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legal Yplanner 2004 LawSociety our Gazette Gazette

Regulars Cover Story Driving ambitions News 2 10 It’s been 100 years since the first serious attempt to put the brakes on the development of the motor car in the Motor Act 1903. Robert Pierse Viewpoint 6 looks back on this seminal piece of legislation Letters 9 An offer you can’t refuse Book reviews 33 14 The solicitors’ profession is under Briefing 39 attack like never before. New Law Society president Gerard F Griffin talks Committee to Conal O’Boyle about his career and reports 39 why he plans to come out fighting Practice notes 39 Legislation Discovery channels update 42 18 The master of the High Court has delivered a number of recent Solicitors decisions that clarify the practice and procedure for seeking discovery Disciplinary of documents. His judgments are reproduced here Tribunal 44 Annual report of Solicitors Fast on your feet Disciplinary 23 You may never have to argue a case Tribunal 46 in court, but you certainly need to know how to do it. Kathy Burke Personal injury judgment 50 speaks to a husband-and-wife team who took the Law Society’s advocacy FirstLaw update 51 course for solicitors Eurlegal 57 People and Death and taxes places 60 26 Anne Stephenson discusses the capital acquisitions and residential Obituary 61 property tax consequences of deeds Apprentices’ page 62 of family arrangements and the solicitor’s role in protecting the Parchment personal representative ceremonies 2003 63 Professional Executive class information 70 30 The Irish Institute of Legal Executives has had a busy year. Its continuing professional development programme was launched in COVER PHOTO: THE NEW MERCEDES SLR MCLAREN October, while the first batch of graduates from its new diploma programme will be conferred this month. Naomi Murphy explains

Editor: Conal O’Boyle MA. Assistant editors: Kathy Burke, 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: Pat Igoe (Chairman), Conal O’Boyle (Secretary), Tom Courtney, Eamonn Hall, Mary Keane, Ken Murphy, Michael V O’Mahony, Alma Sheehan, Keith Walsh

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 97, number 10 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: €57.15

1 Law Society Gazette December 2003 News

EUGENE F COLLINS: A CORRECTION New officer team in place An item in the October issue of the Gazette incorrectly stated he Law Society has a new that Eugene F Collins, following TCouncil and a new officer its merger with GD Fottrell & team, with Gerard F Griffin Sons in May, has ‘a taking over as president for the complement of 30 solicitors next year. Griffin was deemed and three consultants’. In fact, elected to the post after serving the firm has doubled in size as senior vice-president last since the merger and now has year, while Owen Binchy was 53 lawyers and 15 partners, elected senior vice-president for a total of 68 fee-earners. 2003/04, with John D Shaw as junior vice-president. PRIZE BOND WINNERS 2003 The following members The winners of the Law were elected to the Law Society Society’s prize bond draw were: Council in the recent ballot, Conal J Clancy, Dublin; Donal with the number of votes O’Hagan, Dundalk; Denis received appearing after their Law Society president Gerard F Griffin with senior vice-president McDowell, Dublin; Denis J names: Owen Binchy and junior vice-president John D Shaw Barror, Dublin; Brian A Gartlan, 1. Brian J Sheridan 1,533 Dublin; John Rochford, Dublin; 2. Geraldine Clarke 1,527 16. Gerard Doherty 1,073 Patrick O’Connor, Michael Patrick J Moran, Castlebar; 3. Owen Binchy 1,486 17. Thomas Martyn 1,068 Quinlan, Donald Binchy, John Richard Whelehan, Mullingar. 4. John O’Connor 1,473 18. Richard O’Hanrahan 725 P Shaw, Michael Irvine, Philip 5. John D Shaw 1,459 19. TC Gerard O’Mahony 386 Joyce, Simon Murphy, James EU PRESIDENCY TRANSLATION 6. Kevin O’Higgins 1,363 MacGuill, John Fish, James PROJECT 7. Michele O’Boyle 1,334 As there was only one McCourt, Peter Allen, Helen Clare-based e-working company 8. Stuart Gilhooly 1,297 candidate nominated for Sheehy, Orla Coyne, and Marie E-Training International has 9. James Cahill 1,289 Connaught, there was no Quirke. won the contract to provide 10. Moya Quinlan 1,233 election and Rosemarie Loftus publication and translation 11. Patrick Dorgan 1,226 was returned unopposed. In services during the forthcoming 12. John Dillon-Leetch 1,210 Munster, Eamon O’Brien was Gazette Christmas Irish presidency of the EU. It 13. John Costello 1,203 elected with 389 votes, beating publication will translate up to 80 14. Thomas Murran 1,163 Richard O’Hanrahan, who As usual, the Gazette will be documents a day and publish 15. Jarlath McInerney 1,139 polled 150 votes. taking a break over the Christmas them on the Irish presidency Council members are period, so there will be no issue in January. Normal publication will website. As many as 60 people The following candidates were elected for a two-year term. resume with a joint January/ will be employed on the project not elected and the number of The sitting Council members February issue, due out in early over a ten-month period. votes received by them appears who were elected last year are: February. after their names: Gerard Griffin, Anne Colley, RETIREMENT TRUST SCHEME ONE TO WATCH: NEW LEGISLATION Civil registration: section 16 of computerise the records. It because they did not go far enough any entry in the registers. A pilot the Social Welfare (Miscellaneous published a public consultation in collecting information which is run has been running in Cork since Provisions) Act, 2002 and the document in May 2001, and necessary to link records to the 8 September, and the new, Civil Registration Bill, 2003 considerable investment has taken same person. In so far as solicitors additional details for registration of Section 16 of the Social Welfare place to design a computer use their services for the tracing of births and deaths are being (Miscellaneous Provisions) Act, database and user interface, and relatives for purposes of recorded in the Cork District since 2002 is more far-reaching than it also to enter existing (historical) inheritance and ownership of that date. The main additional would seem from its modest seven records since 1844 and 1864. The property, or have clients who information is: (a) in relation to lines. It lists ten pieces of amendments in section 16 were undertake that task themselves, births, the recording of both legislation which are to be required to enable interim work to they are of concern to members of parents’ personal public service amended in accordance with the proceed pending the enactment of this society also. numbers (PPSNs), their dates of act’s schedule. Six of these are the Civil Registration Bill, 2003, As of 1 July, an Ard-Chláraitheoir birth, the father’s surname at statutes grounding the civil which was presented to the Dáil on is authorised to keep and maintain birth, and (b) in relation to registration system, which 17 July. registers of births and deaths in deaths, the deceased’s PPSN, comprises the public registration of Many of the amendments any form (including on computer) occupation of the deceased’s births, deaths and marriages. effected by section 16 are subject to their being capable of spouse and occupations of the An inter-departmental committee technical, but some of them being converted into a legible deceased’s parents or guardians. has been working to reorganise the caused disquiet in the community form and being used to make a With one reservation set out below, civil registration system and of genealogical researchers legible copy or reproduction of the additional information in

2 Law Society Gazette December 2003 News

Unit prices: 1 November 2003 President promises review Managed fund: 415.279c All-equity fund: 96.762c of member support services Cash fund: 252.676c A ROSE BY ANY OTHER NAME ew president Gerard The draft terms of reference Laois solicitors have changed NGriffin has pledged to set for the Support Services Task the name of their association up a task force ‘to examine how Force are: from the Laois Bar Association the society can co-ordinate and •To review the support to the Laois Solicitors’ develop existing and new services currently provided Association because it is more support services for members by the Law Society and consumer-friendly, according to whose personal problems are others for solicitors and the association’s PRO Charles affecting their professional lives trainee solicitors Flanagan. and those of their clients’. •To assess best practice in Speaking to the Law Society other relevant organisations CAN’T KEEP A GOOD MAN Council after his election on 7 and to identify further DOWN November, Griffin said: ‘Stress, support services that might At its recent annual ball, the depression, substance abuse and Olive Braiden: heading up be provided to solicitors and Clare Bar Association made a the like are problems which, new task force trainee solicitors presentation to solicitor Sean regrettably, the society comes assistance they need. I am •To make recommendations Casey, who, after 62 years, across from time to time in its pleased to be able to tell you regarding the most effective continues to work full-time in his members. We need to be better that Olive Braiden has agreed means of delivering support firm John O’Casey & Co. Eight of at helping such unfortunate to chair this task force which is services to solicitors and Casey’s nine children trained to colleagues to find the expert to report in 2004’. trainee solicitors. be solicitors, and four of his sons work in his firm.

Brits praise Business GOLDEN PAGES CLARE PROBATION SERVICE ADVERTISING The absence of a full probation Law Committee member service is causing problems in he work of Irish solicitor ‘distinguished and influential The Golden Pages will be County Clare. The local bar TMichael Twomey was used commentator’ in the area, and contacting solicitors over the association says ‘it is a cause of extensively by the English Law his book Partnership law as a next few months about listings grave concern’ as judges don’t Commission in preparing its leading text. If implemented in in the 2004 phone books. have the benefit of full probation recent report on partnership law Ireland, the report’s Solicitors are reminded to take reports. Also, since the death of reform. Twomey, a member of recommendations would make a account of the Solicitors the highly-regarded county the Law Society’s Business Law solicitor’s firm a separate legal advertising regulations before registrar Enda Brogin in 2002, Committee, acted as a entity – the firm, rather than the deciding on the format of their no-one has been appointed to fill consultant to the commission, partners, would own property advertisements. the position. which describes him as a and enter into contracts.

relation to births and deaths is names, where a place of birth can fathers to contribute to their dictated by the design of the user welcome and, as time goes on, it be a vital clue to identity, it is children’s upkeep. While on the interface to the new database will assist family tracing, even difficult to know why this face of it, this is unexceptional, software, other shortcomings in without public access to the information is not being collected. there is an expectation that this the user interface, and the pro- PPSNs, which will be withheld. The collection of additional development will result in a new posed marriage procedure that In relation to deaths, certain information on the parents of kind of illegitimacy, being children requires a marriage to be register- useful information is not being children may have an unexpected with no registered fathers. As ed by the parties and not the collected, including any previous side effect: the reluctance of non- currently drafted, the Civil celebrant, as is presently the case. surname of the deceased marital fathers to be registered. It Registration Bill, 2003 does not The secondary legislation (important for tracing married is anticipated by social workers put non-marital fathers under an bringing the amendments referred women) and the deceased’s place and others that some fathers may obligation to register (section 22), to in section 16 of the Social of birth, if known. The omission of feel they must refuse to be and any such obligation would be Welfare (Miscellaneous Provisions) any previous surname is remedied registered because of the future largely unenforceable. Act, 2002 into effect are statutory by part 5 of the first schedule to implications this may have for Other issues arise with the bill, instruments 132/02, 412/02, the Civil Registration Bill, 2003, social security benefits and which will be raised by the 481/02, 269/03 and 395/03. G but the deceased’s place of birth, earnings. Apparently, the Child society’s Law Reform Committee if known, continues to be omitted Support Agency in England and as the bill is debated in the Alma Clissmann is the Law in the bill. With the difficulties in Wales used information on birth Oireachtas: restrictions planned in Society’s parliamentary and law tracing people with common certificates to oblige registered the manner of searching which are reform executive.

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Issued by the National Treasury Management Agency News PIAB ‘designed to disadvantage victims’ illy and almost petty’ someone is effectively denied general Ken Murphy said that ‘Swas how Labour senator legal representation at their people seeking compensation Derek McDowell described own request and their own for personal injuries will be tánaiste Mary Harney’s expenses. The tánaiste’s refusal forced into a system ‘which statement that solicitors would to give on this point will, I fear, seems designed to disadvantage be copied with correspondence be a petard for PIAB. It will them. Indeed, the new system by PIAB but that under no give people the opportunity to will benefit the very people circumstances would PIAB claim that the forum and the whose negligence caused the communicate directly with a process are imbalanced and injury’. solicitor seeking to represent a that the procedures are He expressed regret that the victim. designed to minimise the rights tánaiste had rejected the He was speaking at the of ordinary claimants’. society’s views on the inherent committee stage debate in the The independent senator bias of PIAB when society Seanad on the PIAB Bill. The and former Northern Ireland representatives had met her in bill has now been passed by the ombudsman Maurice Hayes Government Buildings on 12 Murphy: ‘PIAB has been designed Seanad, but at the time of said he was concerned at the so that victims invariably play November. going to press it had not yet absence of lawyers and lack of away from home’ ‘Instead of the level playing begun its passage through the balance in PIAB, remarking: field of the courts of justice – Dáil. ‘Neither IBEC nor the IIF has solicitor to deal with PIAB. guaranteed by the impartiality The PIAB Bill commands all- ever struck me as a shining That would be a fair way of of the judiciary – PIAB has party support, so its enactment apostle for human rights and doing business’. been designed so that victims is not in doubt. But politicians the rights of the individual’. But despite pressure from all invariably play away from in both the Dáil and Seanad But not all independent sides, the tánaiste refused to home, without a manager to have publicly acknowledged senators favoured a right of accept opposition amendments organise and advise them, that an intensive and very legal representation for victims. on this issue. under rules devised by the effective lobbying campaign by Senator Joe O’Toole was Expressing the views of the opposition and with a referee both the Law Society and vehemently opposed to this. Law Society in an Irish Times whose match fee is being paid solicitors representing local bar A number of Fianna Fáil article on the subject, director by the other team’, he said. associations has made the senators also expressed support imbalance and unfairness of for opposition amendments on PIAB proposed procedures the a right of representation for LAST CHANCE FOR GAZETTE primary issue for debate in both victims. These included houses of the Oireachtas. senator Terry Leydon and YEARBOOK AND DIARY 2004 The Fine Gael contribution senator Eamon Scanlon, who The 2004 Law Society Gazette Yearbook and Diary is now available in the Seanad was led by said: ‘Insurance companies will (please see order form on page 28). Last year the Solicitors’ senator Paul Coghlan. On the have the best and most Benevolent Association benefited to the tune of €20,000 as a result issue of legal representation, he expensive legal advice available of proceeds from the Gazette Yearbook and Diary, and your continued said: ‘Having access to legal to them and claimants, if they support is very much appreciated. advice is meaningless where so wish, should be able to use a Cork loses its old stamping ground

unster solicitors are up the primary, if not the only, will increase, at an added cost in exceptional circumstances Min arms over a change customers. ‘We are at a loss as to both. ‘Instead of expanding it will process documents in policy at the Stamps Office to why this action is the service, they are going immediately. ‘Other people in Cork. Until late October necessary’, he says. backwards’, Dorgan reckons. post their documents’, a this year, solicitors could call The previous facility meant And he adds: ‘There is a representative told the to the office and have that there was direct interface very great problem with Gazette, pointing out that documents such as deeds of between the Revenue official security of deeds. As there is those who called to the office transfer stamped while they and the solicitor. Queries no way of tracking them, the in person and had documents waited. could be dealt with possibility of them being lost stamped immediately were ‘in According to Southern immediately, and stamp duty or overlooked is greatly a sense, skipping the queue’. Law Association PRO discharged and deeds stamped increased’. The Southern Law Patrick Dorgan, this service without any delay. The effect The Stamps Office says Association has called for an has been curtailed without of the policy change is that that the change in policy is a urgent meeting with the any consultation with correspondence between ‘matter of security’, that the Revenue Commissioners on solicitors, although they are solicitors and the Revenue service is the same, and that the matter.

5 Law Society Gazette December 2003 Viewpoint Shouldering the burden of self No-one likes to be told what to do, but for solicitors this is one of the burdens that come with membership of a self-regulating profession. Patrick Dorgan explains the Law Society’s new regulatory powers under the Solicitors (Amendment) Act, 2002 and why it needs them

verybody hates solicitors. The Solicitors (Amendment) EThe only comfort we can Act, 2002 was brought in take is that everyone probably primarily to curb solicitor hates barristers more, and the advertising – a reversal of odd survey has shown that previous government policy, clients’ trust in, and regard for, which had been to encourage their own solicitor is such advertising. The Law exceptionally high. The Society took the opportunity to problem is the perception of seek amendments to existing lawyers as a whole. Despite the legislation to strengthen and Herculean efforts of the Law extend its powers of regulation. Society on the public relations The vast majority of solicitors front, it is unlikely that things have never advertised, and with are going to change. the possible exception of One result of our negative reviewing their websites, need image is that successive never have reference to the governments have felt that extensive restrictions in whenever investigation into any relation to advertising occupation or undertaking is contained in the act. necessary, lawyers generally – This article proposes to deal and solicitors in particular – are solely with the extension of the always first on the list. No society’s regulatory powers. account is taken of the fact that regulation and discipline should disciplinary role. Considerable Solicitors who anticipate issues we generally come out of such be dealt with by an entirely satisfaction with its with their advertising would be scrutiny very well, and when separate body. Having been performance has been, and well advised to consult the act outside overseers of the Law involved for a few years with the continues to be, expressed not directly, while noting that the Society, such as the independent Registrar’s Committee (which is, only by the lay observers on Law Society is under intense adjudicator, issue a report that is in effect, the District Court of the Registrar’s Committee but scrutiny to ensure that the favourable to the society, it is the regulatory and complaints also by the independent advertising rules are enforced. completely ignored by the function of the Law Society), I adjudicator. It is significant media. am firmly convinced of the need that in the latest investigation On the beat This is an introduction to the for the society to retain control of the profession – the Indecon The extra powers obtained by following comments on a topic of its regulatory and disciplinary report commissioned by the the society are as follows. It is that is subject to much debate functions. Not only for the Competition Authority – there immediately clear that these both inside and outside the benefit of the profession, but was no recommendation for powers will allow the society to profession – whether the also for the benefit of the the removal of such a function act in situations where it was profession should regulate itself. public. from the society. In summary, helpless in the past. A significant number of we are much better off if we Section 2 amends earlier solicitors feel that the Law A policeman’s lot police ourselves, police legislation by extending the Society’s remit should be The society expends significant ourselves effectively, and are grounds on which the society representative only, and that resources in the discharge of its seen to do so. may impose conditions on a

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6 Law Society Gazette December 2003 Viewpoint f-regulation VOX solicitor’s practising certificate. financial sanction. The POP Conditions can now be society’s powers in this regard imposed on a practising are further strengthened by Do you think it would be certificate where the society has section 14, which allows the appropriate to include a concerns about the number and society to require a payment reference to God in the nature of complaints against a of a contribution towards its European constitution, solicitor, where there is a costs only because the solicitor and why? concern about the financial has not responded to a I believe that the state of the practice, or where complaint, whether or not reference to a there is a need to protect or any finding of fault is made. god should be secure the interests of the The contribution is capped at used. A person solicitor’s clients. This €3,000, which is payable to can affirm if he provision will enable the the society rather than the doesn’t believe society to deal with the happily compensation fund. The in God. Owen Beechinor, CIE solicitor rare situations where a solicitor society can also issue a is clearly incapable of managing written reprimand in respect No. The his practice, or is unwell, or Dorgan: ‘Clients’ trust in and of complaints that are not European Union under some disability – respect for their own solicitor serious enough to refer to the should situations which usually is exceptionally high’ Disciplinary Tribunal, or accommodate manifest themselves in multiple where the solicitor has failed all beliefs and I think it’s wrong complaints to the society. It will be aware, operates to respond to a complaint. to include a also means that in appropriate entirely independently of the reference to God. It should be cases, such as ill health or Law Society. Hopefully, these Long arm of the law based on secular ideals. bereavement, the society can sections will be of no interest Other sections allow the Gerard Clarke SC protect clients’ interests to the majority of the society to publish findings of I think the vast without having to resort to profession. Section 12 permits the Disciplinary Tribunal or majority of the disciplinary measures. the registrar of solicitors, of notice of the making of its populus would Under section 3, the society his own volition, to make orders, and their effect, and a come from the is obliged to inform a solicitor complaints alleging a breach summary of the tribunal’s Christian, Judaic of the purpose of their of any provision of the report. The act also or Muslim attendance at the solicitor’s Solicitors Acts or subsequent strengthens the society’s traditions, all of which, as far as I understand it, place of business – except regulations. powers where a solicitor or worship the same god. I think it where the society considers that Section 13 is a new and any other person contravenes would be appropriate that God to do so could prejudice the useful provision which enables or is likely to contravene any be mentioned in that context. exercise of any of its functions. the society to combat the provision of the Solicitor’s Acts. Michael Hanna SC This should strengthen the definite problem caused by The society can now society’s hand in dealing with solicitors who do not respond investigate alleged misconduct For those who believe in God, cases of, for instance, suspected to the society’s enquiries by an apprentice. The God is in all fraud, where the disclosure of following receipt of amounts of various things. that purpose could allow a complaints, or who fail to contributions payable have Therefore, it is solicitor to cover his tracks. attend meetings of regulatory been increased and converted not necessary The definition of committees. This had become to euro. that he/she be mentioned. For those who don’t, misconduct is extended by a major problem for the I hope that this gives some God is a non-entity, so why section 7 to include having any regulatory committees, and background to the provisions would the reference to a non- association with an unqualified was commented on of the 2002 act and the entity be in any way prejudicial? person acting or pretending to unfavourably by all of the lay reasons why the society Ultimately, it probably doesn’t be a solicitor, or with an members and the independent sought its extra powers. It is matter, and if there were to be unqualified person who carries adjudicator and got significant sincerely to be hoped that any a reference to God, it would be more for cultural and historical out functions that are reserved unfavourable coverage in the practitioner who has been reasons than religious or legal’. to solicitors, such as media. diligent enough to read to Fergal Doyle BL conveyancing or accepting The society can now apply this point will be of a instructions to provide legal immediately to the High character to ensure that none No. I don’t. I feel services to a third party. Court for an order compelling of the provisions will ever that it’s not a the solicitor to attend apply to him. G legal issue and not something Lugs Brannigan meetings or to respond to that should be in Sections 8 to 11 relate to the correspondence. The court Patrick Dorgan is a member of the constitution Solicitors Disciplinary also has the power to censure the Law Society’s Compensation as such. Tribunal, which, practitioners a solicitor or impose a Fund Committee. Donough Cleary, Cleary & Co

7 Law Society Gazette December 2003

Letters Letters Discrimination or choice? Dumb and dumberer From: Michael O’Malley, Dublin three women candidates, at he media recently reported most 20% of the 15 seats could From: James Coady & Sons, Copy letter from the Tan academic survey about possibly be filled by women. Carlow Revenue Commissioners: women’s lack of progress in the The gender imbalance on the know that the Dumb and Dear sir/madam, legal profession (see last issue, Council will continue in 2003, Idumber column had run its Please forward the original page 4). From the news reports, not because we discriminate course and was discontinued, stamped deed, as this must they see sex discrimination as against women but because but the enclosed letter from the be cancelled before the sub- the main reason for their failure women chose to opt out. Revenue Commissioners might stitute deed can be stamped. to advance. The 2003 Council elections come in useful if you introduce Yours faithfully, I read about the survey just give us hard data about how a the column again. Stamp Duty Unit after I voted in the election for gender imbalance is being The situation arises out of the Council of the Law Society. perpetuated. Discrimination the red tape usually encountered A note from the Editor: Last year, only 22% of the does not stop women standing when having a substitute deed of The Dumb and dumber Council were women, although in the elections; they only have conveyance stamped, as a column wasn’t cancelled; the they comprise about 45% of our to post in a form. Yet 2003 was substitute deed was lost bearing profession just ran out of profession. An academic might not exceptional; every year they the original stamps. Clearly the stories, apparently! There is think solicitors discriminate opt out. necessity to stamp a substitute still a bottle of cheap cham- against women, and that a glass Talking of discrimination deed would not arise at all if we pagne waiting for the person ceiling blocks them from the alone obscures the real issues could possibly comply with the who submits the best entry – higher levels of the Law Society. which limit women’s full Revenue Commissioners in this case, Mr Coady. Send The figures hide a simpler participation. We have to dig requirements in the first place. them in and we will publish. truth: women solicitors won’t far deeper, and ask how many Anyone who has to use the Contributions should be sent participate in elections. This women are making choices procedure might find this letter to the Gazette, Blackhall year, 19 candidates stood for 15 which will limit their own mildly amusing or, alternatively, Place, Dublin 7, e-mail: seats on the Council – but only advancement – and why they very infuriating. [email protected]. three were women. With only choose to do this.

