. The Disc found 20 documents. Set-up costs send and receive e-mail and O Tech system lets you store an vary according to installation; even video-mails, browse the exact image of original documents can be scanned for Internet and exchange digital documents on disk, so you can between 7p and 10p per image and business cards with fellow geeks search for and access them from electronic data transfer will cost armed with similar devices. The your PC. A service bureau comes about 3p per page. Contact Disc O fancy phone part of the Mondo to your firm to implement a Tech in Wicklow on 0404 61444 allows for hands-free and system that suits your needs and or Sandyford Office Solutions in speaker-phone calls, while its your IT set-up; they even do the Dublin on 01 294 3370. computer side packs a 166 Looking beyond the label Wherever o protect client inside office printers, jamming office printer to do what it’s UGO... Tconfidentiality, lawyers the machine. Seiko Instruments’ supposed to do: produce reams favour address labels instead of Smart Label printers are handy of useless paper. Each of the windowed envelopes. Like so wee yokes dedicated to the dirty three printers in the Smart many other thoughtful notions, job of printing out labels, Label range come with this idea can be a pain to freeing your software that links to programs execute, as those charged with regular such as your PC word- on’tworry. The UGO X- printing out those labels will processor or the contact Dlite does not rely on cutting- attest. For instance, labels manager on your Palm Pilot, so edge Serbo-Croat technology – have a nasty tendency you can create a label just by after all, it’s produced by Philips to peel off highlighting an address and – but if you need to give a clicking on an icon. The presentation, you may want to built-in database saves pack this portable projector. It’s names, addresses and smaller than a notebook and, at the most commonly- 1.3 kilos, it won’t weigh you used labels, while down. And thanks to a lot of direct thermal technological wizardry that none printing technology of us understands, the images means there’s no need for produced by this baby are inks, ribbons and toner. The amazingly sharp and high Smart Label printers vary in price contrast. Available for between from £200 to £300 and are £3,000-£4,600 from audio visual available by contacting AZAK on outlets such as Data Show AV, tel: 01 660 5659 or [email protected]. 01 460 2299.

30 Gadgets A rocket in your pocket?

ith fewer bells and that?) Compatible with mention the ability to create AAA batteries Wwhistles – and a smaller Microsoft Outlook (so you can memos and expense reports. It provide up to price tag – the Casio PV-S250 share data with your PC) and also boasts a tantalisingly-named 180 hours of Pocket Viewer daily organiser operated via a stylus-controlled ‘Secret Function’ which protects continuous will appeal to those who like to touch-screen, this mighty mite is confidential data. And you’ll be operation. keep it simple. (Those who like a pretty comprehensive personal ready for the future with a Available for about £130 from to keep things really simple can information manager, featuring a decent-sized memory (2MB plus Barry Carroll at Cellular World stick to the ballpoint-and-diary place to store contacts and 1 MB available for software you on 01 206 1097 or 086 836 1622 method – but where’s the fun in record your schedule, not to may want to add in later). Two or e-mail: [email protected]

Kieron Wood’s Pages (http://welcome.to/barrister). This Sites to see barrister’s slice of cyberspace offers the layperson background on topics such as family law, wills and legal terminology, while solicitors may be interested in the on-line contact list of Irish barristers and the round-up of international legal links.

Courts Service Site (http://www.courts.ie). This site offers misty photographs of legal types and the buildings they work in – as well as some hard information such as a legal diary (which includes a roster of the day’s cases and the Dublin jury list) and Eat@Home (http://www.eatathome.ie). Feeling a bit peckish? a map of the Four Courts. Surf over to this site, which lets you click on the cuisine you crave, asks how much you’re willing to shell out, and comes up with a list of take-away or dine-in options in your locality.

DeStressU (http://www.destressu.com). If life’s getting to be too much to handle, chill out at this site, which offers digitised tranquillity in the form of information on holistic medicines, E-bookers (http://www.ebookers.ie). This Irish site doesn’t just relaxation techniques, aromatherapy and a range of other offer discounted flights and package holidays, it also boasts a alternative approaches to healing body and spirit. The on-line nifty feature called FlightWatch, which lets you specify a flight shop offers a selection of products which the DeStressU people number to get SMS messages sent to your mobile phone claim will be good for the outer environment as well as your tracking the plane’s progress so you won’t head out to the inner calm. Ohm... airport prematurely. Cool or what?

31 Briefing

Report of Law Society In briefing Council meeting held on this 8 December 2000 month... ■ Council report page 33 Sympathy islate for the whole of the pro- proposal and saw little point in The Council observed a fession on the basis of the good requiring practitioners to ■ Committee minute’s silence in memory of few. In addition, the interac- attend lectures in which they reports page 35 the former chief justice, Liam tion arising from participation had no real interest. Michael • Criminal Hamilton. in mandatory CLE could yield Irvine said that any profession • Corporate and Public the added benefit of removing that did not introduce manda- Sector Law Society of Northern the sense of isolation experi- tory CLE would fall behind in • Guidance and Ethics Ireland enced by many colleagues. its knowledge gain and would •Probate, Administration The Council approved the Mr Peart accepted that the lose out to those professions and Taxation appointment of John Neill, introduction of mandatory that required on-going train- John Meehan, Alan Hewitt, CLE would require sanctions ing by their members. Moya ■ Practice notes page 36 Catherine Dixon and Alastair for non-compliance, otherwise Quinlan expressed concerns • New farm retirement Rankin as nominees of the Law it would be meaningless. The regarding the constitutional scheme Society of Northern Ireland to Law Society of Scotland had position of a mandatory • Family law matters in the the Council for 2000/2001. introduced a form of self- scheme of CLE. She was District Court assessment, supported by doc- unsure whether the society • Pension adjustment Mandatory CLE discussion umentation, which might could impose such a manda- orders: notice to trustees document prove worthwhile. He noted tory requirement, particularly •New High Court practice Michael Peart referred to a dis- that it had also been suggested for those solicitors already in direction: judicial review cussion document on mandato- that some form of incentives practice. Philip Joyce noted • Practising certificates ry CLE, which represented the might be introduced, which that the Solicitors Acts empow- 2001 result of a year’s deliberations could be considered further. In ered the society to refuse to by a special task force. The task real terms, the proposal envis- issue a practising certificate ■ Legislation force had sought the views of aged 12 hours’ compulsory where required courses of edu- update page 37 each local bar association, the CLE over a two-year period, cation had not been fulfilled. vast majority of which were in with four hours being complet- Kevin O’Higgins expressed ■ In a corner page 40 favour of the concept, although ed in the first year and three interest in the concept of • How to restore a there were varying suggestions hours being fulfilled by private incentivisation and suggested struck-off company to as to the manner of its imple- study, which could not be that more consideration might the register mentation. They had also con- regarded as onerous. be given to this idea. sulted with the Law Society of Other issues requiring con- Stuart Gilhooly favoured ■ Personal injury Scotland, which had found the sideration included accredita- the introduction of mandatory judgments page 42 introduction of mandatory tion of in-house courses, CLE for all practising solici- CLE to be a positive experi- accreditation of third-party tors, with meaningful sanc- ■ FirstLaw Update page 45 ence, particularly for local, providers, and whether manda- tions for non-compliance. He • Administrative defunct bar associations, which tory CLE should be intro- believed that the proposed 12 • Commercial had been revitalised and were duced for the entire profession hours’ compulsory CLE over • Constitutional now thriving. at the outset. two years was not at all oner- • Contract Mr Peart said that, because John P Shaw said that he ous and that Ireland had fallen • Conveyancing of the pace of change in mod- fully supported the concept of behind most other jurisdic- • Criminal ern society and the daily intro- mandatory CLE, but favoured tions in introducing a compul- • Damages duction of new laws, it was enforcement by the society, sory system. Orla Coyne said • Employment imperative that solicitors kept with sanctions for non-compli- that the bureaucracy attached • Fair procedures up-to-date with legal develop- ance rather than self-assess- to running compulsory sys- • Litigation ments. He felt that this was ment. James MacGuill said tems in other jurisdictions was • Personal injuries best achieved if the society fos- that he did not support a undesirable. While she sup- tered a culture of life-long mandatory system. He ported the concept of incen- ■ Eurlegal page 50 learning within the profession. believed that the best habits tivisation, she did not support •To B2B or not to be?: EU While many solicitors attended were developed by willing par- the introduction of mandatory and US approaches continuing education courses ticipation rather than compul- CLE. • Recent developments in on a voluntary basis, others did sion. David Martin said that John Fish said that the legal European law not. The society could not leg- the DSBA disagreed with the revolution facing the profes- Briefing sion meant that lawyers needed the Council had an obligation view the proposal positively in preliminary recommendations, to constantly acquire and to the profession to introduce a terms of ‘CLE for all’. He engage in further dialogue with improve their knowledge and requirement to keep up-to- believed that many solicitors the members and report to the skills. In his view, unless there date with legal developments. felt that they should attend Council again within a number were clear sanctions, fully This would require the alloca- CLE courses, but did not get of months. enforced, any compulsory tion of adequate resources to around to doing so. It was clear scheme would lack credibility. the society’s CLE function. that something had to be done Practising certificate fee John Costello favoured a During his year of presidency, to break that cycle and to give for 2001 ‘halfway house’, with manda- every bar association that he solicitors a reason to transform The Council approved a full- tory CLE being introduced had visited had indicated a will- their good intentions into good rate practising certificate fee of gradually, perhaps commencing ingness to support mandatory actions. The Scottish experi- £1,395 for 2001, including with solicitors setting up prac- CLE in some form. ence was greatly encouraging. membership, with an equiva- tice on their own account. John D Shaw said that, with The introduction of CLE for lent fee of £1,162 for a solicitor Geraldine Clarke said that the proper use of video-confer- all had increased solicitors’ qualified less than three years. the society had to lead the pro- encing and webcasts, he did knowledge of law and practice, fession on the issue. The legal not believe that a compulsory had breathed life into the local Industrial relations disputes professions throughout Europe scheme would greatly incon- bar associations and had also The Council noted, with con- were moving in this direction, venience rural members. Anne reduced the sense of isolation cern, the industrial relations as were competing professions, Colley said that, in order to felt by many sole practitioners. disputes taking place in the including accountants and tax keep properly up-to-date with He was quite satisfied that the Land Registry and threatened consultants. She felt that many legal developments, formal introduction of a mandatory in the Chief State Solicitor’s solicitors would welcome the education was required and system was the best way for- Office. The detrimental effect introduction of mandatory could not be obtained without ward for the society and its on solicitors and their clients CLE, as it would provide the attending required seminars or members. was discussed and the contents necessary incentive to attend courses. The Council agreed that the of correspondence from the useful seminars. The director general sug- task force should consider the IMPACT trade union were also Patrick O’Connor said that gested that the Council should views expressed, re-examine its considered. G

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34 Briefing Committee reports

CRIMINAL that transcripts of the lectures tion which may be relevant to been letting us know that they from the series of four seminars the area of solicitor/client con- find this material very useful. Garda station visits on corporate management and fidentiality. We are anxious to I look forward to hearing Under a new scheme of pay- administration which were held ensure that the guide reflects from you. ments to solicitors for visits to in October are now available the current position on this John P Shaw, Chairman, garda stations which is expected from the CLE office of the important topic. Guidance and Ethics Committee to come into operation shortly, Law Society. The seminars had As part of its helping role, solicitors attending at a garda a direct relevance to in-house over the past number of years PROBATE, station for the purpose of con- solicitors and were very well the committee has invited ADMINISTRATION AND sultation with a client who is received. Topics covered solicitors setting up in practice TAXATION detained under specified legisla- included: with their first practising cer- tive provisions will be entitled • The fundamentals of corpo- tificate to a meeting with two TAX BRIEFING to a fee in respect of such con- rate governance committee members and one of The following extract from sultation. This scheme will • Update on company law leg- the Law Society’s investigating Tax briefing, issue 42, is operate outside the criminal islation accountants. This is an oppor- reproduced by kind permis- legal aid scheme regulations and • Share registration – Crest tunity for the newly-qualified sion of the Revenue therefore any solicitor attending settlement solicitors to discuss their pro- Commissioners. will be entitled to a fee: that is, • Interpretation of accounts posals for practice with experi- it is not necessary for the solicitor to • Advising on legal and com- enced practitioners and to raise Budget 2001 be on the criminal legal aid panel. mercial risks any queries they may have with Probate tax The Law Society’s Criminal • Corporate decision-making regard to the accounts regula- Probate tax is being abolished Law Committee is currently • Human resource techniques. tions. These meetings have in respect of deaths occurring compiling a list of solicitors who Kevin Finucane, Corporate and been well received. I am now on or after 6 December 2000. are prepared to attend at garda Public Sector Committee extending the invitation to stations. This list will be provid- include any solicitors setting up CGT/stamp duty ed to persons detained in garda GUIDANCE AND ETHICS in practice irrespective of how Parent-to-child site transfer stations. If you wish to place long they are qualified. If you (on or after 6 December 2000) your name on the list, please As recently-appointed chair- wish to come to a meeting, for purpose of construction of advise Colette Carey, secretary, man of the Guidance and please contact us at the Law child’s principal private resi- Criminal Law Committee, Law Ethics Committee, I invite Society. dence is exempt from Society of Ireland, Blackhall your suggestions with regard to By way of further support to CGT/stamp duty (limited to Place, Dublin 7. projects which might be under- solicitors setting up in practice, one site with a maximum value taken by the committee relat- the committee has published an of £200,000 per child). CORPORATE AND ing to any matter of practice or information booklet. Solicitors PUBLIC SECTOR conduct which would be of in this situation need informa- The committee advises practition- practical assistance to solici- tion under many different ers to read the article on the town I have recently been appointed tors. You should contact headings. While the informa- renewal scheme published in issue as chairman of the Corporate Therese Clarke, secretary to tion has always been readily 42 of Tax briefing, which can be and Public Sector Committee, the committee, at the Law available within the Law accessed in the publications section the committee of the Law Society with your suggestions. Society, it necessitated the of the Revenue’s website, Society which is charged with The committee has recently solicitor having to speak to sev- www.revenue.ie. Tax briefing is ensuring that the needs of solic- launched a quality service eral different people. With the also available on subscription from itors outside private practice are statement for display in solici- assistance of the staff involved, the Revenue Commissioners. G met. tors’ offices. Your firm will be we have brought together all The committee had its first receiving a copy later this the necessary information in meeting in December. We look month. We believe that clients one booklet. Copies are avail- SOLICITORS’ HELPLINE forward to working on your will welcome this positive able from Therese Clarke at The Solicitors’ Helpline is avail- behalf. If there is a particular statement by their solicitors. the Law Society. able to assist every member of the profession with any problem, matter of interest or concern to The committee’s work on The Law directory 2001 will whether personal or profession- you, please contact us through the second edition of the Guide be arriving in your offices al. The service is completely Geraldine Hynes, secretary to to conduct has been completed shortly. The committee has confidential and totally independ- ent of the Law Society. If you the committee, at the Law for some time. However, publi- updated and expanded the ref- require advice for any reason, Society. cation has been delayed await- erence material at the back of phone:01 284 8484 You will be pleased to note ing a court decision and legisla- the directory. Solicitors have 01 284 8484 Briefing Practice notes

PRACTICE DIRECTION New farm retirement scheme Family law matters in nder the rules of the last stock and the like. The informa- or in the completion or filing of the District Court Ufarm retirement scheme, it tion which the parties give in the application forms but should n any family law proceedings in was possible for a solicitor to relation to livestock will have to deal solely with the transfers or Ithe District Court in which the advise a client as to whether or be fully correct. It will have to cor- leases involved. The solicitor matters in issue are already the not the client was eligible to respond with the information should furnish the transfer or subject of an order of, or pro- obtain the retirement pension. already given by the transferor lease to the client’s agricultural ceedings in, the District Court or This is not the case under the and transferee to the depart- advisor who should look after the the High Court or the Circuit new scheme. Among other ment in respect of such matters completion and lodgment of the Court, the parties (or, if legally things, the criteria for qualifica- as area aid, livestock premiums forms. represented ,their solicitor or tion are different and require and so on. A more detailed practice note counsel) shall inform the court at computations of income to be It is the considered opinion of is being prepared by the the commencement of proceed- done both in respect of the trans- the Conveyancing Committee Conveyancing Committee and will ings and produce copies of all rel- feror and transferee. Information that solicitors should not involve be made available shortly on the evant documents also has to be given in relation to themselves in advising as to a Law Society website. Peter Smithwick, President of the livestock numbers, age of live- client’s eligibility for the scheme Conveyancing Committee District Court 15 January 2001

Pension adjustment orders: notice to trustees amily Law proceedings for a wishes to seek a pension adjust- determining the provisions of the tors may be asked if they wish to Fjudicial separation/divorce are ment order and pension preserva- order, the court must have regard make representations to the initiated by way of family law civil tion order under the Family Law to any representations made by court. Failure to notify the bill in the Circuit Court (save Act, 1995 or the Family Law the trustees (under section trustees may mean that the court where there are substantial (Divorce) Act, 1996, notice must 12(18) of the 1995 act or section cannot make the required pen- assets involved, in which case be served giving notice to the 17(18) of the 1996 act and para- sion adjustment order and would, High Court proceedings may be trustees of the pension scheme graph 78 of the guidance notes at the very least, involve an undertaken). in question. In deciding whether issued by the Pensions Board, adjournment application. If a party to the proceedings to make such an order, and in 1997). The scheme administra- Family Law Committee

