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legal planner 2005 GazetteLawSociety Your Gazette

Regulars Cover Story 8 Bell, book and candle News 2 Canon law is the basic law of the Catholic Church and has come to prominence in recent times in relation to child-abuse cases. But can it Tech trends 28 take precedence over civil law? Henry Murdoch straps on his dog collar Book reviews 35

Briefing 39 The quiet man Council report 39 12 Don’t expect any table-thumping from the Law Committee Society’s new president. There will be no report 40 ‘Binchy manifesto’. The man is just here to do his job, he tells Conal O’Boyle Practice note 40 Legislation update 41 No such thing as bad Personal injury 15 publicity? judgment 42 Bad publicity can harm the share price Solicitors of listed companies, but a novel attempt Disciplinary to recover compensation for such a loss Tribunal 43 recently failed in the English High Court. FirstLaw update 44 Pamela Cassidy inspects the damage Eurlegal 47 Ten years after Parchment 18 ceremonies 2004 49 A decade ago, civil war convulsed Bosnia and Herzegovina, but now things are looking up. Solicitor Lynn Sheehan reports on the work People and being carried out to reform public administration there, including places 57 overhauling the judiciary

Professional information 58 Copyrights and wrongs 22 New technology has made copying and distributing copyright works COVER PIC: [email protected] much easier. In the digital age, the law is running to catch up with these developments, argues Paul Lambert

Fingerprint file 27 Just when you were beginning to feel comfortable with the notion of digital signatures, biometrics is now the flavour of the month, write Eamonn Keenan and Tony Bradley

Editor: Conal O’Boyle MA. Assistant editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 837 5018, fax: 884 4626, mobile: 086 8117116, e-mail: [email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial Board: Keith Walsh (Chairman), Conal O’Boyle (Secretary), William Aylmer, Tom Courtney, Stuart Gilhooly, Eamonn Hall, Pat Igoe, Philip Joyce, Mary Keane, Ken Murphy, Michael V O’Mahony, Alma Sheehan

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

Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Volume 98, number 10 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: €57.15

1 Law Society Gazette December 2004 News NATIONWIDE News from around the country ■ LEITRIM even staged a walk out of the tenancies agreement will be Rural renewal court in Drogheda in September launched in January by the Good news from Leitrim. Partly of last year in protest at the Dublin Solicitors’ Bar due to the rural renewal tax appalling conditions. Association’s conveyancing relief scheme, which expires on The new court facility, on the committee, chaired by 31 December, solicitors have town’s Dyer Street, will be for a Geraldine Kelly. seldom been busier. The scheme three-to-five-year period. ‘We ‘Since the enactment of the appears to have been very are delighted’, said Minogue. Residential Tenancies Act, 2004 in successful, according to Michael ‘We were in a bingo hall for ten September, we have been Keane Jnr of the Leitrim Bar years and it is not hard to inundated with calls from Association. It has meant a very improve on that’. colleagues on how to approach busy time for builders and their The association is confident drafting of tenancy agreements’, tradesmen and suppliers, as well that the new premises will only noted Kevin O’Higgins, as for professionals such as be temporary, as has been secretary of the DSBA. solicitors. indicated. The lease by the ‘Since the act came into force, Under the scheme, Courts Service is short term we have been in a state of limbo introduced by the minister for only. and so the launch of the revised finance in the 1998 Finance Act, So they expect that the sitting draft agreement for members owner-occupiers of houses can judge, officials, solicitors, gardaí will be widely welcomed’, he Outgoing DSBA president John benefit from tax reliefs, O’Connor hands over the chain of and all users of the court, felt. A committee, including including setting construction office to his successor, Orla including the people whom they himself, Marjorie Murphy, costs or refurbishment costs Coyne, outside the DSBA’s new all serve, will then have a Christine Scott, Brian Gallagher against rental income incurred Hatch Street headquarters courthouse and courtroom with and assisted by Aine Ryall of on certain residential premises. all of the modern facilities that UCC, was now working on the For investors, relief is available the immediate area, according to people have come to expect in draft agreement. against all rental income for Caren Farrell, outgoing court and that will last for future 100% of the expenditure president of the association. generations. Discovery by e-mail incurred on the conversion or The Midlands is a good The DSBA has urged colleagues refurbishment of certain venue and well located in the ■ KERRY to note that Dublin Circuit buildings into rental residential centre of the country, with easy Judicial retirement Court has asked solicitors, when accommodation. access, she noted. The bar The retirement of a District lodging motions for discovery, Solicitors are under huge association had also received Court judge is not always to e-mail a copy of the motion pressure now in conveyancing great support from the Law significant news. But it is if the and affidavits to enable them to for these qualifying properties Society, and its recent seminar retiring judge has served a copy and paste the details onto since the end-December in Athlone on costs was both community well for 25 years. the order. deadline is fast approaching, very important and well Judge Humphrey Kelleher ‘Discovery orders are often according to Michael Keane Jnr. attended. was a very significant figure long and take a long time to Solicitors must keep up-to- here. He was able to size up a type, which is one of the reasons District Court news date both for their clients and in situation before him both very that they take longer to produce. Meanwhile, Leitrim litigation their own interests. The courses quickly and very well. His Often the details are already solicitors are also smiling and being organised are a great way judgments were fair and contained in the motion and we adjusting to District Court judge of maintaining our professional consistent, according to Pat are merely duplicating what has Geoffrey Browne, formerly a standards, she added. Sheehan, secretary of the Kerry already been typed by the Galway practitioner, who was Law Society. solicitor. If we could copy and described by one practitioner as ■ DROGHEDA To mark his retirement, 70 paste this into the orders, it an excellent judge and making a Court accommodation – again local solicitors attended a would mean that all orders big impression. At the end of January 2005, retirement function at which would be produced more solicitors practising in Drogheda tributes were paid to Judge quickly’, according to Kevin ■ MIDLANDS District Court will at last have Kelleher’s contribution to the Fidgeon, deputy chief clerk of Location, location, location some form of reasonable court local community, to the judicial the Dublin Circuit Court. The Midland Bar Association, in conditions, according to the process in the Kingdom and to However, it is still not conjunction with the Law Drogheda Bar Association’s the state over a quarter of a possible to lodge motion papers Society, has been holding a Fergus Minogue. century. by e-mail. G number of continuing Their conditions in recent professional development years had been a cause of serious ■ DUBLIN Nationwide is compiled by Pat courses, which have even upset and were a disgrace to the Residential tenancies Igoe, principal of the Dublin law attracted people from outside judicial process. Solicitors had A revised draft residential firm Patrick Igoe & Co.

2 Law Society Gazette December 2004 News Society judicially reviews Society supports Competition Authority challenge he Law Society has the motion, the society’s to PIAB Tlaunched judicial review president, Owen Binchy, said proceedings against the that the society ‘was extremely he Law Society is seeking Competition Authority, seeking alarmed at the decision and, in Tleave to make written and to quash the authority’s particular, at the authority’s oral submissions to the High decision to issue a notice that attempt to restrict the freedom Court as amicus curiae or purports to reserve to the of persons to choose the lawyer intervener in a case which authority the power to veto the representing them before the challenges the Personal choice of lawyer made by a authority’. Injuries Assessment Board’s party to a Competition The society took the view policy of refusing to Authority investigation. The that the right to be represented correspond exclusively with a society is seeking declarations by a lawyer of one’s choice is a solicitor for a claimant where it from the High Court that the basic and fundamental tenet of is the claimant’s wish that PIAB authority’s notice, which was any free and democratic should do so. published on 4 August 2004, is society. At issue is whether PIAB’s ultra vires the authority’s As the Gazette went to press, general policy of disregarding powers, null and void and of no the society was awaiting a applicants’ written legal force or effect. replying affidavit from the authorisations in this regard In his affidavit grounding President Owen Binchy authority. may violate the claimant’s rights under the constitution and the European convention on human rights. Vote of confidence in Murphy The society views the judicial aw Society director better responses to the review proceedings, brought by Lgeneral Ken Murphy has challenges facing the an applicant named Declan been elected to an profession. O’Brien, as highlighting issues unprecedented fourth term as In addition, Murphy was of fundamental importance to chairman of CEEBA, the recently elected as a member the right of people to take organisation of chief of the board of IILACE, the independent legal advice and to executives of European bar International Institute of Law entrust to their solicitor the associations. Association Chief Executives, conduct of a claim for personal At CEEBA’s recent annual which organises chief injuries. meeting in London, executives on a worldwide Murphy’s peers from across basis. He says he finds it GAZETTE CHRISTMAS Europe chose him to lead particularly valuable to learn PUBLICATION their network for another and discuss how legal As usual, the Gazette will be year. The organisation, professions in other taking a break over the Christmas collectively representing jurisdictions have dealt with period, so there will be no issue in Murphy: fourth term January. Normal publication will more than 300,000 lawyers, is such issues as review by resume with a joint January/ a network enabling regular education and representation competition regulators and February issue, due out in early exchange of information and of the legal profession across government reforms of their February. ideas on the regulation, Europe. It seeks to develop litigation systems.

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3 Law Society Gazette December 2004 News

RETIREMENT TRUST SCHEME Unit prices: 1 November 2004 New security arrangements Managed fund: €4.42768 All-equity fund: €1.03390 Cash fund: €2.57198 in the Four Courts Long-bond fund: €1.20081 he Courts Service has said PRIZE BOND WINNERS 2004 Tthat the series of security The winners of the Law Society’s measures that are due to come prize bond draw were: Brian M into effect early in the new year Gallagher, Dublin 2; Andrew ‘will substantially improve Smyth, Dublin; Caroline Preston, security in and around the Four Dublin; John C Reidy and Patrick Courts complex’. The measures J Reidy, Co Kildare; William include the provision of McGuire, Co Wicklow; Mary P ‘security pavilions with Nowlan, Co Dublin; Patrick T scanning equipment’ at the Moran, Co Mayo; Leo and Kevin entrances and the restriction of Loftus, Co Mayo; Thomas vehicle access to the judges’ car O’Halloran, Co Kerry; Dermot M park in Chancery Place. Murphy, Dundalk; Patrick G Solicitors, barristers, judges Colfer (decd), Dublin. and other professional groups, such as courts staff and court JOYCE’S LEGAL DUBLIN reporters, will be exempted Courts building or the front However, it appears that Brian McMahon, author of an from going through the new door of Áras Uí Dhálaigh solicitors may not find it easy article on James Joyce’s legal security arrangements. Instead, • Public entrances will be to get their hands on access/ID Dublin published in the October they will be issued with located at Morgan Place cards for the Four Courts. The issue of the Gazette, will be identification cards, by (between Áras Uí Dhálaigh Courts Service has informed giving a talk on the article at arrangement. According to the and the main Four Courts the Law Society that ‘some 8pm on 20 January at 15 Courts Service, the new building) and the front door garda stations are not prepared Usher’s Island, Dublin 8 security measures are ‘a of the Circuit Courthouse in to stamp application forms and (Joyce’s ‘House of the Dead’). response to an ever-changing Chancery Place photographs’ for solicitors, All are welcome to attend. security climate’. • Those with ID cards will be trainees and solicitors’ clerks. ‘There is no question of able to gain access through ‘We have consulted with the CONSULTATION ROOM FEES restricting public access to the specially erected turnstiles at garda commissioner’s office The fees being charged by the courts’, it says, ‘but of the entrances to Morgan regarding this matter’, it says, Law Society for use of the organising this access so as to Place, Chancery Street, the ‘and have been advised that consultation rooms in the Four better ensure safety and judges’ car park at Chancery solicitors should arrange with Courts are being increased security for all who use the Place and the Circuit members of the Garda from 1 January 2005 as building’. Courthouse at Chancery Place Síochána who are well known follows: one hour – €40 (up The main features of the • Cars authorised to park in to them to have their from €35); two hours – €55 new arrangements include: the Morgan Place/Áras Uí application forms stamped (up from €50); full day – €170 • From January 2005, there Dhálaigh car parks will be rather than seek to have the (up from €155). The room rate will be no access available to issued with permits that must forms stamped at a garda has not been increased since anybody through either the be displayed on the station where the applicant is January 2003. front door of the main Four windscreens. not known’. ONE TO WATCH: NEW LEGISLATION Criminal Justice (Temporary November 2004 (SI 679/04). government of the prison or • The potential threat to Release of Prisoners) Act, 2003 The purposes for which maintain good order, humane and members of the public Prior to this act, the legislative temporary release may be ordered just management; or if the • Other previous convictions basis for temporary release was by the minister are (a) to assess minister believes the person has • The risk of not returning to the Criminal Justice Act, 1960, the prisoner’s ability to reintegrate been rehabilitated and is capable prison section 2, which simply provided into society, (b) to prepare him for of reintegrating into society. • The conduct of the prisoner that the minister could make release, and (c) to assist the The minister must have regard while in custody regulations in relation to Garda Síochána. There also may to certain considerations before • Any reports by the prison temporary release from prisons be circumstances justifying giving a direction: governor, gardaí, probation and St Patrick’s Institution. The temporary release (health, • The nature and gravity of the officer, or anyone else the 2003 act replaces section 2 with humanitarian grounds); or the offence minister considers would be of a new section, which sets out the temporary release may be • The sentence imposed and any assistance ground rules for temporary necessary or expedient, in the remarks by the court • The risk of offending while on release. It came into effect on 12 minister’s opinion, to ensure good • The period served temporary release

4 Law Society Gazette December 2004 News New officer team in place Abolish he Law Society has a new TCouncil and a new officer ‘feudal team, with Owen Binchy taking over as president for the next land law’, year. Binchy was deemed elected to the post after serving says Wylie as senior vice-president last year, while Michael Irvine was eading land law expert elected senior vice-president LProfessor John Wylie has for 2004/05, with Brian called for the abolition of land Sheridan as junior vice- legislation dating back to the president. Middle Ages. Addressing a The following members recent conference on were elected to the Law reforming land law and Society Council in the recent conveyancing, organised by the ballot, with the number of Law Reform Commission, votes appearing after their New president Owen Binchy with (from left) junior vice-president Wylie said that ‘it is staggering names: Brian Sheridan and senior vice-president Michael Irvine that there remains in force so 1. Michael G Irvine 1,647 much legislation stemming 2. Donald Binchy 1,526 20. Edward C Hughes 864 Council members are elected from the feudal age, and it is 3. James B McCourt 1,402 21. TC Gerard O’Mahony 330 for a two-year term. The sitting time that an independent state, 4. Gerard F Griffin 1,401 Council members who were which has been in existence for 5. Fiona Twomey 1,336 As there was only one elected last year are: Brian over 80 years, jettisoned this 6. Anne Colley 1,319 candidate nominated for each Sheridan, Geraldine Clarke, historical baggage’. 7. Gerard J Doherty 1,314 of the two relevant provinces Owen Binchy, John O’Connor, And he added: ‘The 8. John P Shaw 1,307 (Leinster and Ulster), there John D Shaw, Kevin O’Higgins, purchase of a home is a 9. Simon J Murphy 1,300 was no election and the Michele O’Boyle, Stuart transaction of supreme 10. Orla Coyne 1,292 candidate nominated in each Gilhooly, James Cahill, Moya importance to most people. 11. Michael Quinlan 1,275 instance was returned Quinlan, Patrick Dorgan, John The day is surely approaching 12. James MacGuill 1,263 unopposed, as follows: Leinster Dillon-Leetch, John Costello, when members of the public 13. Michelle Ní Longáin 1,246 – Andrew J Cody; Ulster – Thomas Murran, and Jarlath will not understand why, in the 14. Philip M Joyce 1,186 Margaret M Mulrine. McInerney. age of the computer, a 15. Daniel E O’Connor 1,108 conveyancing transaction 16. Colin Daly 921 seems bedevilled with IRISH WOMEN LAWYERS’ ASSOCIATION uncertainties, involves a huge The following candidates were The Irish Women Lawyers’ Association is holding a half-day seminar paper chase and seems to take not elected and the number of on Saturday 22 January on Law and the elderly: an emerging an extraordinary time to votes received by them appears practice. Topics will include incapacity, enduring powers of attorney, complete’. after their names: the rights of the elderly under the European convention on human The conference focused on 17. Marie Quirke 908 rights, elder abuse, and the ethics of medical treatment of the the proposals outlined in the 18. Peter M Allen 893 elderly. The venue and other details will be notified on www.iwla.ie. LRC’s recent consultation 19. John P O’Malley 872 paper on the subject.

• The risk of failure to comply treason and murders of prison • That the person be of sober significant difference is with any conditions attaching to officers and gardaí in section 5 habits during that period. anticipated, but the act does the release of the Criminal Justice Act, make the whole process more • The likelihood that the release 1990). The regulations include a form to transparent. In that way, the might accelerate the prisoner’s SI 680/04 contains the be signed by the governor and the granting or refusal of temporary reintegration or improve his Prisoners (temporary release) person granted temporary release, release complies more closely prospects of employment. rules 2004, which also came into which list the default conditions, with the fair procedures effect on 12 November 2004. The and on which others may be requirement in article 6 of the Some prisoners are excluded, rules automatically include default included. The form is to be European convention on human including those serving conditions for release of a witnessed, so that it amounts to a rights. G mandatory sentences under prisoner: contract between the prison certain legislation (such as under • That the person shall keep the authorities and the candidate for Alma Clissman is the Law the 1977 and 1999 Misuse of peace and be of good temporary release. Society’s parliamentary and law Drugs Acts or that dealing with behaviour during release and Will it make any difference? No reform executive.

5 Law Society Gazette December 2004 News Cork’s family law court problems: district judge O’Leary speaks out ollowing the story on Cork’s had medical commitments and Fdistrict courts in last month’s could not be replaced. issue, Cork district judge Con ‘I do not see a solution to the O’Leary has issued a statement difficulties in hearing childcare to the Gazette on the effects of cases in an additional permanent late sittings in his court on his appointment to Cork or childcare list. In it, he confirms additional service by a moveable the substantial increase in child judge on a regular basis, as cases coming before him and presently in the Family Court, the pressures this has caused. as being necessary. It may also But he does not back the call by be that unless the number of some Cork practitioners for an judges is increased, unexpectedly additional district judge to be dramatically, the president may appointed to Cork, suggesting aware that some people would total of 60 hours in court. I find that other districts have instead the possible have the view that I create estimate that it accounted for all bigger problems and the appointment of a regional unnecessary work by regular 11 sittings after 6pm in October problems must be solved using family judge. reviews of troublesome cases. I to December 2003, and eight of such personnel as are presently O’Leary says that there were will not make a care order and the 11 such sittings in January assigned to Cork. 37 sittings after 5pm in his court then walk away and blame the to June 2004. ‘One possible alternative in 2002, 48 in 2003, and 32 in health board for not delivering. ‘Sixty hours is about 14 days would be a permanently the first six months of this year. Frequently, plans made by the in court time. This was on top assigned regional family judge. There were nine sittings after health board run into of all the day-to-day work. It This judge would do all the 6pm in 2002, 19 in 2003, and 11 bureaucratic or resource was, and felt, as if I had done family work in districts 17, 18, in the first six months of 2004. difficulties, or the child needs my day-to-day work to the end 19 and 20 and could organise his And he adds: ‘These figures encouragement to take of July, and then sat for three time according to need. I am not do not fully reflect the pressure. advantage of the resources that weeks in August to hear the familiar with the demands of Sittings have commenced at districts 17, 18 or 20, so my 9.30am or 10am. Criminal and reference to the grouping is civil business have been purely speculation’. cancelled or delayed to give priority to childcare business … Interim solution These late sittings are The judge concludes by unacceptable and unfair to the suggesting an interim solution parties, the advocates, the judge, to this on-going problem. and most of all to the children. ‘I am giving thought to giving They must affect the quality of all childcare matters priority to the work by the advocates and all other business’, he says. ‘The the judge, and of the evidence example would be that I would given by witnesses’. commence hearing a childcare case on a Wednesday afternoon, Nature of the work are made available. The court case, and then came back to and simply adjourn all scheduled The judge points to the nature has put the child, usually with a work after a week. Previous business on every day following of childcare proceedings as one traumatic history, in a years had similar events, where a commencement of hearing for of the factors in the problem. potentially challenging situation, minuscule number of cases as long as it takes, which may be ‘The nature of the work, and to take no further interest caused unacceptable late up to a week, until the case is including the potential in the child would be sittings. finished. I would plan to sit until consequences of the order, irresponsible’. ‘The difficulty arises from the 5pm to do this. whichever way it goes, the combination of the ‘This may mean that other vulnerabilities of the children, Extreme examples unpredictability of such an business has to wait or the apparent discrepancy of According to O’Leary, a excessively long case, and the eventually be struck out, but I resources and the creation of a disproportionate number of late unavailability of moveable will not inhibit cross- perception of the court as a sittings after 6pm arise from a judges to deputise at short (two examination (which is the slow forum which is fair and very limited number of cases. to four weeks) notice. I part) of witnesses who give responsive requires facilitation ‘The extreme example is the understand that courts were evidence in support of an of the most rigorous testing of case which ran from October cancelled in districts 16, 18 and application to remove a child the evidence’, he argues. ‘I am 2003 to April 2004. It took a 20 in September, where judges from its parents’. G

6 Law Society Gazette December 2004 News HUMAN RIGHTS WATCH Gay marriage is not a convention right Alma Clissmann reports on developments in relation to the practical application of the European convention on human rights omosexual relationships do 30; [2004] 3 WLR 113), using Hnot fall within the scope of the interpretative powers of the ‘family life’ under article 8 of the Human Rights Act 1998 to extend ECHR, and the European the protection afforded to Court of Human Rights heterosexual cohabiting couples (ECtHR) has held that ‘the right under the Rent Act 1977 to to marry guaranteed by article same-sex couples. They held 12 refers to the traditional that succession under the Rent marriage between persons of the Act 1977 came within article 8, opposite biological sex’ (S v UK, respect for a person’s home. 47 DR 274 [1986], ECtHR; Rees They considered whether v UK [1986] EHRR 56). This difference in treatment could be interpretation does not prevent justified on the basis that it states from extending marriage pursued a legitimate aim and the to members of the same sex or to dismiss them were held to be refusal to allow him to adopt means employed to achieve that from instituting a civil serious violations of article 8 was based on his sexual aim was proportionate to the partnership scheme for same-sex (Smith & Grady v UK, [1999] 29 orientation and violated articles aim, and concluded it could not. couples that may mimic the EHRR 493). The age of consent 6, 8 and 14. Though it narrowly Rather than make a declaration rights and obligations of for homosexual activity (18) was rejected his application, the of incompatibility under the marriage in most respects. Civil reduced to equate with the age court made it clear that HRA, they held that it was partnership is now available to of consent for heterosexual particularly weighty reasons possible to interpret the legisla- many gay couples throughout activity (16) in the UK as a were needed to justify a tion to include same-sex couples. Europe and in other parts of the result of Sutherland v UK. difference in treatment on Despite the decision in world and is expected to arrive grounds of sexual orientation. Karner v Austria, the Irish in the UK and Northern Ireland Parenting and adoption Residential Tenancies Act, 2004 in the course of 2005 with the In Salgueiro Da Silva Mouta v Tenancy rights does not include a same-sex enactment of the Civil Portugal ([1999] 31 EHRR 47), The issue of housing arose in cohabitee in the list of persons Partnership Bill 2004. the applicant was the father of a Karner v Austria (24 July 2003). eligible to elect to take over a daughter born during his The applicant was the tenancy on the death of the Decriminalisation and marriage. He left the marriage homosexual partner of the tenant (section 39). However, an discrimination and cohabited with a man and tenant of the apartment where Irish court may follow the However, the ECtHR has his parental responsibility was they cohabited for over four Ghaidan decision in interpreting accorded respect for sexual revoked and given to his ex-wife. years, and, on his death, the the legislation to be compatible orientation and identity short of The court ordered that he tenant designated Mr Karner as with the ECHR case law. official recognition of same sex should disguise the fact that he his heir. He applied to succeed unions. Following Dudgeon v UK was living in a homosexual to the tenancy under the Protection for other rights ([1981] 4 EHRR 149, ECtHR), relationship during contact with domestic law that permitted this The jurisprudence of the the law criminalising consensual the girl. The ECtHR found a for ‘life companions’, but the ECtHR stresses that the homosexual activity was declared violation of both article 8 Austrian court held that this was protection of rights must not to be contrary to the convention (family life) and article 14 intended to apply only to depend on formal status, such as in Norris v Ireland ([1988] 13 (discrimination), and held that heterosexual couples. The marriage, but must be effective EHRR 186, ECtHR). The discrimination on the basis of ECtHR held that he qualified as nonetheless to recognise the Strasbourg court held that the sexual orientation was not a life companion except for his realities of the people’s lives, prohibition of private, permissible under article 14. sexual orientation and that the including families outside consensual homosexual conduct However, in Frette v France defendant state did not offer marriage and private lives was an interference with a most ([2003] 2 FLR 9), the refusal by sufficiently convincing or involving homosexual intimate aspect of private life, the authorities to allow the weighty reasons to justify relationships. How far the which was not necessary in a applicant to adopt a child was differentiating between different domestic law must go to democratic society. This held by the ECtHR, by a sex and same-sex couples. It accommodate these realities is a reasoning was applied to the ban majority of four to three, to be found a violation of articles 8 question to be explored. G on homosexuals serving in the within the member state’s and 14. UK armed forces, and both the margin of appreciation, in the This case was followed by the Alma Clissmann is the Law investigations to identify interests of adoptable children. House of Lords in Ghaidan v Society’s parliamentary and law homosexuals and the procedures The applicant alleged that the Godin-Mendoza ([2004] UKHL reform executive.