COURTS AND COURT OFFICERS ACTS 1995 - 2002 JUDICIAL APPOINTMENTS ADVISORY BOARD

APPOINTMENT OF ORDINARY JUDGES OF THE: SUPREME COURT HIGH COURT CIRCUIT COURT DISTRICT COURT

otice is hereby given that applications are invited from 1st January to the 31st December 2004. Applications received Npractising barristers and solicitors who are eligible for will be considered by the Board during this period unless and appointment to the Office of Ordinary Judge of the Supreme until the applicant signifies in writing to the Board that the appli- Court, the High Court, the Circuit Court and the District Court. cation should be withdrawn. Those eligible for appointment and who wish to be consid- Applicants may, at the discretion of the Board, be required to ered for appointment should apply in writing to the Secretary, attend for interview. Judicial Appointments Advisory Board, Phoenix House, 15/24 Canvassing is prohibited. Phoenix Street North, Smithfield, Dublin 7, for a copy of the rel- evant application form. Dated the 4th December 2003 It should be noted that this advertisement for appointment to Judicial Office applies to vacancies that may arise in the Office BRENDAN RYAN B.L. of Ordinary Judge of the Supreme Court, the High Court, the SECRETARY Circuit Court and the District Court during the period from the JUDICIAL APPOINTMENTS ADVISORY BOARD

9 Law Society Gazette December 2003 Cover story DRIVING A • Motor Car The popularity of the motor car was soaring at the start of the 20th century, Act 1903 • Do the but the development of such vehicles had completely outpaced attempts to locomotion regulate them. The Motor Car Act 1903 was the first serious attempt to put • Gordon Bennett race the brakes on. Robert Pierse looks back on this seminal piece of legislation MAIN POINTS his year is an important anniversary for on Highways Act 1896, which became known as the road traffic law and motor cars in three Motor Car Act. This changed the name of these respects. One hundred years ago, an act vehicles from light locomotives to motor cars. was passed authorising races with ‘light T locomotives’ in Ireland. That same year, A day at the races the famous Gordon Bennett race was held in Athy, On 27 March 1903, ‘enacted by the King’s Most and a second act was passed to amend the Locomotive Excellent Majesty, by and with the advice and consent of

10 Law Society Gazette December 2003 Cover story AMBITIONS the Lords Spiritual and Temporal, and commons, in traffic, for the safety of the public, for the restriction of Parliament assembled and by the authority of same’, speed in populous areas and for other purposes incident to the Light Locomotives (Ireland) Act (better known as the proper conduct of such races’. Public notice had to the Races Act) was passed, authorising races with light be given of the making of the order. When in force, locomotives in Ireland. the order meant that no provisions of any act, bye- It was a short act of four sections. Section 1 law or regulation ‘restricting the speed of provided that a county council could ‘on application by locomotives or imposing any penalty for furious any person or club, by order declare any public roads driving’ would apply to any light locomotive or its within the county may be used for races with light driver engaged in a race. locomotives during the whole part of any days specified in Section 2 dealt with the expenses of the county the order not exceeding three days in the year’. The council, which had to be defrayed by the applicants. order had to contain such provisions as were According to section 3, the term light locomotives required by the Local Government Board for Ireland would ‘have the same meaning as in the Locomotives for the ‘temporary suspension and regulation of other on Highways Act 1896’ – in other words,

11 Law Society Gazette December 2003 Cover story

De Dion Bouton 1903 Fiat 1903 Georges Richard 1903

mechanically-propelled vehicles weighing under THE GORDON BENNETT RACE three tons. They also had to be designed so that ‘no smoke or visible vapour is admitted therefrom except for While Irish newspapers gave a great deal of any temporary or accidental cause’. The Races Act coverage to the Gordon Bennett Race, that race applied only to this country and remained in force was in fact only the first event over a two-week only until 31 December 1903. period which was officially known as ‘Automobile fortnight in Ireland’. Keep the red flag flying The Gordon Bennett race was held on a The Motor Car Act 1903 amended the Locomotives on course based around Athy on 2 July 1903. The Highways Act 1896, which itself was amending next day, the famous Phoenix Park Speed Trials legislation to the Locomotives Acts 1861 and following. were held. These ran from Mountjoy Corner to For example, the 1865 act introduced the infamous the Gough monument, a distance of over a ‘man with a red flag’ provision. Walking 60 yards mile. A world land-speed record of the time was ahead of each vehicle, a man with a red flag or PIC: ROYAL IRISH AUTOMOBILE CLUB ARCHIVE reached at these – 85.9mph, achieved by one Breton driver Fernand Gabriel lantern forced vehicles to travel at a walking pace, Baron De Forest. in his Mors racing car and warned horse riders and horse-drawn traffic of The fortnight ended with a tour from Cork to the approach of a self-propelled machine. The Killarney on 13 July, and the hill climb outside Killorglin on the old Killarney/Tralee Locomotive (Amendment) Act 1878 made the red flag Road. This hill climb is still commemorated by a monument at the site. Charles optional under local regulations, and reduced the Stewart Rolls, of Rolls-Royce fame, took part. The events were basically organised distance of the warning to a more manageable 20 by Claude Johnson, secretary of the Automobile Club of Great Britain and Ireland, yards. who was to introduce Rolls to Fredrick Henry Royce the following year. The 1896 act raised the speed limit from 4mph to The races were brought to Ireland because was there was such official 14mph in the countryside and made lights on antagonism towards motors and motoring in England. They were held, of course, vehicles compulsory, as well as ‘an instrument under orders made by the various county councils under the Light Locomotives capable of giving audible and sufficient warning’, (Ireland) Act 1903. One member of the House of Lords, Earl Spencer, commented usually a bell or a horn. Conviction for speeding that the debate on this piece of legislation was the first occasion on which all carried a fine of up to £10 and a nominal excise duty members of both houses had been in harmony on anything to do with Ireland. of up to three guineas was charged on motor cars. For the Gordon Bennett race, the British entries were painted green, to mark the The 1903 act forms the basis for the dangerous fact that the race was being held in Ireland, and the shade chosen became known driving section currently in use in Ireland, so it as British racing green. might be useful to reproduce the whole section in These events were a matter of huge importance for the development of the full. It reads as follows: motor car and were a great boost to the fledging tourist industry in Ireland at the ‘1) If any person drives a motor car on a public time. highway recklessly or negligently, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the highway, and to the amount of traffic which actually is at the time, or which might reasonably be expected to be, on the highway, that person shall be guilty of an offence under this act 2) Any police constable may apprehend without warrant the driver of any car who commits an offence under this section within his view, if he refuses to give his name and address or produce his licence on demand, or if the motor car does not bear the mark or marks of registration 3) If the driver of any car who commits an offence under this section refuses to give his name and address, or gives a false name or address, he shall be guilty of an offence under this act, and it shall

PIC: ROYAL IRISH AUTOMOBILE CLUB ARCHIVE be the duty of the owner of the car, if required, to Camille Jenatzy starting his Mercedes at Ballyshannon. Jenatzy went on to win the race give any information which it is within his power

12 Law Society Gazette December 2003 Cover story

Hispano Suiza 1912 Panhard Levassor 1903 Renault 1906 MOTORING: THE EARLY YEARS

1861: Locomotive Act 1861 restricts weight of steam engines to 12 fined one shilling for travelling at 8mph in a 2mph area. Lights are tons and imposes a speed limit of 12mph now required, along with some form of ‘audible warning’ 1865: Locomotive Act (’red flag act’) imposes a speed limit of 2mph 1897: Automobile Club formed in cities, towns and villages, and 4mph elsewhere. A pedestrian has 1901: A Lloyd’s underwriter issues the first motor insurance policy to walk 60 yards in front of the vehicle carrying a red flag. The vehicle 1903: Motor Car Act 1903 requires that all vehicles have to be is required to have three drivers aboard registered and display number plates in a prominent position. The first 1878: Locomotive Amendment Act 1878 makes the red flag optional number plates consist of one letter and one number, and the first (A1) and reduces the warning distance to 20 yards is issued by London County Council. Driving licences are introduced. 1888: Pneumatic tyres introduced First use of windscreens. These were made of ordinary glass and 1899: The first motor car accident involving the death of the driver inflicted terrible injuries in accidents. Speed limit raised to 20mph, occurs in London on 25 February with heavy fines for speeding and reckless driving. Henry Ford forms 1896: First speeding ticket is issued on 28 January. Walter Arnold is his company to manufacture automobiles.

licence and disqualification from driving (section 4) and the duty to stop if you have had an accident (section 6). The act also raised the speed limit to 20mph, a change that undoubtedly pleased Dr John Colohan (the owner of the first car in Ireland), who had been pressing for this for quite some time. However, the Local Government Board retained the right to limit speeds to 10mph in certain places for reasons of public safety (section 9). This same section introduced a notice of intention to prosecute for speeding offences. It can be noted with some regret that this ‘notice of intention to prosecute’ position was developed through the 1933 and 1961 acts but has now been totally repealed in the 2002 Road Traffic Act. The 1903 act provided for a penalty of £10 on a first conviction, £20 for a second offence and £50 for any subsequent offence. But it also said that a person would not be convicted This year’s model: of speeding if there was only one witness to the to give, and which may lead to the identification the 2003 Mercedes offence. and apprehension of the driver, and if the owner Benz SLR McLaren Road signs, including speed limit signs, were also fails to do so he also shall be guilty of an offence introduced under this act and local authorities were under this act’. charged with erecting such sign posts ‘denoting dangerous corners, cross roads and precipitous Now she’s sucking diesel places, where such sign posts appear to them to be By 1903, the number of motor cars in Britain and necessary’. Ireland had risen to over 17,000 and it was becoming The last section provided that the act would increasingly difficult to identify offenders who had continue in force until 31 December 1906 and no breached the few regulations that actually existed. longer, ‘unless Parliament shall otherwise The registration of motor vehicles and the determine’. In fact, it remained in force until the compulsory display of number plates were 1933 Road Traffic Act was introduced by our own introduced by section 2 of the 1903 act, and all Free State government. G drivers had to be licensed annually by their local council. The driving license cost five shillings, while Robert Pierse is a solicitor in Listowel, Co Kerry, and the vehicle registration fee was 20 shillings. author of Road traffic law in Ireland (third edition, Other sections in the act dealt with suspending a 2003).

13 Law Society Gazette December 2003 News analysis AN OFFER YOU

The solicitors’ profession is under attack like never before. The Law Society’s new president, Gerard F Griffin, talks to Conal O’Boyle about his career to date and why he plans to come out fighting

14 Law Society Gazette December 2003 News analysis CAN’T REFUSE

on’t ask, because he won’t tell. But those But he is quick to discount the notion that money who knew him in the early years say that should be the driving force in a solicitor’s life. the young Gerry Griffin was a bit of a ‘There are ups and downs in every profession’, he tearaway. Now, as president of the says, ‘but I’ve found that the most satisfying thing is Dcountry’s 8,500 solicitors’ profession, the when you do something for the small man, usually capo di tutti capi is holding his annual conference in when you are not getting paid for it, and you make a Sicily next year. difference in their lives. Money isn’t everything, Coming as he does from an impeccable legal money isn’t the goal. As Geraldine Clarke often said pedigree – his father was a senior counsel and at parchment ceremonies over the last year, “billable Supreme Court judge and his mother was a solicitor, hours should not be your ambition in life”, and I both of whom are still alive – it’s not surprising that thoroughly endorse that’. Griffin eventually followed in their footsteps. But it By way of example, he cites a case from the early wasn’t his first choice; originally, he wanted to be a 1980s of a female client who was separated from her vet. However, like a young Michael Corleone, he husband and who had a child out of wedlock, as it found himself sucked into the family business. You was quaintly known in those days, with her new might say that he fought the law and the law won. partner. When she went to register the child’s birth, In 1972, Griffin joined L Branigan O’Donnell & she was told she could either leave the father’s name O’Brien, where he was apprenticed to Larry blank on the birth certificate or name her husband as Branigan. Branigan was the conveyancing partner, the father. which turned out to be bad luck for Griffin. ‘We took this case on and brought it all the way to ‘I never had a huge interest in conveyancing – and the High Court and we made a change in the law’, still don’t to this day’, he admits. ‘My principal says Griffin. ‘That was one where I felt that we practices would be in litigation, particularly defence actually changed somebody’s life. We didn’t get litigation, and also intellectual property law. Frank terribly well paid for it, but that didn’t really matter. O’Donnell, who is now a Circuit Court judge, was Whatever money you might have made then is long the litigation partner there and I tended to have a since spent, but the memory of the satisfaction of greater interest in what he did than in conveyancing getting the result will last a lifetime. You can’t bank matters’. it, but you can tell your grandchildren about it’.

Some like it hot Goodfellas In 1977, when one of the young assistants in the Griffin feels strongly that pro bono work is one of the firm, Patrick Ferry, set up on his own, Griffin left to hallmarks of the legal profession, even though it join him. Then, in 1981, ‘having had the corners rarely merits a mention in the media feeding frenzy knocked off me’, as he says himself, he opened his own practice. ‘I basically did everything that came in the door whether I had expertise in it or not, but I soon FACT FILE picked it up’, he recalls. ‘I had a huge fascination GERARD F GRIFFIN with criminal law and indeed for about ten years I Occupation: Solicitor (admitted to roll of solicitors in 1978). Managing partner spent virtually every day in the Bridewell or running in the Dublin law firm Kelly and Griffin, which employs three solicitors and five trials in the Circuit Court. I feel the experience has support staff. Specialises in civil litigation. stood to me in dealing with clients over the years, Education: Belvedere College, Dublin; third level: University College Dublin. because all human life was there. There was also the Law Society career: First nominated to Law Society Council in 1982 as joy of seeing true professionals such as Pat McCartan representative of the Dublin Solicitors’ Bar Association. Elected to Council in his and Garrett Sheehan operate’. own right in 1987. Junior vice-president 1998, senior vice-president 2002, Now, as managing partner in the Dublin law firm president of the Law Society for year 2003/2004. Has chaired many of the Kelly and Griffin, which employs three solicitors and society’s committees during his 21-year tenure on Council, including finance, five support staff, he specialises in civil litigation, registrar’s, compensation fund, litigation, and conference committees. having already proven that crime does indeed pay.

15 Law Society Gazette December 2003

News analysis that occurs whenever lawyers are discussed. But he you or rear-ended you in traffic when they were is concerned that the profession’s ability to support drunk; the victim was the employer who took the such non-paying work could be sacrificed on the guard off the machine that chopped your arm off. altar of the great god Competition. The legal profession has been the only one that ‘Back in the early 90s’, he recalls, ‘we ran a survey effectively represented the victims. and found that of the nine most common areas of ‘So far, no-one has explained how they are going work, only three were profitable and those were to pay for the PIAB. I certainly don’t think the effectively subsidising the other types of work such insurers will pay for it out of their ample reserves. as landlord and tenant and social welfare. Convey- It seems to me that any costs will be passed on to ancing, litigation and probate were the main the policy holders – and that’s you and me and earners. everybody else. What maybe seemed like a good ‘If the Competition Authority were to say that it idea on paper could potentially end up increasing was opening up conveyancing or probate to anyone premiums’. who wanted to do it, that would have a huge effect on the income of the profession, which, as a follow- White heat on, would then have a huge effect on our ability to Griffin takes over at what might politely be called a do this pro bono work. I have absolutely no doubt challenging time for the profession. Apart from the that from the top firms down to the smallest firm in establishment of the PIAB, there has been the the country, there is an element of pro bono work recent introduction of money-laundering within every practice. regulations, the aforementioned Competition ‘It is effectively the Irish solution to the Irish Authority study of the professions, questions about problem, because there is no functioning legal aid the profession’s monopoly on conveyancing and system in this country. probate work, and increasing talk of an end to self- ‘Our whole ethos is access to justice, and if we regulation. Despite the concerted threats, the new don’t do it then nobody else will. That’s an area that president believes that the Law Society has enough has never been acknowledged by government, any firepower to see off the wiseguys. government, because it raises the whole spectre of ‘I think the future is bright enough’, he says. our totally inadequate legal aid system’. ‘Attacks on this profession seem to be cyclical, but we always survive, because at the end of the day the The Godfather ordinary member of the public is more and more Not surprisingly, this is one of the areas that Griffin conscious of the need for legal advice. There was a will be training his guns on during his presidency. time when the public would only go to a solicitor His involvement with the Law Society began, like when they had a problem which had already his two immediate predecessors and close friends manifested itself; now they tend to be more Elma Lynch and Geraldine Clarke, through the proactive’. Dublin Solicitors’ Bar Association. He was recruited He points to the recent farce in Scotland, where as a foot-soldier by DSBA kingmaker Colm Price in conveyancing was opened up to a new breed of 1982 and entered the inner circle of the society’s licensed conveyancers, only to see the system Council in 1982 as a DSBA nominee. collapse, leaving the Scottish Law Society to pick He became a made man when he was elected to up the pieces. Any similar move here is likely to Council in his own right in 1987, and every year end up the same way, he believes. since. While always garnering a respectable number ‘When the Competition Authority or media of votes, he was never a poll-topper until last year’s commentators ask why solicitors have a monopoly attempt by another Council member to prevent his on conveyancing or probate practice, there is one re-election. simple answer’, he declares. ‘We are professionals That was a reassuring vote of confidence for the and we know what we are doing. Would they fight ahead – and make no mistake, the Law Society suggest the same thing of the medical profession? under Gerry Griffin will be going to the mattresses. Should people be able to write their own The gang war with the vested interests in the prescriptions or perform their own brain surgery? insurance and business lobbies is not over yet. ‘There is so much paperwork involved in a Griffin acknowledges that there is now no way to conveyance, so much form-filling and so much stop the Personal Injuries Assessment Board from compliance with legislative and other requirements being established, but he is quite prepared to shoot before a matter can be closed that I just don’t think holes in the woolly thinking that underpins it. any member of the public could do it. But I can see ‘I think it’s badly thought out and I don’t think it’s a situation where if they did try that, we would end going to work’, he says. ‘It’s just going to add up having to repair it. another layer of bureaucracy where we don’t need it. ‘It’s up to us to show that leaving this sort of The difficulty about this whole debate is that work with a solicitor is in the public interest. That’s nobody spoke on behalf of the victims. Indeed, my view and that’s what I will be fighting for’. during the very successful media campaign waged by And if any of those Competition Authority Dorothea Dowling, logic was turned on its head. goombahs think differently, you can be sure that The victim became the person who collided with Gerry Griffin will make them an offer they can’t refuse. G

17 Law Society Gazette December 2003 Litigation DISCOVERY

The Master of the High Court, Edmond Honohan, has delivered a number • Recent judgments of of recent written decisions that may help practitioners clarify practice and the master of procedure in seeking the discovery of documents. His decisions are the High Court • Rules of the reproduced here Superior Courts • Requirements nder the Rules of the Superior Courts These new rules have forced practitioners to for a discovery (No 2) (Discovery) 1999 (SI 233 of ask themselves whether they really need to make order 1999), applicants for discovery are an application for discovery. In addition, the

MAIN POINTS required to first serve the respondent Master of the High Court, Edmond Honohan, Uwith a letter specifying ‘the precise has struck down many applications and made an categories of documents required and … the order for costs against the relevant applicant on reasons why each category of document is the grounds that the letter seeking discovery required’. failed to sufficiently identify the documents In order to successfully obtain discovery of a sought and the reason why their discovery was particular category of document, applicants will needed. have to show, first, that the documents sought The proper way to make a successful discovery relate to issues of fact upon which the applicant application was discussed in a Gazette article must succeed if the case against the respondents is earlier this year (April issue, page 14), but the to be won and, second, that the case will not be master has asked that the following decisions be provable unless discovery of the documents is published in full in the magazine to further clarify ordered. the requirements for practitioners. Eileen McCord (plaintiff) and Dunnes Stores (Tralee) Limited 16 OCTOBER 2003 he plaintiff commenced proceedings just short of three years after an injury to his or her person, his state of health after the accident will of Taccident at her place of work, which she alleges caused her serious course also be a central issue. The plaintiff will be highlighting the latter, injury, injury such that she was ‘forced to discontinue her employment’ while the defendant will be emphasising the former, if it is to his (particulars 26) and is claiming loss of earnings ‘from the date of the advantage to do so. accident’ (particulars 24). The plaintiff was (in December 1997) descending the stairs, lost her This is an application by the defendant for discovery of the plaintiff’s footing (falling backwards?), and ending six or seven steps further medical records. Two categories are sought, pre- and post-accident, down, having bruised her buttocks and lower back. She carried on, roughly speaking. The plaintiff has refused voluntary discovery, and there ‘battling with severe pain in her back’, until her GP prescribed is an exchange of affidavits. analgesia and rest. She was disabled by reduced and painful spinal Strictly speaking, it is not necessary either for the applicant to put on movement with reduced straight-leg raising on the left side, through oath a summary of the plaintiff’s case or the existence of issues as an February and March 1998. She is ‘still’ (August 2001) unable to work, end product of the exchange of pleadings. The pleadings themselves will physiotherapy notwithstanding, and is under the care of a pain be read and the factual allegations therein will (however fanciful or specialist. farfetched) be taken as those which the alleging party wishes to prove if Presenting herself to the defendant’s doctor in June 1999, the he can. The facts do not need to be proved now (by affidavit) but at the plaintiff’s complaints were of low-back pain radiating down the left leg. trial. Contrariwise, it is not necessary at this stage to swear the untruth She also complained of pain in the back of the neck with occipital of such allegations. headaches. The doctor’s view is that ‘her current symptoms are now Nor should solicitors set out their legal submissions in the solemn directly related to chronic osteoarthritis … the accident of December form of an affidavit. Affidavits are to be used sparingly, to assert, as 1997 is unlikely to have significantly altered the progression of her fact, circumstances which are the basis of a ‘necessity’ prompting the chronic osteoarthritis over the years’. application for discovery or (in reply thereto) of a factual circumstance The defendant’s solicitor draws the attention of the court to his which may diminish the validity of the applicant’s such assertion. doctor’s report to him that the plaintiff’s consultant orthopaedic If a plaintiff alleges that he had suffered an injury to his or her surgeon advised him that in September 1998 the plaintiff gave a person, his state of health immediately prior to the accident will be history of low-back pain ‘which started a few weeks ago’, and gave ‘no inquired into by the court. If a plaintiff alleges that he has suffered an history of a trauma or fall’. The plaintiff’s solicitor says that this is

18 Law Society Gazette December 2003 Litigation CHANNELS

(defendant) [2000/1409P]

hearsay, and so it is, but it is still enough to prompt a request for solicitor asserts privilege. While I am not concerned with privilege (it is discovery. not a factor inhibiting discoverability as such), it may be useful to The request also encompasses records of an assessment of the comment here that this contention only applies in respect of documents plaintiff in August 1998, in which the consultant apparently saw a note prepared in contemplation of litigation. Many post-accident records are of that the plaintiff complained of ‘chronic back pain for many years’. a more mundane character and will be discoverable. In particular, The plaintiff’s solicitor is incorrect in her view (para 12 of her affidavit) admission records and treatment notes will have been prepared for that ‘no burden is placed on the defendant to disprove’ the plaintiff’s standard hospital files and in-house communications. Even where a injuries. She has perhaps overlooked the defendant’s specific plea that professional has been consulted with a view to his assessing the the injuries are derived from a pre-existing condition. But she is correct plaintiff’s condition and ultimately offering evidence, it seems rather to state (para 13) that this is not a matter that can be ‘resolved’ by the pointless to claim privilege when that professional’s report will ultimately production of medical notes and records, but only on oral evidence. Quite have to be furnished pre-trial. Some of the content of the so, and to allow the defendant’s expert witness to offer such evidence, correspondence between the solicitor and the professional may be he will have to be afforded access to the documents. privileged, but the records forming the basis of the professional’s report In general, pre-accident records will be discoverable only on a limited should be available to both sides: how else is the value of the report to basis, particularly in terms of time frame. It is a snapshot of the be challenged? plaintiff’s health as at the date of the accident, which is being put Practitioners (and the court) must now give effect to the dicta of the together by the defendant. Early history, resolved conditions, childhood Supreme Court in last July’s decision in McGrory v ESB. In the course of ailments and the like are usually immaterial. Asymptomatic conditions or this judgment, the chief justice confirmed that: ‘The court must be able predispositions may be candidates for discovery, but only when their to ensure that the defendant has access to any relevant medical records materiality can be demonstrated, or stands to reason. If a 12 or 18- and to obtain from the treating doctors any information they may have month search produces no written records of ailment, earlier history will relevant to the plaintiff’s medical condition … There is no room today in (in the absence of expert evidence to the contrary) be unhelpful in the properly conducted litigation for an approach which denies one side depiction of the plaintiff’s immediate pre-accident state of health. In this access to relevant material which in any event will be available at a later case, I have clear evidence to the effect that earlier history is significant. stage of the proceedings’. In answer to the request for post-accident records, the plaintiff’s I will make the discovery order sought by the defendant.