New High Court practice direction: judicial review he president of the High Court be made returnable • At this first hearing, the parties court order as to directions will Thas advised that, commencing • Such notices of motion will should be in a position to be complied with within the per- on the second Monday in February henceforth be made returnable apprise the judge of the main mitted time and only in excep- (12 February), the following proce- for every day of the week and not issues in the case and suggest tional circumstances will further dures will apply in respect of judi- exclusively for a Monday as has realistic time limits for the extensions of time be granted cial review business: been the case to date exchange of pre-trial documents. • Once the court is satisfied that • Where the court grants leave to •Upon the first listing of such On foot of this, appropriate direc- all pre-trial matters have been apply for judicial review by notice notice of motion, a short inter tions will be given. The motion disposed of, the motion will then of motion, it will at the time of partes hearing will be conducted. will then be adjourned to a date be adjourned to the next avail- granting such order fix the date At that hearing, directions will be subsequent to the final date for able list to fix dates with a view for which the notice of motion given for the exchange of pre-trial the exchange of such docu- to having a trial date assigned. seeking substantive relief is to documents ments. It is expected that the Litigation Committee

Practising certificates 2001 practising certificate must be It is misconduct for a solicitor be held in mid-February 2001. A eral to commence relator Aapplied for before 1 February to practise without a practising decision will then be made to take injunctive proceedings 2001 in order to be dated 1 certificate. Any solicitor found to any or all of the following steps • Commencement of criminal January 2001 and thereby to be practising without a practising against any such solicitor: proceedings pursuant to the operate as a qualification to prac- certificate will be referred to a • Referral to the Disciplinary Solicitors Acts. tise from the commencement of special meeting of the Tribunal of the High Court PJ Connolly, Registrar the practice year 2001. Compensation Fund Committee to • Application to the attorney gen- of Solicitors

36 Briefing

LEGISLATION UPDATE: 14 NOVEMBER 2000 – 11 JANUARY 2001 ACTS PASSED insurance intermediaries by the Date enacted: 10/12/2000 central treasury services and the Central Bank of Ireland; amends Commencement date: 10/12/ delegation of those functions to Appropriation Act, 2000 the Investment Intermediaries 2000; establishment day order to the National Treasury Manage- Number: 36/2000 Act, 1995 to provide for the appli- be made (per s3 of the act). ment Agency. Amends the Contents note: Appropriates to cation of the act to insurance National Treasury Management the proper supply services and intermediaries; gives further National Stud (Amendment) Act, Agency Act, 1990 and the purposes sums granted by the effect to Council Directive 92/96; 2000 Vocational Education Act, 1930, Central Fund (Permanent amends the Insurance Act, 1989, Number: 40/2000 and provides for related matters Provisions) Act, 1965, and makes and provides for related matters Contents note: Provides for a fur- Date enacted: 20/12/2000 certain provision in relation to the Date enacted: 20/12/2000 ther increase in the share capital Commencement date: Com- finance resolutions passed by Commencement date: Com- and borrowing limits of the mencement order/s to be made Dáil Éireann on 6/12/2000 mencement order/s to be made National Stud Company; empow- for part 2 of the act (per s1(2) of Date enacted: 15/12/2000 (per s1(4)(a) and (b) of the act): ers the minister to vest all or any the act); 20/12/2000 for all other Commencement date: 15/12/ 1/1/2001 for part 1; part 2, part of the National Stud lands, sections 2000 other than s8; s16 for the purpos- currently held in licence from the es of s3; scheds 1 and 2. minister, in the National Stud Protection of Children (Hague Fisheries (Amendment) Act, 1/4/2001 for s 8, except in so far Company; empowers the company Convention) Act, 2000 2000 as it provides for the repeal of to establish subsidiaries, to Number: 37/2000 Number: 34/2000 s47 of part IV of the Insurance acquire shares in other compa- Contents note: Ratifies the 1996 Contents note: Makes provision Act, 1989; part 3, in so far as it nies and to enter into joint ven- Hague convention on jurisdiction, in relation to the determination by did not come into operation on tures; amends and extends the applicable law, recognition, the Aquaculture Licences Appeals 1/1/2001; part 4 (per SI National Stud Acts, 1945 to 1993 enforcement and co-operation in Board of appeals against ministe- 472/2000) Date enacted: 20/12/2000 respect of parental responsibility rial decisions to grant or to refuse Commencement date: 20/12/ and measures for the protection to grant an aquaculture licence Irish Film Board (Amendment) 2000 of children. Amends ss14 and 30 under the Fisheries (Amendment) Act, 2000 of the Child Abduction and Act, 1997, as amended and Number: 35/2000 National Training Fund Act, Enforcement of Custody Orders extended by the Fisheries and Contents note: Increases the 2000 Act, 1991. Text of the convention Foreshore (Amendment) Act, aggregate amount of any invest- Number: 41/2000 is published as a schedule to the 1998; clarifies the power of the ments, loans, grants or moneys Contents note: Provides for the act board or any consultant or adviser provided by the Irish Film Board establishment of a National Date enacted: 16/12/2000 engaged by it to inspect any land, under sections 6 and 8 of the Training Fund and associated levy Commencement date: Com- foreshore or area or water to Irish Film Board Act, 1980, or on employers in respect of certain mencement order/s to be made which the relevant appeal relates, repayments on foot of any guaran- employees, which will finance per s 19(2) of the act whether or not that appeal is the tee under section 7 of the act. schemes aimed at raising the subject of an oral hearing; Date enacted: 15/12/2000 skills of those in employment and Wildlife (Amendment) Act, 2000 amends and extends the Commencement date: 15/12/ providing training to those who Number: 38/2000 Fisheries (Amendment) Act, 1997 2000 wish to acquire skills for the pur- Contents note: Amends and Date enacted: 15/12/2000 poses of taking up employment; extends the Wildlife Act, 1976. Commencement date: 15/12/ National Pensions Reserve Fund repeals the Industrial Training Provides statutory protection for 2000 Act, 2000 (Apprenticeship Levy) Act, 1994, natural heritage areas (NHAs); Number: 33/2000 and certain sections of the improves a number of measures, ICC Bank Act, 2000 Contents note: Provides for the Industrial Training Act, 1967, and or introduces new ones, to Number: 32/2000 establishment, financing, invest- provides for related matters enhance the conservation of Contents note: Increases the ment and management of the Date enacted: 20/12/2000 wildlife species and their habitats; authorised share capital of ICC National Pensions Reserve Fund Commencement date: Com- ensures or strengthens compli- Bank plc; provides for the dispos- to provide towards the exchequer mencement order to be made (per ance with international agree- al by the minister for finance of cost of social welfare and public s11(2) of the act) ments and enables ratification of shares in the bank; makes provi- service pensions; provides for the the Convention on international sions in relation to certain guar- establishment of an independent National Treasury Management trade in endangered species antees of the borrowing of ICC National Pensions Reserve Fund Agency (Amendment) Act, 2000 (CITES) and the Agreement on the Bank; repeals ICC Bank Acts, Commission to control and man- Number: 39/2000 conservation of African-Eurasian 1933 to 1997 age the fund and implement an Contents note: Provides for the migratory waterbirds (AEWA); Date enacted: 6/12/2000 investment strategy for the fund; delegation to, and the conferral amends the Forestry Act, 1946, Commencement date: Com- provides for the dissolution of the on, the National Treasury the Registration of Title Act, mencement order/s to be made Temporary Holding Fund for Management Agency of functions 1964, the State Property Act, (per s8(2) of the act): 7/12/2000 Superannuation Liabilities and on in relation to the management of 1954, and the European for all sections other than ss3, 5 the dissolution of the Temporary certain claims against the state Communities (Natural Habitats) and 7 (per SI 396/2000) Fund (under s28(2)) the and certain other related func- Regulations 1997 (SI 94/1997), Temporary Holding Fund for tions, functions in relation to fund and provides for related matters Insurance Act, 2000 Superannuation Liabilities Act, investment services, consultancy Date enacted: 18/12/2000 Number: 42/2000 1999 shall be repealed; amends services and other services, the Commencement date: Com- Contents note: Provides for the the Taxes Consolidation Act, conferral on the minister for mencement order/s to be made authorisation and supervision of 1997 finance of functions in relation to (per s2 of the act) Briefing

PRIVATE ACT PASSED are prescribed for the purposes of Commencement date: 1/1/2001 revoke the Derelict Sites the Copyright and Related Rights Regulations 1990 (SI 192/1990) The Trinity College, Dublin Act, 2000 Copyright and Related Rights to take account of the transfer to (Charters and Letters Patent Commencement date: 1/1/2001 (Provision of Modified Works) An Bord Pleanála of ministerial Amendment) Act, 2000 (Designated Bodies) Order 2000 powers in relation to the compul- Number: 1P/2000 Copyright and Related Rights Number: SI 406/2000 sory acquisition of derelict sites Date enacted: 6/11/2000 (Educational Establishments Contents note: Specifies the Commencement date: 20/12/ Commencement date: 6/11/ and Establishments to which description of bodies that are 2000 2000 Members of the Public have designated for the purposes of Access) Order 2000 ss104 and 252 of the Copyright Double Taxation Relief (Taxes SELECTED STATUTORY Number: SI 409/2000 and Related Rights Act, 2000 on Income) (People’s Republic INSTRUMENTS Contents note: Specifies the Commencement date: 1/1/2001 of China) Order 2000 descriptions of educational estab- Number: SI 373/200 Building Regulations lishments and of establishments Copyright and Related Rights Commencement date: See arti- (Amendment) (No 3) to which members of the public (Recording for Purposes of Time- cle 28 of the agreement for provi- Regulations 2000 have access that are prescribed Shifting) Order 2000 sions for entry into force Number: SI 441/2000 for the purposes of ss58 and 226 Number: SI 407/2000 Contents note: Amend the of the Copyright and Related Contents note: Specifies the Double Taxation Relief (Taxes Building Regulations 1997 (SI Rights Act, 2000 types of establishments that are on Income and Capital Gains) 497/1997) so as to extend the Commencement date: 1/1/2001 prescribed for the purposes of (The Republic of Bulgaria) Order class 9 building exemption from ss101 and 250 of the Copyright 2000 the Electricity Supply Board to Copyright and Related Rights and Related Rights Act, 2000 Number: SI 372/2000 other licensed electricity supply (Librarians and Archivists) Commencement date: 1/1/2001 Commencement date: See arti- utilities (Copying of Protected Material) cle 28 of the agreement for provi- Commencement date: 1/1/2001 Regulations 2000 Copyright and Related Rights sions for entry into force Number: SI 427/2000 (Recording of Broadcasts and Cement (Repeal of Enactments) Contents note: Prescribe libraries Cable Programmes for Archival European Communities Act, 2000 (Commencement) and archives for the purposes of Purposes) (Designated Bodies (Environmental Impact Order 2000 certain exceptions relating to the and Classes) Order 2000 Assessment) (Amendment) Number: SI 361/2000 copying of protected materials, as Number: SI 405/2000 Regulations 2000 Contents note: Appoints required by the relevant sections Contents note: Specifies bodies Number: SI 450/2000 28/11/2000 as the commence- of the Copyright and Related and classes of broadcasts and Contents note: Transfer the func- ment date for the act Rights Act, 2000, and prescribe cable programmes that are desig- tion of certifying environmental Commencement date: 1/3/2001 the conditions that must be met nated for the purposes of ss105 impact assessment of local where certain exceptions of this and 253 of the Copyright and authority own development from Consumer Information nature are availed of Related Rights Act, 2000 the minister for the environment (Advertisements for Airfares) Commencement date: 1/1/2001 Commencement date: 1/1/2001 and local government to An Bord Order 2000 for all provisions except regula- Pleanála on 1/1/2001. The trans- Number: SI 468/2000 tions 4(a) and 6(a) relating to the Copyright and Related Rights fer of the certification function Contents: Provides that advertise- implementation of the forms of (Works of Folklore) (Designated coincides with the transfer of the ments for airfares will give the declaration set out in schedule 2 Bodies) Order 2000 minister’s function in relation to total price payable by the purchas- (in relation to copying of protected Number: SI 408/2000 the approval of compulsory pur- er for the airfare, and the availabil- material by librarians and Contents note: Specifies the bod- chases of land by local authorities ity of the airfare advertised archivists for the purpose of ies that are designated for the in accordance with ss214 and 215 research and private study, and purposes of s92 of the Copyright of the Planning and Development Copyright and Related Rights copying by librarians and archivists and Related Rights Act, 2000 Act, 2000 Act, 2000 (Commencement) of certain materials which have Commencement date: 1/1/2001 Commencement date: 1/1/2001 Order 2000 not been lawfully made available Number: SI 404/2000 to the public) which will come into Coroners Act, 1962 (Fees and European Communities (Liability Contents note: Appoints force on 1/4/2001 Expenses) Regulations 2000 for Defective Products) 1/1/2001 as the commence- Number: SI 429/2000 Regulations 2000 ment date for the following sec- Copyright and Related Rights Contents note: Prescribe various Number: SI 401/2000 tions of the act: part 1 – all sec- (Material Open to Public fees and expenses for the pur- Contents note: Give effect to tions except s10(2) in so far as it Inspection) (International poses of the Coroners Act, 1962. Council Directive 1999/34/EC on applies to s56 of the Copyright Organisations) Order 2000 Replace the Coroners Act, 1962 liability for defective products Act, 1963; part II – all sections Number: SI 411/2000 (Fees and Expenses) Regulations which amended Council Directive except ss98, 198 and 199; part Contents note: Provides that 1996 (SI 151/1996) 85/374/EEC on liability for defec- III – all sections except s247; ss74(1), 74(5), 240 and 334 of Commencement date: Deemed tive products. Amend the Liability part IV; part V; part VI; part VII the Copyright and Related Rights, to have come into operation on for Defective Products Act, 1991 2000 will apply to material made 1/1/1999 Commencement date: 4/12/ Copyright and Related Rights open to public inspection by the 2000 (Educational establishments) European Patent Office, the World Derelict Sites Regulations 2000 Order 2000 Intellectual Property Organisation Number: SI 455/2000 European Communities Number: SI 410/2000 and the Office for Harmonisation Contents note: Prescribe proce- (Protection of Employment) Contents note: Describes the of the Internal Market (Trade dural matters for the purposes of Regulations 2000 educational establishments that Marks and Designs) the Derelict Sites Act, 1990, and Number: SI 488/2000

38 Briefing

Contents note: Amend the pulsory purchase of land by Number: SI 458/2000 Planning and Development (No Protection of Employment Act, means of a compulsory purchase Contents note: Transfer the 2) Regulations 2000 1977 to provide for representa- order under s76 and the third function of certifying environmen- Number: SI 457/2000 tion of, and consultation with, schedule of the Housing Act, tal impact assessment of local Contents note: Prescribe certain employees in the absence of a 1966. Replace the Housing Act authority own development from documents which must be sub- trade union, staff association or (Acquisition of Land) Regulations the minister for the environment mitted with an application for the excepted body; provide for a right 1966, 1993 and 1998 and local government to An Bord consent of An Bord Pleanála to of complaint to a rights commis- Commencement date: 1/1/2001 Pleanála. The regulations con- the compulsory acquisition of a sioner where an employer contra- tain amendments to part IX of protected structure under the venes sections 9 or 10 of the act Immigration Act, 1999 (Section the Local Government (Planning Planning and Development Act, (information and consultation of 11(1)(p)) (Commencement) and Development) Regulations 2000, and set out the form of a employees); provide for increases Order 2000 1994 (SI 86/1994), as amend- vesting order for the acquisition in the levels of fines for offences. Number: SI 364/2000 ed. The transfer of the certifica- of a protected structure Give further effect to Council Contents note: Appoints tion function coincides with the Commencement date: 1/1/ Directive 75/129/EEC relating to 20/11/2000 as the commence- transfer of the minister’s func- 2001 collective redundancies as ment date for section 11(1)(p) of tion in relation to the approval of amended by Council Directive the Immigration Act, 1999, which compulsory purchases of land by Refugee Act, 1996 92/56/EEC amends section 22 (Dublin con- local authorities in accordance (Commencement) Order 2000 Commencement date: 21/12/ vention) of the Refugee Act, with ss214 and 215 of the Number: SI 365/2000 2000 1996, by providing the transfer of Planning and Development Act, Contents note: appoints responsibility for determining mat- 2000 20/11/2000 as the commence- European Communities ters under the Dublin convention Commencement date: 1/1/2001 ment date for all remaining sec- (Safeguarding of Employees’ from the appointed officer and tions of the act not already in Rights on Transfer of appeals officer under the Refugee National Beef Assurance operation Undertakings) (Amendment) Act to the Refugee Application’s Scheme Act, 2000 Regulations 2000 Commissioner and the Refugee (Commencement) Order (No 2) Roads Regulations 2000 Number: SI 487/2000 Appeals Tribunal respectively in 2000 Number: SI 453/2000 Contents note: Amend the the Refugee Act as amended Number: SI 414/2000 Contents note: Prescribe the European Communities (Safe- Contents note: Appoints forms to be used by local author- guarding of Employees’ Rights on Insurance Act, 1989 22/12/2000 as the commence- ities in connection with the prepa- Transfer of Undertakings) (Reinsurance) (Form of Notice) ment date for sections 20 to 22 ration and submission to An Bord Regulations 1980 (SI 306/1980) Regulations 2000 of part II of the act Pleanála of schemes for the pro- to provide for representation of, Number: SI 473/2000 vision of motorways, busways and consultation with, employees Contents note: Prescribe the Planning and Development Act, and protected roads, and to noti- in the absence of a trade union, form of notice to be given to the 2000 (Commencement) (No 2) fy the public and persons affect- staff association or excepted minister by companies wishing to Order 2000 ed by such schemes, and the body; provide for a right of com- carry on the business of reinsur- Number: SI 449/2000 forms to be used in relation to plaint to a rights commissioner ance in the state. In accordance Contents note: Appoints the environmental impact where an employer contravenes with s5 of the Insurance Act, 1/1/2001 as the commence- assessment of roads projects; regulation 7 (information and con- 2000, the notice must be given ment date for the following sec- revoke part 9 and schedule D of sultation of employees) of the by existing reinsurance compa- tions: section 2 (in so far as it the Roads Regulations 1994 (SI 1980 regulations and provide for nies within 60 days of the com- relates to the sections com- 119/1994). The forms are pre- increases in the levels of fines for mencement of that section (com- menced on that date), 50 (in so scribed to take account of the offences. Give further effect to mencement date for s5: far as it relates to decisions transfer of the minister for the Council Directive 77/187/EEC 1/1/2001). Reinsurance compa- under subsection (2)(b)(iii) of that environment and local govern- Commencement date: 21/12/ nies established after that date section), 71–78 incl, 182, ment’s functions under ss49, 50 2000 must give notice not less than 30 210–223 incl, 263, 264 (in so far and 51 of the Roads Act, 1993, days before commencing busi- as it relates to the repeal of s55A to An Bord Pleanála in accor- Housing Act, 1966 (Acquisition ness of the Roads Act, 1993, as insert- dance with s215 of the Planning of Land) Regulations 2000 Commencement date: 1/1/2001 ed by s6 of the Roads and Development Act, 2000 Number: SI 454/2000 (Amendment) Act, 1998), 265(3), Commencement date: 1/1/ Contents note: Prescribe the Local Government (Planning and 267, 268(1) (other than para- 2001 forms to be used by local authori- Development) (No 2) graphs (a), (b), (c) and (d) of that ties in connection with the com- Regulations 2000 subsection), 271–277 inclusive Prepared by Law Society Library Have you accessed the Law Society website yet? www.lawsociety.iewww.lawsociety.ie Briefing In a corner How to restore a struck-off company to the register Continuing our series on coping with crisis situations, Kevin O’Higgins explains how to go about getting clients restored to the companies register after they have been struck off