7 Law Society Gazette December 2004 Cover story Bell, book a Canon law is the basic law of the Catholic Church and has come to prominence in recent times in relation to child-abuse cases. But does it take precedence over civil law? Henry Murdoch gets a belt of the crozier

he archbishop emeritus of Dublin, 1887, the courts held that ‘the law of Ireland and • Relationship Cardinal Desmond Connell, is reported England is not the same as the canon law on the of canon law as having said that canon law ‘enjoys the subject of impotence’ (A v A sued as B, 19 LR Ir to civil law same status in Ireland as foreign law’ 403). The civil courts have accepted that the 1870 • O’Callaghan v (Irish Times, 31 May 2004). However, act did not fossilise the law – ‘courts must recognise O’Sullivan T justice minister Michael McDowell is reported as that the great advances made in psychological (1925) having said on 20 October 2002 that canon law is medicine since 1870 make it necessary to frame new • Canon law as viewed by the civil law of the state ‘as equivalent to rules which reflect these’ (Kenny J in S v S, Supreme ‘foreign law’ the laws of, say, the Presbyterian Church or the Court, unreported, 1 July 1976, cited in F(P) v MAIN POINTS internal rules of a sporting organisation’. O’M(G) [2001] 3 IR 1). Speaking at a mass on 30 May to mark 160 years Canon law and civil law can be quite different, of the St Vincent de Paul Society in Ireland, sometimes one socially ahead of its time and Cardinal Connell said: ‘I note that the idea has got sometimes behind. For example, canon law around that in Ireland the law of the church has the conferred legitimate status on an otherwise standing of the rules of a private association. But as illegitimate child whose parents married early as 1925, the Supreme Court decided that in subsequently, provided they were free to marry each our jurisdiction the canon law enjoys the status of other at the time of the child’s birth. That principle foreign law. It is recognised, therefore, as law was not accepted by the civil law in Ireland until enacted by a sovereign independent authority. That 1931 in the Legitimacy Act. sovereign authority resides in the Holy See’. On the other hand, in civil law, the distinction The views of the cardinal and the minister appear between a void and a voidable marriage has worked to be diametrically opposed, one indicating a high well in practice, whereas under canon law all invalid and important status for canon law and the other marriages are void. A void marriage is one that never indicating a lower and limited status. Who is right, had legal effect and consequently is void ab initio – or are they both right or both wrong? for example, where a party does not have the legal capacity to marry. The validity of the marriage may Church and state be challenged by any person with a sufficient Canon law has had an important impact on the interest, even after the death of the parties. A development of civil law, particularly in relation to voidable marriage is one that is valid until it is marriage, where the law of nullity developed annulled by a decree of nullity – for example, where historically from the principles of canon law. When the marriage has not been consummated. The the Church of Ireland was disestablished, jurisdiction validity of such a marriage may be challenged only in matrimonial matters was transferred to the civil by one of the parties to the marriage during the courts. Indeed, the Matrimonial Causes and Marriage lifetime of both. Law (Ireland) Amendment Act 1870 required the civil And, of course, the difference between canon law courts to adopt the rules and principles that the and civil law over recent years is probably best ecclesiastical courts had followed. exemplified by the decrees of nullity of marriage by However, the civil courts have over the years an ecclesiastical court of the Catholic Church, which departed from those principles in the light of have no legal effect in the state. The Law Reform advances in psychiatry and psychology. Indeed, by Commission declined in 1984 to recommend that

8 Law Society Gazette December 2004 Cover story k andCANDLE

these decrees be given legal recognition, although it did note that the grounds for annulment in the civil courts ‘differ far less radically from those recognised by the ecclesiastical courts of the Catholic Church than is perhaps generally appreciated’ (LRC 9, 1984).

The red and the black In the 1925 case to which the cardinal referred, the Supreme Court held that canon law is foreign law, which must be proved as a fact and by the testimony of expert witnesses according to the well-settled rules as to the proof of foreign law (O’Callaghan v O’Sullivan [1925] 1 IR 90). So the cardinal is right. Well, partly. The case arose from the removal of a parish priest by the bishop of Kerry (see panel, next page). Importantly, both parties in this case accepted that PHOTO: [email protected]

Law Society Gazette Cover story

have to be proved by expert evidence as a fact. The cardinal is right in that, if a relationship at issue is clearly subject to canon law, the courts will give effect to it. Particularly if a line can be drawn around the relationship between, say, a bishop and a curate in canon law that does not adversely affect any other party, the courts will probably give effect to the canon law, as it did in the 1925 case. The High Court in Northern Ireland also did so in 1991 in the legal battle between Bishop Cathal Daly and his curate (now bishop) Pat Buckley (Buckley v Daly [1991] ITLR). The minister is probably also right in his the relationship between the priest and the bishop assertion, as the laws of the state will frequently was subject to canon law. This is similar to two override private arrangements between parties that parties to a contract accepting that their contract was have the objective or effect of avoiding the subject to Latvian law. In a subsequent Irish court requirements of domestic or European legislation or action in relation to that contract, Latvian law would indeed of the Irish constitution. Just by asserting normally be recognised by the court as the law that your relationship is based on a particular law governing the contract and as foreign law that would does not render you immune from these BEATING THE BISHOP: O’CALLAGHAN v O’SULLIVAN The 1925 case referred to by Cardinal Connell is a bizarre story of a Fr O’Callaghan would not resign and would not comply with the very public conflict between a parish priest and his bishop, the likes decree: ‘I will bring against your decree not the doped evidence of of which we have not seen in recent times. Amazingly, the case one witness; I will bring the whole parish. Pocket your decree or involved the High and Supreme Courts in Ireland, an appeal to Rome, better burn it; you and your consultors have disgraced yourselves by and a petition to the English king. issuing it’. Eyeries is a small village in the Beara Peninsula in West Cork. Fr The bishop issued a decree of removal on 15 November 1919, O’Callaghan was appointed parish priest there in 1904. By 1919, he which was subsequently confirmed on 6 January 1920, removing Fr was in deep trouble with his parishioners, his curates and his O’Callaghan from the office of parish priest. The decree said that the bishop. He accused his parishioners of being ‘exceedingly mean’, he regrettable state of things in the parish ‘makes it incumbent on us to claimed to be entitled to a ‘better parish than Eyeries’, and he failed take remedial action in discharge of our obligation to provide for the to provide for his two curates and would not let them reside in the good of souls’. parochial house. He was granted a pension of £80 a year and reminded of his He was constantly in battle with his curates over who would say indebtedness to his two curates. mass and who would officiate at funerals and baptisms. He accused Fr O’Callaghan sought to have the decree of removal declared by one curate of abusing him ‘in scandalous language in the presence the High Court to be illegal, unauthorised, ultra vires and void. He of witnesses’. At one stage, he wrote to the bishop: ‘both, especially failed, and appealed to the Supreme Court. That court noted that Fr Dennehy, used their best energies to deprive me of all authority as both Fr O’Callaghan and his bishop accepted that ‘the laws, parish priest, to deprive me of my living by depriving me of my right ordinances and canon laws’ of the church regulated their sacred to perform in person duties I am bound to perform in person and to offices and their relations with each other. This was crucial to the secure contingent emoluments, to spread contempt and foment subsequent decision that canon law governed their relationship and hatred against me in every part of the parish, to foster the hope that that, as ‘foreign law’, it was required to be proven as a fact by the rebellion against me would drive me out of the parish and that the testimony of expert witnesses. vacancy thus made might be filled by Fr Dennehy’. The Supreme Court held that: ‘We are not dealing with a foreign While his letters to Bishop O’Sullivan usually ended respectfully contract. The contract is the appointment of the plaintiff as parish with ‘I beg to remain, my lord, your lordship’s humble servant’, there priest – a contract made in Ireland between two Irish parties. It is a was nothing servile in the language he used: ‘I warn you that should term of that contract that the parties are to be bound by a foreign you go on and find a verdict against me, I will hold you as conspiring law regulating their respective offices’. The court held that the bishop with my enemies to beggar me by driving me out of the parish’. had correctly followed canon law in removing the parish priest from A hearing took place at the bishop’s palace in Killarney on 11 July office. 1919, following which a decree was made against Fr O’Callaghan by Fr O’Callaghan took an appeal to Rome in July 1921, but this also the synodial judges requiring him to pay £45 and £59 to his curates failed. His last attempt was a petition in 1925 for special leave to in respect of board and lodging denied to them. On the same day, appeal in forma pauperis (as a pauper) to the English king. This was the bishop wrote to Fr O’Callaghan and invited him to resign for two rejected by the Privy Council. reasons: ‘1) the hatred or deep-rooted dislike which your people, or a If Fr O’Callaghan were taking his case today, he could argue that, considerable number of them, have conceived towards you, and while his contractual relationship was indeed governed by canon law, which cannot but render your ministry in the parish useless, if not he was entitled to procedures that comply with the now high harmful; 2) your maladministration of the temporalities of your standards of natural justice and the European convention on human parish’. rights.

10 Law Society Gazette December 2004 Cover story requirements. You may agree to be bound by the internal rules of the local sporting club, but those SOWING WILD OATHS internal rules cannot deny you your civil rights, such One would expect that the oath in law, with its appeal to supernatural sanctions, as your right to natural justice. was derived from canon law. Not so. Originally it was believed that any person who This is particularly the case where other parties are swore falsely could expect the swift and certain vengeance of an omnipotent God, involved. This has been acknowledged by the bishop bound to intervene on the side of truth. And a sworn witness who remained of Killaloe, Dr Willie Walsh, who is reported as unharmed after testifying was presumed to have been adjudged by God to have saying that confidentiality in the relationship between spoken the truth (LRC 34, 1990, Report on oaths and affirmations). However, priest and bishop, though protected by canon law, canon law was initially hostile to the reception of oaths, preferring to base its does not take precedence over civil law (Irish Times, 6 decisions on documentary and testimonial evidence (Silving, Essays on criminal September 2002). procedure [1964]). Where canon law clearly governs a relationship, the courts will generally apply the canon law, as it did in Connolly v Byrne ([1997] IEHC 195). In this applied, as in O’Callaghan v O’Sullivan. If a third widely-publicised case, the court refused injunctive party is affected, it might not be applied. Depending relief to parishioners who sought to restrain the on the circumstances, canon law may have a bishop from altering the sanctuary of Carlow significant status and govern a relationship, as in the Cathedral. The defendants successfully contended 1925 case. In other circumstances, it may have no that the property was held subject to canon law and status and civil law may rule supreme, as is the case that they had the right under canon law to carry out in ecclesiastical decrees of nullity of marriage. The the alterations. same could be said in certain circumstances about the laws of, say, the Presbyterian Church or the Curate’s egg internal rules of a sporting organisation. It is correct to say that canon law is recognised as So the cardinal and the minister for justice are ‘foreign law’ by the Irish courts where it governs a both correct – in part. A genuine curate’s egg. G relationship that is at issue. It would not be correct to imply that this gives canon law precedence over civil Henry Murdoch is a barrister and author of the recently law. If the relationship at issue is clearly governed by published Murdoch’s dictionary of Irish law (2004), canon law, it will generally be applied, as in Connelly v 4th edition, and the CD-ROM and internet product Byrne. If no third party is affected, it may well be Murdoch’s Irish legal companion (2004).

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11 Law Society Gazette December 2004 Interview

Don’t expect any table-thumping from the Law Society’s new president, Owen Binchy. There will be no fuss, no ‘Binchy manifesto’. The man is just here to do his job, he tells Conal O’Boyle

wen Binchy is a man who knows how to keep his own counsel. In fact, that’s what landed him in the spot he’s in today. Many years ago (18 to be O precise), the president of the then North and East Cork Bar Association, Tim Lucey, dispatched Binchy to Blackhall Place as a bar association nominee to the Law Society’s Conveyancing Committee, with the words: ‘Owen, now you’d be a good fellow to keep your mouth shut. Go up and see what they’re doing in Dublin’. So he did. The following year he was a Cork nominee to the Law Society Council. And two years later, in 1989, he stood for Council in his own right. He’s been elected every year since. The Law Society’s new president is managing partner of the law firm James Binchy & Son, based in Charleville, Co Cork. He is the fourth generation of Binchy to practise in the firm set up by his great-grandfather, and admits that there was never any question of him studying anything but the law. ‘I didn’t have much of a choice’, he says almost wistfully. ‘If I didn’t become a lawyer, I would have THE QUIPHOTOS: [email protected] E become a teacher or an engineer’. family firm, qualifying in 1971 aged 21. He has Binchy finished third in his class at UCD in stayed with the firm ever since. 1970, behind distinguished solicitors Mary Binchy is probably unique among solicitors these Redmond and former Law Society president days in that he actually admits to enjoying Laurence K Shields. During the time he was conveyancing. ‘I am quite happy doing conveyancing’, studying for his BCL, he was apprenticed to the he says. ‘I do a lot of family conveyancing. In family

12 Law Society Gazette December 2004 Interview

IET MAN conveyancing, you are only dealing with the family chaired the society’s Conveyancing Committee (as and you can do it at your own pace’. well as registrar’s, education and finance), and He has been a regular CLE lecturer on reckons that at a push he could probably recite conveyancing and other topics, and is one of the verbatim the various clauses in the standard contract authors of the Law School textbook on for sale. conveyancing, published by Blackstones. He has also ‘I enjoy law’, says Binchy, ‘which is maybe different

13 Law Society Gazette December 2004 Interview from enjoying working at it, but the intricacies of it don’t phase me. I love doing CLE lectures, standing up in front of a group of solicitors and seeing if I can talk for a couple of hours. Then you get your evaluation at the end and you see whether you have passed or you have failed. ‘Otherwise, I turn up for my work on Monday morning and I go home on a Friday evening. My better half says that I live for the law, but I don’t see it’. Certainly, the modern aspects of practising law hold little appeal for the new president, who is refreshingly blunt about the bane of his working life – the telephone. ‘Before the telephone, people used to write to you or turn up at your office’, he says. ‘Now you have e-mail and fax, and people are sitting at home or in their cars in traffic jams and they know they can pick up the phone and reach you. Now, you might be in the thick of a particular file when someone rings you, and you have to switch from the file in front of you to their file, and when you’re finished with them, you have to switch back. It is the mental gymnastics this requires that I think makes it much harder these days’. In Binchy’s view, if the solicitors’ profession can deal with modern technology, it will have no problem they can get bad law, they can get good law – you get dealing with the challenges posed by the Personal what you pay for. The competition is there already Injuries Assessment Board and the Competition and we have nothing to fear’. Authority. ‘I think we are resilient’, he explains. ‘We In the face of all of these upcoming challenges, will be able to deal with them all. I think that we have Binchy is confident about the future of the solicitors’ to be able to deal with change, and I think we will. profession. ‘I would say we are the oil in the PIAB is just something that will be there. It will be an machinery’, he argues. ‘If we work and we gel, the extra hurdle’. whole system works. You may have different And the possibility of licensed conveyancers? ‘No machinery over the years, but at each stage we have problem. First of all, they don’t have a compensation been the oil that enables it to work’. fund. Secondly, they have to be qualified. As president, Binchy says he will be doing his best Conveyancing is highly complicated, and if you want to inform the profession of the efforts that the Law to train people, you need to train them up to our Society is making on their behalf in the face of what standard’. can sometimes seem to be an unrelenting pressure Nor is he worried about what the Competition from outside forces. However, he is realistic enough Authority might recommend. ‘I don’t think we have to recognise that there are limits to what can be anything to fear. Genuinely, I think that we are highly achieved. competitive. I think that people can get cheap law, ‘Sometimes it seems that the profession has a perception that we can somehow change the law, that we can stop the tide coming – but if the government decides to change the law, that’s it. We can put our FACT FILE point of view across, and we can ask our members to OWEN BINCHY put the point across, but if the government has a Occupation: Solicitor (admitted to roll of solicitors in 1971). Managing partner of majority in the Dáil and decides to do something, we the law firm James Binchy & Son, based in Charleville, Co Cork. Three partners in must be prepared to accept it. the firm, including wife Eimear, and six support staff. ‘There is no point in making noise if you don’t Education: Nuns and Christian Brothers, Charleville; Clongowes; third level: have to, and I certainly wouldn’t. To quote solicitor University College Dublin (BCL and LLM). and former Law Society Council member Hugh Family: Married to Eimear, a solicitor. Three sons – James, Kieran and Michael – O’Neill’s great catchphrase, You catch more bees with and a daughter, Deirdre. honey than with vinegar’. Law Society career: SLA nominee to Council in 1987. First elected to Council in This is almost certainly going to be a tough year to 1989. Junior vice-president 1999, senior vice-president 2003, president of the be president of the Law Society of Ireland, but Owen Law Society of Ireland 2004/05. Has chaired the following Law Society Binchy will tackle it in his characteristically quiet and committees: conveyancing, registrar’s, education and finance. understated way. Hobbies and interests: Golf (when his back holds up), hill walking, local history, ‘I’m going to give it my best shot’, he says. ‘It’s a bridge and archaeology. challenge. As president, you don’t change the world. I’m here to do the job’. G

14 Law Society Gazette December 2004 Defamation

No such thing as BAD PUBLICITY? Bad publicity can harm the share price of listed companies, but a novel attempt to recover compensation for such a loss recently failed in the English High Court. Pamela Cassidy inspects the damage

£230 million claim for special damages FSA to his claim form. against the publishers of the Financial The FT was just one of many papers to pick up the • Damages in Times, based on a collapse in share story. On 27 August, in an article entitled ‘Reputations defamation price at Collins Stewart plc, was struck on the line at Collins Stewart’, the paper reported the • Company law out as unsustainable in October. The allegations of regulatory failure by JM, who was actions A • Market decision was greeted with relief not just by the described as ‘not ... a rank outsider but an analyst who Financial Times, but by the media in general, fearful has been with the firm for seven years, covering capitalisation

of the chilling effect of large libel awards. Collins Stewart’s core area of smaller companies and MAIN POINTS The background to the FT article is dramatic: in who never missed receiving his annual performance mid-summer 2003, James Middleweek, an analyst bonus’. The paper also reported the CS claim of with CS Ltd, prepared a draft report to the attempted blackmail and that it had been cleared of Financial Services Authority alleging regulatory wrongdoing by an independent investigation. breaches by Collins Stewart Group. CS plc is a The share price of CS collapsed in the four days financial services group listed on the London Stock following publication, dropping 15% ‘against a Exchange. Its main trading group is CS Ltd, ‘one of broadly positive market’, a drop that equated to a the leading independent UK stockbrokers’. What reduction in CS plc’s market capitalisation ‘of happened next is disputed: CS says that JM’s advisers approximately £128 million’. CS hit back hard and suggested that he would suppress the draft report in fast: their solicitors wrote to the FT on 31 August return for settlement of an employment claim – they demanding an apology and compensation for the drop considered this a blackmail attempt, dismissed JM in share price. The following day, CS issued a libel immediately and reported the matter for writ and posted the solicitors’ letter on their website investigation by the police. They also reported the with an accompanying statement categorically denying allegations to the FSA, which instituted a formal wrongdoing and publicising the threat of proceedings investigation, and they asked a law firm to conduct an independent investigation. THE PLAYERS Middleweek denied blackmail. His advisers, he Financial Times: FT said, had indicated that he would not lodge the draft Collins Stewart Tullet plc: CS plc report provided an internal investigation into his Collins Stewart Ltd: CS Ltd concerns was made, and as part of the settlement of Collins Stewart Group: CS his employment claim. He instituted employment James Middleweek: JM proceedings and annexed a copy of the report to the

15 Law Society Gazette December 2004 Defamation DAMAGES IN DEFAMATION Common law: special damage in defamation is defined as any material loss that is not too remote and is capable of being estimated in financial terms. Where the plaintiff wishes to claim special damages, he must be able to give particulars of his loss or he will not be permitted to lead evidence of such loss – Ratcliffe v Evans ([1892] 2QB 524). Court of Human Rights: legal rules concerning damages for libel must be formulated with sufficient precision and awards must bear a reasonable relationship of proportionality to the injury to reputation suffered – Tolstoy v UK ([1995] 20 EHRR 442).

and the £128 million claim. By August 2004, the CS estimate of market capitalisation loss was £230 million. This was coupled with an additional special damage claim for £38 million. All of which makes the £1.5-million libel award against Tolstoy Miloslavsky, which fell foul of the European Court of Human Rights in 1995, look paltry. No wonder the fourth estate was collectively biting its nails.

Remote viewing A claim for special damages is rare in libel actions, and requirements: the method of assessing damages must in previous cases reliance on a fall in share price was be certain and the award must be proportionate (Tolstoy ‘The judge allowed only as an indication of a general loss of v UK [1995] 20 EHRR 442). decided that goodwill underlying a claim for general damages. With these considerations in mind, the judge Special damages are confined to actual financial loss assessed the pleaded case on market capitalisation, not only was that is not too remote and which can be quantified. which was this: market General damages are awarded for distress (not ‘Measured against the stock-market performance of two close applicable in this case, as corporations cannot recover competitors, CS plc’s share price should have risen by capitalisation for injury to feelings), harm to reputation and as a 24.65% (being the mean of the percentage rise of the too uncertain a measure of vindication. The current ceiling for general competitor’s share prices over the period) rather than fallen damages in England is £200,000 (Reed & Anor v by 2.8%. Accordingly, in order to keep pace with these close tool to become Newcastle Borough Council [2002] EW HC 1600 (QB), comparators, CS plc’s share price should have risen by a legal basis for paras 1547-1551). 27.45%, making its share price 567p at the close of business The FT applied to the High Court to strike out on 26 March 2004. (For the avoidance of doubt, CS plc’s assessing part of the CS claim in special damages. That claim share price had tracked those of the competitors over the damages, but was in two parts: first, a claim for reduction in market previous year to a correlation figure of .9334 and .9595 capitalisation estimated at £230 million and, second, a respectively.) This represents a loss in CS plc’s potential that it had no claim for direct loss of a more usual kind, including market capitalisation since 26 August 2003 of application to identifiable lost revenues and payments to PR agents approximately 122p per share, or £230,526,320, calculated to mitigate the effects of the damaging publicity, the on an issued share capital of 188,956,000 shares. This, they the facts’ total estimated at £38 million and continuing. The claimed, is the direct measure of the change in the market’s strike-out application was confined to the market assessment of the net present value (NVP) of future earnings capitalisation claim. of the company. The figure is arrived at by analysts and The strike-out application was heard in the English investors estimating the future earnings of CS plc and then High Court in October 2004. As with much litigation, discounting those figures at CS plc’s estimated weighted the landscape had changed considerably since the first average cost of capital (WACC) to produce an NPV. The angry words were fired across the bows of the FT, theory and methodology involved is well recognised’. which is the Pearson Group flagship. The police decided not to pursue the blackmail allegation against Calculations James Middleweek, the FSA closed its inquiry, saying The judge, however, was not persuaded that the NPV no action would be taken, and Collins Stewart Group methodology had actually been applied, and even if it reached a compromise with him, each side had, that there could be a ‘certain’ mathematically withdrawing its claims. correct method of assessing the basis for share price English law on special damages in defamation movement: actions can be simply stated: special damages that are ‘Nowhere in the present statements of the claimants’ case is not remote must be capable of being quantified. such a calculation made in relation to CS plc or either of the Human rights jurisprudence has added two comparators. And it is clear that whatever interpretation

16 Law Society Gazette December 2004 Defamation

will suffer”, that is a proposition which the court is invited simply to take on trust. No indication is given that there will be any evidence or authority to establish it. Moreover, that proposition it is not a statement of fact. This is accepted impliedly by the claimants when they say that it is a matter for expert evidence. Rather, it seems to me that the claimants’ proposition as to the shortfall in market capitalisation is, if anything, a proposition of law. ‘The court can do no more than speculate as to the factors which have influenced the fluctuations in the market capitalisation in CS plc since August 2003. Whatever those factors may be, it is plain that they are not confined to the publication of the words complained of ’. He concluded that the suggested measure of damages was far too uncertain to be acceptable as a legal basis for assessing damages: ‘The suggested measure of damages would involve investigation of the business of not only the claimants, but also of the two comparators, for a period commencing some time before the publication complained of until the date of assessment of damages, which is unlikely to be for at least another year. And in the pre-publication period, the share price was fluctuating widely’.