19 Law Society Gazette December 2003 Litigation

Rose Ann Hardiman (plaintiff) and Eastern Regional Health Authority 17 OCTOBER 2003

his is an application by the plaintiff for discovery of five (categories and that patients should have been required to wear a ‘stout belt’ Tof) documents. In brief, these are: which could be grasped and held by the plaintiff to prevent a fall. a) The accident report form In the particulars of personal injury, the plaintiff’s complaints are of b) The safety statement a painful right arm, especially the elbow. X-rayed in Tallaght in c) Records of training and instruction of the plaintiff September 2000 (three years post-accident), minor osteoarthritic d) The size, weight and medical condition of a named in-patient changes were noted in this elbow. Pain had become worse over time, e) As to ‘the decision to retire the plaintiff early on medical grounds’. extending to the right wrist and shoulder, limiting extension at the elbow joint and causing difficulties with housework and a forced The plaintiff was employed in an old folks’ home as a care attendant. retirement from work. Both the incidents to which she ascribes her injuries involved the The plaintiff’s particulars of carelessness on the part of the same elderly resident and occurred, one week apart, in December defendant recite (a), (b), (c), (d) and (j) allegations of a non-specific 1997, just before Christmas. In the first incident, the resident was variety which could not possibly be the starting point for a discovery being helped to get up off a chair and stand, but ‘leaned on the application: for example, ‘exposing the plaintiff to a risk (unspecified) plaintiff’s right arm and transferred her weight onto the plaintiff’. In of damage or injury of which they knew or ought to have known’, or the second, the resident, upright and supported by a zimmerframe, ‘being in breach of section 67 of the Factories Act, 1955 as ‘staggered and let go of the frame’ and the plaintiff ‘by linking with her amended’. The pointless listing of general complaints is concluded right arm … had to take the full weight of the resident’ to prevent a with reference (k) to all the Safety, Health and Welfare (General fall. Application) Regulations 1993 and in particular six of them, including The plaintiff says the defendant could – and should in the due manual handling of loads and sudden movement of the load. exercise of reasonable care – have prevented both these accidents by Whether any of this has any bearing on the plaintiff’s case is employing at least two male employees to assist the plaintiff in her difficult to tell. The plaintiff may have had to unexpectedly ‘take’ the work. I don’t think the court will be overly impressed with this full weight of the ‘load’, but she was not knocked down and indeed suggestion. The plaintiff also alleges that she was required to lift a there is no description of any linkage between ‘taking the weight’ and patient (surely inconsistent with the accident as earlier described?) the injury to the elbow joint.

David Kelly (plaintiff) and Mona (Ireland) Limited (defendant) [1999/ 21 OCTOBER 2003

ccident at work, 20 February 1998. Statement of claim, May 1999. accessing the defendant’s files? And, if not: what category of the AParticulars requested and supplied. Defence filed January 2000. defendant’s documents may yield up evidence of the missing pieces of Contributory negligence alleged – ‘using a forklift truck in contravention the jigsaw? of specific instructions’. Time passes … then, August 2002, a letter: In this case, the letter requesting voluntary discovery, and the ‘please note that my client will be contending the hearing of the case grounding affidavit, specify as reasons for the request various that he has worked with forklifts in the past and in the presence of his allegations by the plaintiff, using the formula (under the heading boss and with the knowledge of his superiors’. Finally, March 2003, a ‘reason’): ‘the plaintiff alleges … the plaintiff also alleges … and request for discovery of documents. these documents are relevant for that reason … (or) … accordingly this Three categories of document are sought as follows: category is necessary’. a) Training and instruction for the use of the forklift, including specific Clearly, this is not enough. Discovery will, of course, only be ordered instructions not to use of documents which contain (or may lead to) evidence concerning b) The forklift – use and control of; safety and instruction manuals; (material and) relevant facts which are in issue, but relevance is no maintenance and modification, especially the switching longer the only key to discovery. There is a second matter in respect of c) Safety statements, risk assessment, supervision and staff records. which the court must also be satisfied on affidavit. It is that, in the particular circumstances deposed to, discovery is necessary to enable It is quite apparent from this, and many, many other such letters in the requesting party to prove a disputed material fact. Put another way, other cases, that practitioners have been in the habit of responding to that the requesting party is critically hampered in the presentation of the requirements of specificity in relation to discovery requests by first his case unless he is given access to the requested documents. Put identifying categories of documents which would have come their way even more simply, that in the particular circumstances deposed to, he in the old days of general discovery, and having listed them, then turn needs access to the defendant’s documents as his only source of their minds to figuring out some stateable ‘reason’ as to why they proof of a disputed material/casual fact. ‘need’ them. This is putting the cart before the horse. Practitioners There are no such circumstances deposed to here or indeed ought to first ask themselves: what evidence am I missing which is circumstances of any description. Consequently, the respondent is crucial to the client’s claim? Then: can I get this evidence without unable to controvert such evidence, and the court is unable to judge

20 Law Society Gazette December 2003 Litigation

(defendant) [2003/8911P]

And so we come to the only issue which I have to decide, which is A final comment: in cases where ‘necessity’ is not self-evident, the whether or not the plaintiff needs to know the weight of the resident court would not have to inform itself as to the ‘necessity’ for discovery who fell against her. It is correct, I think, to say that where the resident if the applicant deposed to the factual basis of such a contention. had her feet on the ground, the actual weight applied sidewards Deposing to ‘necessity’ arising merely out of the existence of an issue against the plaintiff would be significantly less than the resident’s full is of no use – the court can read the pleadings for itself and deduce weight, and the closer to each other the two were standing, the less what allegations are in issue. The solicitor’s opinion as to necessity (or was the weight applied sidewards. One must presume that the plaintiff even the much-favoured hearsay ‘opinion of senior counsel’s carer, in the due performance of her duties, stood quite close to the averment), even on affidavit, does not itself establish necessity and resident. It follows that the actual full weight of the resident is of little can, and often is, easily demonstrated to be incorrect – the court practical assistance to the court or to the plaintiff, particularly where usually prefers its own opinion! The only solid evidence of the necessity the plaintiff can offer her own evidence of whether the resident was to have access to certain documents is the testimony of the expert significantly above or below average weight for elderly persons. That is witness who deposes to being unable to form a considered view on the likely to be as accurate a guess as to sidewards force as will be dispute without whatever data the documents may reveal. In turn, that available to the court. expert’s averment (or exhibited report) may prompt a replying affidavit Note, in that regard, that the plaintiff feels she could have from an equally qualified witness disputing its conclusion. (Of course, restrained the resident by holding only the ‘stout belt’ she has the court may not be satisfied as to the materiality of the disputed fact recommended in her particulars of negligence, so the resident couldn’t and may feel inclined to refuse discovery on that basis alone.) have been that heavy! In cases where the ‘necessity’ to prove a fact is incontrovertibly self- As for categories 1, 2, 3 and 5, the defendant is consenting to an evident (and the fact is obviously material) and it is also clear that the order with slight modifications to 2 and 3. I’m going to delete the evidence cannot be sourced other than by discovery, the court will not reference in category 5 to the ‘decision to retire the plaintiff early on waste costs by insisting on formal averments of the logical basis of medical grounds’, since no such decision on the part of the defendant such self-evident necessity. In such circumstances, however, the party is alleged – in point of fact, the plaintiff records that she herself retired seeking discovery is unlikely to be awarded the costs of the early from the job. application. /833P]

the matter, except by guesswork purely on the basis of the accident Then there is the second category. Actually, more like a number of description found in the pleadings. If I guess wrong, a fresh application clearly distinguishable categories, but with a common subject matter: can be brought. If I am right, then perhaps I may have saved a set of the forklift. But the plaintiff’s evidential problem apparently (quoting costs. from the ‘reason’ offered) relates to the employer’s failure to switch This apprentice plumber got up onto a ‘live’ forklift truck and set it off the forklift, leaving it harmless to persons not authorised (and key- in motion. It reversed (’perhaps’) and ran into or alongside the equipped) to use it. This case is, of course, completely at variance with guillotine machine nearby, trapping the plaintiff’s leg against the the plaintiff’s assertion that he had de facto authorisation, but a machine’s depth gauge and causing serious damage to the plaintiff’s plaintiff is, of course, entitled to plead in the alternative. That said, left lower leg bones and adjacent muscles. Initially in and out of however, it is clearly self-evident that the forklift was ‘live’: the accident consciousness, the plaintiff had a pin inserted and remained as an in- could not have occurred otherwise. Discovery of none of the patient for eight days. The pin had to be replaced on a later occasion. documents sought is necessary. He may be left with damaged toes and a risk of arthritis. Finally, an old favourite – safety statements and risk assessment. The defendant says the apprentice was specifically instructed not to The reason offered is not the usual one, viz, to prove the defendant’s attempt to drive the forklift. The plaintiff, on the other hand, blames state of knowledge (not itself a material fact which the plaintiff must the accident on the fact that the forklift was ‘live’ (instead of being prove to succeed) but to prove the employer’s failure to provide a switched off) and that he was not trained as to its use, and so on and safety statement or to have a risk assessment when so providing. so forth. These specific circumstances are non-causal – they are facts which, We may take it, I think, from the defendant’s stance outlined above, though alleged and denied, are surplus to the issues the court will that indeed the plaintiff was not trained in the use of the forklift. Their determine. General non-specific breaches of the acts, insufficient staff case is that he was warned off it altogether. So the first category is and supervision are also cited – these are not specific enough for not necessary: the defendant will not be making the case that the discovery purposes. Discovery in respect of non-specific pleas is the plaintiff was trained. Whether the specific instruction alleged by the classic instance of ‘fishing’ – plead in general terms, then hope defendant was or was not recorded in writing will not dilute the something turns up on discovery! plaintiff’s evidence that he had de facto authorisation. The application for discovery is dismissed with costs.

21 Law Society Gazette December 2003 Litigation John Flaherty (plaintiff) and Cannon Concrete Products Limited (defendant) [2002/2477P] 9 OCTOBER 2003 he plaintiff’s solicitor’s affidavit contains the following description of Tthe accident which occurred in January 2001: ‘the plaintiff was descending a ladder which was secured to a machine when the said ladder became detached on one side from the said machine and swung out pivoting on pinned fixings on the other side in consequence whereof the plaintiff fell’.

The plaintiff now seeks discovery of four categories of document: a) Three years’ repair and maintenance records for the ladder b) ’Damages and defects’ in the said ladder during that period c) Accident report d) Safety statement.

In both the letter requesting discovery and in the affidavit grounding the application, the reasons advanced for this discovery consist only of the obvious, namely, because the plaintiff is making an allegation which is denied. Why has the solicitor not deposed to any difficulty in proving a disputed fact? Perhaps on due consideration of her client’s instructions, her engineer’s report and the advices of counsel, it was not possible for her to depose to any particular gap in the evidence available or to any ‘need’ to access the defendant’s files. The case is actually about a ladder which was defective in a particular sense – that is to say, not a design defect, but rather that (because of an earlier accident and a makeshift repair) it was unsafe. There may be an issue as to whether the plaintiff’s loss of footing was as a result of the ladder becoming detached on one side and swinging or whether the foot slipped because of inappropriate footwear, Nor can I ignore Mr Robins’ observation that ‘the cause of this accident but I am not concerned with the latter proposition. was the defective ladder, and while querist will undoubtedly be criticised To make sense of the plaintiff’s request for discovery in relation to for effecting the makeshift repair, the obligation was not on him but on ‘damage’, ‘defects’ and ‘repair’, I have to trawl through the particulars his employer to repair it’, from which I cannot but deduce that the for specifics. plaintiff’s instructions confirmed that some time before the accident he At (1), we find the following: ‘allowed or permitted the said ladder to himself made the temporary repair of the ladder described in the be repaired in a makeshift fashion’, and this points to the real alleged engineer’s report. It follows that the plaintiff is particularly well placed cause of the accident, and presumably prompted the request for to describe the condition of the damaged ladder before and after the discovery of categories (a) and (b). There is no other fact alleged with temporary repair. sufficient particularity which could serve as the basis for such discovery This plaintiff has no need to discover the defendant’s records for requests. three years pre-accident of the repair, maintenance, damage and/or I cannot, however, ignore the fact that the plaintiff was in a position defects in the ladder. Obviously, the plaintiff’s solicitor was correct in to furnish his own engineer with a full description of the accident and of not deposing to the contrary. the condition of the ladder. He ‘outlined the condition of the ladder at As for the accident report, access to same is being sought (although the time’ to the engineer on 5 July 2001, and the engineer has been senior counsel did not consider it necessary) just to see what’s in it. As able to complete his analysis and form his conclusions accordingly. with requests for safety statements, the ubiquity of requests for same is (Although he states that the safety statement and any risk assessment the product of the practice of agreeing to discover same because (a) ‘should be obtained’, this has not prevented him from forming an expert they are compact and identifiable, and (b) because it’s less bothersome opinion; in any event, the contents of such documents merely serve to to agree to discovery than to embark on a dispute about relevance. establish an undeniable state of knowledge on the part of the Failure to dispute relevance, however, leads to an expectation (indeed, defendant, but such knowledge is not a material fact in the case – often an ‘entitlement’) on the part of the party requesting discovery. ignorance of the risk is no answer to the plaintiff’s claim.) Unless a party is able to depose to an evidential lacuna which may be My general conclusions in regard to the foregoing are borne out by overcome via discovery of these documents (or part thereof), discovery the opinion of Ronnie Robins, senior counsel for the plaintiff, which will not be ordered. Even if there is a lacuna, it is necessary to satisfy ended up in front of me. (I won’t here disclose anything of interest to the court as to the nature of the evidence which discovery may lead to, the defence.) What is of interest to me is that he directed that discovery and as to the materiality, or even causality, of the fact of which the of documents be sought in two categories only, namely as to: evidence may be probative. For example, the fact that there is no 1) How and when the ladder was damaged reference in the safety statement to the risk of which the plaintiff fell 2) As and when repairs were carried out and the nature of the same and foul is not itself evidence of causal negligence – nor indeed is the fact who they were carried out by. that there is no safety statement at all! G

22 Law Society Gazette December 2003 Advocacy

Faston your feet

You may never need to argue a case in court but, as a lawyer, you should certainly be able to. That’s the rationale behind the Law Society’s advanced advocacy training for solicitors. Kathy Burke talks to a husband-and-wife team about their experiences on the course

magine that you are in court with your client O’Riada is a partner in the Dublin law firm • Evidence and your case has been called, but your barrister O’Riada Solicitors and specialises in litigation and lectures hasn’t arrived and his mobile phone is turned personal injury. She saw the advanced advocacy • Dealing with off. You know your case inside out. So how do course advertised in the Gazette at an opportune expert you feel about standing up and arguing it time, soon after that barrister’s no-show. It seemed witnesses I yourself? to suit her expertise, and she was one of 25 • Advanced This is the situation that Jennifer O’Riada found successful applicants on the first course in 2002. advocacy herself in, and the experience prompted her to ‘I never had any problem making applications in course 2004 undertake the Advanced advocacy for solicitors course. any court, but running a case is different’, she says. MAIN POINTS The course is run by the American National ‘If you are not up-to-date with the rules of evidence, Institute for Trial Advocacy (NITA) and is organised and have not honed and refined the techniques in Ireland by the Law Society’s continuing involved in examining and cross-examining a client, professional development section. summing up and arguing points of law before a NITA is a not-for-profit organisation, set up in judge, you are at a distinct disadvantage when your 1970 to improve the quality of courtroom advocacy. opponent does it on a daily basis’. Its mission statement acknowledges that ‘all people are entitled to quality legal representation by skilled The actor in everyone and ethical lawyers’ and commits itself to making The advanced advocacy course has two parts. Before education and training materials available to all the five-day practical part, barrister Paul Anthony lawyers, regardless of their ability to pay. McDermott gives seminars on the rules of evidence.

23 Law Society Gazette December 2003 Advocacy

understanding the advocate’s skill has allowed her to ADVANCED ADVOCACY know if the barrister she is instructing is doing a good job. ‘It can be hard to tell if they have got FOR SOLICITORS 2004 across to the judge one of the points you need them The September 2003 group will be invited to apply for a place on the weekend to get across. This is a skill you get from the course’, course from 11 to 14 March 2004 in Newcastle, Co Down. This course will be she says. attended by members of the law societies of Ireland, Northern Ireland and the Impressed by the first course, she took part in the Scottish Society of Solicitor Advocates. follow-up weekend course in Cavan in March, and A brochure with details and an application form for the 2004 advanced advocacy then trained to be a tutor for the 2003 group in course be sent to all solicitors with the January CPD brochure. The evidence September. Her husband Philip O’Riada, also a lectures will take place on Wednesday 21 and 28 April and 5 and 12 May 2004. partner at the firm, was in the 2003 group. ‘I heard The five-day advocacy component begins on Monday 13 September 2004. The very positive reports’, he said, ‘and saw people that I closing date for applications is Wednesday 11 February 2004. knew to be busy, competent colleagues ready to go back, giving freely of their time to act as tutors. That impressed me, as everyone is so pressurised In the first year, there were seven weekly two-hour these days’. lectures. This year, to facilitate colleagues who had Philip specialises in conveyancing and probate, to travel further to attend, the series was organised mainly for small-to-medium enterprises, which does into four three-hour lectures. According to O’Riada, not involve much time on his feet in the courtroom. these lectures are perfect for a solicitor who has not Nonetheless, he saw a value in doing the course. studied the law of evidence for some time. Ironically, ‘What we learnt helps in case conferencing, where she adds, McDermott gave the students specific case we analyse the case with clients’, he says. ‘They are law from the English Appellate Courts that, had she impressed by our structured approach’. known it just weeks earlier, would have allowed a Furthermore, he points out, in the growing judge to rule in her favour on the admission of video number of quasi-judicial forums, such as the evidence in the High Court. Employment Appeals Tribunal and the proposed The practical part of the course involves case Personal Injuries Assessment Board, clients expect analysis, followed by moot trials. The NITA tutors their solicitors to be able to represent them, because help participants to analyse the particular case on clients can’t always afford to instruct a barrister as two levels: first for points of law, and then from the well. perspective of how to present these in the tight Communication skills were a new addition to the framework of the court. They analyse the other side’s 2003 course and will be continued in the future. A ’Irish lawyers strong points and anticipate the weaknesses in their communications expert, who is not a lawyer but who are notorious own case, which, O’Riada stresses, is very important. understands courtroom technique, came from The course covers direct and cross-examination, America to instruct the group. Participants are for not opening statements and summing up, and other taught to use body language appropriately. Jennifer looking at techniques such as the manner and order in which gives an example of where some lawyers don’t: ‘Irish witnesses are presented. lawyers are notorious for not looking at the witness the witness NITA’s courses are based on ‘learning-by-doing’. during cross-examination. Even senior counsel do during cross- Tutors give instructions based around a complex it’. Softly-spoken people are taught to speak out so fictional case file. Participants put theory into that they can be heard, while more voluble examination’ practice in video-recorded mock trials in a simulated participants are encouraged to key down so as not to courtroom environment, which features trainee or appear aggressive. ‘They make it very clear to you newly-qualified solicitors and accountants playing that there are both intellectual and emotional the roles of witnesses and expert witnesses. NITA agendas to be achieved’, says Philip O’Riada. ‘About tutors, supported by Irish tutors, assess the individual 70% of all communication is non-verbal. This can participant’s performance. The final ‘trial’ takes place come as a shock to lawyers!’ in the Four Courts in front of real High Court and Circuit Court judges. Bonfire of the vanities Jennifer admits that she was apprehensive before Today, employers routinely send staff on the practical part – most of all, of making a fool of communication courses. This means that advocates herself in front of her peers and then having to have to deal with increasingly sophisticated witnesses watch it on video. ‘I realised that I was not alone’, who, in some cases, can project themselves more she says, ‘the beauty of the course is that you effectively than the lawyers. In addition, says Philip, measure yourself against yourself; you see real ‘younger solicitors are getting more structured improvement, and as you get better, you get more training and becoming more formidable competitors confident’. than would have traditionally been the case’. Dealing with expert witnesses was another Off-stage action enhanced element in the 2003 course. Lawyers with Being left in the lurch by counsel is rare, and not the a literary rather than a mathematical bent can have only reason for a solicitor to study the skills of problems examining expert witnesses who give advocacy. Jennifer O’Riada points out that reports and evidence in technical language.