ection 311 of the Companies months. First, the registrar istered letter stating that at the register within 20 years. The SAct, 1963 empowers the sends a registered letter to the expiration of one month from Companies (Amendment) Act, registrar of companies to strike company enquiring whether it that date the name of the com- 1982 (section 12) had empow- off a company where he believes is carrying on business. If an pany will be struck off. ered the registrar of companies that it is not carrying on busi- answer is not received within Section 311(8) of the 1963 to strike off a company where it ness or where the liquidator of a one month, a notice is pub- act allows a company or any had failed to file its annual company being wound up has lished in Iris Oifigúil. The regis- member or creditor to apply to returns for two consecutive failed to file returns within six trar will then send a further reg- the court for restoration to the years. Section 246 of 1990 act

WHAT YOU SHOULD DO The steps necessary to restore a that he has no objection to the whether the state had inter- grounding affidavit (including company to the register are as fol- restoration of the company. A meddled with its assets exhibits) and a certified copy lows: late filing fee of £250 (form 7. The verifying affidavit should of the petition are then all 1. The application (for the H1) is payable exhibit the memorandum and served on the registrar of moment) is made on petition 5. The chief state solicitor must articles companies and chief state to the High Court under sec- be notified and a letter 8. Where an application is being solicitor tion 311(8) of the 1963 act obtained from him to the made on foot of the failure to 12. If all the statutory proofs are (see order 75 and form no 1 effect that the minister for make annual returns, the let- in order, the judge will exer- of appendix N) finance and minister for enter- ters from the registrar should cise his discretion as to 2. The company itself, a share- prise and employment have no refer to section 12(6) of the whether he should make the holder, or creditor (which objection to the restoration of 1982 act. It remains to be restoration. Bear in mind that under the 1999 act will the company. Note that under seen what procedural changes recent judicial pronounce- include the Revenue) can the 1999 act it will also will result from granting juris- ments suggest that a suc- make the petition. The posi- become necessary to notify diction in such applications to cessful outcome to such appli- tion of the Revenue is itself the Revenue Commissioners the Circuit Court. However, in cations may no longer be the interesting in that it has 6. The application to the court is the meantime, applications foregone conclusion they once shown a propensity in recent on motion and petition. It is are listed in the Chancery List were. Mr Justice Peter Kelly in months to become proactive the practice to swear a verify- on a Monday morning and the a case of TJ’s Fast Food because it is concerned that ing affidavit. When briefing hearing of a motion will be Restaurant (Ireland) Ltd (15 some companies, in default of counsel, it is necessary to treated as the hearing of the February 1999) commented their taxation obligations, provide details as to the petition. The court will need to that it was ‘fantastic’ that the were steering the company date of the incorporation, the be informed as to why the company could still have into a strike-off situation. The period for which the company annual returns have not been applied for and secured its Revenue has a close working failed to make the annual made and whether the com- intoxicating liquor licence protocol with the CRO and is returns, the date on which the pany has continued trading every year and criticised it for on record as indicating its companies name was struck since being struck off its failure to meet its statutory intention to attend every cred- off the register, the reason for 9. The draft petition should cite obligations. He stressed that itors’ meeting of a company the failure to make returns the registrar of companies and being a company director whose tax arrears exceed and the particular reason for chief state solicitor as notice involved more than simply hav- £25,000 the company wishing to have parties ing a title to put on a business 3. The application must be made its name re-admitted to the 10. The affidavit, petition and card. Under the 1999 act within 20 years of strike-off register. It would also be nec- motion are stamped and then (when its sections are 4. All outstanding annual returns essary to indicate whether the filed, where a date for hearing invoked), the court will only must be filed and a letter company had traded since will be allocated make the restoration order on obtained from the registrar incorporation and, if it was 11. The notice of motion together condition that all outstanding that these are in order and trading when it was struck off, with a certified copy of the returns are delivered. G

40 Briefing amended the restoration sub- provides that where a director provisions are effective as yet new fast-track restoration section by enabling a party notifies the registrar of his res- because no commencement process which will apply only in aggrieved by the strike-off to ignation and where there are no order has been made. circumstances where the strike- apply directly to the registrar others recorded as being direc- The effect of the granting off was made within the previ- within 12 months to file all out- tors, the registrar will have of a restoration order has been ous 12 months. This will standing returns. grounds for believing that the considered in the High Court involve either a director or the Additional grounds for company is not carrying on by O’Neill J in Amantiss secretary of the dissolved com- strike-off have been introduced business and may proceed to Enterprises Ltd (21 December pany presenting themselves to by the Companies (Amendment) strike off. 1999). This concerned the the CRO and remaining there (No 2) Act, 1999. Section 42 of interpretation of section 12(6) until such time as the restora- that act precludes the incorpo- New sub-section 8A of the 1982 act which provides tion process is completed. The ration of a company in Ireland Section 49 of the 1999 act fur- ‘and upon an office copy of CRO advises that potential ‘unless it appears to the registrar ther amends section 311 of the the order being delivered to applicants should be aware that that it will carry on an activity in 1963 act by empowering the the registrar for registration, this can take up to two-and-a- the state’. Section 43(15) of the court, upon an application for the company shall be deemed half hours. The director or sec- 1999 act amends section 311 of the restoration of a company, to to have continued in existence retary must attend in the the 1963 act by providing that make an order which ‘seems as if its name had not been Companies Office between where the registrar believes that just’. A new sub-section 8A in struck out; and the court may 11am and 3pm, together with a company does not have at least section 311 now empowers the by order give such directions all outstanding documents and one director resident in Ireland court to make an order that ‘as and make such provision as filing fees. On completion of an and does not provide a bond as respects a debt or liability seem just for placing the com- application for the fast-track required, he may request it to incurred by, or on behalf of the pany and all other persons in process, the officer will be provide evidence that the rele- company during the period the same position as nearly requested to wait in the public vant requirements are being when it stood struck off the reg- may be as if the name of the office while the reinstatement is complied with. If his request is ister, the officers of the compa- company had not been struck carried out. This will enable not complied with within one ny or such one or more of them off’. any amendments to documents month, he may publish a notice as is or are specified in the order O’Neill J held that this to be carried out and initialled in Iris Oifigúil and send the shall be liable for the whole or meant ‘automatic retrospec- without a delay in the process. company a notice that at the part (as the court thinks just) for tive validation’ and held that it The only instance in which it expiration of one month the the debt or liability’. was proper to order that the is expected that the fast-track name of the company will, For the first time, the appli- petitioner be restored. process cannot be commenced unless cause is shown, be struck cation to restore a company will will be where a return of allot- off. Section 46 substitutes sec- be made in the Circuit Court Explosion in numbers ments (form B5) needs to be tion 12 of the 1982 act with a (previously only in the High As a consequence of its strike- filed. This document will first new section 12. The principal Court) within the Circuit Court off campaign, the CRO has have to be lodged in the capital effects of the change are that a area in which the registered acknowledged that there has taxes branch of the Revenue failure to file annual returns for office of the company is situat- been an explosion in the num- Commissioners and will then be a one-year period can result in ed or, if the company has no bers of applications being passed on to the CRO. G the company being struck off, registered office at that time, made to it for restoration in whereas previously this was two then within the Dublin Circuit. the 12-month period. In an Kevin O’Higgins is a member of years. It should be borne in mind, effort to streamline the the Law Society’s Business Law Section 48 of the 1999 act however, that none of these process, it has introduced a Committee.

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Personal injury judgments

Negligence – breach of statutory duty – employer’s liability – latent defect in tool supplied by a third party – common law and statutory duties of employer – issue of credibility of plaintiff CASE Denis Everitt v Thorsman Ireland Limited, Jumbo Bins and Sludge Disposal Limited and Numac Steel Limited, High Court on circuit, before Mr Justice Kearns, judgment of 23 June 1999. THE FACTS enis Everitt from Drogheda, On the morning of 24 June proceedings. was joined on the basis that they DCo Louth, born on 3 1993, Mr Everitt was It was established that the bin in turn supplied the jumbo bin October 1947, was employed as endeavouring to open the lid of and lever with which he was and lever to the party a general assistant by Thorsman a bin with a lever when the lever working on the day of his concerned. Ireland Limited, which makes snapped and broke, causing him accident had been supplied to A case was commenced plastic fittings for the building to fall backwards onto the his employer some months by civil bill in the Eastern industry. He had been with that ground, sustaining an injury in previously by the second Circuit but was subsequently company for 17 years. respect of which he instituted defendant. A subsequent party transferred to the High Court. THE JUDGMENT earns J held that that the The judge also quoted page equipment supplied to his discovering, he may be relieved Klever used by Mr Everitt 328 from the same volume: ‘It employees ... Thus, where an of liability in negligence in the snapped or broke and that the should, however, be pointed out employer buys from a supplier a event of injury to an employee.’ break was caused by inadequate that an employer is not an standard tool whose latent The judge raised the issue of strength in the material. The insurer of the safety of the defect he has no means of what further steps could the relevant defect was not apparent employer, Thorsman, have or discoverable on reasonable taken in the circumstances. examination. Thorsman obtain- Noting that Mr Everitt had a significant pre-accident Short of having the lever ed the lever in question from the history of depression and back symptoms, either or assessed by an expert in second defendant. The judge both of which could have returned at any time during metallurgy or breaking the lever stated the question fell for his working life and forced him out of employment, the with a view to determining its judge held that these factors had to be taken into determination as to the maximum stress resistance, the account. Special damages were agreed at £4,000. responsibility, if any, of an judge considered that it was Loss of earnings to the date of trial (as calculated by employer for an injury sustained difficult to see what could have the judge) were awarded at £21,000 and, in the by an employee in circumstances been done. It was a newly- circumstances, the judge considered a generous sum where tools supplied by a third purchased tool which appeared for future loss of earnings would be £25,000. party contain a latent defect. On the issue of general damages, the judge strong enough for the job and The judge referred to considered that Mr Everitt was evasive and less than had been purchased from a

McMahon and Binchy (1990 ed, THE AWARD frank about his medical history and he considered that reputable supplier and there was page 327), where the authors he exaggerated his difficulties to a certain degree. no suggestion to the contrary. state: ‘The employer has the duty However, he awarded him a sum of £20,000 for pain Accordingly, the judge held that to take “reasonable care” to and suffering to the date of the trial and a further sum the claim in common law provide proper appliances and to of £10,000 for pain and suffering in the future. This against the employer Thorsman maintain them in a proper came to a total of £80,000 and he gave judgment for failed. condition and so to carry on his that amount against the first and second defendants. Then the judge turned to the operations as not to subject those The judge held that the employer Thorsman was issue of statutory duty and employed by him to unnecessary entitled to an indemnity from the second defendant to referred to regulation 19 of the risk.’ [Burke and John Paul & Co the extent of 100%. Safety Health and Welfare at Ltd (1967) IR 227] Work (General Application)

42 Briefing

Regulations 1993 (SI no 44), that he found Mr Everitt to be had an episode of pain and loss Nevertheless, the judge which imposed virtually an ‘extremely unreliable as a of power in his right leg. Mr accepted that Mr Everitt did absolute duty on employers in historian and a somewhat less- Everitt’s orthopaedic surgeon in sustain an injury at work and he respect of the safety of than-credible witness’. Mr court was visibly taken aback considered that it was the kind equipment provided for use by Everitt saw his general when this information was of injury which was ‘the straw their employees. practitioner on the day of the produced to him. This cast a that broke the camel’s back’. The judge noted that while accident and spent a number of very severe question mark over there was no blameworthiness in days in hospital. Since that time, the origin of Mr Everitt’s on- Counsel for Mr Everitt: Hugh any meaningful sense of the he complained of constant pain going complaints. McGahan SC, Eoghan Fitzsimons word on the part of Thorsman, and psychiatric problems and The judge considered that SC and Roderick O’Hanlon BL, the statutory regulations existed had not returned to work. The Mr Everitt was less than frank instructed by Dick Branningan, for sound policy reasons to painful symptoms affected in with his doctors about his prior Berkery & Co. ensure that an employee who part his neck, but mainly his history of depression. In fact, Counsel for Thorsman: Ian suffers an injury at work through back and right leg. He also the judge noted that Mr Everitt Brennan SC and Vincent Foley no fault of his own by using complained of depression which went so far as to describe BL, instructed by B Vincent Hoey defective equipment should not became apparent some 18 himself as a happy-go-lucky & Co. be left without a remedy. The months or so following the person prior to the accident and Counsel for second defendant: judge found that there had been accident. told them nothing of his prior Turlough O’Donnell SC and a breach of statutory duty on the Mr Everitt informed the history. The judge noted that he Jonathan Kilfeather BL, instructed part of Thorsman. However, court that he used to miss the had something resembling a by Patrick Tallon & Co. there remained to be considered odd few days prior to the nervous breakdown in England Counsel for third defendant: the position of the supplier of accident with his back, but the in 1972 ‘brought on by alcohol Bernard Barton SC and Bernard the tool. The judge held in the records of his employer abuse which forced him to McDonagh BL, instructed by circumstances that the second indicated that he had significant return to Ireland and he had Mason Hayes & Curran. G defendant was clearly negligent periods out of work with back further absences from work due as either producer or supplier of injury. More significantly, to depression in 1983’. These This case is now reported in 1 the tool. according to the judge, the close matters raised considerable [2000] IR 256 and was The judge then considered perusal of Mr Everitt’s medical doubts about the veracity of Mr summarised here by Dr Eamonn Mr Everitt’s injuries. He stated records indicate that in 1982 he Everitt’s evidence. Hall, solicitor.