Share and share alike may be put upon share prices published by the London Stock This was not the only difficulty faced by the two CS Exchange’s Historic Price Service, those prices are not said companies. Apart from the problem of establishing by the claimants to be arrived at, as a matter of fact, by which company (if not both) had been libelled (the such a mathematical calculation. Thus there is no answer to paper denied that the article referred to CS plc), they the defendant’s question 4.7. That question was: “Of ... the also faced the complex reflective loss principle, which market’s assessment of the net present value (NPV) of (simply stated) prevents a shareholder from suing in future earnings of the company. Please provide his capacity as shareholder in respect of a loss to the particulars of how the NPV ... is calculated, estimated company and conversely prevents a company from and/or arrived at”. There could be no answer. The market suing for loss caused to the shareholder. If the loss assesses figures only metaphorically. So far as the claimants’ sustained by the shareholder is merely a reflection of pleading is concerned, the reasons why a share is traded at a the loss sustained by the company, the shareholder particular price in any given deal are unknown, or, at best, cannot recover. The complexity was compounded in matters of conjecture … in general, I take it that a market this case by the fact that shares in CS plc are not an price is the product of numerous decisions by people who asset of that company, and neither are they an asset of cannot be asked what their reasons were for trading, or, CS Ltd. The principles of reflective loss are broadly which may be just as important, for deciding not to trade. similar in Ireland (being derived from the rule in Foss ‘I accept that market capitalisation calculated in that v Harbottle), and the main case relied on by the way is a concept which is very well recognised and has many English High Court (Prudential Assurance Co Ltd v uses. The question is whether it can be used in an Newman Industries Ltd (No 2) [1982]) was approved by assessment of damages, and in that context it has achieved the Supreme Court in O’Neill v Ryan ([1993] ILRM very little recognition, as the cases show ... When the 557 at 570). claimants plead that the alleged shortfall between CS plc’s In striking out the claim for share price collapse, actual market capitalisation on 26 March 2004 compared the judge decided that not only was market with its potential market capitalisation on that date, ie capitalisation too uncertain a tool to become a legal £230.5m, “is the best available reflection of the loss in basis for assessing damages, but that it had no future revenues which the second claimant has suffered and application to the facts because ‘each claimant is asking the court to measure damages suffered by itself WAR OF WORDS by reference to a change in the value of property, that FT editor Andrew Gowers welcomed the ruling, describing the claims as ‘manifest is its shares, which is owned by neither of them’. The nonsense and untenable in law’. He added: ‘It would be a very dark day for remaining live issues in the case will be tried in April journalism and for a free press if publishers were to be held liable for a drop in 2005. These issues are, first, the viability of the share price following publication of an article reporting on company events’. newspaper’s defence of privilege, second, (if privilege A spokesman for Collins Stewart Tullet said the decision would ‘have no bearing fails) the remaining special damages claim of £38 on our determination to pursue our claim’. He said that there remained a claim of million and, third, general damages. G £38 million, which represented the quantifiable amount of lost business and profits from the article. Pamela Cassidy is a partner in the Dublin law firm BCM Hanby Wallace.

17 Law Society Gazette December 2004 International

TEN YEARS A decade ago, civil war convulsed Bosnia and Herzegovina, but now things • Post-conflict reconstruction are looking up for that beleaguered country as it prepares for a future in • Reform of the Europe. Lynn Sheehan reports on the work being carried out to reform public judiciary • Possible administration there, including an overhaul of the judiciary accession to the EU ess than ten years ago, the Dayton peace delegates – five Serbs, five Croats and five Bosniaks.

MAIN POINTS agreement signaled the end of the war in The House of Representatives has 42 members, two- Bosnia and Herzegovina (BiH) and divided thirds of whom are elected from the federation and the country into two entities: the one-third from the Republika Srpska. Their role is to LFederation of Bosnia and Herzegovina and adopt the state/BiH budget, to elect the government the Republika Srpska. Since the war, the federation on the proposal of the presidency and to adopt laws has principally been populated by Bosnian Muslims within their competence. (Bosniaks) and Croats, while the Republika Srpska The state/BiH presidency consists of three people has principally been populated by Serbs. To elected by direct election for a four-year term. The complicate matters further, there is one small part of Serb member of the presidency is elected from the the country that does not fall within either entity, Republika Srpska and the Croat and Bosniak namely Brcko District. Under the final award of the members from the federation. They rotate every Brcko Arbitral Tribunal for the Dispute over the eight months based on their ethnicity. Similar to the Inter-Entity Boundary Line of 1999, this part of the state/BiH level, the two entities each have a country is autonomous and it is to be held ‘in bicameral parliament and a president. condominium’ but not under the authority of either Such a complex political structure does not entity. facilitate speedy and efficient decision-making, which The Bosnia and Herzegovina parliament consists sometimes leads to negative effects on the economy. of two houses, the House of Peoples and the House BiH is going through a transition process from a of Representatives. The House of Peoples has 15 centrally-planned economy to a market economy, a

18 Law Society Gazette December 2004 International

process that started prior to the 1992-1995 war. The professional training for judges and prosecutors. unemployment rate for the whole of BiH is over The laws in relation to judicial training centers were 40%. However, it is widely believed that there is imposed by the high representative in May 2002 in quite an active grey economy and that the number of accordance with ‘the Bonn powers’ (see panel people who are actually not working is probably less overleaf). than this. New laws were also prepared by the IJC in relation to the legal profession in each entity and, again, were Tumbling dice imposed by the high representative in May 2002. The reform of the judiciary in any country in These laws define the practice of law and set out the transition is not an easy task. Under the general obligations of lawyers towards their clients. socialist/communist regime, there was little or no They also set out the overall principles to be covered need for judges to be independent decision-makers. in the codes of ethics to be adopted by the bar This led to a situation where the public at large had associations (there are two in BiH, one in each entity) little faith in the judiciary and suspected that and they provide that a lawyer registered in either members of the judiciary were corrupt. This mistrust entity may practise before the courts in each entity. continued even after the regime ended. In addition, In 2002, the IJC proposed a reinvigorated strategy this mistrust was compounded in the post-war period, in relation to strengthening the judiciary and this as the public often believed that judges were strategy was accepted by the Peace Implementation appointed on ethnic or political grounds, or, to put it Council (PIC) steering board in February 2002. The another way, appointed on the basis of how much new strategy involved the setting up of High Judicial they could be trusted to be loyal to their own ethnic and Prosecutorial Councils (HJPCs), one in each group. The reform process, therefore, was not simply entity and one at state/BiH level, which would be about actual structural reforms but also about responsible for the appointment of judges and changing the public’s perceptions of the judiciary. prosecutors and also for disciplinary procedures RS AFTER Since the signing of the peace agreement, a significant number of reforms have been introduced to strengthen the judiciary and change its public perception. In 2001, the Independent Judicial Commission (IJC) was granted its first mandate by the high representative and was established as the lead agency for judicial reform in BiH. The IJC was involved, in particular, in the drafting of new codes Lynn Sheehan, of civil and enforcement procedures and in with Mostar preparing the laws creating judicial training Bridge in the institutes in each entity in order to provide background ALPHABET SOUP It seems impossible to understand the situation in • ICTY: International Criminal Tribunal for the Former Bosnia and Herzegovina without a grasp of the Yugoslavia acronyms. These are the main ones: • HJPC: High Judicial and Prosecutorial Council, • BiH: Bosnia and Herzegovina responsible for the appointment of judges and • OHR: Office of the High Representative (the chief prosecutors and also for disciplinary procedures civilian peace implementation agency in the country). against the judiciary The high representative is currently Paddy Ashdown • SAA: stabilisation and association agreement with • PIC: Peace Implementation Council, a group of 55 the European Union countries and organisations sponsoring the peace • SFOR: NATO’s military stabilisation force in the process region • IJC: Independent Judicial Commission, the lead • EUSR: EU special representative (currently Paddy agency for judicial reform in the country Ashdown).

19 Law Society Gazette December 2004 International

national members with a number of international GIMME SHELTER members and advisors. The Dayton peace agreement provided for the establishment of the Office of the High Representative (OHR), which is the chief civilian peace implementation agency in BiH. Round and around The mandate of the high representative, currently Paddy Ashdown, is to act as the The restructuring of the courts undertaken by the final authority to interpret the peace agreement, although his mandate has been Independent Judicial Commission was quite a further elaborated upon by the Peace Implementation Council (PIC). This is a group of complicated process because of the different court 55 countries and international organisations that sponsor and direct the peace structures at each of the different levels. There are implementation process. The OHR is funded by the PIC. Its budget for 2004 was two courts at state/BiH level – the Constitutional €21.1 million. In addition to being the high representative, Paddy Ashdown is also the Court and the Court of BiH. At an entity level, the EU’s special representative to Bosnia and Herzegovina. lowest level of courts are Municipal Courts in the The high representative has the authority to impose laws at state/BiH and entity federation and Basic Courts in the Republika Srpska. level under certain circumstances and in certain conditions. He also has the authority The Cantonal Courts in the federation and the to remove officials at all levels from office, again under certain circumstances and in District Courts in the Republika Srpska form the certain conditions. These powers were granted to the high representative during a middle tier, and at the top level in each entity is a meeting of the PIC in December 1997 and are referred to as ‘the Bonn powers’. Supreme Court. Both entities also have a Paddy Ashdown recently made use of these powers when, earlier this year, he Constitutional Court. In Brcko, there are two removed 60 people from office. Among those removed were members of the SDS, the courts, the Brcko Basic Court, which has all first- political party co-founded by wanted war criminal Radovan Karadzic. This action was in instance jurisdiction, and the Brcko Appellate Court, response to a communiqué issued by NATO in June, which stated that NATO was which hears all appeals. The Court of BiH was given concerned that BiH, and particularly ‘obstructionist elements’ in the Republika appellate jurisdiction over cases arising from Brcko. Srpska, had failed to live up to their obligation to co-operate fully with the It is, at times, quite difficult to work out the International Criminal Tribunal for the Former Yugoslavia, including the arrest and jurisdiction of the various courts, not least because transfer to the tribunal’s jurisdiction of war crime indictees, a fundamental the jurisdiction of each of the entity courts does not requirement for the country to join the Partnership for Peace. At the NATO summit, mirror the other. For example, the federation BiH was denied membership of the PfP. Supreme Court was given limited first-instance criminal jurisdiction in 1999, but this was never the case in the Republika Srpska. In addition, contrary against the judiciary. The strategy also involved a re- to what is commonly perceived, the Court of BiH is selection process for all judges (excluding Minor not at the pinnacle of the BiH judicial hierarchy. It Offence Court judges) and prosecutors, which was has administrative jurisdiction over decisions of carried out by the HJPCs, assisted by the IJC. state/BiH-level institutions and jurisdiction over This meant that all judicial positions were re- crimes defined by BiH-level legislation. It also has advertised and all sitting judges and prosecutors were appellate jurisdiction over its own decisions. It does forced to re-apply for their existing positions. Prior not have appellate jurisdiction over decisions of the to the re-selection process, the IJC carried out a entity courts. reform of the court structure that led to a significant reduction in the number of courts and judges Exile on Main Street throughout BiH. In June 2004, once the re-selection The political climate in BiH appears to be changing process had been finalised, the three HJPCs were and there is more of an emphasis on Europe and merged into a single HJPC at state/BiH level. membership of the EU as opposed to the Currently, the HJPC is comprised primarily of implementation of the Dayton peace agreement. This is clearly illustrated by a number of events in the past year. In late 2003, the European Commission published its feasibility study for BiH (www.delbih.cec.eu.int/en/ index.htm). The study outlined 16 areas in which BiH has to make significant and rapid progress in 2004, including co-operation with the International Criminal Tribunal for the Former Yugoslavia, the establishment of a more effective public administration and judiciary, the proper functioning of a directorate for European integration, the development of a single BiH space as opposed to two separate economic spaces, and the implementation of laws in relation to competition, public procurement and public broadcasting. In the course of the feasibility study, it was noted that the existence of ‘the Bonn powers’ do not make it impossible for Bosnia and Herzegovina to enter into stabilisation and association agreement (SAA) negotiations. However, according to the study, the

20 Law Society Gazette December 2004 International country will have to be in a position to show that the at www.eusrbih.org. At the launch of the new website, powers are generally declining in relevance and that he stated that: ‘BiH’s destiny lies in Europe, as a member, their use occurs less within core SAA areas (such as one day, of the European Union. As we move away from trade, the single market, and justice and home affairs) the era of Dayton and into the era of Brussels, the EU’s in order for it to be able to enter into SAA engagement in BiH is growing more and more significant. negotiations. In other words, it must be in a position My role as EUSR is evolving at the same time’. to demonstrate that ‘the Bonn powers’ are becoming The recent developments are positive moves for redundant and that the high representative is Bosnia as it prepares for a future in Europe and becoming at most a facilitator and mediator. leaves behind its status as a post-conflict country. As it proceeds along the course to Europe, it is Waiting on a friend anticipated that it will attract foreign investment as Another interesting development is NATO’s decision potential investors leave behind certain to pull the stabilisation force (SFOR) out at the end misconceptions about it and begin to view the of this year. This is because NATO believes that the country as an exciting and interesting place to invest. security situation in the country has evolved As the EU membership negotiations proceed, it positively. The EU is to provide a follow-on force should also be easier for its citizens to travel to called EUFOR from this month on. The EU-led Europe, where new opportunities are likely to force will have a robust mandate and resources emerge and, hopefully, where valuable alliances and similar to those of the departing SFOR. It will take associations can be created and maintained. over the Dayton mandate of providing a safe and It is only ten years since there was armed conflict secure environment in BiH. EUFOR will also assist in Bosnia and Herzegovina and the future looked in the country’s integration into Europe and help the incredibly bleak. Ten years on, the future is looking BiH authorities fight organised crime. incredibly better. G Finally, in terms of recent events that illustrate a new departure for Bosnia and Herzegovina, the high Lynn Sheehan is a solicitor with the Cork law firm Ronan representative appears to be placing more and more Daly Jermyn, who is currently working at the secretariat emphasis on his role as special EU representative to the High Judicial and Prosecutorial Council in (EUSR) as opposed to his role as high representative. Sarajevo. Any views expressed are the author’s own and In July of this year, Ashdown launched the new EU should not be interpreted as representing the views of the special representative website, which can be accessed HJPC or any other body or organisation.

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21 Law Society Gazette December 2004 Technology COPYRIGHTS A New technologies have made the copying and instantaneous distribution of copyright works much easier, and the law continues to respond to these digital-age developments, writes Paul Lambert

e are all aware of how the history • Protection of of mechanical printing led to the copyright first copyright laws. Copyright • Electronic laws continue to operate as a publishing response to developments in • Legislative W technology. The 1710 Statute of Anne, the first reactions modern copyright law, both provided a legal

MAIN POINTS protection for rights owners and was aimed at ‘the encouragement of learning’, a point reflected in many current copyright laws. This point is particularly interesting in terms of new digital libraries and new academic electronic publishing models.

The traditional copyright chain New technologies, such as new copying machines and devices, digital and electronic content, and the internet, have made copying and the instantaneous distribution of copyright works much easier. Modern copies can be as good as the original. The internet has been described as the biggest copying machine in the world, and it is getting bigger. The law continues to respond to the rapid technological developments of the digital age. There have been varying reactions to these new technologies and how they have broken the traditional copyright chain, thus exposing rights owners (see panel, page 24). One reaction is new copyright laws encompassing explicit protection for new copyright distribution models such as on-line and wireless methods. Examples of the legal reaction to the breaking of the traditional copyright chain include the WIPO treaties, the EU Copyright directive and the Digital Millennium Copyright Act (DMCA) in the United States. There are also new and expanding definitions contained in (CMS), such as reprographic collection societies, that many of the modern copyright laws. aim to protect rights-owners. New technologies are also coming to the aid of rights owners, most particularly in the form of Electronic publishing recognising technologies assisting the identification of Clearly the digital and on-line environments present copyright works, terms and conditions of distribution another great challenge for the publishing industry and use, as well as separate technologies that can (like many other industries, such as music). Arguably, package copyright content and restrict its use to lawful the electronic publishing industry has been slow to users. New copyright laws provide legal protection for accept these technological changes and the new digital rights management (DRM) technologies. commercial roll-out of electronic publishing has been These are specifically rights management information slower than had been originally predicted. One reason (RMI) and technology protection measures (TPM). In relates to the traditional copyright chain. Electronic addition to new laws and new technologies, there are publishers share the same concerns as the music and also new collection or collective management societies film industries as regards protecting their published

22 Law Society Gazette December 2004 Technology S AND WRONGS electronic publishing • Journalists (and others) circumventing editors as intermediaries (for example, blogs). The same point is made about many new indie music bands who can distribute their music more easily and in competition to the multinational record labels • Tracking and DRM.

Electronic publishers also need to obtain a licence and/or assignment to begin publishing works electronically. Such permissions will need to be more expansive than heretofore, given the new and extended use of the copyright works. Many modern published works can also be described as multimedia works that contain a bundle of rights. Text, images, moving images, spoken words, music, and so on, include many forms of copyright as well as many forms of intellectual property rights. This increases the complexity of licensing, assignments and rights clearing. It also means that other issues need to be considered, such as trademarks, electronic contracts, requirements regarding information society services and prior information requirements when providing electronic and on-line services. Electronic publishers should also be aware of the possibility of business method and software patents.

New models There are growing numbers of e-books and e- journals available in the marketplace. There are numerous electronic newspaper models. These newspaper models have now successfully expanded to the mobile phone environment, particularly in places such as Japan. In the developing electronic field, we see experiments with different licence and fee models. Consumers are also changing their habits – an example is the ability to purchase smaller content and intellectual property rights. The personalised amounts of data or information, traditional print or publication chain is now being sometimes directly from the author. redefined by different electronic distribution and One of the issues affecting the electronic mediation chains. These are a reaction to how publishing industry, as well as industrial copyright publishers were previously exposed by the breakdown users and CMS, is the fact that developing of the traditional copyright chain. technologies permit new and unenvisaged uses for Some of the many issues that arise with these new copyright works. For example, does a traditional models include: publisher have permission to use existing published • Access to cultural heritage and current information content in new digital formats? This is an area that is • Newspaper and TV on-line models beginning to be litigated. Similar issues have also • On-line publishing of books, journals, articles been litigated previously. In Australia, for example, a • Electronic databases photographer was able to sue for a commissioned • Libraries, museums and art galleries and electronic photo when it was used for a new uncommissioned publishing magazine issue (the ACP case). Overlapping with • Digital libraries and electronic copies and these arguments are issues in relation to implied

23 Law Society Gazette December 2004 Technology licences, such as the ability of the customer or copy-protected CD of the US band Velvet Revolver company to make (or have made) amendments to a REACTIONS cannot be used on the iPod. commissioned tourist brochure (the Pasterfield and • New copyright laws However, some commentators make the point that Bord Fáilte cases, for example). In terms of electronic • New wider and electronic publishers do not face the same file-sharing publishing, we see how in Tasini (freelance journalists) expanded threats as the music and film industry because of the an original licence did not permit a new electronic use. definitions of way in which their works are used – at least not yet. Therefore, a new agreement (and negotiations for copyright However, when they have to rely on DRM, the same additional payments) may be necessary. Equally, • Longer copyright doubts exist as face the music industry following freelance photographers were able to prevent later terms Elcomsoft and the DeCSS case in the Netherlands and unenvisaged uses in Ryan v Carl Corp. Electronic • New technologies, the file-sharing case (under appeal) in Canada, where publishers must grapple with these contract and for example DRM the music industry lost. There is also the more recent licensing issues. • New collection case in the US where the music industry lost a case societies or CMS against an ISP-type entity. The court felt that it would Technical protection • New business and be an extension of copyright laws to fix liability on Copyright and technical security protections are licensing models, ISPs for activities that were beyond their control, crucial to the continued development of electronic for example, iPod. namely file sharing by end-users. Clearly, the legal publishing. (So too are software programs that enable and practical success of DRM is not yet assured. e-commerce transactions and payments.) One of the reactions to the breakdown of the traditional copyright Wired and wireless chain includes technologies and laws enabling rights In considering new technologies, electronic management information (RMI) and technical publishing and the electronic distribution of copyright protection measures (TPM). RMI can be defined works, we must now think in terms of the wired briefly as electronic fingerprints or data, while TPM internet and wireless internet. There are predictions can be referred to as technical use and use-prevention that soon 50% of electronic-commerce type measures. A more technical definition of RMI comes transactions will occur through the wireless internet. in article 12 of the WIPO copyright treaty (WCT), The i-mode mobile service has over 43 million which states that RMI is information that identifies the subscribers and 80,000 content sites. New work, author, owner of any right in a work and can technologies permit new forms of electronic also identify terms and conditions of use. publishing and exploitation, which in turn permits The origins of RMI and TPM can be traced back to new business models and new payment and billing the 1996 WIPO treaties, the EU Copyright directive and models. In addition to the copyright and intellectual the Digital Millenium Copyright Act in the US. The property rights issues, there are significant deployment of RMI and TPM while protecting transactional legal requirements in the new electronic copyright content also permits new copyright publishing world. Some of these are already present in distribution and payment models, including electronic the wired e-commerce world, such as prior publishing. Some examples of TPM (some of which information requirements placed upon service can be used by electronic publishing) include anti-copy providers, including electronic publishers. In addition, devices, access control devices, electronic envelopes, issues surround models, security, wireless spam, proprietary viewer software, encryption codes, privacy, shut-off and blocking, liability, passwords, watermarking, fingerprinting (user evidence/retention, health, competition, wireless authentication), metering, monitoring/tracking usage contracts, content regulation, terms and conditions, and payment systems. and consumer information. There are many examples However, there are some continuing issues in terms in on-line obligations contained in e-commerce of a broader roll-out of commercially successful DRM regulations, such as: solutions, such as international standard(s) agreement • When an information society service (ISS) can be and standards setting organisations, technical provided circumvention of TPM, the problem of equipment • General ISS prior-information requirements manufacturer adoption, and related calls for mandating • Commercial ISS prior-information requirements equipment laws (for example, the Hollings Act and the • Information requirements regarding cancelling more recent draft Inducing Infringement of Copyrights contracts, and Act, both in the US). Other issues relate to • Information on procedures for placing electronic interoperability and the forms of metadata uses in the orders. DRM products. A recent example is how the new There are also separate internet service provider (ISP) defences, namely, mere conduit, caching and hosting, COLLECTIVE MANAGEMENT SOCIETIES which need to be considered and which will be The main functions of a CMS are to protect rights owners, facilitate lawful access and relevant to some electronic publishers. collect and distribute fees to authors and creators. They also have increasingly expanding roles in setting appropriate-use restrictions and implementing use Digital libraries monitoring. In terms of electronic publishing, companies may have to obtain licences The topic of digital libraries is new and applies to from CMS. CMS are diversifying their service/product range as new uses evolve. academic libraries and public lending libraries alike. Some of the issues and considerations surrounding

24 Law Society Gazette December 2004 Technology digital libraries include: • Definitions of what a digital library is • How will it be used? • How to track usage • How to compensate authors. Are they paid already? Are there new uses that need to be licensed? • How to organise information and databases • The role of libraries and publishers • How to ensure that the works it copies and lends are legal • Public lending rights • On-line access • The issue of copyright and temporary copies • Should the first-sale doctrine apply to digital works and digital libraries? • Should universities have to pay twice for academic content through funding research and then to a publisher? • How can libraries and universities reduce storage costs and save on journal subscriptions? Can libraries become the new electronic publishers?