24 Law Society Gazette December 2003 Advocacy

Participants were taught how to approach this situation and it was emphasised that expert witnesses were there to clarify issues for the court, not to add to confusion. Some participants have commented on the fact that NITA was originally designed for the US legal system, which has distinct differences to our own. For example, there are fewer jury trials in Ireland. We also have a different style of opening statement, if any, and the traditional division of the roles of solicitors and barristers does not exist in the United States. But according to Jennifer O’Riada, this does not matter. ‘The minutiae of the course are not important; you are learning the fundamental techniques’, she says. And Philip adds: ‘Our legal system looks for the best legal solutions available. Participants and tutors Whether they are found in Canada, New Zealand, from the 2003 group Both of the O’Riadas have a piece of advice for the US or another common-law jurisdiction, they (Philip O’Riada, second the participants on next year’s course. The five-day could be here tomorrow. This course will improve row, far right) practical course requires you to take a full week away the quality of law practised in this jurisdiction, for from your office, which can be difficult. If possible, the benefit of all concerned’. get someone to cover for you. A huge amount of Solicitors have a right of audience in all Irish preparatory work must be done each evening for the courts. According to Jennifer, outside the Pale few next day, and they emphasise that there is no solicitors will instruct a barrister at District or question of winging it. ‘I had visions of slipping out Circuit Court level, but in Dublin the practice is at breaks to ring the office’, Philip recalls, ‘but you widespread. She feels strongly that this situation cannot do both’. needs to change. ‘It’s not about doing the work that ‘It is exhausting’, Jennifer concludes, ‘but I have barristers do’, she explains. ‘It’s about being never felt so intellectually stimulated by anything to competent to represent your client if you need to’. do with the law since I qualified’. G

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25 Law Society Gazette December 2003 Probate

In her third and final article on post-death planning, Anne Stephenson discusses the capital acquisitions and residential property tax consequences of deeds of family arrangements and the solicitor’s role in protecting the personal representative

he capital acquisitions tax (CAT) • CAT and implications of deeds of family residential arrangement must be thought through property tax carefully. Where the consideration in • Secondary such a document or deed is that of liability T natural love and affection, be particularly careful • Protecting the about the value at which the property is transferred personal for the purposes of the family arrangement. representative Remember that you will have filed a value in the MAIN POINTS schedule of assets as at the date of death. In a deed of family arrangement, two possible charges to CAT arise: •Inheritance tax: payable on the inheritance from the deceased to the beneficiary • Gift tax: payable if the family member receiving the property has not paid full consideration to the beneficiary.

Certificates of discharge in respect of both dispositions will be required. It is our job as solicitors to ensure that the personal representative is fully protected. We must keep in mind that while the donee is primarily liable for the payment of this tax, the personal representative and the disponer are secondarily liable. Section 8 of the 2003 Capital Acquisitions Tax Consolidation Act would not apply to a family arrangement because the initial disposition was not a gift, but could arise later (see below).

Death becomes her The disponer – one of the children in the example DEADEA given in last month’s issue – is secondarily liable for payment of CAT by the donees. On a future disposition by the donees, they will have to produce certificates of discharge from CAT both in respect of the gift and the voluntary disposition. And they will also have to prove that the disponer survived the execution of the deed by more than two years. In this regard, section 8 of the Capital Acquisitions Tax Consolidation Act, 2003 says: ‘Where a donee takes a gift under a disposition made by a disponer (in this section referred to as the original disponer) and, within the period commencing three years before and ending three years after the date of that gift,

26 Law Society Gazette December 2003 Probate

POST-DEATH PLANNING

the donee makes a disposition under which a second donee takes a gift and whether or not the second donee makes a disposition within the same period under which a third donee takes a gift, and so on, each donee is deemed to take a gift from the original disponer (and not from the immediate disponer under whose disposition the gift was taken) and a gift so deemed to be taken is deemed to be an inheritance (and not a gift) taken by the donee, as successor, from the original disponer if: a) The original disponer dies within two years after the date of the disposition made by that original disponer, and b) The date of the disposition was on or after 1 April 1975’.

In other words, if a sale takes place within two years from the date of the deed, the purchaser will require an indemnity in the form of an insurance bond against the eventuality of inheritance tax becoming payable by reason of the death of the disponer within a two-year period. You need to advise your client of the tax implications of the proposed voluntary disposition from the perspective both of the disponer and that of the donee. However, you can only act for one AND TAXES ATHATH party, because if you act for all parties involved there is an inherent conflict of interest. While the donee of the gift is the person primarily accountable for gift tax payable in connection with the gift of the disponer, as already mentioned, the donor is secondarily accountable for payment of such gift tax. Therefore, it is in the interest of the disponer to ensure that any gift tax payable is discharged by the donee, and it is your responsibility to inform the disponer of this. Should the property be sold or mortgaged within 12 years of the date of the gift or the date of the inheritance, the purchaser or ’There are only two certainties in life’... and one of them is that you don’t want this fella turning up at your door mortgagee will insist on an absolute certificate of discharge from CAT.

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ADVISING THE or the application of the property, or d) Any other event which, under a disposition, affects the PERSONAL REPRESENTATIVE right to property, or to the enjoyment of that property’. The role of a personal representative is daunting and – considering his responsibility and the liability to the estate, the beneficiaries and the Revenue This means that a person is also deemed to take ‘on a Commissioners – it is a wonder that any personal representative accepts the role in death’ where a disponer dies within two years of the first place. Very often, the implications of his role are not properly pointed out making the gift. to him. He quite rightly depends on the solicitor to protect him in executing that function. Buried in paper One of the most common reasons for a personal representative getting into Depending upon the individual circumstances, a trouble is forgetting what he was originally appointed and empowered to do under clearance certificate in respect of residential property the will or under the Succession Act, 1965. His role is to protect and administer the tax (RPT) may also be necessary. RPT was an annual estate, and ultimately to vest the estate in the persons entitled. In the absence of tax payable by a person who owned and occupied any legislation governing the variation of wills in this jurisdiction, it is not the relevant residential property in Ireland up to 5 April function of the personal representative to vary or alter the circumstances on death of each year. A return of all relevant residential or to go further than he is obliged to do. property on a form RP1 had to be submitted each Straightforward administrations can be brought to a standstill, or indeed a stand year between 5 April 1983 and 5 April 1996. off, by disputes between the personal representative and the beneficiaries over Although RPT has been abolished with effect from family arrangements. In many cases where a personal representative is under 5 April 1997, a clearance certificate procedure remains pressure to go along with the ‘better plan’, the central function of the personal in place in relation to the sale of certain residential representative is overlooked. He is then bound up in the personal affairs of the properties in order to help the Revenue beneficiaries which, at the very least, can result in a conflict of interest. Commissioners to collect outstanding tax. One has to ask, in relation to deeds of family arrangements in particular, would The value threshold relating to the residential the personal representative have been better off vesting (and, in the process, property tax certificate of clearance has been increased obtaining receipts and indemnities) and letting the beneficiaries get on with to €1 million in accordance with the indexation whatever they wished to do from that point onwards? I believe there is a real need provisions in the legislation. Where the sale for us as practitioners to advise the personal representative on how his role should consideration for residential property exceeds be discharged, not to encourage variations of the will that expose him to €1,000,000, the vendor must provide the purchaser considerable additional, and sometimes unnecessary, liability. with a certificate from the Revenue Commissioners In family situations, the tendency is for the personal representative to help. I am indicating that all residential property tax due for of the view that in assisting without due care, an unnecessary layer is added to the years for which the tax was in operation has been paid role of the personal representative, and we take on an unnecessary liability. (see the Conveyancing Committee’s practice note in the May 2002 issue of the Gazette, page 33). When the voluntary disposition has been completed However, if the property was acquired after 5 April and the deed stamped and adjudicated, you should 1996, no RPT clearance certificate is required, ensure that the donee applies for a certificate of irrespective of the amount of the consideration. discharge from gift tax. If the disponer dies within two Section 135 of the Finance Act, 2000 provides that years of the taking the gift, that is, the date of the where a sale of an estate or interest in residential conveyance, the donee is deemed to take ‘on her death’. property is completed after 10 February 2000, the Section 3(1) of the 2003 act says: requirement to obtain a clearance certificate will not ‘1) In this act, “on a death” in relation to a person becoming apply where such estate or interest had previously beneficially entitled in possession, means: been acquired after the 5 April 1996 by a bona fide a) On the death of a person or at a time ascertainable purchaser for value. only by reference to the death of a person Always remember who you are acting for. If it is b) Under a disposition where the date of the disposition is the legal personal representative, are you adequately the date of the death of the disponer protecting him? If you are acting for the legal c) Under a disposition where the date of the disposition is personal representative, you cannot also act for the on or after 1 April 1975, and within two years prior to beneficiaries. If you act for the beneficiaries, the death of the disponer, or remember that you cannot act for all of the d) On the happening, after the cesser of an intervening beneficiaries simultaneously as there is a clear life interest, of any such event as is referred to in sub- conflict of interest. There are a few other situations section (2). that can arise in an administration of an estate, with 2) The events referred to in sub-section 1(d) are any of the the possible exception of disclaimers or a section 117 following: action, which can cause you to forget who you are a) The determination or failure of any charge, estate, acting for or, at best, end up advising various parties interest or trust with different interests. b) The exercise of a special power of appointment Mary Laffoy’s Irish conveyancing precedents gives an c) In the case where a benefit was given under a excellent precedent for a deed of family arrangement disposition in such terms that the amount or value of the at precedent J24. G benefit could only be ascertained from time to time by the actual payment or application of property for the purpose Anne Stephenson is the principal of the Dublin law firm of giving effect to the benefit, the making of any payment Fallon and Stephenson.

29 Law Society Gazette December 2003 Legal executives

The Irish Institute of Legal Executives has had a busy year. Its continuing professional development programme was launched in October, while the first batch of graduates from its new diploma programme will be conferred this month. Naomi Murphy explains EXEC

legal executive is a professional person perform their duties in accordance with the highest who is a member of the Irish Institute standards of integrity and conduct, as required by the of Legal Executives (ILEX) and assists legal profession and the institute’s code of rules. in the operation of general and ILEX is recognised throughout Ireland and A specialist legal matters with solicitors, membership almost doubled in 2003. It now stands at barristers, in the Irish courts and in other areas of 350 members. commercial and legal practice. Legal executives must This year, the institute has focused a lot of its LEGAL EXECUTIVE COURSE CONTENT The Legal executive professional legal studies Stage two Further information programme includes the following modules: • Legal research, writing and Legal executives interested in becoming Stage one communication skills members of the institute or in learning more • The Irish legal system • The law of real property, conveyancing about ILEX’s certificate and diploma • Introduction to the law of tort and succession programmes should see the flyer enclosed in • Introduction to contract law • Business law this issue of the Gazette or contact the Irish • Civil litigation, procedure and case • Elements of family law and procedure Institute of Legal Executives, 22/24 Lower management (elective) Mount St, Dublin 2 (DX no 17). Alternatively, • Criminal law, the constitution and judicial •Criminal procedure and litigation you can contact Philip Burke, head of the review. (elective). professional law school at Griffith College Dublin, South Circular Road, Dublin 8, tel: 01 On completion of stage one, students will On completion of stage two, students will 416 3341, e-mail: [email protected], or attempt a two-hour examination in each attempt one three-hour examination in each Pamela Morton, course administrator, tel: 01 module. module. 415 0442, e-mail: [email protected].

30 Law Society Gazette December 2003 Legal executives

energy on organising continuing professional the week ending Friday 4 June. The course entails development courses for its members, non-members four hours of lectures per evening, for one evening a • Irish Institute and students. The launch of its CPD courses took week. Lectures for stage one will take place on of Legal place on Thursday 16 and Thursday 23 October. Tuesday evenings from 6pm to 10pm. Lectures for Executives The first CPD course included a lecture on the law stage two will be held on Wednesday evenings from • Launch of CPD of torts, consisting of recent developments 6pm to 10pm. programme concerning the Statute of Limitations and also asbestos The student who attains the highest marks on • ILEX course litigation. Also included was a lecture on company completion of stage two will be awarded the Frank content

law, which covered the impact of the Corporate Law Crummey Perpetual Trophy. This award is named in MAIN POINTS Enforcement Act, 2001 together with the Section 150 honour of Frank Crummey, one of the founding list: practice and procedure. Relevant recent case law was members of the institute and an active council discussed in both areas. The speakers on the night member who has tirelessly given his time to the were Vincent Nolan BL and Andrew Fitzpatrick BL. institute down through the years. Griffith College has The second course was in conveyancing and the agreed to waive the stage-two course fee for the speaker was Cathleen Noctor BL. Among the issues student who is awarded the highest grade-point considered were common causes of action and average in stage one of the programme. remedies, including adverse possession, enforcing a contract for the sale of land and section 117 Full-time students applications. Recent case law on specific performance, Griffith College will enrol all full-time students on the statute of frauds, recission, and landlord and this programme as student members of the institute. tenant was also discussed in this lecture. Those intending to take the course on a full-time The Law Society has confirmed that solicitors who basis should be aware that Griffith College runs a attend the institute’s CPD lectures will have their scholarship scheme for deserving students who have time credited by the Law Society if the subject is both the talent and ability to enter a programme of study beneficial and relevant in their area of law. ILEX at the college but are unable to do so due to would like to thank the Law Society’s Education economic or social circumstances. The scheme is Committee for its assistance and for allowing the open to all students applying for full-time UTIVE CLASS

institute to host its CPD courses in Blackhall Place. undergraduate programmes and who are presently Any readers interested in attending courses in attending an approved second-level institution. particular areas are invited to contact the institute with suggestions. Hopefully, we can arrange to cover Distance learning such topics. More than a third of the students who have registered on the professional legal studies programme have Professional legal studies elected to take the distance-learning option. This year The role of the legal executive in professional legal sees the opening of a second examination centre in life continues to grow. The first batch of legal Cork for Munster-based ILEX students. executive students will be conferred this month at a Distance-learners will be supported in their study ceremony in the Royal Hospital Kilmainham, where by the provision of comprehensive course manuals, e- they will receive their diplomas in professional legal mail and telephone support. Homework is prescribed studies from Griffith College Dublin and ILEX. The for completion at the end of each module. Distance- course was established in 2001 and is run over a two- learning students are allocated their own distance- year period. Students receive a certificate in learning tutor for the duration of their study. professional legal studies on successful completion of Court visits will be organised as part of the civil stage one. litigation, procedure and case management module in Since the course’s inception, the course committee stage one. During stage two, students will visit Mount- has been guided by detailed feedback from students in joy prison as part of their criminal procedure module. an effort to keep the programme contemporary and Now in its third year, the course has so far attracted highly relevant to the needs of today’s legal executive over 300 students. G (see panel). The first stage of the programme begins in the Naomi Murphy is education officer at the Irish Institute of week of Monday 19 January 2004 and concludes in Legal Executives.

31 Law Society Gazette December 2003

Books Book reviews Health and safety: law and practice Geoffrey Shannon. Thompson Round Hall (2002), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-277-X. Price: €89.

t a time when solicitors are Health and Welfare at Work issued by the HSA), which are Arequired to be increasingly (Night Work and Shift Work) also important reference points conscious of health and safety Regulations 2000, the Safety, for practitioners. Another area law, this book provides an Health and Welfare at Work which is of benefit to solicitors, excellent point of reference. It (Children and Young Persons) in their capacity as employers covers a wide variety of Regulations 1998 and the Safety, or self-employed persons relevant and inter-related areas, Health and Welfare at Work themselves, and also for the including common-law duties (Construction) Regulations 2001, service that they provide to owed by employers to which Shannon discusses in clients, is the section which employees, occupier’s liability, detail. provides guidelines for drafting and the European Communities It is certainly a useful a safety statement. (Hygiene of Foodstuffs) discussion of the main duties All in all, the book provides Regulations 2000, as well as the and obligations imposed by a fantastic introduction to the area of health and safety law those regulations, as they very area of health and safety law itself. often form the basis of Health and will no doubt quickly The main piece of legislation and Safety Authority (HSA) become the first point of in the area, the Safety, Health prosecutions. Shannon harassment and stress in the reference for many and Welfare at Work Act, 1989, considers in some detail the workplace. practitioners when confronted is dealt with in detail. The Safety, Health and Welfare at The second half of the book by a client who seeks advice in regulations that solicitors in Work (General Application) usefully provides full texts of the area. G general practice may need to Regulations. As part of this the principal pieces of refer to most often are covered, discussion, he considers some legislation in the area and Barrett Chapman is a solicitor including the Maternity areas of more recent approved codes of practice and with the Dublin law firm Protection Act, 1994, the Safety, development, such as bullying, guidance material (mainly McCann FitzGerald.

Gaeilge agus bunreacht Séamus Ó Tuathail. Coisceim/Institúid na hÉireann (2002). Price: €5. Bunreacht na hÉireann: two texts or two constitutions? Micheál Ó Cearúil. Insitiúid na hÉireann (2003). Price: €5.

n the past, economic simply and devastatingly Beoláin v Fahy (2 Iliberalisation and demonstrate just how parochial IR 279 [2001]), competitiveness were seen as and out-dated such thinking is. Mr Justice militating against Irish. What They are proof, if proof were Hardiman prosecutions use is it? Wouldn’t students be needed, that a familiarity with pointed out that by the state. better off learning one of the the jurisprudence surrounding bilingualism (not to say Nor is the continental languages? Who Irish and an awareness of the multilingualism) is a feature of issue confined bothers with acts in Irish Irish text of Bunreacht na most modern states and to proceedings anyway? Even today, it is the hÉireann can enrich and enliven warned, in the context of a involving the state. It is surely soi-disant cosmopolitans who, the study of law as well as being prosecution under the Road only a matter of time before ignorant of the meaning of the the difference between winning Traffic Acts, that failure to civil proceedings brought by an word, are most strident in and losing a case. publish legislative material individual or company are shouting down any place for This point is timely. In his simultaneously in both English challenged on the grounds that Irish in public life. These books celebrated judgment in Ó and Irish would imperil there has been a failure, for

33 Law Society Gazette December 2003 Books example, to comply with order touch found throughout the side with the English text as General ([1961] IR 114): 120, rule 2 of the Rules of the book. In a mere two pages, for the thinking underpinning ‘It is not to be thought that Superior Courts 1986. example, Ó Tuathail corrects aspects of the constitution was those who framed or enacted Ina theannta seo, is ábhar imní the erroneous reading given to teased out. the constitution would don stát é easpa aistriúcháin, le Attorney General v Coyne and De Valera’s deliberate knowingly do anything so fiche bliain anuas, d’ionstraimí Wallace ([1967] 101 ILTR 17) intention appears to have been absurd as to frame or enact reachtúla. I gCeanada, sa chúis over recent decades by some of to frame an Irish text that texts with different meaning in Attorney General of Québec v the brightest stars in the legal would stand on its own merits parts. It could only happen by Blaikie ([1979] 2 SCR 1016), firmament. linguistically, for which task he inadvertence. It would seem to pléigh Cúirt Uachtarach Bunreacht na hÉireann: two chose Micheál Ó Gríobhtha, a follow as a matter of Cheanada an dualgas reachtúil texts or two constitutions? is a man of acknowledged literary commonsense that one should chun dlíthe a chur amach as development of the skill, rather than to frame a not approach the elucidation of Béarla agus as Fraincís ar aon introductory essay contained in translation, for which the staff the meaning of either text with agus cé nach luaitear insan Ó Cearúil’s masterly Bunreacht of an rannóg aistriúcháin a view to seeking a conflict, but reachtaíocht sin ach achtanna, na hÉireann: a study of the Irish would have been more than rather with a view to seeing if ghlac an chúirt leis gur gá text (all-party Oireachtas equal. Unlike the English text they can properly be ionstraimí reachtúla a aistriú Committee on the Constitu- of an bunreacht, Ó Gríobhtha reconciled. I say “properly” chomh maith (lch 1027): ‘It is tion, 1999). Together with the did not follow the words used advisedly, because if in fact the apparent that it would truncate paper Bunreacht na hÉireann: in the Irish translation of the words used are not in a form (the statutory duty) if account neamréireachtaí agus easpa 1922 constitution, even in really found to correspond, the were not taken of the growth leanúnachais? (An Aimsir Óg, those provisions which were Irish text must prevail’. of delegated legislation. This is 2003), Ó Cearúil is fast carried over in their entirety Leis an gcaint bhearrtha a case where the greater must creating a one-man corpus of from the earlier document. fágtha as, níl aon cúis iontais sa include the lesser’. Ó thaobh na constitutional studies. As with This led Ó Cearúil to opine ráiteas seo. Tá taithí le fada an hÉireann de, níl amhras ach gurb Séamus Ó Tuathail, a lifetime that: ‘de Valera’s aim of lá san Eoraip ar comhreiteach é seo brí airteagail 25(4)4 an of experience is brought to bear bringing an end to the 1922 téacsanna i teangacha eagsúla bhunreachta freisin. on his analysis of the constitution – a constitution agus de gnáth bíonn na téacsanna Meeting the language development of an Irish text of whose contents had been seo (an Ghaeilge ina measc) requirements of both Irish- Bunreacht na hÉireann, dictated by London and which comhudarásach. Claoíonn an and English-speakers need not although, in Ó Cearúil’s case, had ... institutionalised the fhoirmle seo leis an coinbhinsiún incur any additional cost. All this experience was in an most repugnant provisions of Vienna a bhforáilitear (in alt that is needed is a timely Rannóg Aistriucháin of the the treaty between Great 33.1): ‘(w)here a treaty has consideration of the issue, houses of the Oireachtas. Britain and Ireland – was been authenticated in two or together with proper planning Legal historians and therefore more clearly realised more languages, the text is and co-ordination. However, practising lawyers alike will in the Irish text than in the equally authoritative in each neglecting timely provision for delight in the righting of a English text’. language, unless the treaty language choice or leaving it to great wrong by Ó Cearúil. The Sa comhthéacs seo, bhí ciall leis provides or the parties agree the last minute leaves one open Irish text of Bunreacht na an gcinneadh chun forlámhas an that, in case of divergence, a to costly litigation to correct hÉireann is not, as Cosgrave téacs i nGaeilge a aithint in particular text shall prevail’. the error – and a costly process asserted in 1937 and Mr Justice airteagal 25 an bhunreachta. Gan forlámhas thugtha d’aon of remedying the neglect, as McCarthy repeated in Attorney Glacadh leis sna cúirteanna fadó téacs Eorpach, comhréitíonn the registrar for companies General v X ([1990] IR 1), nár musclaítear aon deacrachtaí Cúirt na hEorpa found out in Ó Murchú v An ’a mere translation of the mar thoradh ar an gcinneadh seo. neamhréireachtaí nó easpa Cláraitheoir na gCuideachtaí English’. It is in fact a text Mar a dúirt Budd Bmh sa chúis leanúnachais idir na leaganacha ([1998] TETS 42), and as the which was developed side-by- Ó Donovan v Attorney eagsúla ar bon laethiúil trí state was reminded in Ó anailís na gcuspóir níos mó ná Beoláin. Failing to plan is anailís ghramadach. Ní don planning to fail. BOOKS PUBLISHED chéad uair, tá ceachtanna le In Gaeilge agus bunreacht, Drunken driving and the law The Succession Act, 1965 and foghlaim ó na hEorpaigh! Séamus Ó Tuathail SC gives a Mark de Blacam related legislation Readable and informative in lively and comprehensive Thomson Round Hall (2003) Brian E Sperin with Paula Fallon equal measure, these two overview of the cases dealing 43 Fitzwilliam Place, Dublin 2 Lexis Nexis Butterworths (2003) monographs form a treasure with the issue of language ISBN: 1-85800-287-7 26 Ormond Quay Upper, Dublin 7 trove of information made rights in general and the Price: €89 ISBN: 1-85475-2944 available to the lawyer and constitutional status of Irish in Price: €140 general reader alike, with Criminal justice history particular. It is made all the almost reckless abandon. They Ian O’Donnell and Finbar Civil procedure more valuable coming from are required reading for anyone McAuley Adrian Zuckerman someone who has been Four Courts Press (2003) Lexis Nexis Butterworths (2003) with an interest in law, whether centrally involved in the 7 Malpas Street, Dublin 8 26 Ormond Quay Upper, Dublin 7 professional or intellectual. G mapping of language rights in ISBN: 1-85182-768-4 ISBN: 0-406-94898-4 Ireland. This involvement is Price: €45 Price: €188.45 Benedict O Floinn is a practising reflected in the sureness of barrister.