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News from Ireland’s on-line legal awareness service Compiled by John X Kelly of FirstLaw

ADMINISTRATIVE Horses Act, 1996 – South Dublin (Planning and Development) Kilkenny City, the notice party to County Council bye-law no 6 Act, 1992, section 19(3) these proceedings, had originally Bias, judiciary The applicant was a member of The notice party planned to beaten Limerick in a soccer Independence and impartiality of the travelling community and complete a development on foot match and as a result had finished judges – whether reasonable appre- reared and traded in horses. The of planning permission already above the plaintiff in the relevant hension of bias – Diseases of respondent had seized a number granted. The notice party table, entitling it to a place in a Animals Act, 1966 – Bovine of the applicant’s horses pursuant sought to have certain alter- play-off. The plaintiff contended Tu berculosis (Attestation of the to the provisions of the Control of ations to the proposed develop- that Kilkenny City had included a State and General Provisions) Horses Act, 1996. The applicant ment approved by the respon- player in the said match whom it Order 1978 – Bunreacht na then issued proceedings seeking a dent. The respondent signified was claimed had not been proper- hÉireann 1937, article 34.5.1 declaration that the continuing that the alterations proposed ly registered with Kilkenny City. The plaintiff was a farmer who detention of the applicant’s hors- were within the parameters of As a result, after investigation, a had initiated proceedings relating es by the respondent was unlaw- the original planning permis- decision was taken by the FAI to to compensation provisions ful and sought an injunction sion. The applicant brought pro- deduct three points from under the Diseases of Animals Act, directing the respondent to ceedings claiming that the alter- Kilkenny City. This in turn 1966. The proceedings were ulti- release his horses. The applicant ations were ultra vires and out- resulted in proceedings being mately dismissed. In this applica- also claimed that that the actions side the scope of the original undertaken by Kilkenny City. tion, the plaintiff sought to have of the respondent were tortious planning permission. O’Neill J These proceedings were compro- the original orders set aside. The as they involved a trespass to his held that the correct test to be mised in arbitration and the arbi- plaintiff argued that there had chattels and goods. Ó Caoimh J applied was whether the trator decreed that the match in been an appearance of bias, as held that the detention of horses approach of the planning question be replayed. Kilkenny one of the judges in the case, Mr by the respondent within its authority in approving the alter- City won the match in question Justice O’Flaherty, had acted in functional area and detained out- ations was correct in law and was and the plaintiff then issued the the past for one of the defen- side it, as had occurred in this not that of the reasonable test. instant proceedings claiming that dants. The Supreme Court dis- instance, was permissible under Some of the changes advocated the registration form had not missed the application. It was the provisions of the Control of by the notice party were not per- been properly signed by the play- held that it was a fundamental Horses Act, 1996. Some of the missible under the permission er at the centre of the dispute. It principle of law that judges charges levied by the respondent granted. The alterations that was not in dispute that the player should be independent from and to house the horses could be said were permissible would be sev- had not signed the registration impartial to other organs of the to be in excess of those permissi- ered from impugned alterations. form but that the manager had state and also from any fact, event ble. The relief sought by the The applicant had the requisite signed it. Finnegan J held that or person extraneous to evidence applicant would be refused. locus standi to take proceedings under common law a person can properly admitted and submis- Mongan v South Dublin County and a declaration would be authorise somebody to sign a sions as to law made. However, in Council, High Court, Mr granted to the effect that the document on his behalf and that, the circumstances a reasonable Justice Ó Caoimh, 13/10/2000 agreement of the respondent to in effect, is that person’s signa- bystander would not perceive a [FL3237] certain alterations proposed by ture. In addition, as a rule of law, cogent and rational link between the notice was ultra vires the a party to a document can witness the judge in question and the Local government, planning powers of the respondent. his own signature. Accordingly, defendant. The plaintiff’s appli- Construction and interpretation of O’Connor v Dublin Corpora- the player had been properly reg- cation fell far short of establish- planning permission – doctrine of tion, High Court, Judge istered and the plaintiff’s claim ing a case of bias and the applica- severance – compliance procedure – O’Neill, 03/10/2000 [FL3245] would be dismissed. tion would be dismissed. whether decision of planning author- Dundalk v FAI, High Court, Rooney v Minister for ity amenable to judicial review – Contracts, sporting bodies Mr Justice Finnegan, Agriculture, Supreme Court, whether alterations proposed within Agency – contract – sporting bodies 02/05/2000 [FL3238] 23/10/2000 [FL3287] parameters of original planning per- – signing of documents – transfer of mission – whether decision of plan- player – whether agent entitled to Control of animals ning authority correct in law – sign on behalf of player – whether COMMERCIAL Control of horses – property – det- Local Government (Planning signature valid – whether registra- inue – trespass – judicial review – and Development) Act, 1963, sec- tion document valid Anton Piller order, intellectual whether detention of horses seized by tions 4(1), 26 82 – Local The plaintiff initiated proceed- property, Technology law local authority lawful – whether Government (Planning and ings arising out of a match Copyright – Anton Piller order – horse seized may be detained outside Development) Act, 1976, section played between Kilkenny City role of the courts – administration of controlled area – Control of 14(4), 14(9) – Local Government Football Club and Limerick. justice in public – practice and proce- donkey

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When a client makes a will in favour of the Society, it would Ltd be appreciated if the bequest were stated in the following words: “I give, devise and bequeath the sum of X pounds to the Irish Director: Sheila Kavanagh Cancer Society Limited to be applied by it for any of its Experts in charitable objects, as it, at its absolute discretion, may decide.” Overnight Transcripts All monies received by the Society are expended within the Republic of Ireland. Specialists in Court Reporting “Conquer Cancer Campaign” is a Registered Business Name Medical Cases / Arbitrations and is used by the Society for some fund-raising purposes. The “Cancer Research Conferences / Board Meetings Advancement Board” Contact: allocates all Research Hillcrest House, Grants on behalf of the Dargle Valley, Bray, Co. Wicklow. Society. Telephone/Fax: (01) 286 2184 or 4b Arran Square, Dublin 7 5 Northumberland Road, Dublin 4. Tel: (01) 668 1855 15 Bridge Street, Cork. Tel: (021) 4509 918 Telephone: (01) 873 2378 Briefing dure – abuse of process – damages – tion 52 – Investor Compensation obtained. The plaintiff sought a tutional. The case now pro- remedies – whether proceedings Act, 1998, section 64 number of injunctions in order ceeded in the High Court on constituted abuse of process – A stockbroking firm (MMI) had to carry out the procedure in the issue of damages. The whether proceedings should be held gone into liquidation. As a question. The plaintiff relied on plaintiffs contended that their in camera – whether appropriate result, various issues arose relat- provisions contained in the property rights should be vindi- to disclose terms of Anton Piller ing to the ownership of funds Child Care Act, 1991 and in the cated by an award of damages. order – Copyright Act, 1963 – held in the client account of constitution. Mr Justice Budd J held that a claim for Intellectual Property (Miscella- MMI. The applicants in these McCracken was satisfied that misfeasance in public office or a neous Provisions) Act, 1998 – proceeding sought the repay- the present case was not an claim in negligence was not Rules of the Superior Courts ment of monies on the basis that exceptional case which would maintainable. Although the 1986, order 44, rule 3 – the monies were the subject of a justify overriding the rights of state could, in certain situa- Bunreacht na hÉireann 1937, trust simpliciter or a constructive family against those of the indi- tions, be held liable for its article 34.5.1° trust. The applicants claimed vidual child. The present case actions, the plaintiffs had large- In an earlier judgment of 2 June that entries in the client did not justify the intervention ly been vindicated by the decla- 2000, Quirke J had granted the accounts in respect of the sought and accordingly the ration of invalidity accorded to plaintiffs injunctive relief on an monies crystallised their interest relief sought by the plaintiff the An Blascoad Mór National ex-parte basis against the defen- in the monies. Ms Justice would be refused. If the state Historic Park Act, 1989. The dant in the form of an Anton Carroll held that a debit entry in believed that the refusal of par- plaintiffs had not been dispos- Piller order. In this application, an individual client account ents in such instances was sessed of their property at any the plaintiffs sought further could not be construed as a dec- unlawful, then appropriate leg- stage. An award of damages interlocutory relief and the laration of trust. As the monies islation should be introduced. should only be made where a defendant sought to dismiss the in question had not been paid North Western Health Board v clear link can be established proceedings as an abuse of out, it had not ceased to be HW and CW,High Court, Mr between damage suffered and process. The plaintiffs alleged client monies. Therefore it was Justice McCracken, 27/10/ the improper acts. However, that the defendant was infring- not possible to impose a con- 2000 [FL3243] costs would be awarded to the ing both its copyright and intel- structive trust on the grounds of plaintiffs. lectual property rights in its unjust enrichment or any other Property rights An Blascoad v Commissioner of computer software. Some of the equitable ground. The applica- Separation of powers – state liabil- Public Works,High Court, Mr information obtained by the tion would therefore be refused. ity for legislative acts – European Justice Budd, 28/06/2000 plaintiffs in support of their Money Markets International, law – misfeasance in public office – [FL3257] application emanated from a High Court, Ms Justice Blasket Islands – equality – com- former employee of the defen- Carroll, 20/10/2000 [FL3244] pulsory purchase of lands – discrim- dant. Smyth J held that there inatory legislation – whether dam- CONTRACT was a constitutional obligation ages recoverable – whether state to hear cases in public. The CONSTITUTIONAL could be held liable – whether state Arbitration Anton Piller order was properly enjoyed immunity from suit – An Construction of terms – application made and had been correctly Children and young persons, Blascoad Mór National Historic to stay proceedings – whether con- served. The defendant had lib- medicine Park Act, 1989, section 4 – tract in question contract of service erty to apply regarding the orig- Role of the courts – vaccination – Human Rights (UK) Act, 1988 or contract for services – whether inal ex-parte order and could religion – PKU test – responsibili- – Merchant Shipping (UK) Act, plaintiff employee or self-employed have done so before the return ties of health boards – application for 1988 – Bunreacht na hÉireann – whether stay on proceedings date instead of seeking an ex- injunction – whether health board 1937, articles 15, 34, 40 should be granted – Arbitration parte order. There was to be no entitled to injunction in order to The plaintiffs were a group of Act, 1980 further publication by either carry out procedure – whether fail- persons who owned lands on The plaintiff had worked with party of the issues at stake either ure by parents to vindicate personal the Blasket Islands. The gov- the defendant, commonly in websites or other forms of rights of child – whether adminis- ernment passed legislation deal- known as Today FM, as a disc media. The interlocutory relief tration of test in best interests of ing with ownership of the jockey. The defendant purport- sought by the plaintiff would be child – Courts (Supplemental Blasket Islands. The plaintiffs ed to terminate the working granted. Provisions) Act, 1961 – Child challenged the legislation on arrangement. The plaintiff Microsoft v Brightpoint,High Care Act, 1991, section 3 – the basis that it was unconstitu- issued plenary proceedings Court, Mr Justice Smyth, Bunreacht na hÉireann 1937, tional in the manner that it claiming that he was still 12/07/2000 [FL3250] articles 40.3.2º, 41.1, 42.5 dealt with their property rights. employed by the defendant. The plaintiff instituted proceed- Both the High Court and The defendant sought a stay on Equity and trusts, insolvency ings in order to carry out a med- Supreme Court held that the proceedings and claimed that Liquidation – insolvency – restitu- ical test on a child. The parents legislation in question was dis- the dispute was subject to arbi- tion – ownership of monies held in (the defendants) of the child criminatory in the way in which tration. Ms Justice Carroll client account – option premia – objected to the procedure, it distinguished between per- found that the plaintiff was whether monies held in constructive which in this instance involved a sons who held land on the employed under a contract for trust – whether monies were client blood test, on the basis of reli- Blasket Islands before 1953 and services and was therefore an monies within meaning of Investor gious belief. The parents indi- those who acquired landhold- independent contractor. The Compensation Act, 1998 – cated that they would not object ings after that date. The legisla- arbitration clause found in the Stock Exchange Act, 1995, sec- to other types of samples being tion was found to be unconsti- original contract applied on a Briefing roll-over basis to the present The plaintiff sought an order for order of certiorari in respect of the trial judge proposed sending position some years later. The possession over lands owned by this order. McCracken J held a questionnaire to each member matter was accordingly gov- the defendant on the basis of that, although the judge in ques- of the jury panel. The applicant erned by arbitration and the monies advanced secured by a tion had the jurisdiction to hear brought the present proceed- stay on the present proceedings charge. McCracken J, delivering such a matter, he was, however, ings seeking an order of certio- sought by the defendant would judgment, held that the charge obliged to conduct an appropri- rari in respect of the decision to be granted. document on the basis of which ate inquiry into the evidence issue the questionnaire. In a Dower v Radio Ireland,High an order for possession could tendered against the applicant. divisional court of the High Court, Ms Justice Carroll, issue provided for the repay- As the principles of natural jus- Court, all three judges delivered 14/09/2000 [FL3239] ment of the monies by instal- tice had not been complied with, separate judgments. Laffoy J ments. However, no such provi- an order of certiorari would issue held that the Juries Act, 1976 sion was provided in the loan to quash the order in question. did not authorise the steps pro- CONVEYANCING agreement (which also operated Dignam v Judge Groarke and posed by the trial judge. The as the commitment letter). In DPP,High Court, Mr Justice order of certiorari sought would Professional negligence, view of the contradictions in McCracken, 17/11/2000 be granted. Both Mr Justice solicitors existence between the deed of [FL3264] O’Donovan and Mr Justice Land law – professional negligence charge and the commitment let- Carney delivered similar judg- – solicitors – duty of care – pur- ter, it could not be said that the Money laundering ments. chase of shop premises – conflicts of principal monies were due. Money laundering – sentencing – DPP v Judge Haugh and evidence – whether plaintiffs cor- Accordingly, the relief sought whether sentences imposed excessive Haughey, High Court, Mr rectly advised by their solicitor – would be refused. – Criminal Justice Act, 1994 Justice Carney, Ms Justice whether solicitor had discharged Wise Finance v Lanagan, High The applicants had been Laffoy, Mr Justice O’Donovan, duty owed to clients – whether Court, Mr Justice McCracken, involved in a money-laundering 12/05/2000 [FL2662] planning search ought to have been 06/11/2000 [FL3262] operation and as a result had carried out prior to signing of con- been convicted of charges under tracts the Criminal Justice Act, 1994. DAMAGES The plaintiffs had initiated pro- CRIMINAL The sentences imposed ranged ceedings concerning the pur- from 18 months to eight Personal injuries chase by them of a shop prem- Fair procedures months. The applicants raised a Road traffic accident – negligence – ises. They were suing their Suspension of sentences – failure to number of matters to be consid- duty of care – rules of the road – solicitor on the grounds that he adhere to conditions of release – sen- ered in their favour. These mat- exiting from roundabout – damages had not advised them that the tences re-imposed – meaning of ters included the tendering of – whether accident caused by negli- said premises did not include phrase ‘keep the peace and be of guilty pleas, the fact of having gence of defendants the forecourt outside the prem- good behaviour’ – order of certio- no previous convictions and the Both the plaintiff and the first- ises. The defendant accepted rari sought – Larceny Act, 1990 – making of comprehensive state- named defendant had driven that he had a duty of care to Criminal Damage Act, 1990 ments of admission to An Garda separately into a roundabout. correctly appraise the plaintiffs The applicant had been convict- Síochána. Murphy J, delivering The plaintiff was on the inside of the extent of the said prem- ed of certain offences under the judgment, held that although or right lane and was preparing ises, but that this duty had been Larceny Act, 1990 and the the case was a tragic situation to take the first turn on the left. discharged. Kelly J held that Criminal Damage Act, 1990 and for all, no error of principle The first defendant, who was on the defendant had informed the was sentenced to a total of four could be found and the sen- the outside lane, continued past plaintiffs in non-technical lan- years’ imprisonment. The sen- tences would be affirmed. the first exit and a collision guage of the extent of the tences were suspended some DPP v Warren, Court of occurred. Herbert J was satis- premises purchased. The case time later at a review hearing on Criminal Appeal, 05/07/99 fied, notwithstanding the fact would be dismissed. the basis that the applicant keep [FL3223] that the plaintiff ought to have Murphy (& Others) v Proctor, the peace and be of good behav- been in the outside lane, the High Court, Mr Justice Kelly, iour. The applicant was then Right to fair trial first-named defendant was neg- 11/10/2000 [FL3253] released into the custody of the Fair procedures – trial by jury – ligent in failing to have kept a welfare and probation services. selection of jury – whether appro- proper look-out. Although the Order for possession Subsequently, the second- priate to issue jurors with question- first-named defendant’s vehicle Practice and procedure – mortgage named respondent applied ex naires to ensure fair trial – whether was not in an incorrect position – rights and powers of mortgagee – parte to have the matter re- trial judge possessed necessary juris- according to the rules of the charge on land – power to sell – entered for hearing. At this diction to issue such an order – road, the first-named defendant contradictions between terms con- hearing, members of An Garda Tribunals of Inquiry (Evidence) should have allowed the plaintiff tained in deed of charge and com- Síochána gave evidence that the Act 1921 – Juries Act, 1976 – to pass safely in front of his mitment letter – offer of loan – applicant had allegedly commit- Bunreacht na hÉireann 1937, vehicle. Accordingly, damages loan agreement – whether repay- ted certain offences and had article 38.5. in total were assessed at £34,850 ment of principal money secured by failed to comply with the condi- The application concerned the and judgment was given for that deed of charge due – whether court tions of his release. The presid- prosecution of Mr Haughey on amount. should make order for possession – ing judge then re-imposed the charges of obstructing a tribu- Pierce v Mitchell and Farm Registration of Title Act, 1964, balance of the original sen- nal of inquiry. As part of the Fed,High Court, Mr Justice section 62(7) tences. The applicant sought an process of ensuring a fair trial, Herbert, 11/10/2000 [FL3242]