Another interesting development in the digital library debate is the report of the UK House of Commons Science and Technology Committee (July 2004). It recommended that universities should establish their own repositories for the works they and their staff create, particularly research and scientific works. This have been suggested as an end to paper, this is far is in recognition of the fact that universities are from the truth. Looking at the horizon critically, it increasingly being pressured by the financial cost of remains to be seen how broad the market and uptake maintaining up-to-date libraries of current scientific of electronic publishing will be. Apart from a few published works, both in terms of the upwardly rising companies, it seems that most efforts are aimed at the costs of published scientific literature and the increase ‘New niche or library/university markets and not the in official scientific publications. The report also broader public and novel markets. BBC news on-line suggests that government or officially funded research technologies carried a story in June 2004 that indicated that e- should only be funded on the condition or mandate are also books, while becoming popular in the United States, that the research produced is deposited in a university are largely ignored in the UK. One problem is that or digital library of some sort. An even more coming to the the technology and devices for reading e-books are contentious suggestion in the report is that authors in aid of rights not yet user friendly. However, in these non-public future should have to pay to have their works markets such as distance learning, academic and published or made available through the university or owners, most research works and archiving, there appears to be a digital library. This is also advocated by others, such particularly in bright future. In terms of more commercial and as those responsible for the new Journal of insect science popular publishing, we need to wait and see. Much (see www.insectscience.org). the form of will also depend on new technologies and user recognising friendliness, as well as how web rating systems list Trends in technology electronic publishing sites. However, there are an The ultimate success of electronic publishing may see technologies increasing number of successful commercial case academic electronic publications concentrated in assisting the studies in the e-newspapers and e-magazines area, smaller niche, specialist, and customisation markets, even in the mobile world. with the commercial publishers concentrating on identification It is fair to say, however, that we have not yet more mass-market or popular publishing. Hence, of copyright witnessed a revolution, but just possibly a storm is traditional and developing commercial subscription brewing ahead. G models may co-exist with the new academic models. works’ Issues remain, however, in terms of rolling out Paul Lambert is an IP and IT lawyer with Dublin law user-friendly technology solutions and applications for firm Merrion Legal and is a director of the Copyright electronic publishing. Success may also depend on the Association of Ireland and a member of the Legal Working actual successful delivery of digital technology Group of the Irish Internet Association. This article is protections, which has been a problem to date. based on a presentation entitled Legal and copyright E-learning and info-literacy need to be considered issues affecting the publishing industry, in particular in their own right, as well as issues surrounding access electronic publishing to the 2004 Beijing International to and preservation of literature and cultural heritage. Conference on Publication, Education and While electronic copies and electronic publishing Publication Industry Development.

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Just when you were beginning to feel comfortable with the notion of digital • Biometric identifiers signatures, biometrics is now the flavour of the month, write Eamonn Keenan • Systems and Tony Bradley security • Uses in a he Law Society’s Technology Committee of biometric identifiers. Most commonly this means legal context has been keeping the question of the electronic matching of fingerprints, but there are

MAIN POINTS electronic signatures under review for other more complex (and expensive) methods, such some time. There is little demand for as iris pattern matching as an even more certain Tthem now, but the situation is being means of identification in high-security situations. monitored to ensure that we are reasonably ready for Whereas the promotion of digital signatures was the day when it becomes live. When developments of an industry-driven process, the pressure for this kind take off, they are inclined to do so widely biometric security is from governments and therefore and quickly – and when that day comes, everyone will more likely to be brought into everyday operation. want (and need) to have one ‘now’. Governments are putting large amounts of money into securing systems on a large scale (for example, Recent trends air passenger movements and border controls), far Digital signatures as a way of identifying a signatory beyond the comparatively easy matter of the to a document are not as secure as might be thought. verification of electronically-executed documents that The most obvious weakness is the reliance upon keys, is our simple need. codes and passwords, frequently written down (and let out to others for convenience’s sake) and then Current position available for misuse. Biometrics is a technology whose time appears to Security issues, and particularly political security have arrived. The Technology Committee has not as concerns, have sent the world moving in the direction yet located a supplier who might be recommended to the profession when the time for action comes, but USES OF BIOMETRICS IN A LEGAL CONTEXT the watching brief continues to be held on your behalf. As with all technology, if we move early it will • By linking biometric identifiers with digital signatures, we can have secure and cost us more, but as the technology becomes verifiable electronic exchange of contracts and documents between solicitors commonplace the price will drop. So in our • Electronic filing of documents in court and other offices. If all solicitors had the explorations, we have to try to achieve a balance same system, then we would be nearer the day when all public bodies would between losing money by being at the cutting edge see the potential benefits of full electronic filing or losing face by being left behind. It is still a case of • Perhaps the electronic completion and signing of the annual application for ‘watch this space’. G practising certificates • And, at its most basic, a valuable aid in data protection: a simple fingerprint Eamonn Keenan and Tony Bradley are members of the check-in would mean that only an authorised person could gain access to a PC Law Society’s Technology Committee. Keep in touch with or to an area within a PC or to a network. technology developments through our area of the society’s website – www.lawsociety.ie, ‘committees’, ‘technology’.

27 Law Society Gazette December 2004 Gadgets Tech trends

The core of the issue t’s only a few years ago that a amounts of information and Ibold sense of design and the graphics without breaking a introduction of the iMac saved sweat. If you’re a saucy IT Apple from certain death. Now monkey, then you’ll probably the company has launched its want to know that the G5 comes latest version, the Apple iMac with either a 1.8GHz PowerPC G5. In a wonderful leap of the processor and a DVD burner or imagination, the entire a 1.6GHz processor and a computer – including a G5- DVD/CD-RW drive, with based logic board, slot-loading memory expandable up to two optical drive, hard drive, gigabytes. It also comes with a speakers, and even the power built-in modem and five USB supply – are located inside the ports. But more importantly, it two-inch thin visual display just looks great on your desk. unit. To all intents and The iMac G5 starts at purposes, the computer has around €1,350 plus VAT, disappeared: now you are left depending on the specs you with just the keyboard and the want. For more information, visit screen. Needless to say, the www.apple.com or call Apple new iMac can handle incredible Ireland on 021 428 4000. Where do you want to go today? hese days, if you’re in the Evesham Mio 168 Co-Pilot expect from a Windows-based Tbusiness of making pocket Live V5 may be a mouthful but pocket PC – PocketPC 2003 PCs, you’re going to want to apparently it’s the first pocket 64Mb of RAM, operating system, an make damn sure that your PC to sport a built-in satellite an Intel PXA 255 SDIO compatible product stands out from the navigation system. The Co- 300MHz SD/MMC slot, 240 x crowd. The award-winning Pilot has everything you’d processor, the 320 pixel 65k colour screen – but it’s in the GPS arena where the Co-Pilot really Nokia looks for a new angle scores. Unlike many other eople like flip-open smartphone. This is a clamshell presentation viewer, Bluetooth models, the Co-Pilot can be Pphones (known as with a difference. The handset connectivity, an FM radio and an moved easily between vehicles. ‘clamshells’ in the trade). can be folded to act as a PDA or MP3 player. It also features Just key in your destination and Nokia is just about the twisted to use as a camcorder, swappable multimedia memory the device will give you door- last major company to taking still or video images. It cards on which you can save your to-door directions, including go down this route boasts the latest in mobile e-mail attachments, images, video voice instructions, using the but has finally applications, including push to clips and texts. Some critics are fastest and shortest routes. It bowed to pressure talk, e-mail, internet browser, unhappy with its size, which (at also comes preloaded with UK and launched its document and 102 x 49 x 23mm, and weighing and Irish street maps. You’d Nokia 6260 130g) is, frankly, larger than you have to go a long way to find a would expect from such a phone. more versatile or more But when you consider what’s affordable GPS device. crammed into it, maybe it isn’t so The Evesham Mio 168 Co-Pilot big after all. Live V5 costs around €800 and is The Nokia 6260 costs around €400 available from 3D Logistics, Unit and is available from phone retailers 66, Park West Enterprise Centre, nationwide. Dublin 12 (www.3dlogistics.ie).

28 Law Society Gazette December 2004 Gadgets Sneakier than a ginger weasel pying on people is not big whichever comes first. sent directly to your TV or Sand it’s not clever, but it’s According to the VCR, if you prefer. ‘Now you suddenly got a whole lot easier manufacturers, this is the can conduct surveillance just with this tiny wireless video world’s smallest colour wireless like the pros!’, screams the camera that transmits live video videocam, boasting a advert. Or just be sneakier than footage back to your TV – transmission range of 300 feet. a sneaky ginger weasel. where, of course, you can Powered by a nine-volt battery, The micro wireless video camera is record it for posterity. Or as the micro camera can transmit available over the internet for evidence against you in your for hours on end, or until €99. Visit www.newageoffers. criminal prosecution, you’re caught. The signal is com/shop/gadgets/spycam. Sites to see

Movie database (www.imdb.com). A solution to that perennial Law reform (www.lawreform.ie). The Law Reform problem of remembering all of Spencer Tracy’s films in Commission’s site has over 100 reports and consultation chronological order. ‘The biggest, best, most award-winning papers, all of which can be viewed on-line or downloaded, and movie site on the planet’, even if they do say so themselves, it provides the papers from the 25 November conference on offers a search facility that gives you any actor’s filmography, as Modernising Irish land and conveyancing law. There is also well as plot summaries. All this, plus reviews, news and release information on how to make a submission to the LRC and on dates. But you’ll probably just use it to impress your mates with the programme for law reform that will form the basis for the your suddenly-acquired encyclopaedic knowledge of film. commission’s work until 2007. All in all, worth a look.

Road to nowhere (www.nra.ie). Keep tabs on the progress of What’s in a name? (http://indigo.ie/~kfinlay/Dublin% the Tara-destroying M3 or make bets with yourself about the 20Streets/dubindex.htm). Duke Lane used to be called Badger difference between a road’s proposed and actual cost and Lane. I’ll bet you didn’t know that. A historical curiosity, completion dates. The site also offers a nifty facility whereby perhaps, but droll with it – the author says that Bachelor’s Walk you can check out how the weather is affecting conditions on probably got its name from ‘an owner of property here named the roads, through a network of weather monitoring stations Batchelor’ and adds ‘this derivation seems more probable than and road sensors, and offers information on public/private that which would describe the quay as a promenade for partnerships, tenders and more. bachelors’. Or indeed badgers.

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ANNUAL CONFERENCE KRACOW 30 March – 3 April, 2005 2005

SPONSORS:

Solicitors’ Mutual Jardine Lloyd Thompson Ireland Limited Defence Fund Limited Message from the President

Dear Colleague,

I have pleasure in inviting you to join me at the Society’s Annual Conference in Kracow on 30 March – 3 April, 2005. 2005 This year the theme of the Conference will be East meets West and you cannot fail to be impressed by the panel of distinguished speakers who will address a wide range of topics. We are most grateful to our sponsors - Bank of Ireland, Jardine Lloyd Thompson Ireland Limited and Solicitors’ Mutual Defence Fund for their continued support of the Law Society’s Conference and I would ask you to give them your favourable consideration in return. I thank all of you who have made advance bookings and I hope those who have not yet booked will now do so. We look forward to a memorable conference which we hope will be enjoyed by all.

Owen Binchy President KRACOW

Business session: East meets West Speakers Full details of all speakers will be provided at a later date. PACKAGE A BASED ON CHARTER FLIGHTS Cost: €1,195.00 approx per person sharing

The cost includes return flights, taxes, transfers, four nights’ bed and breakfast at the Sheraton Hotel, Welcome Reception, Conference Seminar and Gala Banquet. Surcharges could apply in respect of changes in air fares or increases in insurance premi- ums or VAT/tax rates in respect of the hotel.

CHARTER FLIGHTS • 30 March, 2005 departure from Dublin – morning flight – times to be confirmed • 3 April, 2005 departure from Kracow – afternoon flight – times to be confirmed (Times are subject to Air Traffic Control restrictions. However, we are endeavouring to secure morning departure and afternoon return flight times so that we may facilitate those wishing to CONTACT DETAILS travel from Cork, Shannon, etc. Exact times will be detailed in your booking confirmations. The charter flight will be allocated strictly If you would like any further information please contact any mem- in order of bookings received.) ber of the Organising Team: Evelyn O’Sullivan (Law Society) Tel: 01 672 4823 Those delegates not allocated to the Charter flights will be accom- Email: [email protected] modated on scheduled flights which will incur a supplemental James McCourt (Chairman) Tel: 01 660 6543 charge and transfer charges. Gerard Griffin Tel: 01 490 1185 Simon Murphy Tel: 021 427 3305 Note: Connecting flights from Cork, Shannon etc. can be arranged Mary Keane Tel: 01 672 4800 by Sadlier Travel. Please complete relevant section on the reser- vation form. For information on extending your stay please contact the conference travel agent: Alan Benson/Angela O’Brien PACKAGE B Sadlier Travel BASED ON SCHEDULED FLIGHTS Fleet Chambers 8-9 Westmoreland St. Delegates travelling on scheduled flights will travel via various Dublin 2. European cities and will have the option of extending their stay Tel: (01) 670 4880 subject to airline and hotel availability. Fax: (01) 670 4883 Email: [email protected] Price will be based on the charter package but will not include air- port transfers and may incur airline and hotel surcharges. BOOKING/CANCELLATION Delegates intending to travel on scheduled flights should return a TERMS AND CONDITIONS completed reservation form as soon as possible with details of their preferred travel arrangements. 1. Notification of all cancellations must be sent in writing to Evelyn O’Sullivan, Law Society of Ireland, Blackhall Place, Dublin 7. DX79. 2. Balance payments must be received by 20 February 2005. REGISTRATION FEE Thereafter, 100% cancellation fees apply. 3. Substitute participation will be accepted. Payable by delegates only and not accompanying persons – 4. Travel insurance will be automatically invoiced at approximate- €100 ly €26.00 per person unless delegates indicate on the reser- vation form that they have their own insurance and provide the name of the company with whom they are insured. 5. No contract shall arise until a full deposit has been received BOOKING ARRANGEMENTS and a Booking Form (which will be sent with written confirma- tion of acceptance of the reservation) has been signed and The closing date for receipt of bookings is 20 February 2005. returned. Please complete the reservation form and return with deposit of 6. Travel agent reserves the right to allocate all bookings on €450.00 per person travelling. flights. 7. Please note a supplement will be charged for all single room occupancy. Social programme The conference will open on Wednesday evening with a Welcome Reception for all participants at the Cloth Hall in the Old Town Square. Delegates will be taken on a guid- ed walk through historical Kanonicza and Grodzka streets to reach the Old Town Square

ON THURSDAY AN OPTIONAL FULL-DAY VISIT TO AUSCHWITZ CONCENTRATION CAMP

ON FRIDAY AFTERNOON A HALF-DAY OPTIONAL TOUR ON SATURDAY WE WILL HAVE A HALF DAY CITY AND TO THE WIELICZKA SALT MINE WAWEL CASTLE OPTIONAL TOUR

A visit to the Wieliczka Salt Mine – a world class tourist attraction. Wawel Castle is the most popular and the richest museum in Over 700 years, many generations of Polish miners created the Poland. In its 71 magnificent rooms, several thousand works of underground world, exceptional in its beauty, with the rich interi- art of great value are on display. Through a tall vaulted gate we or decoration of the chapels – including the most beautiful of enter the Renaissance arcades of the castle courtyard. This is Blessed Kings, the original linings of the galleries and workings, where colorful pageants, knights’ tournaments and entertain- and the underground salt lakes. We can see up to 20 excavated ments were held. Today, open-air performances and concerts are chambers on three levels - of those the main one is located 130 given in the courtyard. meters below ground level. The chambers are decorated with beautiful statues sculpted in salt with an all-year-round tempera- The most valuable of all the works of art in the Wawel collection ture of 18 degrees Celsius. The Wieliczka Salt Mine is on the are the Arras tapestries. This great art legacy is due to King UNESCO list of the World Cultural and Natural Heritage. Sigismund Augustus, who commissioned the work with the best Flemish weavers, and supervised its progress over twenty years. The Conference Banquet will be held on Friday night. Dress – Wawel Cathedral used to be the scene of coronations and is the smart informal. eternal resting place of the kings of Poland.

Accommodation All delegates will be accommodated in the Sheraton Hotel*****. This is the first five star hotel in the historical capital of Poland. This modern structure is perfectly located – at the footsteps of the Royal Wawel Hill, overlooking the Royal Cathedral and the Vistula River, just ten minutes walk from the heart of the historical part of Kracow - Old Town Square. All bedrooms are spacious, elegant and mod- ern and the hotel boasts a sauna/fitness centre and swimming pool. Books Book reviews Personal Injuries Assessment Board Act, 2003: implications for the legal practice Paul Quigley and William Binchy (eds). FirstLaw (2004), Merchant’s Court, Merchant’s Quay, Dublin 8. ISBN: 1-904480-24-1. Price: €65 (hardback) plus €5 p&p.

his is a very informative the assessment. seminal book and case book on Tbook. More importantly for The procedure must be Irish tort law, places the act in practitioners, it is also a very completed within a further six its legislative and case-law useful book. months, even if the respondent context. He also notes that ‘it is First up is the contribution does not so consent. If not, unfortunate that the very by the two editors, law then PIAB must issue the worthwhile goals of the Personal researcher and Trinity College claimant with an authorisation Injuries Assessment Board Act, Regius professor of laws to proceed to court, unless the 2003 have, to a limited degree, respectively. Their ‘Navigating claimant agrees to continue the been blurred by the desire to the PIAB procedure’ is a PIAB assessment. The follow- keep lawyers out of the general 12-page introduction to on time limits are outlined, assessment process even to the the new regime for pract- including that the claimant has point that the board may not itioners. 28 days to accept or reject the correspond with them directly’. We are reminded that the assessment. If it is rejected, The background to the He outlines the four new procedure does not affect again PIAB must issue an establishment of PIAB is categories of civil actions to the freedom to arrange authorisation enabling the covered comprehensively, and which the act applies, being settlements. But if settlement claimant to proceed to court. indeed adversarially, in articles employers’ liability claims, road cannot be reached, then of The possibility of the act by the Law Society’s Ken accident claims, occupiers’ course the claimant must go the being unconstitutional is Murphy, the Bar Council’s liability claims and a fourth PIAB route. We are directed to examined by Paul Quigley in a Conor Maguire and PIAB chair general category that includes Guide to the Personal Injuries separate chapter. He mainly Dorothea Dowling, whose such headings as product Assessment Board, 2004 of the focuses on the doctrine of background is in litigation liability, nuisance, dog bites and Department of Enterprise, separation of powers and the defence. PIAB’s establishment even defamation. Of course, Trade and Employment and to right of citizens to have access has been a triumph for defence claims relating to health www.piab.ie for downloading to the courts. He concludes interests, particularly those of services are excluded from the the forms. that if a claimant is denied the powerful business and provisions of the act. The procedures laid down justice ‘due to an overwhelming insurance lobbies, over those of The appendices helpfully by the act are outlined from PIAB procedure’, it is possible victims, according to Murphy. include a copy of the 2003 act, where a claim must be referred that a remedy might lie in On the other hand, Dowling the rules of PIAB and an early to PIAB with a €50 fee, constitutional justice. But he argues that PIAB is a win-win book of quantum compiled on assessment by a PIAB assessor suggests that ‘while its [PIAB’s] situation for both victims and behalf of PIAB by independent who contacts the respondent decisions, actions and defendants. consultants. Litigants and ‘as soon as practicable after procedures will be subject to The eighth and final chapter litigation lawyers would benefit receipt of an application’, constitutional scrutiny … the is an impressive tour de force of from this book. G through to completion of the act that established the new the implications of the act for assessment within nine months board seems constitutionally tort law and practice. Professor Pat Igoe is principal of the Dublin of the respondent’s consent to sound’. Binchy, co-author of the law firm Patrick Igoe & Co. Environmental law: professional practice guide

Anne-Marie Mooney Cotter (ed). Cavendish Publishing (2004), The Glass House, Wharton St, London WC1X 9PX, England. ISBN: 1-859419-01-1. Price: stg£40.

t is illustrative of the central Society’s series of professional implications of Irish environmental law. These Iposition that environmental practice guides now includes environmental law is to be implications are felt in a host of law has come to occupy in the Environmental law. The welcomed, not only by legal areas of activity, ranging from work of an Irish legal publication of a concise volume practitioners and trainees but transactions in land to practitioner that the Law looking at the practical also by all students of Irish workplace health and safety and

35 Law Society Gazette December 2004

Books from the licensing of industrial indemnities. Though planning myriad sets of standards, operators to the obtaining of law might at first glance appear guidelines and codes of planning permission for certain to be beyond the scope of this conduct that set the standards types of development projects. work, a brief chapter setting of ‘due diligence’ required In general, the layout of the out the operation of relevant under general international law book is appropriate, covering aspects of the planning code and often inform the standards the key substantive areas where would have been useful in of fault and reasonableness environmental rules, or the lack setting the scene for the applied in our domestic courts. of them, are likely to have an excellent chapters contributed One has only to think of the impact on the work of the by Rachel Minch on persuasive character of World practitioner. The book includes environmental impact Health Organisation standards, very clear and informative assessment and on habitats, for example, particularly in the chapters on integrated wildlife and natural heritage. absence of any corresponding pollution control, However, I’m mindful of the standards in Irish or EC law or environmental impact fact that, in the case of an in the law of a comparable assessment, water pollution, edited volume, the topics jurisdiction, such as the UK. waste management, nature covered may depend on the Also, recent developments in conservation, and one on the introduce integrated pollution- contributions available. international environmental related areas of air pollution, control licensing under the However, probably the most law have done much to ensure noise pollution and toxic torts. 1992 Environmental Protection puzzling chapter in the entire freedom of access of nationals Indeed, it is a little unfortunate (Agency) Act, taking no account volume is that contributed by from adversely affected states that each chapter is not fully of the UK regime introduced its editor – ‘International to the courts of source states referenced by means of under the 1990 Environmental environmental law: the global and/or to ensure the footnotes or endnotes, as it Protection Act on which the village’. This chapter appears enforceability of judgments could then serve as an excellent Irish regime is largely to lack any coherent structure handed down in affected states starting point for the reader modelled. or focus. For example, it is within source states. who wished to delve a little Of much greater difficult to understand why the Clearly, these are issues of more deeply into any particular significance, however, in a 1987 Montreal protocol (itself potentially immense area. volume intended for use by merely one of a series of significance for practitioners. Though it is certainly graduates studying for a incrementally more stringent However, by approaching this appropriate that such a volume professional legal career, is the instruments on the phasing out subject from a global policy- would give over some space to omission of dedicated chapters of ozone-depleting substances, making perspective, the a discussion of the structures on toxic torts, contaminated including the ground-breaking opportunity is missed here to and roles of the key Irish land and on selected areas of 1985 Vienna convention for the highlight these important regulatory and policy-making planning law and procedure. protection of the ozone layer and interconnections between the agencies for the environment – Though Deborah Spence the 1990 and 1992 agreements international and national legal the Environmental Protection briefly outlines the topic of amending the Montreal protocol) systems. Agency (chapter 4) and the toxic torts in her excellent is singled out for discussion as As it is always much easier to Department of the chapter on air pollution, noise one of the ‘initial’ agreements point to the limitations of a Environment, Heritage and pollution and toxic torts, one in the area of international book such as this than to Local Government (chapter 5) can argue that this important environmental law. highlight its strengths, I should – the brief chapter on the topic requires a more International environmental emphasise that this volume United Nations environment comprehensive treatment law was already quite highly makes a significant and very programme (chapter 2) and the where there would be scope to developed by 1987. Similarly, it welcome addition to the more substantial chapter on the look, for example, at important is unclear why the 1992 Climate limited literature on Irish European Environment Agency English case law, such as the change convention (which, environmental law. The vast (chapter 3) appear somewhat recent House of Lords decision incidentally, is not synonymous majority of contributions are superfluous and out of place. in Fairchild. with the 1997 Kyoto protocol) is accurate, clear and to the point, Also, the chapter on Similarly, though Margaret singled out for attention from betraying the wealth of environmental business Austin alludes to the issue of among other key treaty practical experience of the concerns does not fit very well historically contaminated land instruments, some of which contributors and their feeling into this text, involving little in her very thorough and also flowed from the Rio for their discipline. I have no more than a restatement of the comprehensive chapter on process, such as the 1992 doubt that this guide will be environmental policy waste management, one might Convention on biological diversity. well received by its intended preferences (and grievances) of expect that this commercially- One might reasonably argue readership, though also that it industry. sensitive topic would be worth that the true practical relevance will be widely read beyond the These arguments are made a chapter setting out, among of developments in public ranks of trainee and practising articulately, though not always other things, the nature of the international law relating to the solicitors. G accurately. For example, the problem and the rapidly- environment for practising author claims that Ireland was evolving practice in relation to solicitors lies in the Owen McIntyre is a law lecturer the first EU member state to contractual warranties and relationship between the at University College Cork.