34 Law Society Gazette December 2003 LAW SOCIETY OF IRELAND ANNUAL CONFERENCE 14 – 18 April, 2004

S2004icily

SPONSORS:

Jardine Lloyd Thompson Ireland Limited

Solicitors’ Mutual Defence Fund Limited Message from the President Dear Colleague, We are most grateful to our sponsors – Bank of Ireland, have pleasure in inviting you to join me at the society’s Jardine Lloyd Thompson Ireland Limited, Solicitors’ Mutual IAnnual Conference in Sicily on 14 – 18 April 2004. Defence Fund and Osborne Recruitment – for their The island of Sicily, influenced by such notable civilisations continued support of the Law Society’s Conference and I as the Greeks, Romans, Arabs and Normans, awaits you. I would ask you to give them your favourable consideration in look forward to meeting you there, for what I hope will be a return. stimulating conference in a truly magnificent location. I thank all of you who have made advance bookings and This year the theme of the conference will be ‘Render I hope those who have not yet booked will now do so and unto Caesar: money laundering and the law’, and you look forward to a memorable conference, which we hope cannot fail to be impressed by the panel of distinguished will be enjoyed by all. speakers who will address you on this topic. Gerard F Griffin, President

BUSINESS SESSION:

SPEAKERSRender WILL INCLUDE: untoCaesar: money laundering and the law PATRICK R HOWETT PADDY AGNEW

– PROFESSIONAL INDEMNITY INSURANCE addy Agnew, Rome correspondent of the Irish atrick R Howett, graduated from UCD with a PTimes, has been a journalist for the last 24 PBachelor of Commerce in 1975 and a Master of years. He started in journalism at Magill magazine Business Studies degree in 1976. in Dublin before moving to the Sunday Independent He joined PriceWaterhouseCoopers in 1976 and and then to the Sunday Tribune. In December 1985, completed his traineeship and became an he moved to Rome, where he and his family have Associate of the Institute of Chartered Accountants lived ever since. As well as covering the basic Italian in 1979. He is a past chairman of the Dublin Chartered Accountants news and current affairs beat, he is also a member of Vatican Press Corps Students Society and was elected as a council member of the Insurance as well as being a specialised soccer writer and TV commentator. Brokers Association for three years, when he chaired the Strategic Review A regular contributor to the BBC World Service, RTÉ, Today FM, The Group and Technology Committees Guardian and ESPN international, Agnew is also the senior English language He joined Jardine Lloyd Thompson Ireland Limited in 1983 as TV commentator for Raitrade, an affiliate of Italian state broadcaster, RAI. accountant. Having served in different capacities he was appointed to his For the Irish Times, Agnew covers the broadest spectrum of Italian life, from current position as managing director in 1995. Serie A controversy to Mafia killings and from Vatican concistories to Rome He has extensive experience in the area of professional indemnity traffic jams. insurance and in particular solicitors’ professional indemnity insurance Born in Kilrea, Co Derry in March 1952, Agnew is married to Dympna and is currently appointed as the manager of the Assigned Risks Pool and, Hayes and has one daughter, Roisin, aged 15. He and his family live in the in this capacity, he serves on the Professional Indemnity Insurance Northern Lazio village of Trevignano Romano, approximately 50 kilometres Committee of the Law Society of Ireland. north of Rome.

BARRY GALVIN PROFESSOR MARIO CENTORRINO

arry Galvin was born in Cork, Ireland on 1 ull professor of Political Economy at the University BNovember 1943. In 1965 he graduated from Fof Messina (Faculty of Political Sciences). University College Dublin with a Degree of Bachelor External consultant for the Italian Interior Ministry of Civil Law. from September 1996 to September 1997 In 1966, he was admitted to practice as a concerning the connection between the economy barrister at law having attended lectures at Kings and criminality. Consultant for the presidency of Inns Dublin. Confcommercio (1996 – 1997) on the issue of In 1969, he was admitted to the roll of solicitors and began to practice economic criminality. From September 1997 to June 1999, he served as as a solicitor. From 1969 to date, he has practised in the family law external consultant of the Italian Parliamentary Enquiry Committee practice in Cork. In 1983, he was appointed by the then Attorney General concerning the Mafia. He was economic consultant to the president of Sicily to be State Solicitor for Cork City. from December 1998 to September 1999; member of the socio-economic Between 1989 and 1995, he was an elected member of the Council of observatory concerning organised crime at the CNEL (1999 – 2001). the Law Society of Ireland. He served on various committees, mainly on He has been director of the study centre for the documentation of Mafia the regulatory side. crime at the University of Messina (1997 – 1998); member of the scientific At various times. he has served as vice-chairman of the Compensation committee of the international centre of documentation on Mafias and anti- Fund Committee and chairman of the Professional Purposes Committee, mafia movement in Corleone (2000 – 2002). the Registrar’s Committee and the Anti-Moneylaundering Committee. He teaches and conducts research at Formez and the School of Local Between 1996 and 2003, he held the statutory position of Bureau Public Administration, paying attention to local development and territorial Legal Officer of the Criminal Assets Bureau. marketing. PACKAGE A BASED ON CHARTER FLIGHT Cost: €1,150.00 per person sharing

The cost includes return flights (Dublin/Sicily/Dublin), taxes, transfers, four nights’ bed and breakfast at the Grande Albergo Capotaormina Hotel, welcome reception, conference seminar and gala banquet. Surcharges could apply in respect of changes in air fares or increases in insurance premiums or VAT/tax rates in respect of the hotel.

CHARTER FLIGHTS • 14 April, 2004: departure from Dublin to Sicily – morning flight – times to be confirmed • 18 April, 2004: departure from Sicily to Dublin – 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 travel from Cork, Shannon, etc. Exact times will be detailed in your booking confirmations. CONTACT DETAILS The charter flight will be allocated strictly in order of bookings received.) Those delegates not allocated to the charter flight will be accommodated If you would like any further information, please contact any member of on scheduled flights which will incur a supplemental charge and transfer the organising team: charges. • Sarah Ellins, Law Society, tel: (01) 672 4823 E-mail: [email protected] Note: Connecting flights from Cork, Shannon etc can be arranged by • James McCourt (Chairman), tel: (01) 660 6543 Sadlier Travel. Please complete relevant section on the reservations • Simon Murphy, tel: (021) 427 3305 form. • Mary Keane, tel: (01) 672 4800

For information on extending your stay, please contact the conference travel agent: PACKAGE B Alan Benson/Angela O’Brien BASED ON SCHEDULED FLIGHT Sadlier Travel Fleet Chambers Delegates travelling on scheduled flights will travel via various European 8-9 Westmoreland Street cities and will have the option of extending their stay subject to airline and Dublin 2. hotel availability. Tel: (01) 670 4880 Price will be based on the charter package but will not include airport Fax: (01) 670 4883 transfers and may incur airline and hotel surcharges. E-mail: [email protected] Delegates intending to travel on scheduled flights should return a completed reservations form as soon as possible with details of their preferred travel arrangements. BOOKING/CANCELLATION TERMS AND CONDITIONS

1. Notification of all cancellations must be sent in writing to Sarah Ellins, REGISTRATION FEE Law Society of Ireland, Blackhall Place, Dublin 7. DX79. 2. Balance payments must be received by 20th February 2004. Payable by delegates only and not accompanying persons – Thereafter, 100% cancellation fees apply. €100 3. Substitute participation will be accepted. 4. Travel insurance will be automatically invoiced at approximately €26 per person unless delegates indicate on the reservations form that they have their own insurance and provide the name of the company BOOKING ARRANGEMENTS with whom they are insured. 5. No contract shall arise until a full deposit has been received and a The closing date for receipt of bookings is 20 February 2004. booking form (which will be sent with written confirmation of Please complete the reservations form and return with deposit of acceptance of the reservation) has been signed and returned. €400 per person travelling. 6. Travel agent reserves the right to allocate all bookings on flights. All delegates will be accommodated in the Grande Albergo Capotaormina****. The hotel offers a choice of restaurants, bars and lounges, room service, TV, air-conditioning, beauty centre, fully equipped gym, private beach and outdoor swimming pool.

Social programme ● The conference will open on Wednesday evening with a welcome reception for all participants. ● On Thursday optional tours to Mount Etna: a) Full-day tour to the top of Mount Etna (certainly not for the faint-hearted!) with a stop-over for lunch (not included) at leisure. b) Half-day tour to Mount Etna but up to 1900 meters. ● On Friday afternoon a half-day optional historical walking tour of Taormina. ● The conference banquet will be held on Friday night. Dress – smart informal. ● On Saturday a full-day optional tour to Syracuse with a stop-over for shopping and lunch (not included) at leisure. Programme WEDNESDAY, 14TH APRIL 2004 FRIDAY, 16TH APRIL 2004

Afternoon Arrival at Catania Airport. Transfer to hotel for Morning Conference Business Session – Render unto check-in and conference registration Caesar: money laundering and the law, together Evening Welcome Reception for all participants – with developments on professional indemnity sponsored by Osborne Recruitment insurance – sponsored by Jardine Lloyd Thompson Venue: Grande Albergo Capotaormina Hotel Ireland Limited and Solicitors’ Mutual Defence Fund Limited THURSDAY, 15TH APRIL 2004 Venue: Grande Albergo Capotaormina Hotel Afternoon Half-day historical walking tour of Taormina Morning Half-day tour to Mount Etna (2.30pm – 5.30pm) (10.00am – 1.00pm) Evening Reception – sponsored by Bank of Ireland. All day Full-day tour to Mount Etna Conference banquet and dancing – (10.00am – 4.00pm) sponsored by Bank of Ireland Evening At leisure Venue: Grande Albergo Capotaormina Hotel (Dress: smart informal)

SATURDAY, 17TH APRIL 2004

All day Full-day tour to Syracuse (10.00am – 4.30pm) Afternoon & At leisure Evening

SUNDAY, 18TH APRIL 2004

Afternoon Departure

Accommodation Grande Albergo Capotaormina Hotel, Via Nazionale, 105 - 98039, Taormina (ME), Sicily Tel: +39 0942 572111. Fax: +39 0942 625467 Briefing Committee reports

BUSINESS LAW statement of the authority’s intendent of the local garda station wish to exchange management intention, where it considers of their client. It is the local garda information, on a confidential Competition Authority notice necessary, to prevent, by means station of any individual that is basis, with a view to improving in respect of non-notifiable of injunction, the implementa- primarily charged by the garda management systems in their mergers and acquisitions tion of any un-notified merger authorities with the execution of own firms. Only managing part- The Competition Authority has that would substantially lessen such warrants. In addition, letters ners or principals of firms will published a notice relating to competition in the relevant addressed to individual gardaí may be eligible to attend meetings. the review of non-notifiable market or markets. It warns not be opened in their absence for The committee will organise mergers and acquisitions (deci- that, where such a merger has any reason (for example, shift practices with similar profiles sion no N/03.001, 30 already been implemented, the work, holidays, illness, transfer, into small groups and will facil- September 2003). It relates to authority may seek to have it retirement and so forth), with itate the first meeting of each mergers in respect of which the reversed. resulting delays. Where a letter is group. Practices situated closer turnover thresholds specified in A copy of the notice is avail- addressed to the superintendent of a than 30 miles to each other will section 18(1) of the Competition able on the authority’s website garda station, it will receive atten- not be put together. Act, 2002 are not met, but at www.tca.ie/notices.html. tion on receipt. Topics for discussion would which, nonetheless, may raise Business Law Committee I would request that the Law include the following: competition issues. Society arrange to disseminate this • General management The notice urges parties and information to all solicitors practis- • Practice development their advisers to avail of the CRIMINAL ing in the area of criminal law. •Risk management voluntary notification proce- However, if the committee has any •Profitability dure provided by section 18(3) The Criminal Law Committee other suggestions as to how this • Drawings of the act as regards transac- has received the following letter should be communicated to the rel- • Fees tions which raise competition from an Garda Síochána, which evant solicitors, I would be glad to • Overheads concerns and warns that if, fol- has requested that it be drawn facilitate same. • Information technology. lowing contact by the authori- to the attention of practitioners: Yours sincerely, ty, the parties do not indicate ‘Dear Mr McGonagle, NC Smith, assistant Interested firms should com- an intention to notify, the I am aware that solicitors con- commissioner’. plete and return registration authority will carry out a pre- sider it necessary on occasions to Criminal Law Committee forms before 1 February 2004. liminary inquiry to ascertain write to the gardaí regarding exe- Forms are available from the whether a section 4 or section 5 cution of outstanding warrants (for committee secretary at the Law investigation is warranted and, example, bench warrants) in GUIDANCE AND ETHICS Society, by e-mail from if so warranted, the investiga- respect of their clients. On very [email protected] or can be tion itself. many occasions, these letters are Practice management printed from the Guidance and The notice states that the addressed to the prosecuting garda discussion groups Ethics Committee web page on parties may at any stage be or one of a number of prosecuting The Guidance and Ethics the Law Society website asked for an undertaking not to gardaí. Committee is promoting prac- (www.lawsociety.ie). implement the merger for a cer- The appropriate addressee in tice management discussion Guidance and Ethics tain period and contains a clear respect of such matters is the super- groups to facilitate firms which Committee

REMOVAL OF NOTICE OF MARRIAGE FROM FOLIO practitioner brought to the her spouse executed a deed of the opportunity to do so presented be a family home or at or following Aattention of the Conveyancing waiver consenting to the sale of itself. the registration of the spouse as Committee a situation where a the said apartment. The committee wrote to the sole owner. The application can be client was the sole owner of an The question put to the commit- Land Registry to inquire if there made by adapting Land Registry apartment, title to which was reg- tee was whether it thought a notice was any specific Land Registry pro- form 71A and lodging it along with istered in the Land Registry. The of marriage must be removed from cedure for having such a notice all supporting documentation in client was married and lived in the the folio before closing. removed from the folio. The reply the Land Registry. apartment with her spouse. The The view expressed by the com- from the Land Registry indicated Practitioners should note that apartment, therefore, was the fam- mittee was that, from a legal point that rule 7 of the Land Registration a notice of marriage pursuant to ily home of the couple. of view, there are probably no con- Rules 1972 allows for the removal section 12 of the Family Home The client’s spouse entered a veyancing consequences of the of a notice that no longer affects or Protection Act, 1976 registered in notice of marriage under section continuation of the notice of mar- relates to a particular property, the respect of property title which is 12 of the Family Home Protection riage as a notice in part 2 of the ownership of which is registered on registered in the registry of deeds Act, 1976 on part 2 of the folio. folio. However, the committee sug- a folio. The Land Registry went on cannot be removed from the The client subsequently entered gested that it would be good prac- to say that an application could be register. into a separation agreement and tice to have the notice removed if made when the property ceases to Conveyancing Committee

39 Law Society Gazette December 2003 Briefing

DEEDS VESTING COMMON AREAS IN MANAGEMENT COMPANIES hen closing sales of apart- dor’s solicitor to the solicitor for vesting deed to the purchaser be in a position to obtain a certi- Wments or other property in the second purchaser to furnish on request by or on behalf of fied copy of the vesting deed in complexes or estates in which the the vesting deed as soon as the purchaser or his successor any case. The undertaking by the common areas are to be ultimate- received from the original vendor. in title. management company will, howev- ly vested in a management com- In such circumstances, two solici- er, cover any period between the pany, the current practice is to tors now have files open, awaiting The undertaking at (a) will merely completion of the development take an undertaking from the ven- a copy vesting deed which may not reflect what is required in any case and the furnishing of the vesting dor to furnish a copy of the vesting come to hand for a considerable in the contract for sale of the com- deed to the management company deed to the purchaser’s solicitor in time. mon areas between the vendor and will, in any case, provide the due course. This entails the pur- It is recommended by the and the management company, purchaser with a clear basis for chaser’s solicitor keeping the pur- Conveyancing Committee that in but it will be an acknowledgment requesting the certified copy vest- chase file open for a considerable such transactions involving man- that the purchaser has an interest ing deed regardless of when this is time, sometimes for years, pend- agement companies, the contract in the deed being furnished. done. In practice, it is envisaged ing the furnishing of the copy vest- should provide that the initial sale Ideally, the contract between the that the question of taking up the ing deed in accordance with the of the property will be closed on developer and the management copy vesting deed will arise usual- undertaking given. It becomes a foot of: company should stipulate who is ly when the property is being re- matter of urgency when the prop- a) An undertaking by the vendor to responsible for stamping and reg- sold. At that time, assuming the erty is being re-sold. If, at that the purchaser to furnish the istering the deed. development has been completed, time, the deed is not available vesting deed to the manage- The undertaking at (b) may be it should be readily available from because it has not yet been exe- ment company, and considered unnecessary, having the management company. In the cuted or for any other reason, the b) An undertaking by the manage- regard to the fact that the pur- meantime, the purchaser’s solici- sale, of necessity, proceeds with ment company to the purchaser chasers themselves will control tor can close the file. an undertaking by the second ven- to furnish a certified copy of the the management company and will Conveyancing Committee

CAT RETURNS: ELECTRONIC FILING EVIDENCE OF COMPLIANCE WITH THROUGH REVENUE ONLINE SERVICE PLANNING CONDITIONS RE: olicitors who wish to use the return through ROS, but must SOCIAL/AFFORDABLE HOUSING SRevenue Online Service to make alternative payment ueries have arisen as to attaching to the relevant plan- file CAT returns should note that arrangements. Qwhether independent evi- ning permissions), then there is Revenue’s current arrangements This matter is the subject of on- dence, in addition to an archi- no necessity to require produc- for electronic payment conflict going discussions between the tect’s opinion on compliance in tion of independent evidence with certain provisions of the society and the Revenue. A further the usual form, is required to with such a condition. There is Solicitors’ accounts regulations practice note will issue when the vouch compliance with a condi- no basis for distinguishing such 2001. difficulties have been resolved. tion in a planning permission a condition from the other condi- Until further notice, solicitors Probate, Administration and imposing a social/affordable tions attaching to the planning may proceed with filing the CAT Taxation Committee housing requirement pursuant to permission. part V of the Planning and However, if the architect is Development Act, 2000 (as not prepared to certify compli- PRACTISING CERTIFICATES amended). ance with the social/affordable practising certificate must year. Assistant solicitors cannot Where the architect is pre- housing condition, and qualifies Abe applied for before 1 absolve themselves from this pared to furnish an architect’s his opinion or certificate of com- February each practice year in responsibility by relying on their opinion on compliance in the pliance to exclude that condi- order to be dated 1 January of employers to procure their prac- usual form, being either the tion, then the purchaser’s solic- that year and thereby operate as tising certificates. However, it is form recommended for use by itor will require independent evi- a qualification to practise from the society’s recommendation the Conveyancing Committee or dence of compliance, preferably the commencement of the prac- that all employers should pay for the approved form as used by by way of a letter from the plan- tice year. their assistants’ practising cer- members of the RIAI (which ning authority. It is misconduct for a solicitor tificates. forms address conditions Conveyancing Committee to practise without a practising Practitioners should also note certificate. Any solicitor found to that practising for any period of be practising without a practising time without a practising certifi- CGT PAYMENT DATES certificate is liable to be referred cate could jeopardise their profes- ractitioners should note between 1 January and 30 to the Disciplinary Tribunal. sional indemnity insurance situa- Pchanges in the dates for pay- September must be paid by 31 Assistant solicitors should tion. Furthermore, a break in con- ment of capital gains tax intro- October. Tax due on gains made note that it is the statutory obli- tinuity of practising certificates duced by s42 of the Finance Act, on disposals between 1 October gation of every solicitor to may disqualify a solicitor from 2003 (amending part 41 of the and 31 December must be paid ensure that he or she has a prac- applying for judicial appointment. principal act). by the following 31 January. tising certificate in force from the PJ Connolly, Under the new provisions, tax Probate, Administration and commencement of the practice registrar of solicitors due on gains made on disposals Taxation Committee