48 Briefing

Personal injuries, tort nity to respond to the allega- LITIGATION that there had been a failure to Accident in swimming pool – cau- tions being made against him. remove the entire root. The sation – damages – whether dam- An order of certiorari would Delay, dismissal of plaintiff’s proceedings in the ages recoverable – Courts Act, issue, quashing the decision of proceedings Circuit Court had been success- 1991, section 14 the Commissioner of An Garda Practice and procedure – applica- ful and the defendant appealed. The plaintiff had suffered Síochána. Accordingly, a new tion to dismiss plaintiff’s proceed- O’Higgins J averted to the fact injuries while taking swimming inquiry must be established to ings on grounds of delay – plaintiff that there was a conflict of expert lessons and as a result had issued reconsider the matter. not being personally blameworthy – evidence as to whether a portion proceedings. Herbert J held that Healy v Garda Commissioner, whether prejudice to first defendant of the root of the tooth had been the plaintiff had suffered a mild High Court, Mr Justice arising out of liquidation of third left behind. On the balance of soft-tissue injury. There seemed Herbert, 07/11/2000 [FL3290] defendant – first defendant failing evidence, O’Higgins J was not to be a large subjective element to bring application until after satisfied that some of the root involved in the plaintiff’s com- expiry of limitation period – was left in the jaw. The defen- plaints. General damages would FAIR PROCEDURES whether balance of justice favoured dant had not fallen below the be assessed at £10,000 and a allowing action to proceed standard of care required. The sum of £1,394 awarded as spe- Sporting bodies The plaintiff’s claim was for appeal of the defendant would be cial damages. Although pro- Administrative law – Irish Rugby breach of contract regarding an allowed and the plaintiff’s claim ceedings had been brought in Football Union – decision of agreement with the defendants would be dismissed. the High Court, an order under Competitions Committee – appli- for the sale in Ireland of travel Hamilton v Cahill, High section 14, sub-section 5 of the cation for mandatory injunction – packages to the 1994 World Cup Court, Mr Justice O’Higgins, Courts Act, 1991 would, howev- whether proper procedures followed in the USA. The central issue in 15/02/2000 [FL3236] er, not be made. by committee in reaching decision the action concerned the Whelan v Mowlds, High The plaintiff initiated pro- authority of the second and Professional negligence Court, Mr Justice Herbert, ceedings arising out of a deci- third defendants to conclude the Dentistry – duty of care – allegation 12/10/2000 [FL3235] sion by the Leinster branch of alleged agreement. In this appli- of misrepresentation – obligation to the Irish Rugby Football cation, the first defendant give warnings – correct test to be Union to relegate Tullamore sought an order pursuant to the applied – whether special category of EMPLOYMENT Rugby Football Club from inherent jurisdiction of the court patient existed in Irish law – division one of the Leinster dismissing the proceedings on whether resultant pain foreseeable Fair procedures, Garda League. The decision arose in grounds that the plaintiff had consequence of operation Síochána part from complaints made by been guilty of inordinate and Kearns J delivered a summary Disciplinary inquiry – judicial Ashbourne Rugby Football inexcusable delay in prosecuting judgment in this instance and review – whether fair procedures Club regarding their purport- the proceedings. Mr Justice made a number of rulings followed – whether probationer ed relegation from the same Finnegan held that the plaintiff regarding the applicable law. garda unfairly dismissed – whether division ahead of Tullamore. had a duty to ensure that its The case concerned proceedings applicant afforded opportunity to Ashbourne had objected to the claim was prosecuted with rea- undertaken by a plaintiff against respond to allegations against him fact that Tullamore had failed sonable expedition. In consider- his dentist arising from compli- – Garda Síochána (Complaints) to complete all their fixtures. ing whether the balance of jus- cations occurring as a result of Act, 1986 – Garda Síochána In addition, an objection tice lay in favour of the plaintiff’s surgery. Kearns J held that med- (Admissions and Appointments) regarding the same issue was action proceeding, the defen- ical practitioners are obliged to Regulations 1988, regulation 16 lodged by Railway Union dant must show that prejudice warn of any material risks known – Garda Síochána (Complaints) Football Club. The relevant arose out of the plaintiff’s delay. to be foreseeable complications Act, 1988 committee of the Leinster Mr Justice Finnegan said that he of surgery. Chronic neuropathic The applicant was a probation- branch met and held that was satisfied that the balance of pain was a known complication er garda against whom a num- Tullamore had breached com- justice was in favour of allowing of the operation in question. ber of complaints had been petition regulations, would be the action to proceed. The correct test to be applied in made. A disciplinary inquiry deducted points and conse- Silverdale v Italiatour, High disclosing risks is based upon the had been instituted on foot of a quently would be relegated Court, Mr Justice Finnegan, ‘reasonable patient test’ which complaint into allegedly inap- from division one in place of 07/11/2000 [FL3271] requires full disclosure of all propriate behaviour on the part Ashbourne. The plaintiffs, as material risks so the patient can of the applicant. Ultimately as a representatives of Tullamore, make the choice as to whether to result of the allegations the sought to challenge the deci- PERSONAL INJURIES proceed with a particular opera- applicant was dismissed. The sion. Herbert J held that tion. The category of ‘inquisitive applicant initiated judicial although there was a bona fide Professional negligence patient’ did not exist in Irish law. review proceedings seeking to issue between the parties, the To rt – personal injuries – profes- In any event, the plaintiff had have the decision to dismiss plaintiffs had failed to establish sional negligence – dentistry – con- not asked specific questions him quashed. Herbert J, deliv- a case which would warrant the flict of expert evidence – whether which would have demanded a ering judgment, held that the granting of the relief sought at dentist negligent warning about the possibility of applicant had not been afforded this interlocutory hearing. The plaintiff had undergone a chronic neuropathic pain. fair procedures. In particular, Moloney v Bolger, High dental procedure and had a Geoghegan v Harris, High the applicant had not been Court, Mr Justice Herbert, tooth extraction. The plaintiff Court, Mr Justice Kearns, afforded an adequate opportu- 06/09/2000 [FL3294] issued proceedings and claimed 21/06/2000 [FL3246] G Briefing Eurlegal

News from the EU and International Law Committee Edited by TP Kennedy, director of education, Law Society of Ireland To B2B or not to be?: EU and US approaches

2B marketplaces, in which Commission is the potential for Goldman Sachs. Both decisions In granting regulatory clear- Bbusinesses can trade or pro- participating companies to share provide useful guidelines on the ance to Volbrker.com, the com- cure goods and services on-line, price and other commercially- commission’s views on how mission also underlined the have been an important factor sensitive information, or engage B2B exchanges should be struc- importance of ensuring that the in the growth of business con- in price-fixing. Such practices tured to avoid the participants staff and management of all the ducted over the Internet. clearly have the effect of restrict- engaging in anti-competitive parties to Volbroker.com According to a recent survey, ing competition between actual behaviour and the circum- understood and appreciated the they account for approximately and potential competitors. stances where B2B market- importance of maintaining the 80% of all electronic commerce The potential for such anti- places will be viewed by the confidentiality of commercial- transactions. This is not surpris- competitive behaviour through commission as pro-competitive. ly-sensitive information, ing given their potential to con- B2Bs, however, does not mean The key factor in terms of breaches of which would be tribute to improved efficiencies, that such marketplaces will nec- structuring the B2B is the legal, subject to sanctions. resulting in lower prices, essarily be prohibited under geographic and operational Another important factor for improved quality and greater competition law. The FTC separation between the parent the commission is the level of innovation. Nonetheless, B2B report notes the views of panel- companies and the B2B’s staff competition faced by the B2B exchanges present competitive lists that when antitrust concerns and management, as well as from other similar websites. In concerns for competition arise, familiar safeguards may be the case of MyAircraft.com, the authorities, such as the sufficient to address them and, Commission took into consid- European Commission in indeed, such concerns may be According to a eration the relatively high num- Brussels and the Federal Trade eliminated through well-crafted recent survey, B2B ber of other B2B marketplaces Commission (FTC) in B2B operating rules. in the same sector that were Washington. The European Accordingly, provided that prop- accounts for already operating or which had Commission has set up a task er structures are put in place to approximately 80% been announced. Moreover, it force to deal with this specific avoid the exchange of commer- was satisfied from its own inves- issue. Meanwhile, the FTC has cially-sensitive and confidential of all electronic tigations that B2Bs were con- issued a staff report discussing information, B2B exchanges commerce sidered by businesses to be one the information gathered, and should pass muster with compe- among many modalities by antitrust issues raised, at a wide- tition authorities – assuming, of transactions which companies transact their ly-attended public workshop on course, they do not lead to any business. competition policy in the world other anti-competitive behav- of B2B electronic marketplaces iour, such as price-fixing. their respective information FTC practice held last June. technology and communica- Last year, the FTC conducted EU practice tions systems. Thus, in the case its first review of a B2B market- Competitive concerns Last year the European of Volbroker.com, the staff and place, Covisint.com, a proposed The FTC report notes that col- Commission authorised the cre- management will have no con- joint venture among five lead- laboration among competitors ation of a joint venture, tractual or other legal obliga- ing automotive manufacturers could raise competitive con- MyAircraft.com, a B2B e-com- tion towards the parent compa- and two information technolo- cerns in two types of broadly merce marketplace, which is nies or vice versa and will be in gy firms to operate an Internet- defined markets: intended to provide ‘one-stop a different location from that of based business-to-business •The market for goods and shopping’ for aerospace prod- the parent companies. exchange providing services for services traded on B2Bs at ucts and supply management Moreover, the parent compa- firms in the automotive indus- both the buyer and seller lev- functions for aerospace partici- nies will not have access to the try supply chain. The FTC els, and pants. The commission has also information technology and closed its investigation under •The market for marketplaces recently decided to approve communications systems of the Hart-Scott-Rodino Antitrust themselves. under EU competition law a Volbroker.com, nor will their Improvements Act, notifying the joint venture called representatives on the board of parties in September 2000 that With regard to the first type of Volbroker.com, an electronic directors have access to com- because Covisint was in the market identified in the FTC brokerage service between the mercially-sensitive information early stages of its development report, an area of particular con- subsidiaries of six major banks, relating to each other or to it could not say that implemen- cern to the European including JP Morgan and third parties. tation of the venture would not

50 Briefing cause competitive concerns and •The greater the restraints on According to the FTC chair- group purchasing, which reserved the right to take further participation outside the B2B, man, any antitrust analysis of an involves more complex competi- action. As such, the case does not and individual B2B will be specific to tion law issues. However, at this throw much light on FTC prac- • The less the interoperability its mission, structure, particular early stage, they generally tice in this area. with other B2Bs. market circumstances, proce- demonstrate a similarity of However, the FTC’s report dures and rules for organisation approach which businesses does provide some guidance on The report notes that this does and operation, actual operation should find encouraging: B2Bs likely US practice. While noting not mean that industry consortia and market performance. that achieve efficiencies and that any inquiry will be ‘highly B2Bs are presumptively unlawful Although these decisions and innovation should not face com- fact-intensive’, it states that all under US antitrust law or that guidelines are helpful, they are petition law problems, provided else being equal (including the minimum volume commitments just the first of many decisions they are organised and imple- ability to achieve efficiencies and cannot be imposed in many cir- expected in this developing area mented in ways that maintain innovations), certain competitive cumstances. However, high lev- and so should not be regarded as competition. G concerns are more likely to be els of industry ownership or sub- definitive. For instance, they do magnified by virtue of: stantial minimum purchase not address in any substantive .John Gaffney is an associate • The greater the market share requirements will likely draw a manner the issue of using B2B solicitor with the Dublin law firm of the B2B participant-owners closer look by the FTC. exchanges for aggregate or William Fry. Recent developments in European law COMPETITION document be drawn up. The ment and solidarity refused to mas awarded in other member Italian court here took the view allow him to register with the states must take into account all Last July, the commission pro- that as decisions of the ECJ do national medical association, as the diplomas and other formal posed a draft regulation on public not have horizontal direct effect, under French regulations his qualifications of the person con- services in passenger transport. the Italian law in question should Argentinean diploma did not enti- cerned and his relevant experi- This aims to improve the perform- not be disapplied. The ECJ held tle him to practise medicine in ence. The national authority ance of passenger transport that the directive is intended to France. Dr Erpelding, a should also carry out a compari- through controlled competition. It harmonise the laws of the mem- Luxembourg national, had an son between the specialised provides that public service con- ber states concerning commercial Austrian diploma in medicine. The knowledge and abilities attested tracts will be limited to five years agency agreements. The previous Luxembourg Minister of Education by those qualifications and the when a member state government decisions given by the court were had approved it. In 1991, the min- experience, knowledge and qualifi- grants exclusive rights of financial identical to the case now before ister for health authorised him to cations required by the national compensation for public service it. While a non-implemented direc- practise as a specialist in internal rules. The ECJ held that the operations. tive cannot impose obligations on medicine after receiving a diploma national court should assess individuals, there is a duty on a of specialist in internal medicine, whether Hocsman’s diploma was EMPLOYMENT national court to interpret national cardiology sector, in Austria. In equivalent to the corresponding law in the light of the wording and 1997, the minister for health French qualification. In particular, Agency purpose of the directive to refused to allow him to use the the national court should consider Case C-456/98 Centrosteel v achieve the result it has in view. title of specialist in cardiology, as whether the Spanish recognition Adipol GmbH, judgment of 13 July that was not a specialisation of the Argentinean diploma had 2000. Between 1989 and 1991, Mutual recognition of diplomas recognised by the Austrian author- been made on the basis of criteria Centrosteel acted as a commer- Cases C-238/98 and C-16/99 ities. The Luxembourg authorities comparable to those laid down by cial agent for Adipol. After the Hugo Fernando Hocsman v said that they could only recog- EU law to ensure that member agency contract was terminated, Ministre de l’Emploi et de la nise diplomas as originally word- states may rely on the diplomas in Centrosteel claimed payment of Solidarité, Jeff Erpelding v ed. The ECJ held that the aim of medicine awarded by other mem- commission. Adipol refused to Ministre de la Santé, judgment of the mutual recognition of diplo- ber states. The ECJ held that the pay, arguing that the agency con- 14 September 2000. Dr Hocsman mas directive was to establish a right to use the title doctor or spe- tract was void, as Centrosteel was was the holder of a diploma in system under which states were cialist in the host member state is not entered in the Italian register medicine awarded in Argentina obliged to recognise certain diplo- the corollary of the mutual recog- of commercial agents, as required and a specialist diploma in urolo- mas as equivalent and could not nition of diplomas. The court held by Italian law. The ECJ has held gy awarded by a Spanish universi- require the persons concerned to that the right to use a title only that Directive 86/653 on com- ty. He was an Argentinean nation- comply with requirements other applies if the diploma in question mercial agents precludes a al who became a Spanish nation- than those laid down by the direc- appears in the list of diplomas in national rule which makes the al in 1986 and a French citizen in tive. This mutual recognition the directive. That was not the validity of an agency contract con- 1998. His Argentinean diploma means that people who satisfy the case with Erpelding, as the spe- ditional on the commercial agent was recognised in 1980 as equiv- conditions laid down in the direc- cialisation in cardiology did not being entered in the appropriate alent to a Spanish degree in med- tive do not have to look to the exist in Austria. In those circum- register. Article 13(2) of the direc- icine and surgery. He practised case law of the court for situa- stances, the court held that the tive mentions writing as the sole medicine in Spain and qualified as tions where there is no such auto- directive must be interpreted as requirement for the validity of a a specialist there. Since 1990, he matic recognition. That case law giving doctors the right to use contract. Member states cannot worked as an assistant specialis- sets out that national authorities their academic titles and, if appro- therefore impose any condition ing in urology in France. In 1997, to which applications are made for priate, their abbreviations, in the other than requiring that a written the French minister for employ- the recognition of medical diplo- language of the member state of EUROLAW

GROUP SECRETARIAT AND LEGAL OFFICE network of business law firms (22 members – 250 ASSISTANT GROUP SECRETARY Alawyers) based in Paris (see www.eurolaw.org) is cur- rently seeking an Irish commercial practice with a view to reencore Group plc is a major manufacturer and supplier of Gconvenience foods and related products and food ingredients to indus- future membership. The next AGM will be held in Helsinki trial and consumer markets. The Group has over 15,000 employees in its on 1-3 March 2001 and prospective candidates will be operations in Ireland, United Kingdom, Belgium, France, Germany, invited to participate as observers. Mr JJ Zander, Holland, Portugal and Australia. President, will possibly visit candidates in Ireland during Reporting to the Deputy Group Secretary the person appointed will have responsibilities in the areas of legal services, pensions, insurance and February 15 and 16. property, together with a range of other company secretarial duties including statutory and regulatory compliance. To book a visit and for more information please contact: Applicants for the position will, in addition to direct experience of the areas outlined, have a formal Legal, Company Secretarial and/or Financial Mr. Jean-Jacques Zander qualification. EEIG EUROLAW The position, which will be based at the Group’s head office in St. Stephen’s 12-14 Avenue Victor Hugo Green House, Earlsfort Terrace, Dublin 2, Ireland, offers a competitive F 751116 Paris France salary, pension scheme and Company car/car allowance, together with opportunities for a career with a large progressive public company Tel: 00 46 708 145 713 Interested? Fax: 00 331 45 00 60 99 APPLICATIONS TO: email: [email protected] Mr. Patrick F. Lunny, Group Director – Human Resources, Greencore Group plc, St. Stephen’s Green House, Earlsfort Terrace, Dublin 2, Ireland.