37 Law Society Gazette December 2004 Books Brief cases (three CDs read by Des Keogh) Henry Murphy SC. Ashfield Press, 27 Carysfort Avenue, Blackrock, Co Dublin. ISBN: 1-901658-42-2. Price: €24.95.

ermot McNamara BL, after evidence of many diverse debut in Milltown Golf Club, Dsix years at the bar, is witnesses, including the female with uproarious results. Indeed, concerned that the rocket to plaintiff, but Des Keogh can it is worth buying the CD for fame and fortune is not quite as play them all, male or female, this golf outing alone. turbo-propelled as he had old or young, with the required Lawyers and non-lawyers hoped. His only success to date accent, tone, exasperation, will revel in the hilarious was for a client who got alcohol incredulity or sarcasm to meet anecdotes recounted superbly poisoning and sued the the occasion. in dramatic fashion by Des innkeeper who served him the In another case, Judge Keogh. This is the perfect drink. It was just as well that Bradley, with a reputation for Christmas present for anyone Dermot’s wife Rachel had a lengthening cases far beyond looking for light relief over the thriving matrimonial practice. their normal forensic life, holiday period. Hopefully, this Actor Des Keogh plays all linked to the shredder. presides over the action. The will not be the last we hear of the characters who impact on In the first court hearing, plaintiff is a retired English Dermot McNamara BL, if Dermot’s legal career, involving Dermot is opposed by Handy, showjumper and one of the Henry Murphy can be hilarious accounts of courtroom whose nickname rhymed with witnesses is a French Poirot persuaded to continue with his dramas with surprising results. his surname. O’Brien, the character. None of the required fluent and comical writing. G Dermot is usually instructed by judge, unlike some of his accents phase the indomitable Arnold O’Reilly, solicitor, who colleagues, concentrates on the Des Keogh one bit. John Costello is a solicitor with the stirs his coffee with a pencil and task in hand. The cross- Finally, there is a report of Dublin law firm Eugene F believes the fax should be examination involves the Dermot’s Bar Golf Society Collins.

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38 Law Society Gazette December 2004 Briefing Report of Law Society Council meeting held on 8 October 2004 Motion: Money-Laundering Motion: Code of conduct for Decision no N/04/001 of the recommended levels of pay for Reporting Committee Council members Competition Authority trainees working in the office ‘That this Council approves the ‘That this Council approves the code The Council considered legal pre-PPCI by 7.5%. Again, this establishment of a Money- of conduct for Council members and advice received in relation to was in line with the national pay Laundering Reporting Committee the Council members’ handbook’. decision no N/04/001 of the agreement. In addition, the and that the functions of the society Proposed: Anthony H Ensor Competition Authority, which number of hours that trainee set out in section 57 of the Criminal Seconded: Stuart Gilhooly decision purported to restrict solicitors were required to work Justice Act, 1994 be delegated to the choice of legal representa- had been increased from 35 to that committee with an obligation The Council approved the code tion available to persons being 36 hours per week. to report to the Council on their of conduct for Council members investigated by the authority. exercise (on a no-names basis) and and the Council members’ hand- The Council agreed that the Pre-budget submission that the regulations of the Council book, both of which had been authority should be asked to The Council considered, and be amended accordingly’. circulated in advance. withdraw the notice in recogni- approved, the society’s pre- Proposed: Simon Murphy tion of the fact that it was budget submission, which had Seconded: James McCourt Personal Injuries wrong in principle and wrong in been prepared by the Probate, Assessment Board law, failing which the officers Administration and Taxation Simon Murphy explained that, Ward McEllin reported in rela- were authorised to issue judicial Committee. under section 57 of the Criminal tion to an application for judicial review proceedings against the Justice Act, 1994, the society had review sought by a firm of solic- authority. CCBE an obligation to make reports to itors against PIAB’s refusal to John Fish reported that the the Garda Síochána and the deal with a claimant’s solicitor. Trainee solicitors’ salaries Belgian Bar had decided to Revenue Commissioners where it The application for judicial Donald Binchy briefed the bring proceedings to have the suspected that money-laundering review had been granted and the Council in relation to a decision Money-laundering directive offences had been, or were being, matter was likely to be heard by the Education Committee to declared null and void to the committed by its members. The before Christmas. increase the level of salaries extent that it obliged lawyers to society’s obligations in this regard paid to trainee solicitors and the report suspicions to the author- had been delegated to the Legal costs review number of hours that trainees ities. Accordingly, the matter Compensation Fund Committee. The Council discussed the were requested to work per would ultimately be determined However, it was now proposed to recent announcement by the week. by the European Court of establish a stand-alone commit- minister for justice, equality No review of trainee salaries Justice. tee with the sole function of mak- and law reform of the establish- had been carried out since ing such reports. The member- ment of a working group to September 2000 and it had been Departure of long-standing ship of the committee would con- identify ways of reducing legal agreed to give trainees an Council members sist of the two most recent past costs and noted a letter from increase of 7% (in line with the The president paid tribute to chairmen of the Compensation the president to the minister national pay agreement) with John Fish, Ward McEllin, Fund Committee and the regis- expressing the society’s dissatis- effect from 1 January 2005. Anthony Ensor and Laurence trar of solicitors. The Council faction with the exclusion of Trainee salaries would be Shields, who were departing the approved the motion, as notified, solicitors in private practice reviewed annually from this Council after many years’ dis- and the consequent amendments from membership of the work- date onwards. In addition, it tinguished service on behalf of to the Council regulations. ing group. had been agreed to increase the the profession. G

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39 Law Society Gazette December 2004 Briefing Committee report CRIMINAL LAW form to a shorter, more user- of the new-format claim form The ‘old’ form will not be friendly version. The committee will be available from the Courts available from 1 January 2005, Criminal justice (legal aid) is pleased to announce that, as Policy Division, Department of but solicitors who have stocks of scheme: introduction of new from 1 January 2005, a simplified Justice, Equality and Law the old form may still submit format of claim form (LA1) format of the LA1 claim form will Reform, Old Faculty Building, those forms after 1 January 2005. Some time ago, the society’s be introduced. The new form will Shelbourne Road, Dublin 4 and The committee wishes to Criminal Law Committee init- require solicitors to complete one will appear on the Department of thank all those in the Courts iated discussions with the page only. It is hoped that the Justice website, www.justice.ie. A Policy Division of the Department of Justice, Equality reduction in time spent filling out sample will also appear on the Department of Justice and those and Law Reform and the Courts the form will be of great assis- homepage of the members’ area in the Courts Service who assist- Service regarding the possibility tance to busy practitioners. of the Law Society website ed in the revision of the form. of revising the current LA1 claim From 1 January 2005, stocks www.lawsociety.ie. Criminal Law Committee Practice note PRACTISING CERTIFICATES, 2005: NOTICE TO ALL PRACTISING SOLICITORS Why you need a practising tificates which are received after (Amendment) Act, 2002 to prohib- are requested to notify the soc- certificate 1 February 2005 will result in the it them from practising illegally. iety accordingly. It is misconduct and a criminal practising certificates being dated offence for a solicitor (other than a the date of actual receipt by the What you need to do about Some of your details are already solicitor in the full-time service of registrar of solicitors, rather than professional indemnity insurance on the application form the state) to practise as a solicitor 1 January 2005. There is no legal If confirmation of mandatory pro- This year, for the first time, the without a practising certificate. Any power to allow any period of grace fessional indemnity insurance practising certificate application solicitor found to be practising under any circumstances whatso- cover is not received, the registrar form will be issued with certain without a practising certificate is ever. of solicitors is precluded by law information relating to each solici- liable to be referred to the Please note that, during 2004, from issuing a practising certifi- tor’s practice already completed. Solicitors Disciplinary Tribunal. 125 solicitors went to the trou- cate. All solicitors who are ble and expense of making an required to have professional What can you access on the When you must apply application to the High Court for indemnity insurance cover are website? A practising certificate must be their practising certificate to be asked to ensure that either they Also for the first time, the practis- applied for on or before 1 backdated to 1 January because or their broker furnishes the soci- ing certificate application form will February in each year in order to their practising certificate appli- ety with confirmation of cover as be available on the society's web- be dated 1 January of that year cation was received late. soon as cover is renewed. site, www.lawsociety.ie. By answer- and thereby operate as a qualifi- There will be a special meeting ing the questions on-line, there will cation to practise from the com- of the Compensation Fund If you are an employed solicitor be no need to complete the form mencement of the year. Committee (which is the commit- Solicitors who are employed by hand, thus making the comple- It is a legal requirement for a tee of the society with responsi- should note that it is the statutory tion of the form less time consum- practising solicitor to deliver or bility for supervising compliance obligation of every solicitor who ing. When the on-line form is com- cause to be delivered to the reg- with practising certificate require- requires a practising certificate to plete, it must be printed, signed istrar of solicitors at the society’s ments) on 10 February 2005 to ensure that he or she has a prac- and returned to the registrar of premises at Blackhall Place, consider any late or unresolved tising certificate. Employed solici- solicitors. Alternatively, the form Dublin 7, on or before 1 February applications for practising certifi- tors cannot absolve themselves can be printed out and completed 2005, an application in the pre- cates. At this meeting, any prac- from this responsibility by relying by hand. scribed form duly completed and tising solicitors who have not on their employers to procure their The on-line form can be acces- signed by the solicitor personally. applied by then for a practising practising certificates. However, it sed by following the link under the The onus is on each solicitor to certificate will be considered for is the society’s recommendation ‘Current news’ section on the web- ensure that his or her application referral forthwith to the Solicitors that all employers should pay for site and logging on using the solic- form is delivered by Tuesday 1 Disciplinary Tribunal and will be the practising certificate of solici- itor’s surname and solicitor num- February 2005. informed that, if they do not apply tors employed by them. ber (stated on page 1 of the appli- in due form within a further seven- cation form which will be sent to What happens if you do not day period, the society will take If you are ceasing practice each solicitor by post). G apply on time? proceedings for an order under Solicitors who are intending to John Elliot, registrar of solicitors Any applications for practising cer- section 18 of the Solicitors cease practice in the coming year and director of regulation

40 Law Society Gazette December 2004 Briefing

LEGISLATION UPDATE: 20 OCTOBER – 15 NOVEMBER 2004 Details of all bills, acts and statu- ment) order 2004 from prisons, from St Patrick’s under the Protection of Employees tory instruments since 1997 are Number: SI 712/2004 Institution and from places provid- (Employers’ Insolvency) Act, 1984 on the library catalogue – Contents note: Appoints 31/3/ ed under section 2 of the Prisons www.lawsociety.ie (members’ and 2005 as the commencement date Act, 1970 Redundancy payments (lump students’ areas) – with updated for section 46 of the act, which Commencement date: 12/11/ sum) regulations 2004 information on the current stage a provides that the Courts Service 2004 Number: SI 695/2004 bill has reached and the com- shall establish and maintain a reg- Contents note: Raise the ceiling mencement date(s) of each act. ister of reserved judgments of the Private Security Services Act, on annual reckonable earnings to Supreme Court, the High Court, 2004 (commencement) order be taken into account in the cal- ACTS PASSED the Circuit Court and the District 2004 culation of a statutory redundancy Dumping at Sea (Amendment) Court in any civil proceedings Number: SI 685/2004 lump-sum payment Act, 2004 Contents note: Appoints 28/10/ Commencement date: 1/1/2005 Number: 35/2004 Criminal Justice (Temporary 2004 as the commencement date Contents note: Amends and Release of Prisoners) Act, 2003 for: (a) part 1 (sections 1-5); (b) Social welfare (consolidated extends the Dumping at Sea Act, (commencement) order 2004 sections 6, 7, 8, 9, 10, 11, 12, payments provisions) (amend- 1996 in relation to applications Number: SI 679/2004 17, 18, 19 and 20; and (c) sched- ment) (no 4) (maternity benefit) for dumping at sea permits Contents note: Appoints 12/11/ ule 1 of the act regulations 2004 Date enacted: 3/11/2004 2004 as the commencement date Number: SI 660/2004 Commencement date: 3/11/ for the Criminal Justice Protection of employees Contents note: Provide, for the 2004 (Temporary Release of Prisoners) (employers’ insolvency) purposes of the maternity benefit Act, 2003 (variation of limit) regulations scheme, for the amended provi- Ombudsman (Defence Forces) 2004 sions governing maternity leave Act, 2004 Prisoners (temporary release) Number: SI 696/2004 contained in the Maternity Number: 36/2004 rules 2004 Contents note: Increase the max- Protection (Amendment) Act, Contents note: Establishes the Number: SI 680/2004 imum amount of weekly pay that 2004. Reduce the minimum peri- office of ombudsman for the Contents note: Provide for the may be used for the purposes of od of leave that must be availed of defence forces; provides for the temporary release of persons calculating employee entitlements prior to the expected date of birth appointment, functions and staff from four weeks to two weeks, of the ombudsman and amends District Court (children) (no 2) Rules 2004 and provide that where maternity the Defence Act, 1954 Number: SI 666/2004 benefit has been in payment for a Date enacted: 10/11/2004 Contents note: Amend order 37 of the District Court Rules 1997 (SI minimum period of 14 weeks, pay- Commencement date: Com- 93/1997) to prescribe procedures for orders directing the probation ment may be postponed in the mencement order(s) to be made and welfare service to arrange for the convening of a family conference event of the hospitalisation of the (per section 19(2) of the act) and for orders directing a child to comply with an action plan pursuant child, and provide for related mat- to sections 78(1), 79, 82(1)(b), 82(2)(a), 83 and 84 of the Children ters SELECTED STATUTORY Act, 2001 Commencement date: 18/10/ INSTRUMENTS Commencement date: 3/11/2004 2004 Adoptive Leave Act, 1995 (extension of periods of leave) District Court (food safety) Rules 2004 Social Welfare (Miscellaneous order 2004 Number: SI 700/2004 Provisions) Act, 2004 (section 8) Number: SI 667/2004 Contents note: Amend the District Court Rules 1997 (SI 93/1997) by (commencement) order 2004 Contents note: Extends the peri- the insertion in order 34 of a new rule 16 ‘warrant – under the Food Number: SI 658/2004 ods of adoptive leave under the Safety Authority of Ireland Act, 1998’ and by the insertion of a new Contents note: Appoints 18/10/ Adoptive Leave Act, 1995 order 96A ‘food safety’. These amendments prescribe procedures for 2004 as the commencement date Commencement date: 19/11/ applications under the Food Safety Authority of Ireland Act, 1998 in for section 8 (amendments to the 2004 with saver relation to information required by the authority to exercise its func- maternity benefit scheme) of the tions and in relation to non-compliance with ‘improvement orders’ act G Courts and Court Officers Act, Commencement date: 14/11/ 2004 Prepared by the Law 2002 (section 46) (commence- Society Library www.lawsociety.ie Have you accessed the Law Society website yet?

41 Law Society Gazette December 2004 Briefing Personal injury judgment

Dangerous animals – control of dogs – dog injured a woman on her way home – onus on owner or occupier to prove that they are not the owners of a dog – whether this onus had been discharged

CASE Frances Quinlisk v Ross Kearney, John Kearney and Bernadette Kearney, High Court, judgment of Mr Justice Roderick Murphy delivered on 10 June 2004. THE FACTS ome time after 11.30pm on her back to the Kearneys’ house room. In evidence in court, Mrs she was advised by her medical Sa summer’s evening on 7 and going towards her own Quinlisk stated that she was on doctor to retire or else she June 1999, Frances Quinlisk was house. She lay on the ground for crutches until January 2001, would undo everything he was returning from a meeting of a quarter of an hour with severe some seven months later. doing for her. She alleged that Muintir na Tíre in Roscrea. She pain in her right-hand side. She Mrs Quinlisk had suffered in mid-August she had seen the was left by her friend at the subsequently reached her house previously. Two discs had been dog in question going into Mr entrance to an estate where she but spent two days in bed in a removed in 1982 or 1983 and Kearney’s home. She went over and the Kearneys lived. lot of pain. she had experienced intermit- on her crutches and asked Mr Mrs Quinlisk, having left her Two days later, her husband tent problems since then. She Kearney if he owned the brown friend some 200 yards from her brought her by car to see her experienced the pain that she dog that was at Mr Kearney’s house, felt a tug on her left leg medical doctor. Two days later, had had before the incident with door. There was evidence that and saw a small, medium- Mrs Quinlisk was sent to the dog. She went back to work he replied that it was one of his brown-coloured dog growling. Tullamore Hospital; she was x- in May 2001, some seven son’s dogs. The son was Ross The dog pulled so hard that she rayed and given painkillers. months later. Kearney (the first-named defen- turned around, lost her balance There was no bed available and In evidence, Mrs Quinlisk dant). and fell. The dog had come up she returned home, where she stated that she had developed Mrs Quinlisk sued Ross from behind her as she walked spent six weeks in bed in pain, rheumatoid arthritis by Kearney and his father and on the path of the green with having to be carried to the bath- Christmas 2001. At that stage, mother. THE JUDGMENT r Justice Roderick Murphy or remain at any particular time warden. A solicitor’s letter was fall. She had made good progress Mdelivered judgment on 10 (unless such occupier proves to sent to the Kearneys in and the pain would tend to sub- June 2004 and set out the facts of the contrary). November 2000. side with time. the case, as above. Section 21(1) of the 1986 act The judge observed that Mrs Mr Justice Roderick Murphy The judge referred to the provides that the owner of a dog Quinlisk had stated in evidence stated that the Control of Dogs Control of Dogs Act, 1986 and shall be liable for damage caused that Mr Kearney’s daughter had Act, 1986 was a radical piece of quoted the various sections in in an attack on any person by the answered the door on one occa- legislation for a country where relation to liability of persons in dog. Section 21(1) of the 1986 sion and that Mr Kearney had dogs proliferated. The very title relation to dogs. Section (9)(1) act provides that it shall not be admitted that his son Ross of the act emphasised control of the 1986 act provides: necessary for the person seeking owned the brown dog. rather than registration, which ‘[T]he owner or any person in such damages to show a previous Mr Justice Roderick Murphy had been a requirement under charge of a dog shall not permit the ‘mischievous’ propensity in the referred to the medical condi- previous legislation. The judge dog to be in any place other than (a) dog, or the owners’ knowledge tion of Mrs Quinlisk. The fall in observed that the presumption the premises of the owner, or (b) the of such propensity, or to show relation to the dog had aggravat- of ownership was one of those premises of such other person in that such injury or damage was ed pain in her lower back. She radical elements in the legisla- charge of the dog, or (c) the premis- attributable to neglect on the was distressed. A doctor, who tion that deemed ownership on es of any other person, without the part of the owner. had given evidence, was of the occupiers of any premises consent of that person unless such The judge noted that Mrs opinion that stress after such an where not alone the dog was owner or such other person in Quinlisk had stated that there accident with a dog could lead to kept but permitted to live or charge of the dog accompanies it and was no point in her reporting rheumatoid arthritis, although remain at any particular time. keeps it under effectual control’. the matter to the relevant this could not be proved scientif- The onus of proof was on the The owner of a dog is defined authorities until she knew who ically. The symptoms com- occupier to prove to the con- in the 1986 act as including the owned the dog. When she con- plained of by Mrs Quinlisk were trary. The issue of ownership in occupier of any premises where a sidered she knew who owned as a result of her lower-back the particular case under ques- dog is kept or permitted to live the dog, she telephoned the dog injury, but exacerbated by the tion was critical.

42 Law Society Gazette December 2004 Briefing

The court had to be satisfied was on the Kearneys to discharge corroborated. However, as was probabilities, found in the cir- (according to the judge) on the the presumption that they were clear from the definition section cumstances that the Kearneys balance of probabilities from the the owners of the dog. It was up of the 1986 act, ‘ownership’ was did own the dog in question in evidence of the Kearneys that to them to prove that they did not defined very widely indeed to that they, as occupier or occu- none of them kept a dog or per- keep dogs or allow them to include the occupier of premises. piers (one or more of them), per- mitted a dog to live or remain remain in their premises. The judge noted that, even if mitted the dog to live and for any particular time on their Given the radical nature of dogs were strays, then the remain at his, her or their prem- premises. According to the the legislation, the judge stated Kearneys should have been ises. None of the Kearneys had judge, there was no dispute that it would seem that the sim- aware of the risk of liability once proved, on the balance of proba- regarding a small medium- plest way of rebutting the pre- they were kept or allowed to bilities, that they were not the brown dog tugging at Mrs sumption was to tell Mrs remain on the premises. owners of the dog that had Quinlisk, causing her to lose her Quinlisk at the time she met one The judge referred to section attacked and caused Mrs balance and fall, causing her an of the Kearneys that not only did 13 of the 1986 act, which stated Quinlisk the injury she had suf- injury which exacerbated a pre- the Kearneys not own dogs, but that any person who finds and fered. It followed that the vious complaint. that they did not permit dogs to takes possession of a stray dog is Kearneys were liable for the In relation to the ownership live or remain on their premises. obliged to return the dog to its damage caused. In terms of lia- of the dog, Mrs Quinlisk stated The evidence of a neighbour owner, deliver it to a dog warden bility, the Kearneys were jointly that in mid-August she had seen was, according to the judge, or detain the dog and give notice and severally liable. a dog going into the Kearneys’ compelling with regard to the in writing to the member in In relation to the medical evi- premises; she proceeded on presence of dogs in and around charge of the nearest garda sta- dence, the judge considered the crutches to the Kearneys’ house the premises of the Kearneys. tion or to a dog warden. In such two reports of the medical doc- and spoke to one of the The judge did accept the evi- a case, the occupier would not be tors, including the reports of the Kearneys, who said that the dog dence of Mr and Mrs Kearney deemed to be the owner until orthopaedic surgeon. The sur- was the son’s, Ross Kearney. The that they did not have or own a one year had passed. geon had found a fracture to the dog was at the door. The judge dog. That evidence had been The court, on the balance of pelvis requiring hospitalisation. noted that, unfortunately, Ross Mrs Quinlisk was on crutches Kearney did not give evidence in for seven-and-a-half weeks. She relation to whether or not he Mr Justice Roderick Murphy awarded Mrs Quinlisk damages had previous spinal surgery for a was in the family home in June as follows: prolapsed disc in 1982. She had 1999. His testimony would have • Special damages in relation to Mrs Quinlisk being out of some intermittent pain since been of assistance to the court in part-time work which had been agreed – €1,600 then. G relation to whether or not he • General damages – €16,000 had a dog or hunted or not. Total: €17,600 This judgment was summarised by

The judge noted that the onus THE AWARD solicitor Dr Eamonn Hall. SOLICITORS DISCIPLINARY TRIBUNAL This report of the outcome of a Solicitors Disciplinary Tribunal inquiry is published by the Law Society of Ireland as provided for in section 23 (as amended by section 17 of the Solicitors (Amendment) Act, 2002) of the Solicitors (Amendment) Act, 1994

In the matter of John B Harte, On 28 September 2004, the Soli- plaint to the society being requested to do so and solicitor, practising under the citors Disciplinary Tribunal found c) Failed to respond to corre- in particular the meetings of style and title of James Harte the respondent solicitor guilty of spondence from the society in 11 June 2002, 24 September & Son, 39 Parliament Street, misconduct in that he had: the investigation of the com- 2002 and 5 November 2002. Kilkenny, and in the matter of a) Failed to comply with an plaint in a timely manner or at an application by the Law undertaking given to a named all, and in particular failed to The tribunal ordered that the Society of Ireland to the solicitor’s firm on 22 October reply to letters from the socie- respondent solicitor: Solicitors Disciplinary Trib- 1996 to have a defunct public ty dated 12 April 2002, 24 a) Do stand censured unal and in the matter of the right of way to a well removed April 2002, 7 May 2002, 22 b) Pay a sum of €5,000 to the Solicitors Acts, 1954 to 2002 as a burden from a Land May 2002, 26 June 2002, 3 compensation fund [2259/DT398] Registry folio in a timely man- July 2002, 15 July 2002, 25 c) Pay the whole of the costs of Law Society of Ireland ner or at all July 2002, 7 November 2002, the Law Society of Ireland as (applicant) b) Failed to respond to 13 letters 13 February 2003 taxed by a taxing master of the John B Harte from the complainants to him d) Failed to attend at Registrar’s High Court in default of (respondent solicitor) prior to their making a com- Committee meetings despite agreement.