40 Law Society Gazette December 2003 Briefing

DISCLAIMERS ON INTESTACY t has come to the attention of retracted, but only if it has not is, one quarter of a third) share 1) Not become effective (as Ithe Conveyancing Committee, been acted on and no other party of the deceased’s estate (or of against all or any of the parties both from practitioners and from has changed their position in that part of the deceased’s hereto) until it is executed by recent articles in the Gazette, that reliance on it and if no considera- estate as to which he died all parties hereto, and the precedent disclaimer on intes- tion has been given for the dis- intestate) (hereinafter called 2) Be deemed to operate with tacy which appears at page 13.66 claimer. ‘the said share’ and collective- effect from the date upon of the Conveyancing handbook ly as ‘the said shares’) under which it is executed by the last may not be adequate for a situa- Disclaimer on intestacy for the rules for distribution on of the parties hereto to execute tion in which a number of benefi- execution by a number of intestacy set out in the it. ciaries have agreed to execute a beneficiaries Succession Act, 1965. (Vary disclaimer, on condition that all of ‘Disclaimer of AB, CD and EF the shares in proportion to the (Insert the following paragraph them do so, for the purpose of on death intestate of XY number of beneficiaries and unless a grant has already issued benefiting a particular person. If Obit ...... day of ...... 20 ...... their entitlement) to one or more persons disclaim- all of them disclaim except one, This deed of disclaimer is made 4) None of us has accepted the ing or the parties have already for example, the desired result will this ………. day of ………. 20… said share from the personal signed a renunciation.) not be achieved and the one who by AB (occupation) of ……… in representative of the deceased And we hereby acknowledge has not signed may become enti- the county of ………, CD (occupa- or otherwise nor have any of us that on the execution by us of this tled to the property. tion) of ……… in the county of exercised any degree of benefi- disclaimer, we will each lose any It is considered best practice ……… and DE (occupation) of cial ownership, control or pos- right we may have (by virtue of our to have one disclaimer signed ……… in the county of ……… session in respect of the said respective entitlements to the by all of them, where this is Whereas: share. said share) to extract a grant of reasonably practicable, and to 1) XY late of ……… (hereinafter administration to the estate of the provide that it will take effect called ‘the deceased’) died on Now it is hereby witnessed that deceased. only when it is signed by all of the ……… day of ……… 20..., each of us hereby irrevocably dis- In witness whereof the parties them and from the date on which having died intestate as to the claims absolutely all our respec- hereto have hereunto set their it is signed by the last person interests hereby disclaimed tive rights to the said shares and respective hands and affixed their to sign. 2) The deceased was (marital sta- we hereby acknowledge that on respective seals the day and year A precedent taking account of tus) and (occupation) and was the execution by each of us of this first above written. the above is printed with this prac- survived by (state if survived disclaimer we will each lose any tice note. It should be used where by, for example, a spouse and right we may respectively have (by Signed, sealed and delivered by possible to avoid having to deal two children or as the case may virtue of our respective entitle- AB in the presence of: with the consequences of a bro- be) ment to the said shares) to Signed, sealed and delivered by ken agreement which might have 3) We are all children of the extract a grant of administration the said CD in the presence of: to be resolved by the court. It may deceased (or as the case may to the estate of the deceased. Signed, sealed and delivered by be helpful to note that a dis- be) and, as such, we are each And it is hereby further wit- the said EF in the presence of:’ claimer, once made, can be entitled to a one-twelfth (that nessed that this deed shall: Conveyancing Committee

CRIMINAL LEGAL AID SCHEME: RETENTION OF NAME ON CRIMINAL LEGAL AID PANEL For year commencing 1 has an expiry date after 30 the regulations, which has not the certificate and as many offi- December 2003: Criminal November 2003, to the relevant been determined or withdrawn cial copies thereof as they Justice (Legal Aid) (Tax county registrar by 30 November on 30 November 2003. require. Solicitors must then fur- Clearance Certificate) 2003 in order to retain their name nish the certificate or official copy Regulations 1999 on the panel. Current tax clearance certificate to each county registrar to remain The Department of Justice, Applications for a tax clearance expires after 30 November 2003 on that county registrar’s panel. Equality and Law Reform has certificate should be made to the Solicitors who wish to have their advised that a solicitor who wishes Collector-General’s Office in good name retained on the panel Issue of application form for tax to have his or her name retained time. It is important to note, in beyond 30 November 2003 and clearance certificate on a legal aid panel is required to this regard, that the regulations whose current certificate expires Those practitioners who are cur- furnish a tax clearance certificate provide that an application sub- after that date need not apply for rently on the legal aid panels will to the relevant county registrars. mitted to the collector-general by a new certificate. However, they have been issued with an applica- 15 October 2003 guarantees the must furnish their certificate to tion form directly from the Current tax clearance existing member’s retention on the relevant county registrar to be Department of Justice, Equality certificate expires on or the panel where: retained on the panel(s). and Law Reform before 1 October before 30 November 2003 a) Revenue has not made a deci- 2003. Panel members who did Solicitors who are on a panel and sion on the application by 30 Multiple panels not receive a form at that time whose tax clearance certificate November 2003, or Solicitors who wish to maintain should make enquiries to the expires on or before 30 November b) The application has been their name on more than one courts policy division of the 2003 will be required to furnish a refused and an appeal has panel should request the department (tel: 01 602 8202). tax clearance certificate, which been made as provided for in Collector-General’s Office to issue Criminal Law Committee

41 Law Society Gazette December 2003 Briefing

LEGISLATION UPDATE: 21 OCTOBER – 18 NOVEMBER 2003 Details of all bills, acts and SELECTED STATUTORY to undertakings for collective 105(C) provides for a four-year statutory instruments since INSTRUMENTS investment in transferable securi- time limit for making a claim to 1997 are on the Law Society’s Children Act, 2001 (Part 11) ties (UCITS). Amend SI the Revenue Commissioners for a library catalogue at www.lawso- (Commencement) Order 2003 211/2003 as amended by SI repayment of excise duty, but if ciety.ie (members’ area) with Number: SI 527/2003 212/2003 to give effect to the the claim relates to an act or updated information on the cur- Contents note: Appoints Management directive, which event before 1/5/2003, the four- rent stage a bill has reached and 7/11/2003 as the commence- broadens the range of activities year time limit will not apply until the commencement date(s) of ment date for part 11 of the act, that management companies can 1/1/2005 each act. which establishes the Special be authorised to undertake; also Residential Services Board on a allow management companies to Finance Act, 2001 ACTS PASSED statutory basis avail of the passport mechanism (Commencement of Section Criminal Justice (Temporary introduced by the Management 105D) Order 2003 Release of Prisoners) Act, 2003 District Court (Appeals to the directive Number: SI 511/2003 Number: 34/2003 Circuit Court) Rules 2003 Contents note: Appoints 1/11/ Contents note: Amends the Number: SI 484/2003 European Convention on Human 2003 as the commencement Criminal Justice Act, 1960 to Contents note: Amend order Rights Act, 2003 date for section 105(D ) of the provide for the temporary 101, rules 1, 3 and 5, of the (Commencement) Order 2003 Finance Act, 2001. Section release of persons serving sen- District Court Rules 1997 (SI Number: SI 483/2003 105(D) provides for the payment tences of imprisonment or of 93/1997) in order to clarify the Contents note: Appoints 31/12/ of simple interest by the Revenue detention in St Patrick’s position regarding the fixing of 2003 as the commencement Commissioners in certain circum- Institution, or persons being recognisances in situations date for the act stances on repayments of excise detained in a place provided where there are appeals to the duty under section 2 of the Prisons Circuit Court Finance Act, 1983 Act, 1970 (Commencement of Section Finance Act, 2003 Date enacted: 29/10/2003 European Communities 107A) Order 2003 (Commencement of Section 17) Commencement date: Com- (Electronic Communications Number: SI 513/2003 Order 2003 mencement order to be made (per Networks and Services) Data Contents note: Appoints 31/10/ Number: SI 508/2003 section 2(2) of the act) Protection and Privacy) 2003 and 1/11/2003 as the Contents: Appoints various com- Regulations 2003 commencement dates for differ- mencement dates for section 17 Oil Pollution of the Sea (Civil Number: SI 535/2003 ent provisions of section 107(A) of the Finance Act, 2003. Section Liability and Compensation) Contents note: Give effect to of the Finance Act, 1983 (repay- 17 provides for a new scheme of (Amendment) Act, 2003 directive 2002/58/EC concerning ments of residential property tax) interest on repayment of tax, time Number: 33/2003 the processing of personal data limits on claims to repayment of Contents note: Amends the Oil and the protection of privacy in Finance Act, 2001 tax and on raising of assess- Pollution of the Sea (Civil the electronic communications (Commencement of Section ments to tax by the Revenue Liability and Compensation) sector. Revoke European 105A) Order 2003 Commissioners, in so far as Acts, 1988 to 1998 to give Communities (Data Protection Number: SI 509/2003 income tax, corporation tax and effect to amendments to the lim- and Privacy in Telecommunica- Contents note: Appoints 1/1/ capital gains tax are concerned itation amounts in the protocol tions) Regulations 2002 (SI 2005 as the commencement of 1992 amending the 192/2002) date for section 105A of the Finance Act, 2003 International convention on civil Commencement date: 6/11/ Finance Act, 2001. Section 105A (Commencement of Sections liability for oil pollution damage 2003 provides that action by the 124, 125, 129 and 130(b)) 1969 (the Liability convention), Revenue Commissioners to initi- Order 2003 and in the protocol of 1992 European Communities ate recovery of underpayments of Number: SI 512/2003 amending the International con- (Undertakings for Collective excise duty is limited to a period Contents note: Appoints 1/11/ vention on the establishment of Investment in Transferable of not more than four years after 2003 as the commencement an international fund for com- Securities) (Amendment No 2) the act or event giving rise to the date for sections 124, 125, 129 pensation for oil pollution dam- Regulations 2003 liability, except in the event of and 130(b) of the Finance Act, age 1971 (the Fund convention). Number: SI 497/2003 fraud or negligence 2003 (VAT refunds) This will increase the limits of Contents note: Implement direc- compensation payable to victims tive 2001/107/EC (Management Finance Act, 2001 Finance Act, 2003 of pollution resulting from oil directive) which amends directive (Commencement of Section (Commencement of Section spills from ships carrying oil in 85/611/EEC as amended by 105C) Order 2003 142) Order 2003 bulk as cargo directive 88/220/EEC, directive Number: SI 510/2003 Number: SI 514/2003 Date enacted: 29/10/2003 95/26/EC, and directive Contents note: Appoints 31/10/ Contents note: Appoints Commencement date: 1/11/ 2001/108/EC on the co-ordina- 2003 as the commencement 31/10/2003 and 1/11/2003 as 2003 (per section 5(2) of the tion of laws, regulations and date for section 105(C) of the the commencement dates for dif- act) administrative provisions relating Finance Act, 2001. Section ferent provisions of section

42 Law Society Gazette December 2003 Briefing

142(1) of the Finance Act, 2003 requirements for the labelling of Protection of the Environment (Ireland) Acts and the electronic (repayment of stamp duties) dispensed medicinal products and Act, 2003 (Commencement) registration of births and deaths for pharmacy records. (No 3) Order 2003 in the civil registration offices in Finance Act, 2003 Commencement date: 11/11/ Number: SI 498/2003 Killarney, Tralee and Castle- (Commencement of Section 2003 Contents note: Appoints 22/10/ gregory 145) Order 2003 2003 as the commencement date Number: SI 515/2003 Motor Vehicle (Duties and for the following provisions of the Taxi Regulation Act, 2003 (Part Contents note: Appoints 1/11/ Licences) Act, 2003 act: sections 1(2), 10, 11, 12, 4) (Appointed Day) Order 2003 2003 as the commencement date (Commencement) Order 2003 13, 14, 20(1)(a), 22, 23, 24, 25, Number: SI 517/2003 for paragraphs (a) and (d) of sec- Number: SI 485/2003 29, 34, 46, 47, 48, 49 and 50 Contents note: Appoints 4/11/ tion 145(1) of the Finance Act, Contents note: Appoints 21/10/ 2003 as the appointed day for the 2003 in so far as it relates to sec- 2003 as the commencement date Public Health (Tobacco) Act, purposes of part 4 of the act tion 57 (other than sub-sections 2 for section 8 of the Motor Vehicle 2002 (Commencement) Order (establishment of the advisory to 5) of the Capital Acquisitions Tax (Duties and Licences) Act, 2003 2003 council to the Commission for Taxi Consolidation Act, 2003. Appoints Number: SI 480/2003 Regulation) 1/1/2005 as the commencement Official Languages Act, 2003 Contents note: Appoints 15/10/ date for paragraphs (b) and (c) of (Commencement) Order 2003 2003 as the commencement date Tobacco Smoking (Prohibition) section 145(1). Appoints 31/10/ Number: SI 518/2003 for sections 2, 3, 4, 5(1), 5(2) (in Regulations 2003 2003 as the commencement date Contents note: Appoints 30/10/ so far as it applies to section 47), Number: SI 481/2003 for section 145(1)(d) in so far as it 2003 as the commencement date 5(5), 5(6), 6, 7, and 47 of the Contents note: Prohibit the relates to sub-sections 2 to 5 of for sections 2, 3, 4 and part 5 of Public Health (Tobacco) Act, 2002 smoking of tobacco products in a section 57 of the Capital the act (place names) place or premises (other than a Acquisitions Tax Consolidation Act, Road Vehicles (Registration and dwelling) as specified in the 2003 (CAT repayments) Opticians (Amendment) Act, Licensing) (Amendment) schedule to the regulations. The 2003 (Section 12) (Commence- Regulations 2003 places or premises so specified Medicinal Products (Prescription ment) Order 2003 Number: SI 486/2003 are: 1) a place of work; 2) an air- and Control of Supply) Number: SI 538/2003 Contents note: Facilitate the craft, train, ship or other vessel, a Regulations 2003 Contents note: Appoints 11/11/ application for a driving licence on- public service vehicle or other Number: SI 540/2003 2003 as the commencement date line at www.motortax.ie vehicle used for the carriage of Contents note: Consolidate and for section 12 of the act. (All other members of the public for reward, update the controls applicable to sections of the act were brought Social Welfare (Miscellaneous insofar as it is a place of work; 3) the prescription and supply of into operation on 31/7/2003 by Provisions) Act, 2002 (Section a place or premises to which para- medicinal products to the public in SI 350/2003.) Section 12 is 16) (No 4) (Commencement) graph (b), (c), (d) or (e) of section accordance with the requirements being brought into operation in Order 2003 47(1) of the Public Health of EU directive 2001/83/EC. conjunction with the Medicinal Number: SI 501/2003 (Tobacco) Act, 2002 applies, inso- Certain exemptions are provided in Products (Prescription and Control Contents note: Appoints 28/10/ far as it is a place of work; 4) a respect of certain low-strength of Supply) Regulations 2003 (SI 2003 as the commencement date licensed premises, insofar as it is homeopathic medicinal products 540/2003). These regulations for s16 of the Social Welfare a place of work; 5) a registered that will be available to the public provide an exemption whereby (Miscellaneous Provisions) Act, club, insofar as it is a place of without prescription. Impose res- optometrists may administer, in 2002 in so far as it relates to work trictions on the sale of medicinal the course of their professional items in the schedule to the act Commencement date: 26/1/ products containing paracetamol. practice, certain listed medicinal relating to amendments to the 2004. G Set out the restrictions relating to products that are not intended for Registration of Births and Deaths Prepared by the the dispensing of prescriptions, the intravenous administration (Ireland) Acts and the Marriages Law Society Library

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43 Law Society Gazette December 2003 Briefing SOLICITORS DISCIPLINARY Before the president of the the relevant clients but which bill of costs or other written account to his client for the High Court: in the matter of ostensibly supported bona fide documentation in breach of said monies, necessitating the Michael Owens, solicitor, for- entries which in fact disguised regulation 7(iv) of the payment by the society out of merly carrying on practice the withdrawal of clients’ Solicitors’ accounts regulations no its compensation fund of £280 under the style and title of funds for office and personal 2 of 1984 to the said client Michael Owens & Co at 5 expenditure m)Transferred monies between s) Received a deposit of £4,500 Lower Main Street, Dundrum, e) Concealed debit balances on ledger accounts in breach of in respect of the sale of a Dublin 14, and in the matter of the clients’ account by making regulation 9 of the Solicitors’ premises on behalf of a client, the Solicitors Acts, 1954 to 2002 or causing false journal entries accounts regulations no 2 of failed to complete the transac- [2003 no 26 SA] to be made in the books of 1984 tion and failed to account to Law Society of Ireland account n) Received £1,500 from a client his client for the deposit, (applicant) f) Did not record some client for the purposes of stamping necessitating the payment out Michael Owens (respondent financial transactions in the two deeds of assignment, of the society’s compensation solicitor) books of account at all failed to stamp the said deeds fund to the client of £4,184 g) Failed to maintain proper and failed to account to his t) Received the sum of £9,000 On 6 October 2003, the presi- books of account for each client for the monies, necessi- from a client in respect of dent of the High Court ordered: client to show all transactions tating a payment out of the stamp duty on a purchase 1) That the name of the respon- on the client account in society’s compensation fund deed, failed to stamp the rele- dent solicitor Michael Owens breach of regulations 10 and of £1,500 to his said client vant deeds and failed to be struck off the Roll of 19 of the Solicitors’ accounts o) Received monies on behalf of account to his client for the Solicitors regulations no 2 of 1984 a client out of which he was sum of £9,000, necessitating 2) That the said Michael Owens h) Transferred round sums of instructed to discharge a the payment out of the soci- make restitution to the Law money from the client building society mortgage in ety’s compensation fund of the Society of Ireland in the account to the office account favour of the Irish sum of £9,000 to the said amount of €414,596.21 to cover withdrawals in Nationwide Building Society client 3) That the said Michael Owens breach of regulation 8.2 of the on behalf of his client, failed u) Received the sums of £65,950 pay the costs of the applica- Solicitors’ accounts regulations no to discharge the said mort- and £250 on behalf of a client tion to the High Court and 2 of 1984 gage and failed to account to company, being the proceeds also the costs of the proceed- i) Caused the said deficit to be his client for the monies con- of a sale and a service charge, ings before the Disciplinary concealed from both his cerned, necessitating a pay- failed to account to his client Tribunal, to be taxed in reporting accountant and the ment out of the society’s com- for that part of the proceeds default of agreement. Law Society’s investigating pensation fund of £71,053.64 due to it, necessitating the accountant by falsifying his plus a further £4,922.17 to the payment out of the society’s The president had before him books of account over a num- said client compensation fund of £47,445 the report of the Disciplinary ber of years p) Received £6,300, being a to the said client Tribunal to the High Court, j) Allowed his reporting deposit on the sale of proper- v) Received the sum of £5,775, which recorded that the follow- accountant to submit to the ty for clients, the executors of being a deposit on the sale of ing matters had been admitted by society certificates certifying an estate, failed to account to premises on behalf of a client, the respondent solicitor, that he: compliance with the Solicitors’ his clients for the deposit, but failed to account to his a) Caused a substantial deficit in accounts regulations no 2 of necessitating a payment out of client for the said monies, clients’ monies resulting in a 1984, knowing that such cer- the society’s compensation necessitating the payment out total of £489,371.01 being tificates were incorrect and fund of £5,800 to the said of the society’s compensation paid by the society out of its further knowing that they clients fund of £5,387.50 to the said compensation fund as of 3 would be relied upon by the q) Received monies from clients, client January 2001 society which included the sum of w)Received the sum of £16,200 b) Utilised clients’ monies to k) Drew monies from clients’ £2,780 in respect of stamp on behalf of a client in respect fund the day-to-day running accounts in excess of funds duty and Land Registry fees, of stamp duty on the purchase of his practice and for his per- held for the time being in failed to complete the transac- of property, failed to stamp sonal expenditure, including such accounts in breach of tion, necessitating the pay- the relevant documents and the discharge of his Revenue regulation 7 of the Solicitors’ ment of the sum of £3,495 out failed to account to his client liabilities accounts regulations no 2 of of the society’s compensation for the sum of £16,200, neces- c) Systematically falsified the 1984, causing the clients’ fund to the clients in compro- sitating the payment out of books of account by means of bank account to be overdrawn mise of the claim the society’s compensation teeming and lading of clients’ in or about February, July and r) Received the sum of £280 fund of £15,700 to the said monies October of 1995 and July from a client for the purposes client d) Placed or caused to be placed 1996 of purchasing a ground rent, x) Received and held monies on on client files bills of costs l) Drew monies for costs with- failed to purchase the said behalf of a client, which, as of which were not furnished to out furnishing to the client a ground rent and failed to October 1996, totalled

44 Law Society Gazette December 2003 Briefing TRIBUNAL £115,073.97, failed to account cc) Received a sum of £2,750 gg) Misappropriated the sum of ll) Received a sum of £323 on to his client for these monies, plus the sum of £26 from £6,213.17 out of an estate, behalf of clients for the pur- necessitating the payment to clients for the purposes of necessitating the payment by poses of stamping and regis- the client out of the society’s stamping a purchase deed and the society of the sum of tering documents, failed to compensation fund of failed to stamp the said deed £7,713.17 out of its compen- stamp the said documents and £124,661.97 plus an ex gratia and further failed to account sation fund failed to account to his clients payment of £4,537.50 to his clients for the sum of hh) Received monies from a for the sum of £323, necessi- y) Misappropriated monies of a £2,776, necessitating a pay- client which included the sum tating a payment out of the client, necessitating the pay- ment out of the society’s com- of £4,650 for the purposes of society’s compensation fund ment out of the society’s com- pensation fund of £2,776 to paying stamp duty and Land of £323 to the said clients pensation fund of £110,000 the said clients Registry fees in respect of a mm) Drew a cheque in favour of plus an ex gratia payment of dd) Received a sum of £7,425 conveyancing transaction, two clients in the sum of £15,000 from clients for the purposes failed to stamp and register £8,373.61 when there was z) Received a sum of £21,000 on of stamping and registering a the documents and failed to only £1,688.03 in the client behalf of clients for the pur- mortgage deed, failed to account to his client for the account to meet it, misrepre- poses of stamping a deed, stamp the said deed and failed sum of £4,650, necessitating sented to the clients when the failed to stamp the said deed to account to his clients for the payment by the society cheque was returned unpaid and failed to account to his the sum of £7,425, necessitat- out of its compensation fund that he had in error stopped clients for the sum of £21,000, ing a payment out of the soci- of the sum of £4,650 the cheque necessitating a payment out of ety’s compensation fund of ii)Received the sum of £5,011 on nn) Breached a solicitor’s under- the society’s compensation £7,425 to the said clients behalf of a client, being taking to ACC Bank to dis- fund of £21,000 to the said ee) Received a sum of £524 from monies lodged in court, but charge a mortgage for his clients a client for the purposes of failed to account to his client client aa) Received a sum of £50,000, a stamping and registering a for the sum of £5,011, neces- oo) Failed to conclude a con- portion of which was to purchase deed, failed to stamp sitating the payment by the veyancing transaction on redeem a mortgage, failed to the said deed and failed to society out of its compensa- behalf of the client referred to redeem the said mortgage or account to his client for the tion fund of £5121.69 at (nn) above, thereby severe- to account to his client for the sum of £524, necessitating a jj) Received the sum of £7,222.94 ly prejudicing his client in that said money advanced to payment out of the society’s from a client to discharge a judgment was obtained redeem the mortgage, neces- compensation fund of £524 to counsel’s fees, failed to dis- against the client as a result sitating a payment out of the the said client charge the said fees, necessi- pp) Received monies from a society’s compensation fund ff) Retained a sum of £8,503 on tating the payment by the client for the purposes of of £22,269.99 plus additional behalf of clients for the pur- society out of its compensa- stamping an original and legal fees of £901 poses of stamping and regis- tion fund of £7,222.94 counterpart lease on behalf of bb) Received a sum of £3,900 tering a purchase deed, mort- kk) Received a sum of £3,819 on the client but failed to stamp from his clients for the pur- gage and assignment of a life behalf of a client for the pur- the original and counterpart poses of stamping a deed and policy and commissioner’s poses of stamping and regis- lease failed to stamp the said deed fees, failed to stamp the said tering a purchase deed, failed qq) Failed to account to the client and further failed to account deeds and failed to account to to stamp the said deed and referred to at (pp) above for to his clients for the sum of his clients for the sum of failed to account to his client the monies received, necessi- £3,900, necessitating a pay- £8,503, necessitating a pay- for the sum of £3,819, neces- tating the payment by the ment out of the society’s com- ment out of the society’s com- sitating a payment out of the society out of its compensation pensation fund of £3,900 to pensation fund of £8,503 to society’s compensation fund fund of the sum of £211, being the said clients the said clients of £3,819 to the said client the stamp duty. G