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•Fearon & Co specialise in acting for Irish residents in the fields of probate, property and litigation RAFAEL BERDAGUER ABOGADOS • Each solicitor is available by direct line, fax or e-mail. Conferences can be easily arranged PROFILE: FIELD OF PRACTICES: •Fearon & Co is committed to the use of information panish Lawyers Firm focussed eneral Practice, Administra- technology to help improve both the quality and Son serving the need of the for- Gtive Law, Civil and Commercial speed of service for the benefits of all clients both at eign investors, whether in compa- Law, Company Law, Banking and home and abroad ny or property transactions and all Foreign Investments in Spain, • The firm’s offices are within half an hour of London attendant legalities such as ques- Arbitration, Taxation, Family Law, Waterloo station and within a short travel from both tions of immigration-naturalisa- International Law, Immigration Gatwick and Heathrow airports, with easy access from tion, inheritance, taxation, and Naturalisation, Litigation in all the London orbital M25 motorway accounting and bookkeeping, Courts. planning, land use and litigation in • No win, no fee arrangements and Legal Aid are all Courts. available in appropriate cases PHONE NOW FOR A BROCHURE Westminster House Avda. Ricardo Soriano, 29, 12 The Broadway, Woking, Surrey GU21 5AU England Edificio Azahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain Fax: +44 (0)1483 725807 Email: [email protected] www.fearonlaw.demon.co.uk Tel: 00-34-952823085 Fax: 00-34-952824246 LITIGATION PROPERTY PROBATE Sarah Butler John Phillips Francesca Nash e-mail: [email protected] Tel: +44 (0)1483 776539 Tel: +44 (0)1483 747250 Tel: +44 (0)1483 765634 Briefing origin, with the host state retain- majority. The ECJ held that immi- case, which would enable the court qualification as equivalent to a ing the right to authorise the use grant lawyers practising in other to hold that the national legislation Belgian dental qualification. In of the title in another language. states using their home country goes beyond what is necessary to 1998, the KVN refused to register title were in a different situation provide effective protection of the Haim, as he had not completed Working time directive from national lawyers. They are health and life of humans. the two-year training period Case C-303/98 Sindicato de forbidden to carry out certain required by it. It reached this con- Médicos de Asistencia Pública activities and are subject to cer- Case C-388/95 Belgium v Spain, clusion as he did not hold a diplo- (SIMAP) v Conselleria de Sanidad tain obligations with regard to the judgment of 16 May 2000. ma from an EU member state. y consumo de la Generalidad representation and defence of Spanish rules govern the bottling Haim challenged this decision. Valenciana, judgment of 3 clients in legal proceedings. The of wines bearing the Rioja designa- The ECJ in Haim I held that one October 2000. SIMAP is a union directive itself aims to protect tion of origin. It requires this wine member state could not refuse an representing public health work- consumers and to ensure the to be bottled in authorised cellars applicant such as Haim, whose ers in Valencia. It brought pro- proper administration of justice. in the region. It is therefore a professional qualification was ceedings against the regional The migrant lawyer’s home title measure having an effect equiva- recognised by a regulatory author- health administration arguing that informs consumers about his ini- lent to a quantitative restriction ity in another member state. Haim the Working time directive should tial training. The directive also contrary to article 29 of the treaty then brought a further action for be implemented for staff provides that the immigrant unless it can be objectively justi- loss of earnings due to the fact assigned to primary healthcare lawyer is subject to national rules fied. While EU legislation provides that he would have earned more teams at health centres. It argued of professional conduct and must for the protection of designations between 1998 and 1994 if he had that the doctors concerned were be covered by professional insur- of origin, it does not authorise the practised as a dentist under a required to work without the bene- ance. The directive does not imposition of conditions contrary German social security scheme. fit of any time limit and without require immigrant lawyers to to treaty rules on free movement of The ECJ first considered whether any limit to the duration of their prove in advance knowledge of goods. The requirement in this a public law body could be work. The ECJ held that the direc- national law. It allows such knowl- case will be regarded as compati- required to make reparation for a tive does apply to the activities of edge to be gradually assimilated ble with EU law if it can be shown breach of the treaty rather than doctors in primary healthcare through practice. that it is necessary and propor- the state. It concluded that repa- teams. They do not fall into any of tionate and capable of upholding ration for loss and damage caused the professional categories that FREE MOVEMENT OF the reputation enjoyed by the Rioja to individuals by national meas- are given an exemption from its GOODS label. ures taken in breach of EU law by provisions. The court then consid- a public law body might be made ered whether time spent by doc- Case C-473/98 Kemikalieinspek- LITIGATION by that body. The ECJ then consid- tors on call could be considered tionen and Toolex Alpha AB, judg- ered whether there can be a seri- as working time. It held that the ment of 11 July 2000. Toolex man- Brussels convention ous breach of EU law where its characteristic features of working ufactures machine parts which are In Case C-412/98 Group Josi misapplication is carried out by a time were present for time on call used in the production of compact Reinsurance Company SA v national official with no discretion when a doctor is present at a discs. It uses trichloroethylene to Universal General Insurance in reaching his decision. The court health centre. Where they are sim- remove residues of grease pro- Company, judgment of 13 July referred to its conditions for repa- ply contactable at any time, they duced during the manufacturing 2000, the ECJ reaffirmed earlier ration – that a breach of EU law can manage their time with fewer process. It applied to the Swedish decisions to hold that the provi- must have been intended to con- constraints and this is not working authorities for permission to use sions of the convention on insur- fer rights on individuals, that the time. (See also Busy doing noth- this substance. It is a carcinogen ance do not cover re-insurance. breach was sufficiently serious ing, page 28.) and classified as harmful to health The purpose of these special and that there is a direct causal and dangerous to the environment rules is to protect an economical- link between the breach and the ESTABLISHMENT by EU law. The Chemicals ly weaker party. This considera- loss or damage sustained. The Inspectorate rejected the applica- tion does not arise in the case of ECJ held that the obligation to Case C-168/98 Grand Duchy of tion, as no plan had been submit- re-insurance. make reparation for loss requires Luxembourg v European ted for eventually discontinuing a sufficiently serious breach of EU Parliament and Council of the use of the chemical. A Swedish STATE LIABILITY law and there is no requirement of European Union, judgment of 7 court annulled the decision, hold- fault going beyond this. In deciding November 2000. Luxembourg had ing that the Swedish legislation Case C-424/97 Salomone Haim v whether a breach is sufficiently challenged the legal validity of the was inconsistent with EU law. The Kassenzahnärztliche Vereinigung serious, the national court hearing Establishment directive for ECJ held that as the commission Nordhein, judgment of 4 July the reparation claim must take lawyers. This measure will enable had not proposed any measures 2000. The applicant is a dentist account of all the factors charac- lawyers from any one member relating to trichloroethylene, EU and the respondent is the terising the situation before it. state of the EU to establish in any law does not prevent a member Association of Dentists of Social These factors include the clarity other member state. Luxembourg state from regulating its use. The Security Schemes in Nordhein and precision of the rule infringed, had argued that the directive did national legislation is likely to bring (KVN). Haim, an Italian, was the whether the infringement and dam- not guarantee adequate con- about a reduction in the volume of holder of a diploma in dentistry age caused was intentional or sumer protection or the proper imports in trichloroethylene into awarded in 1946 by the University involuntary, whether any error of administration of justice. It also Sweden and is a measure having of Istanbul, Turkey. He practised law was excusable or inexcusable, argued that it provided for a dif- an effect equivalent to a quantita- as a dentist in Istanbul until and the fact that the position ference in treatment between tive restriction on imports. 1980. In 1981, he was permitted taken by an EU institution may national and immigrant lawyers. It However, such a restriction can be to practise as a dentist in have contributed towards the also argued that the directive justified if it seeks to protect the Germany in a self-employed adoption or maintenance of should have been adopted unani- health and safety of humans. capacity. In 1982, the Belgian national measures or practices mously rather than by a qualified There was no evidence in this authorities recognised his Turkish contrary to EU law. G People and places

With his young Ward Paddy McEllin holds the hand of his son, future Law Society President Ward McEllin, who looks suitably serious about his future. Joining them at the circa 1960 Claremorris sports meet were the late Tuam solicitor Jimmy Glynn (far left) and John MacHale

Those awesome 80s As this photo shows, the UCC 1980 BCL class reunion at Cork’s Maryborough House Hotel on 11 November 2000 drew a good turn-out for a lively night

The last word on law Mr Justice Michael Moriarty (left) and author Henry Murdoch celebrate the launch of the third edition of Murdoch’s dictionary of Irish law

Authorities on authorities Pictured at the 20 October 2000 Blackhall Place Young and litigious seminar on current issues in local authority law are The committee members of the Society of Young Solicitors Ireland with some of the (left to right) barrister Dermot Flangan; Helen O’Neill, guests who attended their autumn conference in Westport (front row, left to right) Cait vice-chair of the Local Authorities Solicitors’ O’Donnell, Vanessa Byrne, SYS Chair Fidelma McManus, Jill Greenfield and Nora Lillis; Association, which organised the event; Tom (second row, left to right) the DSBA’s James McCourt, Chairman of the London Young O’Donoghue, law agent with Galway County Council; Solicitors’ Group Trevor Goode, Walter Beatty, William Aylmer, Richard Willis, Paul Murray and Sean McDermott, a retired property arbitrator and Law Society Director General Ken Murphy who spoke at the event

54 People and places

The more the merrier Seasonal exuberance is evident in the faces of those gathered for the Mayo Solicitors’ Bar Association annual dress dance last December. The illustrious attendees included Law Society President Ward McEllin (front row, fourth from left), guest speaker Paddy McEntee SC, Mayo Solicitors’ Bar Association President James Cahill (front row, third from right), Dublin Solicitors’ Bar Association President David Martin (front row, far right), and Law Society Director General Ken Murphy (back row, far left)

Outgoing president’s dinner Quality people

Passing the baton Law Society President Ward McEllin chats with his predecessor and host, immediate Past President Anthony Ensor

The Law Society’s Company Formation services section has recently been awarded the coveted ISO 9002 certification from the NSAI. Commenting on the year of hard work to earn the quality hallmark, Company Formations’ Susan Murray explained: ‘We did this for our clients, to ensure that all procedures are monitored and we’re delivering an efficient service’. Pictured with the certificate are Carmel Molloy, Susan Murray, Rita Hogan and Mary Jane Thompson with Law Society Director of Finance Cillian MacDomhnaill and Martin McCoy of the Man in the middle management training firm Advanced Quality Solutions. The soci- Former Law Society President Patrick Glynn raises a glass with ety’s Company Formations services incorporates approximately Council members Geraldine Clarke (left) and Anne Colley 1,300 companies each year

55 People and places JUSTICE MEDIA AWARDS 2000

Squaring accounts (From left to right) Robert McCann, the IT partner at legal costs accountants Connolly Lowe, Nuala Haughey Liz Walsh and Rita O’Reilly and Managing Partner Arnold Lowe join e-Practice’s Declan Brannigan outside the account- ancy firm’s Dublin headquarters, where the e-Practice software was recently installed MOVING UP

Mark O’Connell Mary Wilson

Prestigious honour garnered McCann FitzGerald’s Jane Marshall has been elected president of the insolvency practitioners’ organisation INSOL Europe, the first time an Irish person has been at the Barry Cummins Diarmuid Peavoy helm of the influential group, which has a membership of Pictured at the Justice Media Awards ceremony in Blackhall Place in December were: Nuala Haughey of more than 800 insolvency prac- the Irish Times who won the Justice Award in the daily newspapers category; Liz Walsh and Rita O’Reilly titioners in 36 countries who won the book category with The People versus Catherine Nevin; Mark O’Connell of the Sunday Business Post who won the non-daily newspaper category; RTÉ legal affairs correspondent Mary Wilson who was named Overall Winner of the competition; Barry Cummins of Today FM who took top honours in the radio category; and Diarmuid Peavoy who took the Justice Award in the television category. Unable to attend the ceremony was magazine award winner Mairead Carey of Magill, but her award was picked up by her editor, Harry McGee (see also News, page 4)

Legal eagle Melanie Holmes has joined Osborne Recruitment as a legal recruitment consultant. A quali- The best of Limerick fied solicitor, she worked in Caroline Brennan, a first-year LLB student at the Matheson Ormsby Prentice’s University of Limerick, was the most recent recipient Debating champ commercial litigation depart- of the Stryker Howmedica Osteonics scholarship, Gary Cronin (centre), who took top honours in the ment, and will be scouting for which goes to the UL entrant with the best leaving recent debate at the Waterford Institute of solicitors, paralegals, law certificate performance across all faculties. She’s Technology, is congratulated here by Cyril Cawley of clerks and legal secretaries in flanked by Professor J Paul McCutcheon of the School the school’s law department (left) and Danny her new position of Law (left) and Mr Joe Dorr, human resources man- Morrissey, president of the Waterford Law Society, ager at the company behind the £8,000 scholarship which sponsored the debate

56 People and places

OBITUARY Mr Justice Liam Hamilton

iam Hamilton, one-time civil servant, breach was carried out consciously and Lbarrister, judge, president of the High without justification by the executive Court and subsequently president of the organ of the state. Supreme Court as chief justice, died after Appointed in 1985 to the second most a relatively short illness on 29 November powerful position on the Irish bench, the 2000. presidency of the High Court, Liam Born in 1928, the son of a garda and a Hamilton was described at the time in the music teacher, the eldest of five children, media as ‘a dapper 57-year-old with a he attended the local Christian Brothers’ spring in his step and a twinkle in his eye School in Mitchelstown, Co Cork. From and, as judges go, he could be said to be there he joined the civil service as a extremely well-liked’. Incidentally, in his clerical officer. Assigned to the capacity as president of the High Court, Department of Justice, fortuitously for an he regularly attended meetings of the ambitious young man, he was employed Law Reporting Council in the Benchers’ in the intellectually-stimulating environment of the Central Room in the Four Courts, and his sense of humour and one- Office of the High Court. liners often lightened somewhat solemn occasions. From there, he studied law at King’s Inns, was called to the In 1991, Liam Hamilton accepted a government invitation to bar and outshone many university men by winning the inquire into allegations of malpractice in the beef industry. The prestigious Brooke scholarship. As a member of the Labour report, which was published in 1994, set out the evidence at party, he stood unsuccessfully in Rathmines, Dublin, in the some length but was criticised for the lack of definitive local elections in 1967. After Tom O’Higgins was appointed conclusions and allocation of blame that some considered chief justice in 1974, the coalition government of Fine Gael and appropriate. Labour appointed him a judge of the High Court, at the then Succeeding Mr Justice Thomas Finlay as chief justice in young age of 46. 1994, Liam Hamilton was instrumental in playing a role in the In 1976, Liam Hamilton succeeded Mr Justice Denis Pringle reorganisation of the judicial branch of government. as presiding judge of the Special Criminal Court. Hamilton was Months before he retired as chief justice, he had the difficult different in character from Pringle and soon came to national task of inquiring into the circumstances leading to the early prominence by presiding over several sensational trials, release from prison of Philip Sheedy and the conduct of two including the Lord Mountbatten murder trial and the trial of judges. Legal and political historians will probe this sensitive Nicky Kelly, who was later pardoned by the state. period in Irish political and legal life and may offer different Several cases in constitutional law will remain as a legal verdicts. testament to the Hamilton legacy. In Murphy v Attorney General A gregarious extrovert with many gifts, Liam Hamilton (1979), with the most powerful advocates on both sides (Rory enjoyed golf and was captain of Milltown Golf Club in 1979. O’Hanlon SC and Mary Robinson for the Murphys, TJ He was also an avid soccer fan. Connolly SC, Donal Barrington SC and John D Cooke for the He could deservedly have uttered the following words at the state), Hamilton J held that the relevant provisions of the end of his life in an exchange between a lawyer and judge, Income Tax Act, 1967, as amended, were invalid, having regard penned by a hopeful jurist: to the provisions of the constitution because they created an ‘The lawyer: This is our life, O Judge, and if it is given to us invidious discrimination against married couples contrary to to grow old, this in the end will be our fate. And yet I know I article 40.1 and because they failed to guard the institution of would, at no cost, alter my destiny. marriage with special care and to protect it against attack. The judge (Liam Hamilton): Nor I, for it seems to me that In the telephone-tapping case, Kennedy and Arnold v Ireland among the professions that mankind can serve, no other is (1987), he held that the right to privacy (subject to better suited to maintain peace among men than that of the qualification) was one of the fundamental personal rights of the judge, the dispenser of a balm for every wound, called justice. citizen which flowed from the Christian and democratic nature For this, I know that the knowledge of having spent the better of the state, and the constitutional right to privacy included the part of myself bringing about the just happiness of others will right to hold private telephone conversations without give me peace and hope at the end. deliberate, conscious and unjustified intrusion by servants of the In this hope, O Lawyer, our destinies meet at their terrestrial state. conclusion. We are brothers in this common purpose and Aggravated damages were awarded to compensate Ms therefore can shake hands.’ Kennedy and Mr Arnold, not only for the breach of their I will fondly remember the varied occasions we shook hands. constitutional rights of privacy but also for the fact that the Eamonn G Hall

57 People and places

OBITUARY Mrs O

e mark with sadness laced It is ironic that this great Wwith nostalgia the passing communicator should lose her (on 28 December 2000) of the capacity to speak in her inimitable Dymphna O’Reilly – retirement years due to illness, Mrs O to all who knew her. although, to the end, this Dymphna was an integral part of affliction was offset by her ability the Law Society for almost 50 to write down her thoughts in years, up to her retirement in her ever-present notepad with 1995. Most of that long period cryptic fluency and pass them to of service was shared with her her visitor, quickly creating the husband, Willie, who died in wavelength on which 1993. communication was truly a two- For those of us who entered way experience. the profession between 1946 and On the move to the society’s 1978, our recollections of our newly-renovated Blackhall Place student days and of the Mrs O and Willie premises in 1978, Dymphna took Solicitors’ Buildings in the Four on the role of ‘minder’ of the Courts are inextricably linked with the O’Reillys. Willie was the many overnight guests who stayed there, a role she continued resident warden of what was up to 1978 the society’s even after Willie’s death. headquarters and Dymphna was the ‘mother’ to all who In 1994, as a tribute to both Dymphna and Willie, there was attended there for meetings of the Solicitors’ Apprentices’ a plaque erected in their honour on the SADSI ex-auditors’ Debating Society (SADSI). Their large sitting room in the board, giving permanent recognition both to their status as the basement – now consultation rooms – will be remembered by only two honorary auditors of SADSI and to their significance many as a Speaker’s Corner-cum-Bewley’s and, by a nefarious in the lives and memories of so many of us. minority of us, as the location of many a late-night poker game. We offer our sincere sympathy to Dymphna’s solicitor son Willie was undoubtedly the more silent of the partners – and Brian (certainly the only member of the legal profession who more deadly for that at the card table. However, Willie’s relative ever actually lived in the Four Courts), her daughter-in-law quietness was more than balanced by Dymphna’s ability to hear Jacinta, her grandchildren, her surviving brother, Kevin O’Leary everything and forget nothing about the well-being of every (retired secretary of the Department of Energy), and her many solicitor who, as an apprentice, had enjoyed their hospitality other relatives. and friendship. Michael V O’Mahony LEAVE IT TO THE EXPERTS!