43 Law Society Gazette December 2004 Briefing Update

News from Ireland’s on-line legal awareness service Compiled by Flore Bouhey for FirstLaw

CHILDREN AND YOUNG confer additional functions on Commission to Inquire into arrangements in which L had PERSONS the third respondent to enable it Child Abuse, High Court, Mr become, in a practical sense, a to investigate those trials. She Justice Ó Caoimh, 11/6/2004 member of the applicants’ Child abuse sought a declaration that the [FL9705] family. The evidence was Family law – children – child abuse order of 2001 made by the overwhelming that it was in L’s – statutory instrument – government was ultra vires the Adoption, delay best interests to make the commission of inquiry – functions provisions of the 2000 act, and, Family law – adoption – consent – adoption order sought and the and powers – whether additional in particular, section 4(4) children – refusal to consent to initiative for the adoption had functions sought to be conferred on thereof. adoption – medical evidence – come from L herself. The foster commission by statutory instrument Ó Caoimh J declared that the fostering – abandonment – delay in parents had fared excellently in connected with functions and powers order of 2001 was made ultra bringing proceedings – whether raising L and were extremely of commission – whether statutory vires section 4(4) of the 2000 act, parental rights abandoned – suitable people to adopt her. It instrument ultra vires – holding that, in the absence of whether appropriate to make was unlikely that there would be Commission to Inquire into additional evidence being put adoption order – Adoption Act, a loss of contact between L and Child Abuse Act, 2000, section 4 before the court, the vires of the 1988, section 3 her sister once the adoption – Commission to Inquire into Child order had to be judged by The proceedings concerned an order was made. Although the Abuse Act, 2000 (additional reference to the terms of the application by the foster parents delay that had occurred during functions) order 2001 – Rules of order itself and the report of the of a child seeking to have the the proceedings was regrettable, the Superior Courts 1986, order chief medical officer mentioned child adopted. Since the child the position of the parties had 15, rule 13 therein, which disclosed nothing (L) was three weeks old, she had not been prejudiced. The third respondent was suggesting that the conduct of been placed with her present B(WH) and S(W) and S(E) v established by the Commission to the vaccine trials, the subject of foster parents. The application An Bord Uchtála, High Court, Inquire into Child Abuse Act, the report, was such as to was opposed by the parents of L Mr Justice O’Higgins, 2000. Its role was defined in amount to abuse as defined in and her natural sister. The 27/5/2004 [FL9628] section 4 of the 2000 act as being the 2000 act. The essential issue mother of L had been convicted to inquire into the abuse of raised by that report was one of of manslaughter in respect of the children in institutions. ‘Abuse’ medical ethics and was not one death of a sister of L. A brother CONSTITUTIONAL for the purposes of the act was suggestive of abuse as defined in of L had also been taken into defined in section 1 as ‘the … the 2000 act. There had to be care. The mother of L opposed Sexual offences, order of infliction of physical injury on, some real connection between the application on the grounds prohibition or failure to prevent such injury the functions sought to be that there had not been any Judicial review – order of to the child, the use of the child conferred by the order of 2001 failure of parental duty and/or prohibition – constitutional law – by a person for sexual arousal or and the functions and powers of abandonment and also that it criminal law – sexual offences – … gratification … failure to care the Commission to Inquire into was not in the child’s best delay – issue of dominion – for the child … [or any other act Child Abuse before such an interest. A fit persons order had psychological evidence – role of or omission towards the child] order could be made by the been made in respect of L director of public prosecutions – which results in serious government, and the mere fact approximately two months after whether real or serious risk of impairment of the physical or that the persons the subject of she was born. Evidence was also unfair trial – whether order mental health or development of the vaccine trials were given by L that she would like to prohibiting trial should be granted the child or serious adverse vulnerable children in state be adopted. A natural sister of L – Bunreacht na hÉireann 1937, affects on his behaviour or institutions did not amount to opposed the adoption on the article 38.1 welfare’. The applicant was a any connection of substance basis that she would lose contact The applicant had been arrested participant in vaccine trials enabling the making of the with L. It was also submitted and charged with sexual offences conducted on children in state order. The approval of the order that the delay in the case was allegedly committed some years institutions in the 1960s. of 2001 by the Oireachtas was such that the court should refuse previously. The applicant Following a report prepared by not such as to validate the to make the order sought. brought an application seeking the chief medical officer of the making of the order itself, which O’Higgins made the order of to prohibit his trial from first respondent’s department could only have been made adoption, holding that there had proceeding. The applicant into those trials, the Commission within the limits of section 4(4) a total failure of parental duty claimed that the lapse of time to Inquire into Child Abuse Act, of the 2000 act. and, in the circumstances, this between the commission of the 2000 (additional functions) Irene Hillary v Minister for amounted to abandonment in alleged offences and the date of order 2001 was passed by the Education and Science, the legal sense. L’s mother had trial was so great that it gave rise Oireachtas, which purported to Attorney General and acquiesced to the present to an unavoidable and incurable

44 Law Society Gazette December 2004 Briefing presumption of prejudice application for leave to appeal The Supreme Court (Den- and expressed that extension of against him and breached his that conviction, he submitted ham, McGuinness, Hardiman time and adjournment to be right to trial with due that the trial judge should have JJ) allowed the appeal, holding ‘peremptory’. On 3 September expedition. Furthermore, it was withdrawn the issue of murder that: 2003, the applicant was further claimed that the delay had from the jury, leaving them only 1) The fact that section 3(2) of charged with another offence deprived the applicant of to consider whether the the Criminal Justice (Theft and and when all of the offences prospective witnesses. The applicant was guilty of Fraud Offences) Act, 2001 came on before the District applicant had been granted leave manslaughter, and that the trial abolished the offence of Court, the first respondent to bring judicial review judge misdirected the jury in cheating except in relation to granted a further extension of proceedings by McKechnie J relation to the defence of the public revenue did not time for the service of the book and now sought declarations provocation and the evidence on mean that the offence of of evidence. The applicant and/or orders of prohibition that issue. cheating the public revenue contended that by expressing his preventing his trial from The Court of Criminal existed in Ireland. The statute order to be ‘peremptory’, the proceeding. The complainants Appeal refused the application was non-committal as to president had created a final and submitted that the applicant was for leave to appeal, holding that whether the offence existed absolute order that could not be a respected family member and it was for the jury to determine and accordingly the reference altered by a judge of equal the close family ties were a whether the actions of the to the exception did not jurisdiction except in factor in the delay in making the applicant were capable of being create or revive the offence, exceptional circumstances. The complaints to An Garda committed in pursuance of self- which had not been used in applicant was granted leave to Síochána. Counsel on behalf of defence. While the defence had prosecutions over the apply for an order of certiorari the applicant submitted that the to satisfy a test of the existence previous 100 years by way of application for judicial position the applicant held as a of a body of credible evidence to 2) The law was so uncertain and review of the order of the first respected family member did justify leaving the issue of vague as to lead to the only respondent granting an not justify the unconscionable provocation to the jury, once the possible conclusion being extension of time. and excessive delay in making issue was left to them by the trial that no Irish common-law O’Neill J refused the relief the complaints by the alleged judge, it was subject to the offence of cheating the public claimed, holding that the victims. orthodox rule regarding the revenue exists. impugned order of the first Ó Caoimh J refused the relief burden of proof, which The Attorney General v respondent had been made sought, holding that the remained with the prosecution. Anthony Karl Frank Baird within jurisdiction, as it was not complainants’ delay in coming As there was no sufficient case of Hilton, Supreme Court, within the jurisdiction of the forward had been explained and provocation to justify a finding 30/7/2004 [FL9699] president of the District Court must be attributed to the of manslaughter rather than to make an order that would conduct of the applicant in the murder, there was no Jurisdiction, practice and fetter the exercise of another first place. It could not be said miscarriage of justice as a result procedure judge of the District Court that the death of certain persons of the trial judge’s erroneous Service of book of evidence – dealing with an application to had resulted in a situation of charge to the jury on the issue of extension of time for doing so – extend time from the expiry of clear prejudice for the applicant. provocation. jurisdiction – president of District the extension of time granted by A number of persons, including The People (Director of Public Court granted adjournment and the former judge for the service the applicant’s wife, were alive Prosecutions) v Ismet Ceka, extension of time for service of book of a book of evidence, as that and could be called as witnesses Court of Criminal Appeal, of evidence on ‘peremptory’ basis – would have the effect of by the applicant. The applicant 28/7/2004 [FL9627] whether order of president precludes rendering nugatory the judicial had failed to establish prejudice another judge of equal jurisdiction discretion necessarily implied in as to warrant a finding that a fair Extradition from further extending time – the exercise of discretion trial was no longer possible. Corresponding offence – cheating whether first respondent has provided for in section 4(b)(3) Chambers v DPP, High Court, public revenue – whether the jurisdiction to extend time for of the Criminal Procedure Act, Mr Justice Ó Caoimh, offence of cheating the public service of book of evidence – words 1967 and would offend the 9/7/2004 [FL9673] revenue exists in Ireland and phrases – ‘peremptory’ – fundamental principle that a The applicant appealed from the Criminal Procedure Act, 1967, judge could not bind another judgment and order of the High section 4(b)(3) judge of equal jurisdiction to CRIMINAL Court granting an order for the The applicant had been charged make a particular order in a rendition of the applicant to with various offences by the matter in which the latter judge Appeal, conviction England on the basis that there second respondent. At various had full jurisdiction and seisin Charge to jury – erroneous charge was no corresponding offence in appearances before the District of the matter in question. The on issue of provocation – whether Ireland of cheating the public Court, the proceedings had use of the adjective erroneous charge automatically revenue. Peart J in the High been adjourned with ‘peremptory’ or adverb renders conviction unsafe – whether Court held that the appropriate extensions of time ‘peremptorily’ as used in the conviction unsafe – whether leave corresponding offence to the for the service of a book of context at issue did not have a to appeal should be granted offence contained in the warrant evidence until 28 August 2003. defined legal effect and did not The applicant was convicted of from the jurisdiction of England On that date, the president of oust the jurisdiction of the first murder by a jury that had and Wales was the common-law the District Court extended the respondent to hear and rejected his defences of self- offence of cheating the public time for the service of a book of determine the application for an defence and provocation. On revenue. evidence for a further two weeks extension of time and for that

45 Law Society Gazette December 2004 Briefing purpose to exercise his judicial complainants, the level of devoid of reality. entered into and that, discretion to consider whether identification given by Yellow Bins (Waste Disposal) accordingly, the provisions of or not there were good grounds complainants, and the absence of Ltd v Environmental Protection section 35 of the Family Law Act, for extending time and whether records. While delay in itself Agency, High Court, Mr 1995 did not apply. it would be in the interests of may not be sufficiently Justice Ó Caoimh, 9/7/2004 McKechnie J ruled that the justice to do so. blameworthy to prohibit a trial, [FL9679] instrument of trust was a Smith v Judge O’Donnell, when that delay was considered settlement within section 9(1)(c) High Court, Mr Justice in conjunction with the above FAMILY of the 1995 act and directed that O’Neill, 27/4/2004 [FL9690] reasons, there was a real risk that the trustees thereof remain as the applicant’s right to a fair trial Judicial separation, trusts notice parties to the action, Sexual offences, delay would be in jeopardy. Property adjustment order – proper holding that: Fair procedures – right to M(J) v Director of Public provision – trusts – discretionary • On or after the granting of a expeditious trial – application for Prosecutions, Supreme Court, trust – whether court of trial can decree of juridical separation, order of prohibition – sexual offences 28/7/2004 [FL9724] have regard to asset subject of the court had wide ranging – whether prosecutorial delay discretionary trust when considering and extensive statutory affected constitutional rights of proper provision – statutory powers in order to achieve or applicant to fair and expeditious ENVIRONMENTAL interpretation – words and phrases attain the result which by trial – whether delay prejudicial – – ‘settlement’ – whether word to be statute it had to endeavour to whether risk of unfair trial should Planning, waste management given liberal and wide meaning – so achieve prosecution continue Planning and environment law – whether nuptial element present – • Where the term ‘settlement’ The applicant was prosecuted waste management – judicial whether ‘post-nuptial settlement’ – is used in family legislation, it for various sexual assaults on review – leave – substantial Family Law Act, 1995, sections 9 had a different meaning, children in the 1960s. The grounds – whether EPA exceeded its and 40 derived from a broad and complainants first made their powers in attaching conditions to Section 9(1)(c) of the Family Law purposeful approach founded complaints in 1995. The waste licence without consulting Act, 1995 provides that: ‘On upon the aims and objectives applicant was first interviewed planning authority – Waste granting a decree of judicial of family legislation, than its by the gardaí in 1997 and Management Act, 1996, sections separation, the court may make use in a trust or tax law charged in 1999. In 2000, the 43, 54 an order providing for the context book of evidence was served. The applicant applied for leave variation for the benefit of either • An arrangement such as the The applicant complained of to apply for judicial review of the of the spouses and [/or] of any trust under consideration both complainant and decision of the Environmental dependant … of any ante-nuptial could still be a settlement prosecutorial delay and sought Protection Agency (EPA). The or post-nuptial settlement’. The even if the interest of the an order of prohibition applicant sought declarations applicant applied for an order of claimant was not absolute but restraining his further that conditions of the waste judicial separation and ancillary only contingent prosecution for the various licence granted by the EPA were relief, including property • Once arrangements such as alleged assaults. The High ultra vires the powers of the EPA adjustment orders, specifically in the trust under consideration Court refused to grant the order and irrational and an order of respect of land known as the conferred a benefit on the sought. The applicant appealed mandamus directing the EPA to Barne estate, which was the spouses or either of them in to the Supreme Court. grant a waste licence to the subject of a discretionary trust. their capacity as husband or The Supreme Court allowed applicant with the conditions During the course of that wife and was provided for, the appeal and granted the order deleted. The applicant claimed hearing, the trial judge directed with and by reference to their of prohibition sought, holding that the EPA acted in breach of that the issue as to whether the marriage status, then it should that for complainant delay to be section 54(4) of the Waste Barne estate could be considered be treated as a settlement excused it had to be not only Management Act, 1996 and when determining what proper within the statutory explained but the reasons for the exceeded its powers in attaching provision should be made for provisions pertaining to delay had to be attributable at conditions without consulting each spouse under the provisions family law. least in part to the actions of the the planning authority. of the 1995 act be determined. FJW T-M v CNRT-M and by abuser and for that purpose the Ó Caoimh J refused the Accordingly, the applicant issued court order Trustcorp Services court had to assume that the applicant leave, holding that the a notice of motion seeking an Ltd, High Court, Mr Justice complaints made by the applicant had not demonstrated order amending the summons to McKechnie, 22/6/2004 complainant were true. substantial grounds as required include a claim pursuant to [FL9714] G Prosecutorial delay could be by section 43 of the Waste section 9(1)(c) of the 1995 act excusable if it did not affect the Management Act, 1996. In varying the terms of the trust, The information contained here applicant’s constitutional rights. circumstances where no arguing that it was a post-nuptial is taken from FirstLaw’s Legal Reasons that could affect a fair planning permission had been settlement made by the Current Awareness Service, trial and cause prejudice to the granted and no application for respondent. It was accepted by published every day on the internet applicant due to delay were: the planning permission was all parties that the notice party at www.firstlaw.ie. For more totality of the delays in question, pending, there was no reason had full discretion to nominate information, contact bartdaly@ inconsistencies in the complain- why the EPA should consult persons to be beneficiaries for firstlaw.ie or FirstLaw, Merchant’s ant’s statements, whether there with the planning autho the purposes of the trust. It was Court, Merchant’s Quay, Dublin was a danger of recollection rity. The applicant’s case had a accepted that the trust 8, tel: 01 679 0370, fax: 01 679 being influenced by other superficial air to it which was settlement was legitimately 0057.

46 Law Society Gazette December 2004 Briefing Eurlegal News from the EU and International Affairs Committee Edited by TP Kennedy, director of education, Law Society of Ireland

Recent developments in European law

EMPLOYMENT LAW a collective agreement permit- costs had been held in previous an appropriate way of ascertain- ting such an extension. In calcu- cases to fall outside the substan- ing whether this connection Working time lating the period of working tive scope of the EC tr eaty. exists. If such a requirement Joined cases C-397/01 to C- time, periods of duty time must However, the Treaty of Maastricht excludes a person who can 401/01, Bernhard Pfeiffer and be taken into account. contained provisions bringing demonstrate a genuine link with Others v Deutsches Rotes Kreuz, education within the scope of the national education system Kreisverbank Waldshut eV, 5 FREE MOVEMENT OF community action. This indi- from the enjoyment of mainte- October 2004. The applicants PERSONS cates that the subject of assis- nance assistance, the result are emergency workers tance with maintenance costs would be disproportionate. employed by the German Red Case C-209-03, The Queen v could now come within the scope Thus, where a person has fol- Cross. It operates a land-based London Borough of Ealing and of the treaty. The advocate gen- lowed his secondary education in rescue service using ambulances Secretary of State for Education, ex eral felt that in the light of the a member state that is more and emergency medical vehicles. parte Dany Bidar, opinion of introduction of EU citizenship adapted to preparing him for A collective agreement provided Advocate General Geelhoed, 11 and the ECJ’s case law in this entry into a third-level institu- that the employees’ average November 2004. In the UK, stu- area, assistance with maintenance tion in that member state than weekly working time extended dents received a student loan costs falls within the scope of elsewhere, his link with the edu- from 38.5 hours to 49 hours. Part from the state to assist them with community law. The advocate cational system of that state is of this working time was ‘duty their living costs. The loan is general examined the UK eligi- evident. The advocate general time’. During these periods, the offered at a rate linked to infla- bility criteria to determine accepted that this decision was a emergency workers had to make tion and students begin to pay whether they were objectively new and unforeseen develop- themselves available to their back the loan only once they start justifiable and independent of ment in community law of which employer at the place of employ- earning above a certain amount. nationality. He observed that the UK government would not ment and remain continuously A national of a member state is were eligibility conditions more have been aware at the time of attentive to be able to act imme- entitled to receive this loan if he cumbersome for EU citizens res- drafting its legislation. He also diately should the need arise. is ‘settled’ in the UK and has ident in the host member state noted the financial implications The applicants commenced pro- been resident there for three than for nationals, this would of a judgment in favour of the ceedings in the German courts years before commencing his constitute prima facie indirect applicant. Therefore, he suggest- arguing that their average work- course. In order to be ‘settled’, a discrimination on grounds of ed that it would be justified to ing time should not exceed the person has to have lived in the nationality, contrary to the limit the temporal effect of a 48-hour limit laid down in the UK for four years for a purpose treaty. Such discrimination may judgment to legal relationships Working time directive (directive other than that of receiving full- be valid if it were justified by and established from the date of 93/104/EC). The matter was time education. Bidar is a French proportionate to a legitimate judgment, except where legal referred to the ECJ. It held that national who moved to the UK aim. He conceded that member proceedings had been initiated the directive applied to the activ- in August 1998 and completed states had a legitimate interest in before that date. ities of emergency workers such his final three years of secondary preventing abuse of student sup- as these. None of the exceptions education in London. In 2001, port schemes and in preventing FREEDOM TO PROVIDE in the directive were relevant. he enrolled on a course in ‘benefit tourism’. However, the SERVICES The cases did not involve servic- University College London and manner in which this interest is es essential for the protection of applied to the London Borough ensured should not undermine Case C-36/02, Omega Spielhall- public health, safety and order in of Ealing for funding. He was the fundamental rights of EU en-und Automatenaufstellungs- case of exceptional gravity and granted assistance with tuition citizens. Member states may GmbH v Oberbürgermeisterin der scale that by their nature do not fees but refused a maintenance impose conditions that ensure Bundesstadt Bonn, 14 October lend themselves to planning as loan on the basis that he was not that the applicant has a real link 2004. Omega is a German com- regards working time. Any ‘settled’ in the UK. He chal- with the national education sys- pany that operates a centre for extension of the 48-hour maxi- lenged this decision, arguing that tem and society, but these condi- mock warfare using laser gun mum weekly working time the residence requirement tions must be appropriate and targeting devices. Omega used a requires each worker individually amounted to discrimination on not go beyond what is necessary form of the game developed and to give his consent, expressly and grounds of nationality. Advocate for achieving that aim. In previ- marketed by a company estab- freely. It is not sufficient for the General Geelhoed noted that ous cases, it had been accepted lished in the United Kingdom employment contract to refer to assistance with maintenance that a residence requirement is and had a franchising agreement

47 Law Society Gazette December 2004 Briefing with that company. In 1994, the ble of justifying a restriction on sions annulled. The three been libelled in England. The Bonn police prohibited Omega the freedom to provide services. dimensional shape is not signifi- Court of Appeal had to decide from allowing at its ‘laserdrome’ It is not indispensable for a cantly different from certain which was the appropriate forum games that involved firing at national measure to correspond basic shapes for sweets. This to hear the action – England or human targets (games which to a conception shared by all mark does not therefore enable California. In its judgment, the involved playing at killing peo- member states as regards the the consumer to distinguish Court of Appeal derived four ple). The prohibition was intro- method of protecting the funda- immediately and with certainty points of guidance as to the duced for public policy reasons. mental right or legitimate inter- the applicant’s sweets from those appropriate factors for consider- Acts of simulated homicide were est in question. This prohibition of a different commercial origin. ing in deciding forum conveniens seen as trivialising violence and corresponds to the protection of The twisted wrapper shape was from earlier cases. First, there is thus being contrary to funda- human dignity guaranteed by not sufficiently removed from an initial presumption that the mental values prevalent in public the German constitution and those of basic sweet wrappers natural or appropriate forum for opinion. Omega challenged the concerns only laser games, the and not likely to be remembered trial would be the courts of the prohibition before the German object of which is to fire on by consumers as indicators of place where the tort was com- courts and the matter was human targets. Thus, the prohi- commercial origin. In addition, mitted. In a defamation case referred to the ECJ. The ECJ bition had not gone beyond Storck has produced no evidence where leave to serve on defen- was asked to consider whether what is necessary to attain the of use of the trademarks as dants out of the jurisdiction had the prohibition was compatible objective pursued by the applied for in advertising or sales been obtained on the basis of with the fundamental freedoms German authorities and could campaigns. OHIM surveys publication there, this would be guaranteed by the EC treaty, not be regarded as a measure showed that awareness of the England. The more tenuous the such as the freedom to provide that unjustifiably undermines sweet in question was estab- claimant’s connection with services and the free movement the freedom to provide services. lished not on the basis of its England and the more substan- of goods. It had to consider shape or wrapper but on the tial any publication abroad, the whether the restriction of funda- INTELLECTUAL basis of its name. The CFI held weaker that connection mental freedoms had to be based PROPERTY that the marks had been rightly becomes. The court held that on a conception of law common refused registration. each publication constitutes a to all the member states. The Cases T-396/02 and T-402/02, separate tort. This means that in ECJ held that the freedom to August Storck KG v Office for JURISDICTION a case of libel on the internet, provide services had been Harmonisation in the Internal the publisher is open to multiple restricted. Among the reasons Market (OHIM), 10 November King v Lewis and Others, English actions in different jurisdictions. justifying a derogation from this 2004. In 1998, the applicant Court of Appeal, 19 October The place where the tort was fundamental freedom is that of applied to OHIM for registra- 2004. The case concerned two committed could cease to be a public policy. Public policy can tion of two EC trademarks relat- defamatory statements that potential limiting factor. The only be invoked if there is a gen- ing to the Werther’s Original appeared on websites stored in court said that it must bear in uine and sufficiently serious sweet. The first concerned a California and were downloaded mind that the internet publish- threat to a fundamental interest three-dimensional shape repre- in England. The websites gave a er’s choice of such a ubiquitous of society. Member states cannot senting a light brown coloured detailed account of complaints medium suggested a robust determine public policy unilat- sweet. The second concerned made by the defendants in pro- approach to the question of erally but they have a discretion the representation in perspective ceedings issued in New York. In forum. In an internet case, the as to the specific circumstances of a twisted wrapper shape. The these complaints, it was alleged court’s discretion would tend to in which recourse to the concept OHIM examiner rejected those that the claimant had engaged in be more open-textured than oth- of public policy is admissible. applications on the ground that a campaign of bribery, lies and erwise. That was the means by The community legal order the marks applied for were death threats to convince them which the court could give effect seeks to ensure respect for devoid of distinctive character not to enter into an agreement. to the publisher’s choice of a human dignity as a general prin- and had not acquired such char- The parties accepted that the global medium. However, the ciple of law. Protection of such a acter through use. Storck internet text was published at the court emphasised that each case fundamental right is a legitimate brought two actions before the place where it was downloaded. would depend on its own cir- interest that is in principle capa- CFI seeking to have these deci- Thus, the claimant may have cumstances. G