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45 Law Society Gazette December 2003 Briefing DISCIPLINARY TRIBU Year ending 21 May 2003

he last year has seen the tri- The tribunal also engaged in The function of the tribunal is Applications Tbunal engage in a major a comprehensive review of its best described as quasi-judicial. The number of applications move from its administrative rules to ensure compliance with Its authority is derived from the coming before the tribunal for offices in Manor Street to The the new Solicitors (Amendment) Solicitors Acts, 1954 to 2002 and the year ending 21 May 2002 Friary, Bow Street, Smithfield, Act, 2002, which came into the Solicitors Disciplinary Tribunal increased by approximately 42% Dublin. Our new premises allow operation on 1 January 2003. Rules 2003. Any inquiry under- and fell by 7% the following year. the tribunal to hold its inquiries On behalf of the tribunal, I taken by the tribunal must com- While the majority of applica- in comfortable and well- would like to thank Michael ply with the requirements of nat- tions to the tribunal emanate appointed accommodation. O’Mahony for the many hours ural and constitutional justice. from the Law Society of Ireland, They are also centrally located he worked on this project. Procedural safeguards in place members of the public may also and reflect the standing and The inclusion of the regulato- include giving a respondent solic- make a direct application to the independent nature of the ry function of the tribunal in the itor sufficient notice and details tribunal. The tribunal recognises Solicitors Disciplinary Tribunal, Law School’s module Professional of the application and the oppor- that lay applicants, where an whose members are appointed practice conduct and management tunity to respond. Because the inquiry has been directed, may by the president of the High in the professional practice consequences of disciplinary pro- have a difficulty for one reason or Court. Notwithstanding the course for trainee solicitors is ceedings can have such a detri- another instructing a solicitor to move, the tribunal continued to welcomed by the tribunal. The mental effect on the livelihood of represent them. Consequently, conduct its business despite the tribunal recognises that not all a solicitor, the tribunal endeav- the tribunal allows lay applicants inevitable frustrations and pres- solicitors are aware of its exis- ours to ensure that the conduct of to be accompanied by a sures of changing premises. tence or its work and hopefully proceedings is scrupulously fair. ‘McKenzie friend’, who may the contribution of the tribunal Apart from its jurisdiction in assist them but not take an active registrar to the module will help relation to misconduct, the tribu- part in the proceedings. DISCIPLINARY TRIBUNAL to improve this situation. nal may also make an order for The rules of the tribunal pro- Solicitor members It will be observed from the the removal of a solicitor’s name vide for certain time limits: for Thomas D Shaw (chairperson) table below that in 2002 there from the Roll of Solicitors, at example, a respondent solicitor Ernest Cantillon was an increase in the number of his/her own request, where, for has 28 days (excluding Saturdays Michael Carrigan sitting days of the tribunal and example, a solicitor is applying to and Sundays) to forward to the Niall Casey new applications compared with become a member of the bar. tribunal an affidavit in response Clare Connellan 2001. As a consequence, the to the complaints made. The tri- Jean Cullen workload of the 15 members of Constitution bunal subsequently sends a copy Frank Daly Joe Deane the tribunal also expanded. The Solicitors Disciplinary of the respondent solicitor’s Paula Duffy Thankfully, ten new solicitor Tribunal is an independent statu- response (if any) to the applicant, Carol Fawsitt members were appointed in tory tribunal appointed by the who may in turn file a further Isabel Foley December 2002, and this has president of the High Court to (second) affidavit responding to Berchmans Gannon lightened the burden on their consider allegations of miscon- the matters raised by the respon- Maeve Hayes colleagues who have generously duct against solicitors. dent solicitor within 28 days Michael Hogan given of their time without any The tribunal consists of 20 (excluding Saturdays and Donal Kelliher Brian McMahon recompense. It is anticipated solicitor members and five lay Sundays). If appropriate, the tri- Caroline O’Connor that a further five lay members members. These latter members bunal may extend the time limit Geraine O’Loughlin will be appointed in the near are nominated by the minister for to allow either party to respond Michael O’Mahony future, and this should improve justice, equality and law reform to to the affidavit of the other party Ian Scott the position for our present lay represent the interests of the gen- by a further 21 days (excluding Lay members members. I would like to take eral public, while solicitor mem- Saturdays and Sundays). Further, Mary Conlon this opportunity to acknowledge bers are appointed by the presi- in exceptional cases, the tribunal Ted Conlon the dedication and hard work of dent of the High Court after con- may permit a further exchange of Denis Murphy all members who willingly give sultation with the Law Society. affidavits between the parties and Pauline Kingston their services to the tribunal. Members are appointed for a will fix the time allowed for this Kristin Quinn period not exceeding five years as exchange. As a consequence of Tribunal registrar Year No of No of the president of the High Court these time limits, a number of Mary Lynch ending new app- sitting may determine and may be re- months may elapse from the 21 May lications days appointed for one further period. lodgement of an application and The Friary, Bow Street, Further, at least 40% of the solic- the date the tribunal makes a Smithfield, Dublin 7 2001 48 27 itor members and of the lay mem- decision in relation to whether or Tel: 01 869 0767 2002 67 34 E-mail: [email protected] 2003 63 32 bers of the tribunal shall be men not there is a prima facie case for and at least 40% shall be women. inquiry. Continued on page 48 ➜

46 Law Society Gazette December 2003 Briefing NAL ANNUAL REPORT

ANALYSIS OF APPLICATIONS AND DECISIONS

New applications, year ending New applications, year ending Applications carried forward from previous 21 May 2002: 68 21 May 2003: 63 years (including y/e 21/5/2002): 104 Law Society applications 57 43 76 Prima facie cases found: 35 Prima facie cases found: 30 No prima facie case: 6 No prima facie case found: 2 Awaiting prima facie decision: 10 Awaiting prima facie decision: 1 Awaiting prima facie decision: 20 Prima facie decision deferred 3

At hearing At hearing At hearing Misconduct: 2 Misconduct: 5 Misconduct: 47 No misconduct: 27 No misconduct: 1 No misconduct: 7 Adjourned: 1 Adjourned: 10 Leave granted to withdraw application: 3 Awaiting inquiry: 5 Awaiting inquiry: 14 Adjourned: 10 Awaiting inquiry: 2

Lay applications 11 18 28 Prima facie case found: 3 Prima facie case found: 3 No prima facie case: 13 No prima facie case found: 4 No prima facie case found: 8 Withdrawn 1 Awaiting prima facie decision: 4 Awaiting prima facie case decision: 6 Awaiting prima facie decision: 2 Prima facie decision deferred: 1

At hearing At hearing At hearing Misconduct: 1 No misconduct: 1 Misconduct: 2 Adjourned: 1 Awaiting inquiry: 2 No misconduct 5 Awaiting inquiry: 1 Leave granted to withdraw application: 1 Struck out: 1 Adjourned: 3

Orders made by the Disciplinary Tribunal pursuant Reports of the Disciplinary Tribunal under section 7(3)(b)(ii) of the Solicitors (Amendment) to section 7(9) of the Solicitors (Amendment) Act, Act, 1960 as substituted by section 17 of the Solicitors (Amendment) Act, 1994 and 1960 as substituted by section 17 of the Solicitors amended by section 9 of the Solicitors (Amendment) Act, 2002: (Amendment) Act, 1994 and amended by section 9 of the Solicitors (Amendment) Act, 2002: RECOMMENDATIONS The respondent solicitor not be permitted to practise as a sole practitioner, that Orders made by the tribunal Number the respondent solicitor be permitted only to practise as an assistant solicitor in respect of the applications of orders under the direct control and supervision of another solicitor of at least ten years’ set out at table standing to be approved in advance by the Law Society of Ireland 4* The name of the respondent solicitor be struck off the Roll of Solicitors and that Censure, fine and costs: 38 the respondent solicitor make recompense, if possible, to the compensation fund Censure, restitution and costs: 3 of the Law Society 2 Fined and costs: 2 The respondent solicitor be allowed continue to practise as an assistant solicitor under the supervision of a solicitor of at least ten years’ standing to be approved Censure and costs: 2 of by the Law Society of Ireland. The respondent solicitor is not to be allowed to Advised, admonished, handle clients’ funds and will have no cheque-signing authority. The respondent fined and costs: 2 solicitor be censured and pay the whole of the costs of the Law Society, to be taxed in default of agreement 1 Advised, admonished and costs: 1 The name of the respondent solicitor be struck off the Roll of Solicitors and pay Censure: 1 the whole of the costs of the Law Society, to be taxed in default of agreement 2 Reprimanded: 1 The respondent solicitor be suspended from practice 1

Fines ranged from €500 to €6,340. * These relate to the same solicitor.

47 Law Society Gazette December 2003 Briefing PRINCIPAL GROUNDS ON WHICH PRO Administration of estates • Misleading clients in relation to title documents in a timely man- Solicitors’ accounts regulations • Delaying in extracting a grant of the progress of their case and ner or at all • Causing or allowing clients’ administration to the estate failing to tell them that any rem- • Failing to reply to his colleagues’ monies to be misappropriated • Failing to apply for a grant of pro- edy in their favour could be correspondence. and misapplied for personal and bate in a timely manner or at all statute-barred office purposes and failing to account to the • Putting a client in a very difficult Conveyancing • Causing a deficit to be con- estate for assets and interest situation with a financial institu- • Failing to conclude a conveyanc- cealed from both solicitor’s thereon and allowing a deficit in tion by misleading the client ing transaction on behalf of a reporting accountant and the the estate •Deducting fees from a settle- client, thereby severely prejudic- Law Society’s investigating • Untruthfully stating in a letter to ment without a client’s knowl- ing the client in that a judgment accountant by falsifying books of beneficiaries that the solicitor edge or consent was obtained against the client account over a number of years was awaiting a certified copy of • Failing to advise a client of the as a result • Lodging clients’ monies into an the Inland Revenue affidavit correct amount of a settlement •Misleading clients by informing account held at a building socie- from the Revenue Commission- • Failing to take the necessary them that a sale had closed and ty in the name of a secretary, in ers when the same had not been steps to protect a client’s inter- by paying out monies on foot of breach of regulation 3 of the sworn or lodged with the ests this purported closing when this Solicitors’ accounts regulations Revenue Commissioners • Failing in duty of disclosure to a was not the true position • Lodging a portion of the pro- • Untruthfully stating in four letters client in concealing from him • Failing to discharge a mortgage ceeds of an estate to the solici- to beneficiaries that the admin- and/or a colleague that the and failing to account to a client tor’s personal account, thereby istration was nearing completion claim had been allowed to for the monies concerned, being in breach of regulation 3 of when in fact the Inland Revenue become statute-barred. necessitating a payment out of the Solicitors’ accounts regula- affidavit was not sworn and the the society’s compensation fund tions solicitor had not applied for the Communication with clients/ • Allowing a conflict of interest •Breaching regulation 7(a)(iv) of necessary administration bond colleagues insofar as the solicitor never dis- the Solicitors’ accounts regula- and did not subsequently send • Failing to comply with a client’s closed that his partner was pur- tions no 2 of 1984 in retaining papers for lodgement in the instructions to hand over a file to chasing the property monies in respect of fees and Probate Office. a new firm of solicitors, despite • Allowing a conflict of interest outlay from monies held on the fact that the solicitor had insofar as the solicitor never behalf of a client without fur- Civil actions effectively stopped doing any fur- advised the clients to obtain nishing the client with a bill of • Delaying in prosecuting the per- ther work to progress the case separate legal advice. costs or other written intimation sonal injuries action of a client on behalf of the client of the amount of the costs over a period of some 18 years • Failing to respond to correspon- Professional indemnity insurance •Breaching regulation 8(1) and • Seriously prejudicing a client dence and telephone calls of • Failing to hold professional (2) of the Solicitors’ accounts through gross neglect of their enquiry from a client about the indemnity insurance cover in regulations no 2 of 1984 by case client’s case breach of the Professional drawing monies from the client •Lying to a client about the pro- • Failing to comply with a commit- indemnity insurance regulations account in the form of cheques gress of a non-existent ‘appeal’ ment to a colleague to furnish (SI no 312 of 1995 as amended) payable to clients but negotiated

Observations on complaints had very serious consequences. position, but they also enable a client. By way of highlighting its before the tribunal To be in breach of the solicitor to establish compliance attitude in regard to breaches of The tribunal has considered a Solicitors’ accounts regulations is a with the regulations. section 68, the tribunal asked the variety of complaints against disciplinary matter. Every prac- During the period under Law Society to publish the fol- solicitors. The most frequent tising solicitor has a duty to file review, the tribunal has taken a lowing notice in its Gazette: grounds of complaint continue with the Law Society of Ireland very strong stance in regard to ‘The tribunal is concerned that it to be under the headings of delay an accountant’s certificate for the the failure of solicitors to adhere should go out from here that if and lack of information. This is end of his/her financial year. to the provisions of section 68 of there is any practice in relation to of concern to the tribunal, as The absence of book-keepers or the Solicitors (Amendment) Act, settlements in road-traffic accidents there are a considerable number a proper system of book-keeping 1994. In one such case, the tri- as between solicitors and their of occasions where solicitors in solicitors’ offices has resulted bunal found a solicitor guilty of clients relating to fees, in so far as accepted instructions to attend to in a number of solicitors appear- misconduct in regard to a failure the tribunal is concerned they wish certain matters and subsequently ing before the tribunal and hav- to comply with the statutory it to be stated very clearly that the failed to bring the particular ing serious fines, in addition to obligation to furnish a bill in the provisions of section 68 of the business to a conclusion. costs, being imposed on them. format prescribed by section Solicitors (Amendment) Act, A number of complaints in The importance of keeping up- 68(6) of the Solicitors (Amend- 1994 is the law which is applicable relation to conveyancing matters to-date books cannot be over- ment) Act, 1994 and imposed a to this area of practice. As far as the reflect considerable slackness in emphasised, for not only do they fine of €2,000 in regard thereto. tribunal is concerned, that is the attending to established con- enable a solicitor’s own account- The tribunal also ordered the law that will be applied and no veyancing procedures, and in ant and the Law Society’s inves- respondent solicitor to pay other practice will in any sense be certain cases these failures have tigating accountant to verify the €5,078.95 as restitution to the deemed to take over that law.

48 Law Society Gazette December 2003 Briefing FESSIONAL MISCONDUCT WAS FOUND by the solicitors for their own received by the solicitor by way tor’s name on cheques and fail- • Failing to comply in a timely man- benefit and further without the of party/party costs and solici- ing to instruct him to desist ner with the directions of the authorisation by the Council of tor/client fees • Failing to exercise any or ade- Registrar’s/Compensation Fund the society prescribed by regula- •Allowing or causing the books of quate supervision over an Committees tion 8(2) account to be falsified by means unqualified employee who repre- •Misleading the Registrar’s •Breaching regulation 9(1) of the of systematic teeming and lad- sented a client in the prosecu- Committee and Compensation Solicitors’ accounts regulations ing, where funds which were tion of a case in the respondent Fund Committees in failing to keep a record of received subsequently from solicitor’s office. • Failing to comply with a notice lodgements received in connec- other clients were placed to the pursuant to section 10 of the tion with the solicitor’s practice. credit of the client whose remit- Undertakings Solicitors (Amendment) Act, Further, minimum books of tance was originally misappropri- •Breaching a solicitor’s undertak- 1994 requiring the delivery to account were not maintained in ated to conceal the deficit aris- ing with a bank to discharge a the society of the complainant’s connection with a building socie- ing on the client account. sum of money to the bank on file and papers to investigate the ty account completion of a conveyancing complaint of the complainant. • Failing to keep proper books of Section 68 transaction account to show dealings with • Failing to comply with section • Failing to comply with an under- Cases presented to the High Court clients’ monies by withdrawing 68(1) of the Solicitors taking given to a client to deal Struck off the Roll of Solicitors 2 from the client account all funds (Amendment) Act, 1994 with all Land Registry queries in Practising certificate be limited held on behalf of a client by way • Deducting or appropriating connection with the registration to the effect that the solicitor of a cheque made payable to monies in respect of their char- of title. is limited to practise as an cash, thereby concealing that a ges from the monies payable to assistant to a solicitor of not solicitor/client fee had been clients arising out of contentious Regulatory body: Law Society less than ten years’ standing 2* charged and therefore breaching business carried out on behalf of of Ireland Adjourned 4 regulation 10(1) of the the clients in breach of section •Lying to the registrar of solicitors Awaiting presentation to the Solicitors’ accounts regulations 68(3), (4) and (5) of the Solici- when the respondent solicitor High Court 2* •Breaching regulation 21(1) of tors (Amendment) Act, 1994 stated regarding a delay in filing * Four referrals to the president of the Solicitors’ accounts regula- • Failing to furnish clients with an accountant’s report that the the High Court were made in tions no 2 of 1984 in failing to bills of costs in breach of section balances had been checked respect of the same solicitor. deliver to the Law Society an 68(6) of the Solicitors ‘and everything was in order’, accountant’s report (Amendment) Act, 1994. whereas there was a deficit in Other orders made by the tribunal • Failing to reimburse clients the client account For the period ending 21 May monies they advanced as a con- Supervision • Failing to respond to the soci- 2003, the tribunal made seven tribution to professional fees • Failing to exercise any or ade- ety’s correspondence in a timely orders removing the names of the and costs incurred on doctors, quate supervision over non-qual- manner or at all solicitors, at their own request, engineers, actuaries and other ified employees in the office • Failing to comply with undertak- from the Roll of Solicitors. This was witnesses, notwithstanding that •Was aware that a law clerk/ ings given to the Registrar’s an increase on the previous period, their costs were subsequently book-keeper signed the solici- Committee when four such orders were made.

‘The tribunal wishes it to be the progress of their business any such material or information relating to family law matters. known that a solicitor who has been means that clients naturally to a third party (and this would The last year has seen the paid in full by the insurance compa- assume that nothing is happen- include the Solicitors Disciplin- expansion and enhancement of ny for the work done is not entitled ing and consequently blame ary Tribunal), even with the con- the tribunal’s jurisdiction and to any extra fee from his client for their solicitors. Ideally, com- sent of the parties to the pro- powers under the Solicitors that same work. plaints of this nature should ceedings, could amount to con- (Amendment) Act, 2002. As previ- ‘We feel that it is very important never reach the tribunal, but tempt of court. In the circum- ously indicated, sometime during for the future of the profession and nevertheless such a failure may stances, the tribunal, at the pres- the coming months five addition- the future of the clients of the pro- instigate a complaint to the Law ent time, is unable to prosecute al lay numbers are due to be fession that everybody knows what Society and ultimately end with applications alleging misconduct appointed. This will obviously the law is and the fullest possible a referral to the tribunal. against solicitors arising out of place an extra burden on the staff promulgation of the terms of section The privacy of family law pro- family law matters. I understand and resources of the tribunal. The 68 should be made available to the ceedings is protected by legisla- the Law Society of Ireland and tribunal, however, is committed profession, as has happened, but also tion which places an embargo on the independent adjudicator of to ensuring that whatever staff to the general public.’ the production to any third party the Law Society, Mr Eamonn and/or resources are required will Another frequent cause of of information which derives Condon, have made submissions be forthcoming, to ensure that complaint is simply the solici- from family law proceedings. In to the minister for justice, equal- the tribunal is enabled to carry tor’s failure to reply to the corre- the decision of Murphy J in RM ity and law reform seeking out its function and to maintain spondence of clients and the v DM, the primacy of the in cam- amendments to the in camera its independence. G Law Society. Failure to keep era rule was endorsed. It was also legislation which would allow clients adequately informed of emphasised that the disclosure of consideration of complaints Thomas D Shaw, chairperson.

49 Law Society Gazette December 2003 Briefing Personal injury judgment

Road traffic accident – post-traumatic stress disorder – general damages – damages for future loss of opportunity CASE Deirdre O’Brien Vaughan v Josephine Little, High Court, judgment of De Valera J, delivered on 11 August 2003. THE FACTS eirdre O’Brien Vaughan suffered injuries, including ini- osteophectomy, pain in her with her lifestyle and capacity Dwas driving her motor car tial shock and distress, neck ankle, nausea, diarrhoea and to teach music and perform as on 6 August 1999 at pain (both left and right side), vomiting, and psychological a musician. Colmoney, Co Clare. Her car left-arm pain, lower-back pain, trauma resulting in post-trau- Liability was admitted. The collided with a car driven by initial left-chest and breast matic stress syndrome. She High Court action proceeded Ms Little. Ms O’Brien bruising, back problems result- claimed that her continuing only in relation to the amount Vaughan is a music teacher and ing in discectomy and pain and suffering interfered of damages. JUDGMENT OF THE HIGH COURT e Valera J, in his judgment for Health ([1999] 2 IR 456) and would improve over the years. an absence of any satisfactory Ddelivered on 11 August 2003 Fitzgerald v Treacy ([2001] 4 IR The judge stated he had con- financial records. Accordingly, a noted that Ms O’Brien Vaughan 405). siderable difficulty in accepting decision under this heading was was a musician and a teacher who De Valera J considered that in fully the psychiatric evidence difficult. The judge noted that as was obviously held in consider- the instant case the injuries, adduced on behalf of Ms Ms O’Brien Vaughan’s mental able regard and esteem by her although severe, could not be O’Brien Vaughan. However, he and physical condition improves, peers and admirers in traditional categorised as catastrophic did accept that many of the psy- her musical talents and teaching music. The judge noted that injuries. The judge noted that chiatric difficulties, such as they capacity would allow for at least Clare music and musicians had the plaintiff had suffered serious were, were associated with her a supervisory role in teaching an enviable reputation; he pain and associated inconven- physical limitations, and when music in the future. Taking accepted completely that Ms ience. He accepted that these the physical limitations would everything into consideration, O’Brien Vaughan was a promi- had the effect, among other improve, so would her mental including the inadequacies of nent exponent and teacher of tra- things, of preventing her per- state. The judge accepted that evidence as to financial records, ditional music, as had been forming and enjoying her music because of her particular talents, he considered a fair basis to cal- described in court. up to January 2003 and into the there was a reference to her hav- culate the plaintiff’s loss of earn- The judge also accepted that future. He noted that her diffi- ing ‘lost her muse’ and this was a ings to the date of the trial would her injuries, in addition to caus- culties in regard to her music special and significant loss for be £250 a week for 40 weeks of ing her continuing pain and suf- were a combination of physical her. He did accept that she also the year (pre-tax) amounting to fering, had interfered with her and psychological problems. He had lost the opportunity of con- £8,160 a year (net). music endeavours (both teaching accepted, however, that the tinuing with her plans for an The judge accepted that the and performing) to a consider- plaintiff would, on the balance of Irish traditional music institute, plaintiff would gradually recover able extent. probabilities, continue to suffer but more so on the basis of a loss and he believed that, as she Counsel in court had specifi- some ill effects into the future. of a treasured cultural ambition improved, her talents and her cally asked the judge to consider However, he also found that, on rather than a financial loss. ‘muse’ would allow her to gradu- the issue of loss of Ms O’Brien the evidence before the court, ally get back to teaching and per- Vaughan’s plans to set up and run there was a reasonable probabil- Loss of earnings forming (perhaps not at the same an Irish traditional music insti- ity that Ms O’Brien Vaughan De Valera J stated that there was level as before, but to some tute as a loss to be considered in extent) and for this reason he general damages. THE HIGH COURT AWARD could not measure accurately In considering the appropriate her loss on a specifically actuar- amounts to be awarded for gen- De Valera J awarded damages as follows: ialised basis. It would be more eral damages, De Valera J made • General damages to the date of the trial – €100,000 appropriate to measure it in a reference to the so-called ‘cap’ on • General damages into the future – €80,000 lump-sum basis for future loss amounts considered by the •Special damages – €9,095 of opportunity. Accordingly, the Supreme Court in Allen v • Loss of earnings to date of trial – €41,444 loss of earnings in the future O’Suilleabhain and Mid Western • Loss of earnings into the future – €40,000 was measured at €40,000. G Health Board, Supreme Court, • Future medical expenses – €7,750. unreported judgment of 11 Total: €278,289 This judgment was summarised by March 1997, Kealy v The Minister solicitor Dr Eamonn Hall.