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• Private limited company – ten days, £180 • Single member company – ten days, £180 • Guarantee company – ten days, from £130 • New companies, using complete nominees – five days, £220

58 People and places

OBITUARY Fiona Ruttle: an appreciation from her colleagues

iona passed away peacefully at her her cottage in Howth and, ever the Fparents’ home on 8 January, but the traveller, continued to seek out new illness which took her has scarcely met a destinations: in the last couple of years she more courageous or tenacious opponent. visited the US, Canada, Africa and Cuba. Fiona was only 39, but packed more into Fiona had the rare virtue of taking her those years than many do in twice that work, but not herself, seriously. She was time. She had a rare and compelling marvellously down to earth. She had a capacity to value all of life’s rich variety. quirky sense of humour and a contagious Having spent her early life in Canada, sense of fun. Her love of the offbeat and Fiona was schooled in Dublin and the ironic was matched by her own Thurles, where much of her attention was inimitable style. A look or roll of the eyes kept for the hockey pitch, the tennis court from Fiona spoke volumes. She loved her and making mischief, at all of which she music as she loved people – authentic and excelled. She studied psychology at sincere – and was often found in the less- Trinity College and her insights into the human psyche were than-exalted venues where gifted eccentrics plied their magic. among her most valuable and valued professional and personal The recurrence of her illness last June was met with the same assets. Science’s loss was the law’s gain: Fiona embarked on her courage and determination previously shown by her – but, apprenticeship with Bowler Geraghty (she was admitted in unfortunately, another recovery was not at hand. The sense of 1987), where she thrived in the collegial atmosphere of a busy loss to her friends and colleagues is enormous, but is as nothing litigation practice. beside the loss to Fiona’s beloved parents, Paddy and Patsy, her Fiona moved to London for some years, where she took on a sister Helen, nephew Simon and niece Sarah. May God grant daunting litigation practice at Lawfords, Solicitors, specialising them strength and comfort. in trade union and employment work, and was admitted in All manner of life thronged St Fintan’s Church in Sutton for England and Wales in 1991. Although offered a partnership, her removal and funeral because she touched all manner of life. Fiona chose instead to return to Howth, where she was truly at Endowing her friends with her wisdom, good sense, compassion home. She had her first encounter with illness in early 1994, and understanding, she refreshed us like a sea breeze. She was but, fiercely independent and self-reliant, Fiona fought back to deeply reflective, in tune with and reliant on her own mind and fitness and to work. She joined McCann FitzGerald in April her own heart. She was also, as she would say herself, mad as a 1997 and adapted to litigation from the defendant’s perspective. snake, living to her own unique melody. Fiona was deeply loved Fiona was a talented, efficient and highly organised lawyer and a and we, her friends and colleagues, will miss her terribly. Ar knowledgeable and generous colleague. She was also a dheis Dé go raibh a h-Anam. sportswoman in every sense of the word. She was an enthusiastic A special mass for Fiona will be held on Thursday 15 and proficient golfer and an athlete, and we can still see her lithe February at 5.15pm at the Blessed Sacrament Chapel, Bachelor’s figure bounding ever-more distantly ahead up Infirmary Road Walk (contact 607 1368 or 607 1219 for details). All are during the first Calcutta Run. She delighted in the renovation of welcome. LAW SOCIETY ROOMS at the Four Courts Meetat the Four FEATURES INCLUDE: Revised layout with two additional rooms Courts Improved ventilation and lighting Telephone extension in every room Conference facility telephones FOR BOOKINGS CONTACT Room service catering facility Mary Bissett or Paddy Caulfield Friary Café Courtat the Four Courts 668 1806 59 Apprentices’ page SADSI

Solicitors Apprentices Debating Society of Ireland Apprentices get their day in court

or the first time in the right of audience. These are: training ground for aspiring apprentice solicitor to Fhistory of the Solicitors’ • The County Registrars’ barristers; the same may now represent parties in any Apprentices’ Debating Society Court. It has been agreed by be said for apprentice solicitors arbitration hearing of Ireland, a quantifiable right the Association of County • Arbitration hearings. While • Asylum appeals. An of audience is now being Registrars at its AGM this year it is accepted that under the apprentice may present an established. SADSI, with the co- that it welcomes apprentices Arbitration Acts anybody may asylum appeal, subject to the operation of the Law School and attending before its court for appear on behalf of a claimant consent of his or her master Michael Peart of the Law consent matters and those or respondent in an and the client. As a matter of Society’s Education Committee, more particularly outlined in arbitration, SADSI has spoken courtesy, apprentices should has contacted the various arms the second schedule to the to the Chartered Institute of identify themselves to the of the legal profession over the Courts and Court Officers Act, Arbitrators, which has formally appeals authority prior to the past year with a view to attaining 1995. Apprentices should be recognised the right of the hearing an apprentice’s right to be heard fully briefed and should • Employment Appeals in open court. introduce themselves to the Tribunal, Rights It is important for every court. This applies to all Commissioners, Labour apprentice to stand up and speak county registrars’ courts Court and Labour Relations in court at least once during his throughout Ireland Commission and Equality or her apprenticeship. In the • Master’s Court of the High Officers. It is hoped that past, this was not possible since Court. A recent letter to apprentices may make there was no established right of Michael Peart from the master applications to these bodies audience for apprentices. There of the High Court, Harry Hill, for witness summonses, was also a severe lack of stated that he had no adjournments and various information given at that time to objections to apprentice Singing for his supper? non-contentious matters, but SADSI liaison officer Michael Gilroy masters to inform them that solicitors appearing in the this has not been fully speaks at the recent SADSI their apprentice could indeed Master’s Court. In the past, advocacy evening, which was confirmed and is currently speak in the District Court. this has been known as a sponsored by LaTouche Bond Solon under consideration by the But there are a number of Law Society’s Employment places where apprentices are Law Committee now free to speak in the EXERCISING YOUR RIGHT OF AUDIENCE • District Court. Representa- knowledge that they will have a The opportunity to appear in your local court while still an apprentice tions have been made to the should be taken immediately by those interested in developing one of president of the District the more interesting aspects of the solicitors’ profession: advocacy. Court and the Rules New SADSI Consent applications, adjournments and applying to fix dates may Committee for the addition of not, at first sight, be the most challenging briefs, but they do require a new rule to the District Court auditor named an apprentice to stand up before his or her peers (and betters, no Rules which will give a right of ollowing a marathon doubt), address the judge and request the required orders. audience to various non- Felection campaign which Difficulties arise when the judge wonders why the matter must be contentious applications. began last November and adjourned or needs sight of proof of consent in writing or a which, as most apprentices are declaration of service which should have been filed a few days ago. Practice in advocacy will stand now aware, ended in the These difficulties assume you are in the correct court at the correct apprentices well when they go invalidation of the election time and in possession of your file. Often court practices differ into full-time practice, making before the votes were counted, slightly from area to area and a measure of advance planning – them more confident in arguing apprentices were re-invited to whether it be a critical examination of the file and pleadings a week cases before judges and nominate their choice of or two in advance or checking with the court office if the call-over is tribunals. The benefits to candidate for auditor. The new 10am or 10.30am – can save more than time. All these points and a masters are also considerable, deadline for nomination of great many others are discussed in the SADSI guide for apprentices sparing them from completing candidates was 22 January, and, appearing in court, entitled The solicitor and apprentice as advocate, what in their eyes are routine at the close of the day, only one which can be viewed on the SADSI pages of the Law Society website. but time-consuming nomination was received: that of The introduction of an advocacy module on the current applications. Claire O’Regan. She will choose professional practice course ensures that apprentices will emerge Anyone wishing to receive her committee over the coming from their courses with an equal, if not greater, amount of training in more information about the weeks and deserves the support advocacy than their King’s Inns equivalents. Finally, while not all status of the apprentices’ right of of all apprentices in her role as solicitors are advocates, neither are all advocates barristers. audience should contact Michael auditor. Full details will appear Keith Walsh Gilroy or Keith Walsh. in the next issue of the Gazette. Michael Gilroy

60 Professional information

LOST LAND Monaghan, Caraun, Claregalway, CERTIFICATES Galway; Folio: 42358F; Lands: LawSociety Townland of (1) Tawnaghamore and Registration of Title Act, 1964 Barony of Clare; Co Galway Gazette An application has been received from Regd owner: John Clarke and Helena the registered owners mentioned in the Mee, Kilsallagh, Kilkerrin, schedule hereto for the issue of a land Ballinasloe, Galway; Folio: 51682F; ADVERTISING RATES certificate as stated to have been lost or Lands: Townland of (1) Cuilsallagh Advertising rates in the Professional information section are as follows: inadvertently destroyed. A new certifi- and Barony of Tiaquin Area; Area: cate will be issued unless notification is 0.356 hectares; Co Galway • Lost land certificates – £30 plus 20% VAT (£36.00) received in the registry within 28 days Regd owner: Anne Wilkinson (tenant • Wills – £50 plus 20% VAT (£60.00) from the date of publication of this in common with Anne McDonagh); • Lost title deeds – £50 plus 20% VAT (£60.00) notice that the original certificate is in Folio: 7952; Lands: Townland of • Employment miscellaneous – £30 plus 20% VAT (£36.00) existence and in the custody of some Rath and Barony of Glanarought; person other than the registered Co Kerry HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – £25 EXTRA owner. Any such notification should Regd owner: Bridget O’Carroll; Folio: state the grounds on which the certifi- 9410F; Lands: Lands at Ardoughter, All advertisements must be paid for prior to publication. Deadline for March cate is being held. situate in the Barony of Clanmaurice Gazette: 16 February 2001. For further information, contact Catherine 1 (Register of Titles), Central Office, Land and County of Kerry; Area: /2 Acre; Kearney or Louise Rose on 01 672 4828 Registry, Chancery Street, Dublin Co Kerry (Published 2 February 2001) Regd owner: Jim Clancy and Claire Hannon; Folio: 35059F; Lands: (4) 1.1740 hectares, (5) 0.3245 Regd owner: Mary Marron, Freffans, Regd owner: James Fenelon; Folio: Townland of Dromin and Barony of hectares; Co Mayo Trim, Co Meath; Folio: 10274 & 6142F; Lands: Knockdramagh and Iraghticonnor; Co Kerry Regd owner: Bridget Ruane and Father 18089; Lands: Collierstown; Area: Barony of Forth; Co Carlow Regd owner: Belinda Ryan (deceased); Gerard Needham as tenants in com- 60.93125 acres (Folio 10274), 1.00 Regd owner: Arthur Alan Skuce; Folio: Folio: 8275F & 7396; Lands: mon of one undivided moiety acres (Folio 18089); Co Meath 9834F; Lands: Property situate to Warrenstown and Barony of respectively, 14 Thomas Street, Regd owner: Philomena Byrne; Folio: the North Side of Centaur Street in Galmoy; Co Kilkenny Castlebar, Mayo, and The 12519; Lands: Ballard and Barony of the Parish and Urban District of Regd owner: Patrick McKelvey; Folio: Presbytery, Castlebar, Mayo; Folio: Ballycowan; Area: 12519; Co Offaly Carlow; Co Carlow 13973; Lands: Barny and Bealady 8691F; Lands: Townland of (1) Regd owner: Seamus Daly; Folio: 14789; Regd owner: Brendan O’Brien; Folio: and Barony of Clandonagh; Co Springfield and Barony of Carra; Co Lands: Ballyduff and Barony of 5247F; Lands: Johnduffswood and Laois Mayo Garrycastle; Co Offaly Barony of Idrone West; Co Carlow Regd owner: James Slattery (deceased); Regd owner: James Moran and Mary Regd owner: Donal and Lucy Regd owner: Shannon Free Airport Folio: 10892; Lands: Townland of Ann Moran, Sheeroe, Westport, Geoghegan; Folio: 254L; Lands: Development Company Limited, Ballyhurst and Barony of Coonagh; Mayo; Folio: 14732; Lands: Kilbride and District of Tullamore; Shannon Airport, Clare; Folio: 1105 Co Limerick To wnland of (1) Derrygorman, (2) Co Offaly F; Lands: Townland of (1) Dulick Regd owner: Anthony Crosse; Folio: Sheeroe and Barony of Murrisk; Regd owner: Coillte Teoranta, Leeson and Barony of Bunratty Upper; 28108; Lands: Townland of Kilcullen Area: (1) 2.3726 hectares, (2) 1.3481 Lane, Dublin 2; Folio: 33917; Lands: Area: 1.4660 hectares; Co Clare and Barony of Clanwilliam; Co hectares; Co Mayo Townland of (1) Aghacarra, (2) Regd owner: George R Morrison, Limerick Regd owner: Joseph Prendergast and Aghacarra and Barony of Boyle; Area: Roshin North, Burtonport, Co Regd owner: William Mullins; Folio: Mary Prendergast (deceased), (1) 16.8550 hectares, (2) 2.5191 Donegal & 2 Ambleside Crescent, 18224; Lands: Townland of Cush Gowlaun, Kilkelly, Co Mayo; Folio: hectares; Co Roscommon Bangor, Co Down; Folio: 43054; and Barony of Coshlea; Co 8955F; Lands: Townland of Regd owner: John Banahan, Lands: Roshin North; Co Donegal Limerick Gowlaun and Barony of Costello; Clontuskert, Lanesboro, Co Regd owner: Maureen and Patrick Regd owner: Patrick Flood Jr, Area: 0.907 acres; Co Mayo Roscommon; Folio: 31116; Lands: Quinn, Main Street, Ballybofey, Co Edgeworthstown; Folio: 5164; Regd owner: William Heaney and Kate To wnland of (1) Cloontuskert, (2) Donegal; Folio: 36020; Lands: Lands: Aghafin; Area: 9.588 acres; Heaney, Pollbaun, Hollymount, Cloontuskert and Barony of Ballybofey; Area: 0.181 acres; Co Co Longford Mayo; Folio: 27902; Lands: Ballintober South; Area: (1) 6.2979 Donegal Regd owner: John Murphy, Balfaddock, Townland of (1) Pollbaun, (2) Roos, Regd owner: Coillte Teoranta, Leeson Queensboro, Drogheda, Co Louth; (3) Pollbaun and Barony of Lane, Dublin 2; Folio: 18103; Folio: 9340; Lands: Beltichburne; Kilmaine; Area: (1) 12.373 hectares, DUBLIN SOLICITORS’ Lands: Tullynavinn; Area: 17.463 Area: 10.284 hectares; Co Louth (2) 4.251 hectares, (3) 2.400 acres; Co Donegal Regd owner: Peter John Burns, hectares; Co Mayo PRACTICE OFFERS Regd owner: Margaret Vivash; Folio: Carrickcarnan, Ravensdale, Dundalk, Regd owner: Henry Murray, AGENCY WORK DN9754; Lands: Property situate in Co Louth; Folio: 5317; Lands: Seeaghanbaun, Kincon, Killala, the Townland of Saggart and Carrickcarnan; Area: 13.288 acres; Ballina, Mayo; Folio: 15116; Lands: IN NORTHERN Barony of Newcastle; Co Dublin Co Louth To wnland of (1) Seeaghanbaun, (2) IRELAND Regd owner: Cyril Joyce and Kitty Regd owner: Thomas Fee, Castletown Seeaghandoo and Barony of Joyce, 20 Hazel Park, Newcastle, Road, Dundalk, Co Louth and Tirawley; Area: (1) 12.0697 hectares, * All legal work undertaken Galway; Folio: 33943F; Lands: Southend, Blackrock, Haggardstown, (2) 0.0101 hectares; Co Mayo on an agency basis Townland of (1) Newcastle and Dundalk, Co Louth; Folio: 12029; Regd owner: Michael Joseph * All communications to clients Barony of Galway; Co Galway Lands: Haggardstown; Area: 0.375 Cottingham, Mounthenry, Ower through instructing solicitors Regd owner: Ralph M Keane, Bridge acres; Co Louth PO Mayo; Folio: 19773F; Lands: * Consultations in Dublin if required Street, Gort, Galway; Folio: 52767; Regd owner: Anthony Joyce, To wnland of (1) Brownisland, (2) Contact: Séamus Connolly Lands: Townland of (1) Drumgarve, Carraholly, Westport, Mounthenry, (3) Gortbrack, (4) Moran & Ryan, Solicitors, Cloonnahaha, and (2) Cloonnahaha Co Mayo; Folio: 671; Lands: Mounthenry, (5) Ballycurrin Arran House, and Barony of Kiltartan; Area: (1) Townland of (1) Drumgarve and Demesne, (6) Mounthenry, (7) 35/36 Arran Quay, Dublin 7. 2.9112 hectares, and (2) 7.3576 Barony of Burrishoola; Area: 14.7989 Mounthenry and Barony of hectares; Co Galway hectares; Co Mayo Kilmaine; Area: (1) 0.195 hectares, Tel: (01) 872 5622 Regd owner: Galway Board of Health; Regd owner: Nora Murray, Drum- (2) 2.122 hectares, (3) 2.3600 Fax: (01) 872 5404 Folio: 5032; Lands: Townland of (1) drishaghaun, Belcarra, Castlebar, Co hectares, (4) 5.709 hectares, (5) Caherwalter, (2) Cosmona, (3) Mayo; Folio: 15976F; Lands: 5.026 hectares, (6) 1.7500 hectares, e-mail: [email protected] Cuscarrick, (4) Pollroebuck, (5) To wnland of (1) Ballynagharha, (2) (7) 3.677 hectares; Co Mayo or Bank Building, Hill Street Caherwalter, (6) Caherwalter, (7) Cloonconragh East, (3) Regd owner: Michael Hanely, Newry, County Down. Loughrea, (8) Loughrea, (9) Drumdrishaghaun, (4) Lissaniska, (5) Hagfield, Charlestown, Mayo; Folio: Tel: (0801693) 65311 Cosmona, (10) Caherroyn and Drumdrishaghaun and Barony of 22715 F; Lands: Townland of (1) Fax: (0801693) 62096 Barony of Loughrea; Co Galway Carra; Area: ; (1) 0.2302 hectares, (2) Hagfield and Barony of Costello; E-mail: [email protected] Regd owner: Gerald and Vicki 0.0303 hectares, (3) 5.9270 hectares, Area: 0.183 hectares; Co Mayo