FOR BOOKINGS CONTACT MARY BISSETT OR PADDY CAULFIELD TEL: 668 1806 Meet at the Four Courts

CourtLAW SOCIETY ROOMS at the Four Courts

48 Law Society Gazette December 2004 Parchment ceremonies

PARCHMENT CEREMONIES 2004

49 Law Society Gazette December 2004 Parchment ceremonies James St John Blake Sullivan, Kieran Quigley, Michael Quinn, Barry Brian Robinson, Damien Rudden, Michael Stack, Sullivan, Kieran Quigley, J Reidy, ’ Neill, Helen O ’ Mahony, Muireann O Mahony, ’ of their parchments on 12 February 2004 Higgins, Ellen O ’ Newly-qualified solicitors at the presentation Flynn, Cahir O ’ Gary O Brian Archer, Charles David Barry,Brian Archer, Martina Cathy Carrigan, Bohan, Kevin Donal Brannigan, Norene Browne, Erin M Cregan, Jim Campbell, Dawn Carney, Mark Cronin, John Gerard Cullen, Erica C Mahon, Michelle Malone, Cornelius Juliana Mulin, Robert Joseph McCarthy, Joseph McGee, Aaron Enda Nolan, Oliver McKenna, Sharon McKenna Murphy, F Meehan, Michael Nearey, Eiteain Cunningham, Kieran Doran, Fiona Doyle, Karen Dunleavy, James Farrell, Joseph Patrick Farrell, Brendan Gill, Michael C Heaney, Fiona Kelly, Brendan Looney, Peig Lynch, Helen Maher, Peig Lynch, Helen Maher, Brendan James Farrell, Looney, Joseph Patrick Farrell,Eiteain Cunningham, Kieran Doran, Fiona Doyle, Karen Fiona Kelly, Dunleavy, Brendan Gill, Michael C Heaney,

50 Law Society Gazette December 2004 Parchment ceremonies Leary, Gayle Patton, ’ hUiginn, Seamus O ’ Donoghue, Padraic O ’ Brien, Patrick O ’ Brien, Susan O ’ Michael Power, Robert Christine Vial, Jean Wilkinson Michael Power, Purcell, Marian Pyne, Jeremy Ring, Paul Smyth, Grainne Tuohy, of their parchments on 26 February 2004 Newly-qualified solicitors at the presentation Christine Gaynor, Caroline Gore-Grimes, Claudine Hanratty, Eileen Hayes, Catherine Healy, Sonya Heney, Colm F Hickey, Susan Higgins, Deirdre Maher, Freda Susan Higgins, Mahon, Niamh Martin, Deirdre Maher, Colm F Hickey, Sonya Heney, Eileen Hayes, Catherine Healy, Caroline Gore-Grimes, Claudine Hanratty, Christine Gaynor, Audrey Barrett, Peter Benson, Caroline Browne, Lorna Marian Becker, Cahill, Elaine Ann Coghill, Mary T Corcoran, Lorraine Davenport, Jacqueline Doherty, Elaine Dunne, James Farrell, Fidelma McManus, Antoinette Mellon, Catherine Murphy, James MartinFidelma McManus, Antoinette Mellon, Catherine Murphy, Noonan, Edward J O

51 Law Society Gazette December 2004 Parchment ceremonies Sullivan, Aoife Pettitt, Elizabeth Roche, Lorraine Smyth, ’ Riordan, Julie O ’ Callaghan, Eadaoin O ’ Boyle, Emer O ’ Shauna Sugrue, Andrew Sweeney, Patrick Sweeney, Robert Sweeney, Katie Twomey, Christian Victory Robert Katie Twomey, Patrick Sweeney, Shauna Sugrue, Sweeney, Andrew Sweeney, of their parchments on 11 March 2004 Newly-qualified solicitors at the presentation Fidelma Barry, Violet Behan, Bryanna Ciara Byrne, Hilary Buckley, Cahalan, Deirdre Carter Ronan Cleary, Shane Crossan, Grainne Dolan, Emma Flynn, Daireann Roche, Lisa Cawley, Gibson, Kevin McNamara, Pauline McNamara, Grainne McQuaid, Anna Molony, Caroline O Kevin McNamara, Pauline Grainne McQuaid, Anna Molony, Grace Gleeson, Sarah Gormley, Jason Harte, Denis Healy, Kenneth Hegarty, David Hickey, Emma Keavney, Olivia Lawlor, Eileen Lee, Neil MacDermot, Aine Mathews, Peter McKeever, Delia McMahon, Eileen Lee, Neil MacDermot, Aine Mathews, Peter McKeever, Olivia Lawlor, Emma Keavney, Jason Harte, Kenneth Hegarty,Grace Gleeson, Sarah Gormley, David Hickey, Denis Healy,

52 Law Society Gazette December 2004 Parchment ceremonies Sullivan, ’ er Wilson Sullivan, Margaret O ’ Sullivan, Julie O ’ Shaughnessy, Ita O Shaughnessy, ’ Keeffe, Gillian O ’ Dwyer, RoryDwyer, O ’ Connell, Thomas O ’ ), Nessa Barry, Fiona Brassil, Peter Byrne, Edon Byrnes, Natasha Canniffe, Therese Conway, Clare Colleran, Gerard Connolly, of their parchments on 15 July 2004 Newly-qualified solicitors at the presentation Barry Reynolds, Emma Richmond, Lorraine Rowland, David Ryan, Emma Stephenson, Alan Stewart, Jennif Fergus Audrey Ward, Wheeler,

president, Law Society of Northern Ireland John Pinkerton ( Ronan Feehily, Fiona Fox, Carole Ann Gallaghar, John Geary, Catherine Gilmartin, Fiona Fox, Carole Ann Gallaghar, Ronan Feehily, John Paul Gilmartin, Sinead Keaveney, Majella Graham, Audrey Hannon, Shane Hogan, Emma Kearney, Patricia Kelly, Peter Kelly, Emma Laffan, Peter Kelly, Elaine Larke, Elizabeth Lorna Larkin, Richard Leonard,Patricia Kelly, Eimear Loughnane, Sinead Lynch, Keith McConnell, Susan McLoughlin, John McRedmond, Paul Moloney, Philip Murphy, Conor Myles, Michelle Nolan, Gerard O Philip Murphy, Paul Moloney, Julie-Ann Corrigan, Helen Coughlan, Jennifer Coyne, Alison Curtin, Joanne Dickson, Kevin Doherty, Hugh Donavan, Georgina Jennifer Dempsey, Drum, Patrick English, Aidan Fahy, Karen Dwyer,

53 Law Society Gazette December 2004 Parchment ceremonies Riordan, ’ Reilly, John O Reilly, ’ n Woodcock Regan, Audrey O ’ Arcy, Catherine Daly, Dario Di Murro, Eibhlin Dowley, Catherine Daly, Arcy, ’ Connell, Cormac O ’ Griffith, Brendan Kelly, David Kavanagh, Rachael Keane, Suzanne Kearney, Brien, Patrick O ’ of their parchments on 2 September 2004 Rourke, Joseph Power, Majella Raftery, Angelyn Rowan, Ethna Ryan,Rourke, Joseph Power, Annalisa Ryan, Joh David Scott, Karl Sherlock, Ashling Walsh, ’ Newly-qualified solicitors at the presentation Catriona O Alan Boland, Peter Bredin, Eimear Burke, David Byrne, Lori-Ann Campbell, Eamonn Carey, MaryAlan Boland, Peter Bredin, Eimear Burke, David Byrne, Siobhan Coen, Mary Lori-Ann Campbell, Eamonn Carey, Martina Claire Coakley, Fintan Connolly, Coffey, Conor Connelly, Connolly, Eamonn Kelly, Fiona Kilrane, Siobhan Lane, Jennifer Liddy, Anne Lyne, Gavan Mackay, Jennifer Malone, Aisling Maloney, Patrick Martin, Jennifer Malone, Aisling Maloney, Diarmuid Anne Lyne, Mawe, Ceara McDonagh Lloyd, Muireann Gavan Mackay, McEnery, Fiona Kilrane, Siobhan Lane, Jennifer Liddy, Eamonn Kelly, Dermot McKeon, Niall McPartland, Vincent Molony, Rachael Murphy, BarryDermot McKeon, Niall McPartland, Rachael Murphy, Gregory Aileen Murray, O Murray, Vincent Molony, Noone, Teresa Gina Dowling, Deirdre Fagan, Colm Fahy, Grainne Finn, Declan Fitzpatrick, Michael Forde, Niall Gavigan, Laura Glennon, Brendan Gina Dowling, Deirdre Fagan, Colm Fahy, Michael Considine, Kieran Conway, Rody Corrigan, Susan Cosgrove, Melissa Cotterell, Niamh Counihan, Patricia Cranny, Kenneth Cunningham, Rody Corrigan, Fiona D Susan Cosgrove, Melissa Cotterell, Niamh Counihan, Patricia Cranny, Michael Considine, Kieran Conway,

54 Law Society Gazette December 2004 Parchment ceremonies , iordan R O

John , eilly R O drey u A , n Woodcock egan R O

Cormac , onnell C O

Patrick , rien B O

Teresa , Noone

Gregory , rray u M Connor, Niamh Pollack, Judith Riordan, Ellen Rooney, Aideen Ryan, Aoife Salmon, Garret Niamh Pollack, Judith Riordan, Ellen Rooney, Connor, Searson,

’ Aileen , rray u M

Connor, Sarah O Connor, ’ Barry , rphy u James Thompson, Sean Wallace, Tara Walsh, Eileen Whelan, Rachel Young Eileen Whelan, Rachel Young Walsh, Tara James Thompson, Sean Wallace, M

Brien, Darina O ’ Rachael , Molony

Vincent , Rourke, Joseph Power, Majella Raftery, Angelyn Rowan, Ethna Ryan,Rourke, Joseph Power, Annalisa Ryan, Joh David Scott, Karl Sherlock, Ashling Walsh, ’ of their parchments on 23 September 2004 Newly-qualified solicitors at the presentation McPartland Catriona O

Niall , Jennifer Mellerick, Barbara Moore, Gareth O McKeon Mark Fry, Erik Gannon, Catherine Ghent, Richard Grey, Grainne Hanley, Damien Harney, David Hasson, Mark Healy, Peter Keatings, Elaine Larke, Daniel Lawlor, Mary Peter Keatings, Elaine Larke, Daniel Lawlor, Lee, Edel McCool, David Hasson, Mark Healy, Damien Harney, Grainne Hanley, Mark Fry, Erik Gannon, Catherine Ghent, Richard Grey,

Sarah Armstrong, Desmond Barry, Julie Brennan, Stephen Burke, Raymond Clarke, Martin John Donald, Jennifer Drury-Byrne, Colman, Deirdre Cummins, Caoimhe Daly, Jonathan Dunne, Dermot

55 Law Society Gazette December 2004 Parchment ceremonies Callahan, ’ Callaghan, Olwen O ’ Sullivan, Tomas Rosengrave, Grainne Ryan, Sullivan, Tomas ’ Sullivan, Mary O ’ Neill, Fiona O ’ Neill, Colin O ’ Maileoin, Bridget O ’ Farrell, Thomas O ’ Mary Sheehan, Andrew Tarrant, Deirdre Tuohy, Mark Walsh, Richard Colin Wester Mark Walsh, Mary Deirdre Tuohy, Sheehan, Andrew Tarrant, Donovan, David O ’ of their parchments on 5 November 2004 Donnell, Verona O Donnell, Verona Newly-qualified solicitors at the presentation ’ Connor, Mark O Connor, ’ Claire Foley, Tracey Gilvarry, Maureen Gleeson, Joseph Healy, Lisa Marie Hegarty, Gail Heverin, Brendan Hoey, Grainne Hynes, Gerard Kelly, Paul Lamon, Emma Lovegrove, Michael Lovett, Grainne Hynes, Gerard Gilvarry, Kelly, Lisa Marie Hegarty, Gail Heverin, Brendan Tracey Hoey, Maureen Gleeson, Joseph Healy, Claire Foley, Noel McArdle, Cormac McCarthy, Blanaid McCluskey, Aisling McKeown, Brian McMahon, Eamonn Moloney, Killian Morris, Lee Murphy, Barry Killian Morris, Lee Murphy, Noel McArdle, Aisling McKeown, Brian McMahon, Eamonn Moloney, Cormac Claire O Murray, McCarthy, Blanaid McCluskey, Donncha O James Bourke, Daniel Byrne, Laurence Cleary, Lisa Coghlan, Patrick Collins, Rosalind Commins, Jonathan Cullen, Kathryn Elizabeth Keys Farrell, Deignan, Noel Devins, John Donald, Daire Eagney,

56 Law Society Gazette December 2004 People and places Distinguished front row retires Diplomas in legal French and German etween the three of them, warm tribute to each of them Bthey have 22 rugby and they, in turn, said their fare- international caps for Ireland. wells. Each had given unstint- In addition, all three have ingly of his time and talent over served an annual term as many years, working tirelessly president of the Law Society. and effectively in the service of Laurence K Shields, Tony the profession and the public. Ensor and Ward McEllin have In addition to being now retired from the Council president, each over the years after no less than 67 years, had chaired the society’s most collectively, as Council senior committees. They will Pictured with the recipients of the Diploma in legal French in members. be missed. November is Alan Dukes, chef du comité, Alliance Française It was a special and rather In relation to the 22 rugby emotional few moments at the international caps they have end of the October Council between them – of course, meeting when immediate past- neither Ward nor Laurence president Gerard Griffin paid a ever played for Ireland!

Ursula Kreher of the Goethe Institute with the recipients of the Diploma in legal German

The three retiring former presidents, pictured in ‘crouch and hold’ position: (from left) Tony Ensor, Ward McEllin and Laurence K Shields

How about abolishing income tax for solicitors? Law Society director general Ken Murphy, solicitor and finance minister Brian Cowen, society president Owen Binchy and immediate past- SOLICITORS’ president Gerard Griffin at a recent dinner in Blackhall Place to honour the newly-appointed minister HELPLINE The Solicitors’ Helpline is available to assist every member of the profession with any problem, whether personal or Where the heart is professional Gerard Griffin, outgoing president of the Law Society, and Patrick Dorgan, outgoing chairman of the 01 284 8484 society’s Conveyancing Committee, launching the committee’s new client-care THE SERVICE IS COMPLETELY Yes indeedy leaflet, Moving home, last CONFIDENTIAL AND TOTALLY Pictured at the recent CPD seminar on the drafting of deeds are month. A sample of the leaflet is INDEPENDENT OF THE LAW (from left) the Law Society’s Barbara Joyce, Miss Justice Mary enclosed with this issue of the SOCIETY Laffoy, and Brian Gallagher of Gallagher Shatter, Solicitors Gazette

57 Law Society Gazette December 2004 Professional information

LOST LAND in the barony of Carberry East CERTIFICATES (West Division) and county of LawSociety Cork; Co Cork Gazette Registration of Title Act, 1964 Regd owner: James Nunan; folio: An application has been received from 39779; lands: plots of ground being the registered owners mentioned in part of the townland of Lisnacon in ADVERTISING RATES the barony of Dunhallow and coun- the schedule hereto for the issue of a Advertising rates in the Professional information section are as follows: land certificate as stated to have been ty of Cork; Co Cork lost or inadvertently destroyed. A new Regd owner: Michael O’Brien; folio: ¥ Lost land certificates Ð €46.50 (incl VAT at 21%) certificate will be issued unless notifi- 29544; lands: plots of ground being ¥ Wills Ð €77.50 (incl VAT at 21%) part of the townland of Kilmoney in cation is received in the registry with- Lost title deeds Ð €77.50 (incl VAT at 21%) in 28 days from the date of publication the barony of Kerrycurrihy and ¥ Employment miscellaneous Ð €46.50 (incl VAT at 21%) of this notice that the original certifi- county of Cork; Co Cork ¥ cate is in existence and in the custody Regd owner: Patrick Rea; folio: 7680; HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT Ð €30 EXTRA of some person other than the regis- lands: plots of ground being part of tered owner. Any such notification the townland of Gortroe in the All advertisements must be paid for prior to publication. Deadline for Jan/Feb should state the grounds on which the barony of Condons and Clangibbon 2005 Gazette: 21 January 2005. For further information, contact Catherine certificate is being held. and county of Cork; Co Cork Kearney or Valerie Farrell on tel: 01 672 4828 (fax: 01 672 4877) (Register of Titles), Central Office, Land Regd owner: Rev James Joseph Roche, Registry, Chancery Street, Dublin Rev Richard Joseph Ronayne, Rev (Published 10 December 2004) Daniel Murphy; folio: 9188; lands: Clondalkin; Co Dublin Kilbride, Portarlington, Co Laois; plots of ground being part of the Regd owner: Ann Wogan; folio: Co Laois Regd owner: Elizabeth and Mary J townland of Garranenagappul in DN34190F; lands: property situate Regd owner: John Ramsbottom Donohoe, Killalis, Shercock, Co the barony of Muskerry West and in the townland of Johnstown and (deceased); folio: 1538; lands: Cavan; folio: 23783; lands: Killaliss; county of Cork; Co Cork barony of Uppercross; Co Dublin Ballinclough and barony of Co Cavan Regd owner: John Byrne, Corlea, Regd owner: Michael Hanlon; folio: Cullenagh; Co Laois Regd owner: Francis Flood, Killygordon, Co Donegal; folio: 42151; lands: townland of Belview Regd owner: Thomas Hicker; folio: Carraweelis, Cavan, Co Cavan; folio: 17840; lands: Mullaghaneary; area: or Lissareaghaun and barony of 5039; lands: townland of 1949; lands: Corraweelis; area: 5.6175; Co Donegal Longford; area: 54 acres, 3 roods, Cahercorney and barony of 3.7433 hectares; Co Cavan Regd owner: Bridget McLaughlin, 14 perches; Co Galway Smallcounty; Co Limerick Regd owner: Mary Kangley, Rakeevan, Meenacarn, Lettermacaward, Co Regd owner: Patrick O’Halloran; Regd owner: James O’Brien; folio: Bailieboro, Co Cavan; folio: 2463; Donegal; folio: 14524; lands: folio: 50139; lands: townland of 1382F; lands: townland of Caherass lands: Rakeevan; area: 4.1581 Meenacarn; area: 2.3699 hectares Porridgerown East and barony of and barony of Coshma; Co hectares; Co Cavan and 2.1144 hectares; Co Donegal Moycullen; area: (1) 16 acres, 2 Limerick Regd owner: Patrick Bleach; folio: Regd owner: Colm and Ann Butler; roods, 21 perches; (2) 42 acres, 2 Regd owner: Jeremiah and Maureen 9078; lands: townland of folio: DN13809L; lands: property roods, 15 perches (six undivided 59th O’Shea; folio: 4916; lands: townland Caherhurley and barony of Tulla situate to the east of Appollo Walk parts); Co Galway of Stookeens and barony of Upper; Co Clare in the parish of Coolock, district of Regd owner: Shawn McMahon, c/o St Coshlea; Co Limerick Regd owner: Alan Cummins; folio: Coolock West; Co Dublin Joseph’s National School, Kinvara, Regd owner: Alice Brady (deceased), 26326F; lands: townland of Lifford Regd owner: Clare Feeney; folio: Co Galway; folio: 24938F; lands: Fardrumman, Ballinamuck, Co and barony of Islands; Co Clare DN4893F; lands: a plot of ground townland of Kinvara and barony of Longford; folio: 1171F; lands: Regd owner: John Joseph Dooley; shown as 113 Ardilaun, situate in Kiltartan; area: 0.5590 hectares; Co Fardrumman; area: 0.0202 hectares; folio: 296; lands: townland of the townland of Carrickhill and Galway Co Longford Craggaknock West and barony of barony of Coolock, shown as plan Regd owner: Mary O’Reilly Regd owner: Mark McQuillan, 7 Ibricken; area: 13 acres, 3 roods, 23 451; Co Dublin (deceased); folio: 12073; lands: Platten Road, Drogheda, Co Louth; perches; Co Clare Regd owner: Stephen and Grainne townland (1) Woodford, (2) Bolag folio: 3812L; lands: no 7 Platten Regd owner: the county council of the Kennedy; folio: DN34893L; lands: and barony of (1) and (2) Leitrim; Road; Co Louth county of Clare; folio: 19466; lands: property situate to the east of area: (1) 1.5880 hectares; Co Regd owner: Mary Winifred Magee, townland of Drumline and barony of Appollo Walk in the parish of Galway 64 Muirhevna, Dundalk Road, Bunratty Lower; area: 0.5058 Coolock, district of Coolock West; Regd owner: Emir Shanahan; folio: Dundalk, Co Louth; folio: 3417F; hectares; Co Clare Co Dublin 3388F; lands: townland of lands: Marshes Upper; Co Louth Regd owner: Frederick Penny; folio: Regd owner: Julie Kennedy; folio: Tooreenealagh and barony of Regd owner: the county council of the 11773F; lands: plots of ground being DN97235L; lands: property being Iveragh; Co Kerry county of Mayo; folio: 18268F; part of the townland of an apartment known as no 30 on the Regd owner: Owen and Mary J Walsh; lands: townland of Belmullet and Britfieldstown in the barony of second floor of Block 2, Heather folio: 1475F; lands: townland of barony of Erris; Co Mayo Kinalea and county of Cork; Co Court, Stepaside Park, being part of Greenagh and barony of Magunihy; Regd owner: Gerry and Maureen Cork the townland of Kilgobbin and Co Kerry Callaghan, Boyerstown, Navan, Co Regd owner: Seamus Rochford; folio: barony of Rathdown; Co Dublin Regd owner: Mary Curley; folio: Meath; folio: 19065F; lands: 34197F; lands: plots of ground Regd owner: Joseph and Yvonne 7147F; lands: townlands of Haggard Street; area: 0.0380 known as 31 Mount Sion Road in Waldron; folio: 32467F; lands: 40 Barrettstown and Lattensbog and hectares; Co Meath the parish of St Nicholas and in the Derry Park, Crumlin, Dublin 12; baronies of Connell; Co Kildare Regd owner: Michael and Breda county borough of Cork; Co Cork Co Dublin Regd owner: Patricia Mellott; folio: Conneely, Curraghdoo, Summer- Regd owner: Helen Hayes; folio: Regd owner: Noeleen Cahill; folio: 38299F; lands: townland of hill, Co Meath; folio: 23950F; lands: 4558L; lands: plots of ground being DN80503L; lands: property situate Newtown and barony of North Salt; Curaghdoo; Co Meath part of the townland of Carrigaline in the townland of Templeogue and Co Kildare Regd owner: Bridget Crolly, West in the barony of Kerrycurrihy barony of Uppercross, known as 10 Regd owner: Patrick and Carmel Rodanstown, Kilcock, Co Meath; and county of Cork; Co Cork Cypress Grove South; Co Dublin O’Shea; folio: 3380F; lands: town- folio: 26015; lands: Rodanstown; Regd owner: Anthony Jordan; folio: Regd owner: James Joseph (Shane) land of Coolane and barony of area: 0.2124 hectares; Co Meath 48659; lands: plots of ground being Redmond and Mary Redmond; Kilkea and Moone; Co Kildare Regd owner: Kathleen Lynch, part of the townland of Ballymurphy folio: DN27800L; lands: property Regd owner: Myrtle and Arthur Fordrath, Athboy, Co Meath; folio: in the barony of Kinalea and county situate in the townland of Burrow Stanley; folio: 17306; lands: Srah 22758; lands: Fordrath; Co Meath of Cork; Co Cork and barony of Coolock; Co Dublin and barony of Clarmallagh; Co Regd owner: Claire McCormack and Regd owner: Robert Meara; folio: Regd owner: Fiona Sammon; folio: Laois Margaret Gallagher, 15 Flower Hill, 13496; lands: plots of ground being DN92109F; lands: property situate Regd owner: William and Mary Navan, Co Meath; folio: 4603F; part of the townland of Dromdrasdil in the town and parish of Bolton; folio: 8344F; lands: lands: Abbeyland; Co Meath