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hectares, (2) 1.3152 hectares; Co Regd owner: Joseph Gavin, Rochfort Cuddigan & Co, Solicitors, 30/31 having knowledge of a will made by Roscommon Demesne, Mullingar, Co Washington Street, Cork, tel: 021 the above named deceased who died Regd owner: Margaret Nerney, Westmeath; Folio: 19983; Lands: 4270903, fax: 021 4270561 on 23 November 2000, please contact Doughill, Curraghroe, Co Rochfort Demesne; Area: .375 acres; MA Regan, McEntee & Partners, Roscommon; Folio: 656 R; Lands: Co Westmeath Hoey, James, late of 86 Huntstown Solicitors, High Street, Trim, County Townland of (1) Doughill (2) Doughill Regd owner: Rosemarie O’Leary; Wood, Clonsilla, Dublin 15. Would Meath, tel: 046 31202, fax: 046 31932 (1 undivided 27th part); Area: (1) Folio: 13443; Lands: St Iberius and any person having knowledge of a will 7.0137 hectares (2) 70.7441 hectares; Barony of Forth; Co Wexford made by the above named deceased Newman, Thomas (deceased), late of Co Roscommon Regd owner: George Stafford who died on 15 November 2000, Kilcoursey, Clara, County Offaly. Regd owner: Thomas Coyne, Distribution Limited; Folio: 8869F; please contact McAlister O’Connor, Would any person having knowledge Ballyhubert, Scramogue, Longford; Lands: Sinnottstown; Area: 20.099 Solicitors, 79 Flower Hill, Navan, Co of a will made by the above named Folio: 26351; Lands: Townland of (1) acres; Co Wexford Meath, tel: 046 22223, fax: 046 22544 deceased who died on 12 November Ballyhubert (2) Mongagh and Barony 2000, please contact JD Scanlon & of Roscommon; Area: (1) 2.5242 Howick, Mary (deceased), late of 6 Co, Solicitors, The Bridge Centre, hectares (2) 0.7992 hectares; Co WILLS Belfield Close, Clonskeagh, Dublin Tullamore, Co Offaly, tel: 0506 Roscommon 14. Would any person having knowl- 51755, fax: 0506 51759 or e-mail Regd owner: Eugene L Tansey, Coghill, Peter (deceased), late of edge of a will made by the above [email protected] Ballysundrivan, Elphin, Roscommon; Springfield, Carlow, Co Carlow. Would named deceased who died on 11 June Folio: 14016; Lands: Townland of (1) any person having knowledge of the 2000, please contact Lennon Heather O’Doherty, Grainne (deceased), late Ballysundrivan and Barony of whereabouts of a will for the above & Company, Solicitors, City Quay of Claggan, Portsalon, Co Donegal. Frenchpark; Area: 10.0941 hectares; named deceased who died on 19 June House, City Quay, Dublin 2, tel: 01 Would any person having knowledge Co Roscommon 1999, please contact Durcans, 6703232, fax: 01 6703434 of a will made by the above named Regd owner: William (otherwise Solicitors, Castlebar, Co Mayo, tel: 094 deceased who died on 13 October Brendan) Finnegan, Ballyweelin, Co 21042/21655, fax: 094 23780 Keogh, William Anthony (or Liam) 1997, please contact McArdle & Co, Sligo; Folio: 17041; Lands: Townland (deceased), late of 74 Seacrest, Vevay Solicitors, 12 Upper Mount Street, of (1) Creggyconnell and Barony of Delaney, Ciaran (deceased), late of 41 Road, Bray, Co Wicklow. Would any Dublin 2, tel: 01 6622422, fax: 01 Carbury; Area: 3.7003 hectares; Co North Leinster Street, Dublin 7, or 10 person having knowledge of a will 6622436 Sligo College Grove, Castleknock, Dublin made by the above named deceased Regd owner: Margaret Mary Clossick, 15. Would any person having knowl- who died on 13 November 2000, O’Driscoll, Stephanie (deceased), Ballinvally East, Bunninadden, edge of a will made by the above named please contact Helen Boland, late of 408 Howth Road, Raheny, Ballymote, Co Sligo; Folio: 16840; deceased who died on 14 December Solicitor, 9 Palmerston Road, Dublin 5. Would any person having Lands: Townland of (1) Ballinvally 2000, please contact Bowler Geraghty Rathmines, Dublin 6, tel/fax: knowledge of a will made by the above East, (2) Brackloonagh and Barony of & Co, Solicitors, 2 Lower Ormond 4963349 named deceased who died on 14 Corran; Area: (1) 5.7920 hectares, (2) Quay, Dublin 1, Ref: JRM, tel: October 2000, please contact 0.5660 hectares; Co Sligo 8728233, fax: 8728115 Ledwith, Julia Catherine (ors Sheila Corrigan & Corrigan, Solicitors, 3 St Regd owner: Nicholas Bergin; Folio: Ledwith), Ballardin, Dunderry, Andrew Street, Dublin 2, tel: 29822 & 29680; Lands: Rathmoley Egan, Catherine (deceased), late of 64, County Meath. Would any person 6776108, fax: 6794392 and Barony of Slieveardagh; Co Knockroe, Castlerea, Co Roscommon. Tipperary Would any person having knowledge of Regd owner: Noel O’Dwyer; Folio: a will made by the above named 5911F; Lands: Clonoulty Church- deceased who died on 8 September o quarter and Barony of Kilnamanagh S LV 2000, please contact Michael F Butler Lower; Co Tipperary & Company, Solicitors, 34 Main Street, recruitment group Regd owner: Nigel Riordan and Eileen Longford, Co Longford, tel: 043 Long; Folio: 17411F; Lands: 41118, fax: 043 47022 Townland of Coxtown East and Barony of Gaultiere; Co Waterford Hartnett, John, late of 34 Finglas Regd owner: Patrick Singleton; Folio: Road, Dublin (last known address) 592F; Lands: Townland of Boola and would at other times have resided at Barony of Coshmore and Coshbride; Iona Road, Dublin and Jamesbrook, Co Waterford East Ferry, Midleton, Co Cork. The Regd owner: Maurice Kiely; Folio: 7701; late Mr Hartnett died on 28 November Lands: Townland of Lagnagoushee 2000. Would any person having knowl- and Barony of Decies-within Drum; edge of a will made by the above Co Waterford named, please contact Joseph S

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O’Hara, Peter, late of 9 Garville Road, Locum litigation solicitor available Solicitor – North Kildare, three London solicitors will advise on UK Dublin 6. Would any person having from mid-February 2001. Dublin area. years’ general practice PQE, seeks matters and undertake agency work. knowledge of a will made by the above Reply to Box No 13 position in region, tel: 045 871456 All areas. Corporate/private clients. named deceased who died on 5 Ellis & Fairbairn, 26 Old Brompton November 2000, please contact Doyle Apprentice required for Tullamore Post-professional course apprentice Road, South Kensington, London Geraghty & Company, Solicitors, 27 practice. Immediate start. Apply in with conveyancing experience required SW7 3DL, tel: 0044 171 589 0141, Bridge Street Lower, City Gate, Dublin writing to Box No 14 by Cork city firm. Reply to Box No 19 fax: 0044 171 225 3935 8, tel: 6790166, fax: 6790168, e-mail [email protected] Small solicitors’ practice for sale in Life is about living – solicitor avail- Northern Ireland solicitors. Will north county Dublin. Sole practitioner able for locum work – tel: Belfast advise and undertake NI-related mat- O’Toole, John Joseph (otherwise Jack), retiring. Ideal opportunity for one or 90641595 ters. All areas corporate/private. late of Newtown, Donard, Co Wicklow two young solicitors to acquire a well- Agency or full referral of cases as pre- and Ballintruermore, Stratford-on- established practice in a thriving area. ferred. Consultations in Dublin or Slaney, Co Wicklow. Would any person Fully computerised. Excellent modern MISCELLANEOUS elsewhere if required. Fee sharing having knowledge of a will made by the offices. Replies to Box No 15 envisaged. Donnelly Neary & above named deceased who died on 30 Northern Ireland solicitors provid- Donnelly, 1 Downshire Road, March 1999, please contact Doyle ing an efficient and comprehensive Newry, Co Down, tel: 080 1693 Murphy & Co, Solicitors, Weaver AT MARY B CREMIN legal service in all contentious/non- 64611, fax: 080 1693 67000. Contact Square, Baltinglass, Co Wicklow, tel: LEGAL DIVISION contentious matters. Dublin-based KJ Neary 0508 81888, fax: 0508 81889 Medium-sized D2 firm are offering consultations and elsewhere. Fee an excellent opportunity for pro- apportionment. ML White, Solicitors, Personal injury claims, employment, Ryan, Helen, deceased, late of 7 Church gression for a recently-qualified 43-45 Monaghan Street, Newry, family, criminal and property law spe- Place, Rathmore, Kerry. Would any firm solicitor with experience in com- County Down, tel: 080 1693 68144, cialists in England and Wales. Offices of solicitors holding a will or having mercial conveyancing and probate. fax: 080 1693 60966 in London (Wood Green, Camden knowledge of a will made by the above £30K neg Town and Stratford), Birmingham and named deceased who died on 29 January Newly-established commercial Northern Ireland agents for all con- Cardiff. ‘No win, no fee’ available for 1999, please contact Gerard O’Keeffe & firm seek additional solicitor with a tentious and non-contentious matters. accident and employment claims, legal Co, Solicitors, Kanturk, Co Cork, tel: knowledge of commercial litiga- Consultation in Dublin if required. aid for family and criminal cases. 029 50154, fax: 029 50725 tion. This rapidly-growing firm Fee sharing envisaged. Offices in Contact Levenes Solicitors at Ashley can offer real experience and Belfast, Newry and Carrickfergus. House, 235-239 High Road, Wood development. £35K+ neg Simpson, Ellen (deceased), late of 126 Contact Norville Connolly, D&E Green, London N22 8HF, tel: 0044 20 Heather Walk, Portmarnock, Co Dublin Contact Roisin @ 6623000 Fisher, Solicitors, 8 Trevor Hill, 8881 7777. Alternatively e-mail us on who died on 25 November 2000. Would [email protected] Newry, tel: 080 1693 61616, fax: 080 [email protected] or visit our web- any solicitor holding a will for the 1693 67712 site at www.levenes.co.uk deceased please contact Maguire & Brennan, Solicitors, DX 95004, Claremorris, Co Mayo, tel: 094 71321, fax: 094 62034, or e-mail law@maguire- brennan.ie, ref: SIMP1/1/MGB/PR

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63 Professional information

For sale: publican’s licence. Contact appropriate on the basis that the per- Louis O’Connell of Gerald Baily & son or persons beneficially entitled to Co, Solicitors, Church Place, Church the superior interest including the Street, Tralee, County Kerry, tel: freehold reversion in the aforesaid 066 7121015 / 066 7122152 / 066 premises are unknown or unascer- 7120460, fax: 066 7123014, e-mail, tained. [email protected] Dated: 15 January 2001 Signed: Hugh O’Reilly, solicitor for appli- Would any person having knowl- cant, GPO, O’Connell Street, Dublin 1 Be Sure. Engage a Forensic Accountant. edge of the Saunderson estate relating 26/28 South Terrace, Cork Tel:021 431 9200 Fax:021 431 9300 to property at Mullagh, County Cavan, In the matter of the Landlord and please contact O’Leary & Company, Tenant Acts, 1967–1984 and 60 Lower Baggot Street, Dublin 2 Tel:01 475 4640 Fax:01 475 4643 Solicitors, Muckross Road, Killarney, Landlord and Tenant (Ground Rents) e-mail: [email protected] Web: www.jhyland.com County Kerry, tel: 064 37222/31090, (No 2) Act, 1978: an application by fax: 064 37244 Patrick J O’Sullivan Ordinary seven-day publican’s EYE INJURIES AND licence for sale. Contact Murphy & Established legal practice for sale: Take notice that any person having an OPHTHALMOLOGIAL Long, Solicitors, Lower Kilbrogan South West of Ireland – Box No 16 interest in the freehold estate of the NEGLIGENCE Hill, Bandon, County Cork, tel: 023 following property: all that and those 44420, fax: 023 44635 Carlow/Kilkenny area. Busy sole portion of the premises at 5 Bridge Mr Louis Clearkin ChM, FRCS, practitioner’s practice for sale. Street in the Town of Swords, Barony FRCOphth, DO, MAI, MEWI For sale: seven-day ordinary intoxi- Inquiries in confidence to Box No 18 of Nethercross and County of Dublin. Consultant Ophthalmic Surgeon cating liquor licence. Enquiries and Particulars of applicant’s interest Experienced expert witness in details from Mannix & Company, referred to above: deed of conveyance ophthalmological personal Solicitors, 12 Upper Castle Street, TITLE DEEDS and assignment dated 8 September injury, medical negligence and Tralee, tel: 066 7125011 1998, John Taylor to applicant and civil litigation In the matter of the Landlord and deed of assignment dated 30 March Te nant Acts, 1967–1994 and in the 2000 and made between Barry Savage Renuntiabo, 8 Rose Mount, SUB-OFFICE PRACTICE matter of the Landlord and Tenant of the one part and the applicant of Oxton, Wirral, Merseyside, FOR SALE (Ground Rents) (No 2) Act, 1978 and the other part, which said premises L43 5SW IN COUNTY GALWAY in the matter of premises near forms part of the property comprised secretary: +44 (0) 151 6047047 Parade Quay, Waterford (behind in and demised by an indenture of fax: +44 (0) 151 6047152 Situated in thriving town with 109 Parade Quay): an application lease dated 10 September 1850 and e-mail: [email protected] good employment and large by An Post made between Philip O’Dwyer agricultural hinterland Greene of the first part, William Ideal opportunity for Take notice that any person having Greene of the second part and George Publican’s ordinary seven-day energetic young solicitor any interest in the freehold estate of Watters of the third part for the term licence for sale. Please contact Messrs Modern office in prime the following premises all that and of 200 years from 25 March 1850 sub- John Casey & Company, Solicitors, location at reasonable rent those the yard and premises situate ject to the yearly rent of £5 thereby Bindon House, Bindon Street, Ennis, Includes all office near Parade Quay in the parish of reserved and to the covenants on the Co Clare, tel: 065 6828763, Reference equipment and furniture Trinity within and city of Waterford part of the lessee and the conditions OA/MK Substantial potential for and more particularly delineated and therein contained. further expansion described on a map endorsed on an Seven-day licence for sale: part- For sale as going concern indenture of conveyance and assign- Take notice that the applicant, Patrick iculars from Branigan Cosgrove with all current files ment made 12 October 1937 between J O’Sullivan of 51 Portmarnock Solicitors, 31 Pembroke Road, Dublin Enquiries in confidence to Francis Graham of the one part and Crescent, Portmarnock, Co Dublin, 4, tel: 01 6682477, fax: 01 6670119, e- Box No 17 Austin Orlando Hill of the other part being the person entitled under the mail [email protected] and therein coloured brown originally provisions of sections 9 and 10 of the held in yearly tenancy at a rent of £5 Landlord and Tenant (Ground Rent) (No per annum and therein described as 2) Act, 1978 proposes to purchase the NORTHERN ‘all that and those the premises fee simple in the lands described in adjoining the premises hereinbefore above by application to the Dublin IRELAND described situate in the parish of county registrar and any person hav- J. DAVID O’BRIEN SOLICITORS Trinity within and city of Waterford ing an interest in the said premises are ATTORNEY AT LAW and more particularly delineated and called upon to furnish evidence to the We will engage in, described in the map thereof endorsed below-named within 21 days of this 20 Vesey St, Suite 700 New and advise on, on these presents and therein notice. York, NY. 10007 all Northern Ireland- coloured brown’. In default of such notice being received, the application will proceed Tel: 001212-571-6111 related matters, Take notice that the applicant, An on the basis that the person or persons Fax: 001212-571-6166 particularly personal Post, intends to submit an application beneficially entitled to the lessor’s PERSONAL INJURY ACCIDENT injury litigation. to the county registrar for the county interest or to any superior interest CASES Consultations where of Waterford for the acquisition of the including the freehold reversion are freehold interest in the aforesaid unknown or unascertained. CONSTRUCTION convenient. Fee sharing properties and any party asserting that Dated:19 January 2001 RAILROAD they hold a superior interest in the Signed: Brian D O’Brien & Co (solicitors MARITIME envisaged. aforesaid premises (or any of them) for the applicants), 23 Main Street, AVIATION are called upon to furnish evidence of Swords, C. Dublin CAR/BUS/TRUCK OLIVER M LOUGHRAN title to the aforementioned premises to the below named within 21 days Johanna Ging, 72 Brewery Road, MEMBER AMERICAN AND NEW & COMPANY from the date of this notice. Stillorgan, County Dublin. Would any YORK STATE TRIAL LAWYERS 9 HOLMVIEW TERRACE, In default of any such notice being person having knowledge of the where- ASSOCIATIONS OMAGH, CO TYRONE received, An Post intends to proceed abouts of the title documents of the Phone (004428) 8224 1530 with the application before the county above mentioned property, please con- Enrolled as Solicitor Fax: (004428) 8224 9865 registrar at the end of 21 days from tact, Woodcock & Sons, Solicitors, 28 in Rep. of Ireland, England e-mail: the date of this notice and will apply Molesworth Street, Dublin 2, tel 01 & Wales [email protected] to the county registrar for the county 6761948, fax: 01 6760272, e-mail of Waterford for directions as may be [email protected]

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