58 Law Society Gazette December 2004 Professional information

Hickey, James (widower) (deceased), Wanted: seven-day on licence. late of Cloughaleigh, Golden, Co Details to Kevin P Kilraine & Co, ABACUS Tipperary. Would any person having Solicitors, Mohill, Co Leitrim; tel: 071 knowledge of a will made by the above 963 1170, fax: 071 963 1558 BOOK KEEPING SERVICES named deceased, who died on 10 October 2004 or thereabouts at his res- SPECIALITY: LEGAL ACCOUNTS idence at Cloughaleigh, Golden, Co DISTRICT COURT Tipperary and formerly having PRACTITIONERS WHY USE ABACUS: addresses as Athassal Abbey, Golden, Road traffic offences ✔ Best practice procedure, ie Law Society rules Co Tipperary and Rathclogheen, (in particular) ✔ Fast effective service Golden, Co Tipperary respectively, ✔ Audit experience please contact English Leahy Donovan, Are you unsure whether your ✔ Trouble shooting Solicitors, 8 St Michael Street, client was summoned to appear ✔ Could your practice do with a shake up, or Tipperary town in the correct District Court ✔ Could your book keeper do with a helping hand? jurisdiction? Meehan, Michael (deceased), late of I can supply definitive proof of For further information, please contact Fleur@ 77 Casino Road, Marino, Dublin 3. District Court boundaries, using 042-9382157/086-8147270/[email protected] Would any person having knowledge of the digitally processed cartographic a will made by the above named data used in my District Court deceased, who died on 11 April 2004, map, but with far greater Regd owner: Noel and Patricia Shelburne; Co Wexford please contact Dundon Callanan, resolution (to within a few metres). Browne: folio: 6295F; lands: Regd owner: Bridget and Arthur Solicitors, 17 The Crescent, Limerick; Please contact Des Fitzgerald at Clonmore and barony of Geashill; O’Leary; folio: 4779 and 11890; tel: 061 411 022, fax: 061 411 027 tel: 091 503 823, Co Offaly lands: Clonee Upper and barony of fax: 091 592 614; DX 4543 Regd owner: Joan and Brendan Scarawalsh; Co Wexford Tarpey, Daniel (deceased), late of Galway, Mary St for details O’Brien; folio: 12522F; lands: town- Regd owner: Matthew George and Carrowkeel, Ballyhaunis, Co Mayo. land of Beagh (Brabazon) and Laura Power; folio: 20114; lands: Would any person having knowledge of barony of Moycarn; area: 0.186 Haggard and Blackhall and barony a will executed by the above named Need typing in a hurry? Experienced hectares; Co Roscommon of Bargy; Co Wexford deceased, who died on 15 October typist available to work from own home Regd owner: Thomas Gerard Regd owner: Oliver Plunkett Behan; 2004, please contact John F Mitchell & – dictaphone typing, reports, computa- Shanagher; folio: 16633; lands: folio: 5139; lands: townlands of Co, Solicitors, Main Street, Headford, tion, thesis, reports, and so on, wel- townland of (1) Corbally, (2) Cronroe and Milltown North and Co Galway; tel: 093 36622 come. Regular or once-off assignments Moheedian and barony of (1) and (2) baronies of Newcastle; Co Wicklow accepted. Confidential service with Frenchpark; area: (1) 12.9170 Regd owner: Michael Joseph Healy of quick turnover at competitive rates. hectares and (2) 0.3439 hectares; Co Toor, Hollywood, Co Wicklow; MISCELLANEOUS Please contact 087 631 9469 Roscommon folio: 11921; lands: land situate in Regd owner: Bernard A Boyle the townland of Toor in the barony Northern Ireland solicitors providing Galway agent – qualified solicitor (deceased); folio: 22320; lands: of Talbotstown Lower in the county an efficient and comprehensive legal available to act in civil and criminal townland of Tonaphubble and of Wicklow; Co Wicklow service in all contentious/non-con- matters in all courts throughout barony of Carbury; area: 1 rood, 3 Regd owner: Joseph Healy (otherwise tentious matters. Dublin-based consul- Galway city and county. Also town perches; Co Sligo Joe), otherwise Michael Joseph; tations and elsewhere. Fee apportion- agent service for issuing and service of Regd owner: Robert Alexander; folio: folio: 7317; lands: townland of ment. ML White, Solicitors, 43-45 court documents. Contact James 15773F; lands: townland of Lacka Granabeg Upper and barony of Monaghan Street, Newry, Co Down; Seymour of Seymour & Co, 97 Manor and barony of Lower Ormond; Co Talbotstown Lower; Co Wicklow tel: 080 1693 68144, fax: 080 1693 Court, Knocknacarra, Galway; tel: 086 Tipperary Regd owner: Johanna Kinsella; folio: 60966 815 2932, fax: 091 510 897 Regd owner: Francis John and Helen 9790; lands: townland of Rathdown Philomena Wyatt; folio: 22263; Lower and barony of Rathdown; Co Northern Ireland agents for all con- lands: townland of Jossestown and Wicklow tentious and non-contentious matters. TITLE DEEDS barony of Middlethird; Co Regd owner: Brendan and Margaret Consultation in Dublin if required. Fee Tipperary O’Toole; folio: 9175; lands: town- sharing envisaged. Offices in Belfast, In the estate of Andrew E O’Reilly Regd owner: Thomas Keating; folio: land of Kilcoole and barony of Newry and Carrickfergus. Contact (deceased) and in the estate of (1) 1845, (2) 1846, (3) 1854, (4) 3254, Newcastle; Co Wicklow Norville Connolly, D&E Fisher, Andrew H O’Reilly (deceased). and (5) 6231; lands: townland of (1), Solicitors, 8 Trevor Hill, Newry; tel: Property comprising a site at (2), (3) and (5) Coxtown East, (4) 080 1693 61616, fax: 080 1693 67712 Roundwood in the parish of Dunmore and barony of (1), (2), (3), WILLS Derrylossory, barony of Ballincor (4) and (5) Gaultiere; area: (1) 1.3884 England and Wales solicitors will North in the county of Wicklow. hectares; (2) 3 acres, 10 perches; (3) Byrne, Joseph P (deceased), late of 82 provide comprehensive advice and Anybody with any information regard- 3 acres, 1 rood, 11 perches; (4) 6 St Declan’s Road, Marino, Dublin 3. undertake contentious matters. ing the whereabouts of the title docu- acres, 2 roods, 15 perches; (5) 13 Would any person having knowledge of Offices in London, Birmingham, ments relating to the above property acres, 18 perches; Co Waterford a will made by the above named Cambridge and Cardiff. Contact purchased by Andrew E O’Reilly on or Regd owner: Patrick Nugent; folio: deceased, who died on 29 October Levenes Solicitors at Ashley House, about 18 April 1975, please contact 1543; lands: plots of ground being 1996, please contact Gaffney Halligan 235-239 High Road, Wood Green, O’Regan Little, Solicitors, 179 part of the townland of & Co, Solicitors, 413 Howth Road, London 8H; tel: 0044 2088 17777, Church Street, Dublin 7 (reference Kilmacomma in the barony of Raheny, Dublin 5 fax: 0044 2088 896395 PL/BN/McD024) Glenhiry and county of Waterford; Co Waterford Craine, James (deceased), late of 27 London solicitors will be pleased to In the matter of the Landlord and Regd owner: John Hall (deceased); Croghan Heights, Emoclew, Arklow, advise on UK matters and undertake Tenant (Ground Rent) Acts, 1967- folio: 3771; lands: Barnadown Lower Co Wicklow. Would any person having agency work. We handle probate, liti- 1994: an application by Eoghain and barony of Gorey; Co Wexford knowledge of a will executed by the gation, property and company/com- Kelly, David Kelly, John Kelly, Regd owner: Fiach McDonagh; folio: above named deceased, who is pre- mercial. Parfitt Cresswell, 567/569 Aoibhlinn Kelly, Barry Kelly and 21706; lands: Norrismount and sumed to have died on 7 May 1997, Fulham Road, London SW6 1EU; DX Patricia Kelly: notice of intention to barony of Scarawalsh; Co Wexford please contact WR Joyce & Company, 83800 Fulham Broadway; tel: 0044 acquire fee simple (section 4) Regd owner: Kevin McPhillips; folio: Solicitors, 18 Main Street, Arklow, Co 2073 818311, fax: 0044 2073 816723, Take notice that any person having any 28216F; lands: Kilhile and barony of Wicklow e-mail: arobbins@ parfitts.co.uk interest in the freehold estate of the fol-

59 Law Society Gazette December 2004 Professional information lowing property: all that and those the Date: 10 December 2004 nish evidence of title to the aforemen- In the matter of the Landlord and dwellinghouse and shop situate at Signed: Thomas J Walsh (solicitor for the tioned property to the below named Tenant Acts, 1967-1994 and in the Main Street in the town of Castlebar applicants), 1 Mill Lane, Main Street, within 21 days from the date of this matter of the Landlord and Tenant with the appurtenant thereto belong- Castlebar, Co Mayo notice. (Ground Rents) (No 2) Act, 1978: an ing, which said premises were former- In default of any such notice being application by Fusano Properties ly held as a yearly tenant from one In the matter of the Landlord and received, the applicant, Mary O’Boy, Limited Mary Anne Gallagher at the yearly Tenant Acts, 1967-1994 and in the intends to proceed with the applica- Take notice that any person having an rent of thirty pounds (£30) and they matter of the Landlord and Tenant tion before the county registrar at the interest in the freehold estate of the fol- are now held under the George Ellis (Ground Rents) (No 2) Act, 1978: an end of the 21 days from the date of this lowing properties: all that and those the estate at the yearly rent of thirty-seven application by Alhdof Limited notice and will apply to the county properties known as 32, 33 and 34 pounds, ten shillings and zero pence Take notice that any person having an registrar for the county of the city of Queen Street and formerly known as (£37.10s.00d), situate in the barony of interest in the freehold estate of the fol- Dublin for directions as may be appro- numbers 32, 33, 33A, 34 and 34A Carra and county of Mayo. lowing property: all that and those the priate on the basis that the person or Queen Street, situate in the parish of St Take notice that Eoghain Kelly, factory premises situate at Brookfield persons beneficially entitled to the Paul and city of Dublin, together with David Kelly, John Kelly, Aoibhlinn Road, Kilmainham in the city of superior interest including the free- the yards, outbuildings and appurte- Kelly, Barry Kelly and Patricia Kelly Dublin, being the premises held under hold reversion in the aforesaid proper- nances forming part thereof, being the intend to submit an application to the a lease dated 1 August 1967 and made ty are unknown or unascertained. land originally demised by the lease county registrar for the county of between Thomas O’Reilly of the one Date: 10 December 2004 dated 1 November 1821 made between Mayo for the acquisition of the free- part and Terence Francis Saunders and Signed: Reddy Charleton & McKnight, William John Curtis of the one part hold interest in the aforesaid property, James P Dawson of the other part for 12 Fitzwilliam Place, Dublin 2 and Thomas Gorman of the other part and any party ascertaining that they the term of 132 years from 1 for the term of 999 years from 1 hold a superior interest in the aforesaid November 1965 at a yearly rent of £50. In the matter of the Landlord and November 1821, subject to the yearly premises are called upon to furnish Take notice that Alhdof Limited Tenant Acts, 1967-1994 and in the rent of £26.0s.0d thereby reserved and evidence of title to the aforementioned intends to submit an application to the matter of the Landlord and Tenant the covenants and conditions therein premises to the below named within county registrar for the city of Dublin (Ground Rents) (No 2) Act, 1978: an contained. 21 days of the date of this notice. for the acquisition of the freehold application by Patrick Morrissey Take notice that Fusano Properties In default of such notice being interest in the aforesaid property, and Limited Limited intends to submit an applica- received, Eoghain Kelly, David Kelly, any party or parties asserting that they Take notice that any person having an tion to the county registrar for the city John Kelly, Aoibhlinn Kelly, Barry hold a superior interest in the aforesaid interest in the freehold estate of the of Dublin for the acquisition of the Kelly and Patricia Kelly intend to pro- premises are called upon to furnish evi- property known as all that and those freehold interest in the aforesaid prop- ceed with the application before the dence of title to the aforementioned the premises known as 147 Upper erties, and any party asserting that they county registrar at the end of 21 days premises to the below named within 21 Leeson Street in the city of Dublin, hold a superior interest in the aforesaid from the date of this notice and will days from the date of this notice. held under an indenture of lease dated properties are called upon to furnish apply to the county registrar for the In default of any such notice being 4 March 1899 and made between evidence of title to the aforementioned county of Mayo for direction as may received, Alhdof Limited intends to Agnes Augusta Chambers of the first properties to the below named within be appropriate on the basis that the proceed with the application before the part, the Reverend Charles John 21 days from this notice. person or persons beneficially entitled county registrar at the end of 21 days Ridgeway and Henry George Baily of In default of such notice being to the superior interest including the from the date of this notice and will the second part, Catherine Mary Baily received, the applicant intends to pro- freehold reversion in the aforemen- apply to the county registrar for the of the third part and Thomas Saul of ceed with the application before the tioned premises are unknown or city of Dublin for directions as may be the fourth part for the residue of a county registrar at the end of 21 days unascertained, which said application appropriate on the basis that the person term of 200 years from 14 December from the date of this notice and will shall be heard on Monday 21 or persons beneficially entitled to the 1840 at a peppercorn rent and the apply to the county registrar for the November at 11am at the Courthouse, superior interest including the freehold covenants on the part of the lessee to city of Dublin for directions as may be Castlebar, in the county of Mayo, in reversion in the aforesaid premises are be performed and conditions therein appropriate on the basis that the person court no 4 or the earliest opportunity unknown or unascertained. contained. or persons beneficially entitled to the thereafter. Date: 10 December 2004 Take notice that Patrick Morrissey superior interest including the freehold Signed: McEvoy Partners (solicitors for the Limited has submitted an application reversion in the above properties are applicant), Canada House, 65-68 St to the county registrar for the county unknown or unascertained. PRACTICE Stephen’s Green, Dublin 2 of the city of Dublin for the acquisi- Date: 10 December 2004 tion of the freehold interest in the Signed: Beauchamps Solicitors (solicitors OPPORTUNITIES In the matter of the Landlord and aforesaid property, and any party for the applicant), Dollard House, Tenant Acts, 1967-1994 and in the asserting that they hold a superior Wellington Quay, Dublin 2 Sole practitioner in Dublin interest- matter of the Landlord and Tenant interest in the aforesaid premises are ed in merger or overhead sharing (Ground Rents) (No 2) Act, 1978: an called upon to furnish evidence of title In the matter of the Landlord and with another firm. Commercial/res- application by Mary O’Boy to the aforementioned premises to the Tenant Acts, 1967-1994 and in the idential conveyancing makes up Take notice that any person having an below named within 21 days from the matter of the Landlord and Tenant the majority of income. Fees interest in the freehold estate in the fol- date of this notice. (Ground Rents) (No 2) Act, 1978: an lowing property: all that and those the approx €300,000 pa. Excellent In default of any such notice being application by George Sothern premises known as number 75 received, the said Patrick Morrissey modern offices available. relating to no 37 Dublin Street, Summerhill in the parish of Saint Limited intends to proceed with the Carlow George and city of Dublin, being part application before the county registrar Any person having an interest in the Mature practice in north Midlands of the premises comprised in and for the county of the city of Dublin at freehold estate or any superior or inter- (90 mins from Four Courts) for demised by the indenture of lease of 8 the end of 21 days from the date of this mediate interest in the property known sale due to planned retirement of August 1878 between the Honourable notice and will apply to the county as no 37 Dublin Street, Carlow, which sole practitioner. Conveyancing Charles Spencer of the one part and registrar for directions as may be is comprised in folio 1438L, Co Carlow and probate make up 85% of firm. John Thompson of the other part. appropriate on the basis that the per- and is held along with other property Fee income approx €260,000 pa. Take notice that Mary O’Boy son or persons beneficially entitled to under lease dated 18 December 1852 at intends to submit an application to the the superior interest including the the yearly rent of £25. Replies to Russell & Company, county registrar for the county of the freehold reversion in the property are Take notice that the applicant, management and software con- city of Dublin for the acquisition of the unknown or unascertained. George Sothern, intends to apply to sultants to the legal profession, 6 fee simple interest in the aforesaid Date: 10 December 2004 the county registrar for the county of Hyde Park, Dalkey, Co. Dublin or property, and any party asserting that Signed: Ross Hayes, Solicitors (solicitors Carlow for the acquisition of the free- e-mail [email protected]. they hold a superior interest in the for the applicant), 25 Mespil Road, hold interest and all intermediate inter- aforesaid property is called upon to fur- Dublin 4 ests in the above property. Any party

60 Law Society Gazette December 2004 Professional information

Publication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland. UNITED STATES LAWYERS Kleeman, Abloeser & DiGiovanni, P.C. is a prominent U.S. law firm that specializes in providing the following legal services in the United States: 1 Travel law: Representing foreign visitors seriously injured in the United States 2 Personal injury litigation in the United States

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Date: 10 December 2004 Signed: William Fry (solicitors for the NORTHERN applicant), Fitzwilton House, Wilton Place, IRELAND Dublin (reference: 00267.0019. NBC) SOLICITORS In the matter of the Landlord and Tenant (Ground Rents) Acts, 1967- We will engage in, 1994 and in the matter of the and advise on, Landlord and Tenant (Ground Rents) all Northern Ireland- (No 2) Act, 1978: an application by related matters, The Liffey Trust Limited particularly personal injury Take notice that any person having an litigation. interest in the next superior interest or freehold estate of the property known Consultations where as 117-126 (both inclusive) Upper convenient. Sheriff Street in the city of Dublin, being a portion of the property held under indenture of lease dated 1 March OLIVER M 1867 between William Harte and Newton Williams of the first part, LOUGHRAN Edward Arthur Carolin of the second part, Charles Henry Carolin, George & COMPANY William Carolin, Amelia Ismena Carolin and Susanna Adeliza Carolin of 9 HOLMVIEW TERRACE, the third part and Richard Martin of the SPANISH LAWYERS OMAGH, fourth part for the term of 999 years. CO TYRONE Take notice that The Liffey Trust Phone (004428) 8224 1530 Limited intends to submit an applica- RAFAEL BERDAGUER Fax: (004428) 8224 9865 tion to the county registrar for the city ABOGADOS e-mail: of Dublin for the acquisition of the [email protected] freehold interest in the aforesaid prop- TWENTY YEARS ADVISING CLIENTS erty and that any party asserting that IN REAL ESTATE TRANSACTIONS IN SPAIN asserting that they hold an interest they hold a superior interest in the PROFILE: FIELD OF PRACTICES: superior to the applicants in the said aforesaid property are called upon to panish Lawyers Firm focused eneral Practice, Administra- property is called upon to furnish evi- furnish evidence of title to the below Son serving the need of the for- Gtive Law, Civil and Commercial dence of title to same to the undermen- named within 21 days from the date of eign investors, whether in compa- Law, Company Law, Banking and tioned solicitors within 21 days from this notice. ny or property transactions and all Foreign Investments in Spain, the date hereof. In default of any such notice being attendant legalities such as ques- Arbitration, Taxation, Family Law, In default of any such notice being received, The Liffey Trust Limited tions of inheritance, taxation, International Law, Litigation in all received, the applicant intends to pro- intends to proceed with the application accounting and bookkeeping, Courts. ceed with the application before the before the county registrar at the end of planning, land use and litigation in county registrar at the nearest opportu- 21 days from the date of this notice and all Courts. nity after the end of 21 days from the will obliged to the county registrar for date of this notice and will apply to the the city of Dublin for directions as may Avda. Ricardo Soriano, 29, said county registrar for the said county be appropriate on the basis that the Edificio Azahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain for such direction as may be appropri- some of the person or persons benefi- ate on the basis that the person or per- cially entitled to the superior interests Tel: 00-34-952823085 Fax: 00-34-952824246 sons beneficially entitled to such free- including the freehold reversion in the e-mail: [email protected] hold interest or intermediate interest in aforesaid property are unknown or Web site: www.berdaguerabogados.com said property is unknown or unascer- unascertained. tained. Date: 10 December 2004

61 Law Society Gazette December 2004 Professional information

Signed: O’Donnell Sweeney (solicitors for Experienced legal executive/locum the applicant), One Earlsfort Centre, solicitor for residential conveyancing. Earlsfort Terrace, Dublin 2 Three to four years’ experience required, Dublin 2 area. Flexible In the matter of the Landlord and arrangements; tel: 662 7969 Tenant Acts, 1967-1994 and in the matter of the Landlord and Tenant Full-time/part-time solicitor requir- (Ground Rents) (No 2) Act, 1978: an ed for general practice in medium-sized application by Mary Walsh busy firm in Waterford city. Experience Take notice that any person having any preferred but not essential. Applications interest in the freehold estate of the fol- with CV to Newell Quinn Gillen, South lowing property: premises consisting of Parade, Waterford a former ground-floor shop premises with stores and flat overhead, situated at Locum solicitor required: Mullingar, Bridge Street in the village of general practice, four/six months, start Knocklong in the barony of Coshlea January 2005, experience required; con- and county of Limerick, the site of tact Sally-Ann O’Donnell or Paddy which is shown outlined in red on the Crowley at 044 408 87/8 or send CV to map lodged with the application here- JJ Macken, Bishopsgate Street, after referred to. Mullingar, Co Westmeath Take notice that Mary Walsh intends to submit an application to the county Locum solicitor required from begin- registrar for the county and county bor- ning of February for three to four ough of Limerick for the acquisition of months. General practice experience the freehold interest in the aforesaid required. Please apply to Patricia property and that any party asserting Holohan & Co, Solicitors, 57 Flower that they hold a superior interest in the Hill, Navan, Co Meath; e-mail: patrici- aforesaid property (or any of them) are [email protected] called upon to furnish evidence of title to the aforementioned premises to the Locum solicitor required, general below named within 21 days from the practice experience, from February to date of this notice. June/July 2005. Full time or part time. In default of any such notice being Excellent conditions. Please contact: received, Mary Walsh intends to pro- Farrell McDonnell Sweeney & Co, ceed with the application before the Solicitors, Abbey Street, Roscommon; county registrar at the end of 21 days tel: 090 662 6102, fax: 090 662 5394, from the date of this notice and will e-mail: [email protected] apply to the county registrar for the county of Limerick for directions as may Solicitor available for full-time be appropriate on the basis that the per- employment in Tipperary or Limerick son or persons beneficially entitled to area. Experience in conveyancing and the superior interest including the free- probate. Reply to box no 101/04 hold reversion in the said premises are unknown or unascertained. Solicitor required for conveyancing Date: 10 December 2004 and probate. Please reply with CV to Signed: Kennedy Frewen O’Sullivan (solic- box no 102/04 itor for the applicant), St Michael Street, Tipperary Town Solicitor required for legal practice in Cork city. Must have conveyancing experience. Excellent salary and work- RECRUITMENT ing conditions for a suitable applicant. May suit part-time applicant. Apprenticeship required: all areas Immediate start. Please reply with CV considered. Personable, pragmatic and to box no 103/04 hard-working individual with over ten years’ work experience seeks apprentice- Solicitor with two years’ PQE in gener- ship from May 2005. Strong academic al practice seeks similar role in background, including honours business Meath/Louth area. Role involving crim- degree and MBA, currently studying on inal law particularly desired. Please 2004 PPC1 course; tel: 086 367 8731 reply to box no 104/04

Assignment of traineeship required: Traineeship required: hard-working, seeking general practice in Dublin/ ambitious, self-motivated and enthusias- Kildare. Prior in-office experience in tic, with strong academic background, commercial conveyancing and litigation. extensive in-office experience in litiga- Highly motivated and detail oriented. tion/district court/probate/ insolvency. Passed PPC1 and will pay own PPC2 Excellent communication and IT skills. fees. Excellent references. Available for Will finish PPC1 in April 2005. Any immediate start; tel: 087 205 7486 location considered. Please reply to box no 105/04 Assistant solicitor required for small practice approximately 15 miles from Vacancy for trainee solicitor in busy Galway city. Conveyancing experience general country practice. Apply to James essential. May suit part-time solicitor. P Sweeney & Company, Solicitors, Applications treated in the strictest con- Falcarragh, Co Donegal; fax: 074 913 fidence. Please reply to box no 100/04 5121, e-mail: [email protected]

62 Law Society Gazette December 2004 Recruirment “The greatest secretBanner?? of success in life is for a person to be ready when their opportunity comes” Benjamin Disraeli

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97 Lower Baggot Street Dublin 2 T: (01) 433 9000 www.meghengroup.com 64