50 Law Society Gazette December 2003 Briefing Update

News from Ireland’s on-line legal awareness service Compiled by Karen Holmes for FirstLaw Know what

CHILDREN AND YOUNG The first applicant made a the Hague convention. On the PERSONS request to the minister for facts of this case, the central ARF justice, as the central author- authority did take action of Family law, practice ity for Ireland under the the type envisaged at para- stands for? and procedure Hague convention, for the graphs (f) and (g) of article 7. Child abduction – Hague con- return of the minors named DGH and Minister for vention – practice and proce- in the title. Thereafter, the Justice, Equality and Law dure – preliminary issue – par- minister for justice directed Reform v TCH, High ties to proceedings – central the Finglas Public Legal Aid Court, Miss Justice Finlay (Then don’t authority – whether minister as Law Centre to take instruc- Geoghegan, 24/6/2003 central authority obliged to ini- tions from the first applicant [FL8084] stand for just tiate or join in judicial proceed- and proceed on his behalf ings for return of child wrong- with an application to the any ARF.) fully removed from jurisdiction High Court for the return of COMPANY – Child Abduction and his two children to the juris- Enforcement of Custody diction of their habitual resi- Directors’ duties, Orders Act, 1991, section 9 – dence. By order of the High liquidation Hague convention, article 7 – Court (Abbot J), it was Application to restrict company Rules of the Superior Courts directed that the minister be directors – official liquidator – 1986, order 15 joined in the proceedings. obligation of liquidator to bring Article 7 of the Hague conven- The minister then applied application for restriction of tion obliges central authorities pursuant to order 15 of the directors – persons in respect of to co-operate with each other Rules of the Superior Courts whom obligation exists – statu- to secure the prompt return of 1986, to be removed as a tory interpretation – principles children and to achieve the party to the proceedings, of construction – whether liq- objects of the convention. In being, essentially, functus offi- uidator obliged to bring applica- About to retire? Then you know particular, it obliges the cen- cio at that stage. tion in respect of persons who that an Approved Retirement tral authorities to take all In directing that the min- were directors within 12 months Fund makes sense. appropriate measures to do a ister for justice be removed prior to commencement of liqui- number of things which are as a party to the proceedings, dation – Companies Act, What you may not know is that set out at paragraphs (a) to Finlay Geoghegan J held that 1990, section 150 – Company there’s a wealth of difference (i) of article 7, including: section 9 of the Child Law Enforcement Act, 2001, between an off-the-peg ARF and ‘a) to discover the where- Abduction and Enforcement of section 56 a tailor-made ARF from Davy. abouts of the child who was Custody Orders Act, 1991 USIT World plc was wound being wrongfully removed or required that where the cen- up by order of the High And when we say ‘wealth’ we retained … (c) to secure the tral authority received an Court on 15 May 2002. The mean ‘wealth’. voluntary return of the child application to which the liquidator issued a motion For more details, call Derek or to bring about an amicable Hague convention applied, ‘it pursuant to section 150 of McGrath on 01 614 8998. resolution of the issues … (f) shall take action or cause the Companies Act, 1990, to initiate or facilitate the action to be taken under that seeking declarations of institution of judicial or convention to secure the restrictions in respect of per- administrative proceedings return of the child’. The fact sons who it was alleged were with a view to obtaining the that the central authority was directors of the company return of the child and, in a obliged to take action or within one year of the com- proper case, to make arrange- cause action to be taken did mencement of the winding- ments for organising or secur- not require the central up. Included among such ing the effect of exercise of authority to be an applicant persons was a Mr Connolly, Davy. We do our homework. rights of access; (g) where the in any court proceedings who had been appointed a circumstances so require, to which were taken, as the director on 18 January 2001 DAVY IS A MEMBER OF THE IRISH AND LONDON STOCK provide or facilitate the provi- ‘action’ referred to in section and ceased to be a director EXCHANGES, AUTHORISED BY THE IRISH FINANCIAL sion of legal aid and advice, 9 of the 1991 act had to be on 2 July 2001. The liquida- SERVICES REGULATORY AUTHORITY UNDER THE STOCK EXCHANGE ACT, 1995. including the participation of construed in accordance with tor took the view that he was DAVY HOUSE, 49 DAWSON STREET, DUBLIN 2. counsel and advisors’. the provisions of article 7 of obliged to do so, as he had TEL: 01 614 8998, EMAIL: [email protected], WEBSITE: www.davy.ie

51 Law Society Gazette December 2003 REQUEST FOR EXPRESSIONS OF INTEREST FROM PROVIDERS OF LEGAL AND ACCOUNTING SERVICES

The Director of Corporate Enforcement has a requirement from time to time to obtain external legal and accountancy services from suitably qualified firms and persons. In retaining such services, he is anxious to give consideration not only to those providers who are already known to his Office but also to other suitably qualified experts. In that context, the Director proposes to establish panels of professional experts who wish to be considered for outsourced work during 2004. This work is likely to comprise specific assignments and to be time-sensitive. LEGALEXPERTS: The Director seeks expressions of interest from Senior and Junior Counsel and from Solicitors with relevant expertise and experience particularly in the areas of Company Law, Commercial Law, Criminal Prosecution and Judicial Review. ACCOUNTING EXPERTS: The Director seeks expressions of interest from Accounting Firms and Professionals who possess relevant expertise and experience in forensic accounting, auditing, insolvency and corporate rescue. LEGALCOSTS ACCOUNTANTS: The Director seeks expressions of interest from Legal Costs Accounting Firms and Professionals with relevant expertise and experience in legal accountancy services. Firms and persons who believe that they possess the requisite expertise and experience in any of the above areas are invited to register their interest by supplying the following information: I name, business address and contact details; I details of qualifications of principals; I details of qualifications of key staff (in the case of a firm); I details of relevant experience; I indication of the range and extent of skills and resources available (in the case of a firm); I indication of general availability, where possible, and I details of the geographical area within which the service provider predominantly operates. I proof of Financial and Economic Standing, including; • appropriate statements from banks or evidence of relevant professional risk indemnity insurance; • balance sheets or extracts therefrom; • statements of the undertaking’s overall turnover and the turnover in respect of similar services carried out in the last three years; • statement under Article 29 of EU Council Directive 92/50/EEC of 18/6/92, as amended by EU Directive 97/52; •Proof of Tax Compliance (e.g. Tax Clearance Certificate); The Director does not guarantee to retain firms or persons applying for inclusion on the panels but will, where practicable, accord due recognition to firms and individuals who respond to this request. The Director reserves full discretion to consult and engage firms and persons who are not on the panel, whenever he considers it advisable to do so. Information on the work of the Director’s Office may be obtained from its website at www.odce.ie. Expressions of interest should be sent for consideration before 31 December 2003 for inclusion in evaluation for the first tranche, via post, fax or e-mail to; Ms Phil Flood Corporate Services Unit Office of the Director of Corporate Enforcement 16 Parnell Square Dublin 1 Fax: (01) 8585 801 Email: [email protected] Later expressions of interest will also be considered. Briefing not been relieved of such up or within 12 months prior pledging of certain title doc- obligation by the director of to that date. uments. corporate enforcement pur- USIT Ireland Ltd (in liqui- Bayworld Investments v suant to section 56 of the dation), High Court, Miss McMahon and Others, High Company Law Enforcement Justice Finlay Geoghegan, Court, Mr Justice Smyth, Act, 2001. Mr Connolly con- 30/7/2003 [FL8079] 19/6/2003 [FL8051] tended, as a preliminary issue, that the official liquida- Equity and trusts, tor was not obliged under solicitors CRIMINAL section 56 of the 2001 act to Land law – equity and trusts – bring a section 150 applica- partnership – property – solici- Appeal, evidence ARF ARF tion in respect of him. tors – practice and procedure – Accomplice evidence – admissi- Finlay Geoghegan J found furnishing of documents of com- bility – whether witnesses could that the liquidator was under pany – whether company enti- consider their evidence to have an obligation to bring a sec- tled to return of documents been bought – whether that evi- tion 150 application in Proceedings were issued on dence so suspect that it could not Spotting respect of Mr Connolly, behalf of the plaintiff against be relied upon – corroboration – holding that while the legis- its former solicitors (the whether corroboration required the difference lature, in imposing an obliga- defendants). The plaintiff of accomplice evidence – whether tion under section 56 of the had sought the return of all circumstantial evidence can makes all 2001 act in respect of ‘each of documents relating to its amount to corroboration of the directors of the compa- business, along with its cor- accomplice evidence in relation ny’, did not expressly specify porate seal. The plaintiff’s to drugs offences – whether the difference. the point in time at which a position was that it needed applicant afforded trial in due person must be or have been sight of the documents in course of law – whether appli- a director of the company in order to assess more fully cant lawfully convicted order to come within the sec- transactions which had been The applicant had been con- tion – if a literal approach entered into in its name. A victed by the Special were applied to the construc- member of the defendant’s Criminal Court of importing tion of that section, it would firm (O’Brien) had also been controlled drugs into the mean that the section only involved in the plaintiff’s state and of possessing such referred to persons who were business and was a director of drugs with the intent to sup- directors of the company at the company. Mr O’Brien ply, contrary to section 15 of the date the obligation arose, asserted that, together with the Misuse of Drugs Act, 1977. What’s the first thing you which would lead to an the other directors of the On a charge of murdering a absurd result. Likewise, there plaintiff, they had in fact journalist, the Special should do before you pick an was nothing in the section, established an undisclosed Criminal Court held that, Approved Retirement Fund? either when construed on its trust and that, when prepar- while the facts admitted in Get a second opinion. own or in conjunction with ing contracts, he was doing evidence during the trial gave the other relevant sections of so on behalf of the partner- rise to a suspicion that the Because until you see the the 2001 act, which suggest- ship and not on behalf of the applicant had some part in difference between an average ed that the Oireachtas plaintiff. the murder, it was no more ARF and a custom built ARF intended that the obligation Mr Justice Smyth found in than a suspicion and that was be confined to persons who favour of the plaintiff. The not a basis upon which a per- from Davy, you won’t know were directors at the date of fact that persons in a partner- son could be convicted. what you’re missing. the commencement of the ship set up business under Evidence used to support For more details, call Derek winding-up. Accordingly, the aegis of a company does those convictions came McGrath on 01 614 8998. section 56(2) had to be con- not mean that the company largely from the testimony of strued in conjunction with does not have its own legal accomplices of the applicant. section 150 of the 1990 act personality with its own Those witnesses had, among and, when so construed, it rights and duties, together other things, been given appeared that the intention with the rights and duties of immunity against prosecu- of the legislature was that, at shareholders. On the basis of tion of various offences and a minimum, the obligation of the evidence adduced, the substantial sums of money in the liquidator under section plaintiff was a client of the return for agreeing to testify 56(2) of the 2001 act was to defendant and was entitled to against the applicant. Davy. We do our homework. bring an application pursuant the documents that it sought, However, the court, in its to section 150 of the 1990 act no matter what the views of judgment, recited various DAVY IS A MEMBER OF THE IRISH AND LONDON STOCK in respect of persons who the persons in the partner- pieces of circumstantial evi- EXCHANGES, AUTHORISED BY THE IRISH FINANCIAL were directors of the compa- ship were. An order was dence which it relied upon as SERVICES REGULATORY AUTHORITY UNDER THE ny at the date of the com- made to this effect, along corroboration of such STOCK EXCHANGE ACT, 1995. DAVY HOUSE, 49 DAWSON STREET, DUBLIN 2. mencement of the winding- with an order restricting the accomplice evidence. TEL: 01 614 8998, EMAIL: [email protected], WEBSITE: www.davy.ie

53 Law Society Gazette December 2003 Briefing

The applicant sought leave measures taken and identi- had been initiated in order to to appeal his convictions on fied to safeguard against challenge the extradition. An the grounds, among others, the dangers properly issue arose as to whether it that the evidence had been applied? was appropriate to have two obtained, at least to some 5) If all these matters were separate sets of proceedings degree, by offering incentives properly addressed, could in train in order to challenge to the witnesses who had been the evidence of the accom- the extradition. It was con- LAW SOCIETY the applicant’s accomplices. plice be reasonably accept- tended by the applicant that a The applicant did not argue ed? member of an Garda COMPANY FORMATION that there could not be a wit- Síochána had improperly SERVICE ness protection programme, In considering the evidence of attempted to use the existence but criticised the manner in the accomplices, the Special of the extradition warrants in which the programme had Criminal Court had been order to force the applicant to Your Company Formation Service forms been carried out. The appli- aware of such dangers and disclose information relating approx 1,100 companies every year for cant further complained that kept them in mind when con- to other alleged criminal over 300 solicitors’ firms. while the court may have set sidering their evidence. This activity committed in this We achieved ISO 9001:2000 NSAI in 2002. its standards as to its examina- was not a case where corrob- jurisdiction. It was also tion of the evidence of these oration was essential. argued, by reason of delay as WHY USE US witnesses at a high level, However, the court required well as alleged violation of the ■ Fast efficient service when it came to consider the of itself significant corrobora- applicant’s constitutional ■ Competitive prices actual evidence it accepted a tion of evidence given by the rights, that an order of extra- ■ 5 day electronic filing ■ 10 day ordinary filing lower standard than it had set accomplices. What the Spec- dition should not be made. itself, and if it had adhered to ial Criminal Court appeared McKechnie refused the WE FORM its own standards, it would to mean by corroboration was relief sought and confirmed ■ Private companies limited not have accepted the evi- circumstantial evidence or the extradition order. There by shares dence of the accomplices. independent testimony which was nothing to preclude an ■ Single member companies In upholding the appli- may lawfully amount to cor- applicant, in challenging his ■ Guarantee companies cant’s conviction in relation to roboration. There was cir- extradition, from issuing both ■ Charitable status companies the importation charge and cumstantial evidence that car- judicial review proceedings ■ Unlimited companies the offence under section 15 tons imported by an accom- and proceedings under the of the 1977 act, the Court of plice of the applicant con- Extradition Acts. However, in Criminal Appeal held that if tained drugs. The Special the interests of convenience SCHEDULE OF FEES there was an agreement Criminal Court was entitled and practicality, both sets of between a witness and the to find beyond reasonable proceedings should be heard Private and single member companies gardaí or the prosecuting doubt on the evidence before by the same court at the same limited by shares and unlimited authorities that he would give it that the applicant had un- time. There had been an companies: 5 day €330 certain specific evidence and lawfully imported the drugs attempt by an Garda 10 day €278 in return would be paid a spe- and had them in his posses- Síochána to improperly use Guarantee/charitable status cific amount of money, that sion with intent to supply. the existence of the extradi- evidence would be unlawfully DPP v Gilligan, Court of tion warrants in order to gain companies from €215 obtained and could be exclud- Criminal Appeal, 8/8/2003 further information from the ed. The events in the case did [FL8123] applicant. Despite this con- not approach that situation, duct, no information had however. In considering Extradition, detention been elicited from the appli- accomplice evidence, the fol- Criminal law – constitutional cant and no constitutional lowing questions should be law – extradition – detention – rights had been infringed. All asked: habeas corpus – delay – multi- the relevant statutory require- 1) Was it recognised by the plicity of actions practice and pro- ments had been complied court that there were dan- cedure – Garda Síochána – with and it had not been gers in accepting the evi- whether applicant should be established that the appli- dence without corrobora- extradited – whether improper cant’s right to an expeditious tion? pressure brought to bear on trial had been breached. 2) Were those dangers identi- applicant – Extradition Acts, Lynch v Attorney General fied by the court? 1965-2001 – Bunreacht na and Others, High Court, Mr 3) In the light of the particu- hÉireann 1937 Justice McKechnie, 8/4/ lar facts relating to the evi- The extradition of the appli- 2003 [FL8104] dence of each accomplice, cant to England had been were those dangers safe- sought on foot of charges Licensing, liquor

For further information, application form and form A1 see our guarded against? relating to an alleged assault. Licensing offence – case stated – website www.lawsociety.ie or contact us directly by 4) With regard to the particu- Judicial review proceedings District Court – summons – e-mail: [email protected] or lar circumstances of each and proceedings under sec- validity of summons – statute – tel (01) 6724914/6 or fax (01) 6724915 accomplice, were the tion 50 of the Extradition Act interpretation – whether statute

54 Law Society Gazette December 2003 Briefing or part thereof repealed by new 32(1) of the 1927 act apply in the 1927 act of would apply. act – whether summons charging respect of a summons charg- DPP v Joyce, High Court, liquor licence holder with offence ing the accused with an Mr Justice Quirke, 20/5/ should expressly state on its face offence under section 31(2) of 2003 [FL8078] that licence holder required to the 1988 act? produce licence to trial court – Quirke J held that the Intoxicating Liquor Act, summons was valid ab initio PLANNING AND 1927, section 32 – Intoxicating and was not flawed in the DEVELOPMENT Liquor Act, 1988, section 31 – manner contended for by Intoxicating Liquor Act, the accused, and: Certiorari 2000, sections 13 and 14 1) Answering the first ques- Judicial review – planning and Section 32(1) of the tion posed in the negative, environmental law – European Intoxicating Liquor Act, 1927 held that the enactment of law – certiorari – environmen- An ARF provides that where the section 14(1) of the 2000 tal impact statement – whether owner of the licence is act was intended for the application should be certified for charged with an offence to purpose of amending sec- appeal to Supreme Court – is an ARF. which part III of that act tion 31 of the 1988 act, whether delay bar to grant of cer- applies, the summons shall which deemed offences tificate – Local Government state that such holder will be under the section to be (Planning and Development) required to produce such offences to which part III Act, 1963 – Local Govern- Right? licence to the court at such of the 1927 act applied, ment (Planning and Develop- trial. Section 14(1) of the and its enactment had no ment) Act, 1992 – Planning Intoxicating Liquor Act, 2000 effect upon the provisions and Development Act, 2000 deleted the provision previ- of section 32(1) of the The applicant had brought an ously contained in section 1927 act application seeking leave to 31(3) of the Intoxicating Liquor 2) Answering the second and seek judicial review in respect Act, 1988, which provided third questions posed in of a decision issued by an that ‘the offence [under sec- the negative, held that sec- Bord Pleanála to dismiss her tion 31 of the 1988 act] shall tion 14(1) of the 2000 act appeal against the grant of be deemed to be an offence to deleted the mandatory permission for a development. which part III of the act (of requirement to endorse a The application for leave was 1927) applies’. licence in respect of prem- dismissed. The applicant now Wrong. The average Approved The accused was the hold- ises where an offence sought to appeal to the Retirement Fund is most definitely er of an off-licence who was occurred under section 31 Supreme Court on the basis not enough. charged with an offence of the 1988 act. that the application involved under section 31 of the 1988 Accordingly, on the date points of law of exceptional Not when you consider the act of permitting alcohol to be when the summons requir- public importance and sought benefits of an ARF from Davy. sold to a minor. The sum- ing the accused to come to the appropriate statutory cer- Like the undivided attention of mons charging him did not court was issued, the tificate. It was contended on a personal Portfolio Manager. state on its face or otherwise offence with which he had behalf of the applicant that that the accused was required been charged had not been matters were raised regarding Like the flexibility to choose to produce his licence to the deemed to be an offence to the applicable thresholds for between a broad range of court at the trial. The accused which part III of the 1927 the furnishing of an environ- investments, including property. contended that the summons act applied and there was mental impact statement was flawed because the accordingly no require- (EIS). The first-named notice Like the sound of a Davy ARF? offence with which he had ment for a statement of the party submitted that the earli- For more details, call Derek been charged was an offence type referred to in section er court judgment had refused McGrath on 01 6148998. to which part III of the 1927 32(1) of the 1927 act to be leave to seek judicial review as act applied and, accordingly, contained in the summons. no substantial grounds had should have stated on its face been established. According- that he was required to pro- Obiter dictum: the court, ly, no point of law of impor- duce his licence to the trial however, retained a discre- tance could be said to have court. The district judge stat- tionary power to order that a arisen. It was not permissible ed the following questions for conviction for an offence to allow an appeal to the determination by the High under section 31 of the 1988 Supreme Court on theoretical Court: 1) did section 14(1) of act be recorded on the points of law. It was also in the Davy. We do our homework. the 2000 act repeal section licence held by the accused, public interest that planning

32(1) of the 1927 act?; 2) is an but it was only upon the decisions should be imple- DAVY IS A MEMBER OF THE IRISH AND LONDON STOCK offence under section 31(2) of exercise of that discretionary mented as soon as possible. EXCHANGES, AUTHORISED BY THE IRISH FINANCIAL the 1988 act an offence to power that the offence Murphy J refused the SERVICES REGULATORY AUTHORITY UNDER THE STOCK EXCHANGE ACT, 1995. which part III of the 1927 act would be deemed to be an application. The matter of the DAVY HOUSE, 49 DAWSON STREET, DUBLIN 2. applies?; and 3) did section offence to which part III of threshold relating to EIS’s had TEL: 01 614 8998, EMAIL: [email protected], WEBSITE: www.davy.ie

55 Law Society Gazette December 2003 Briefing been considered in the context of parties as to the use to which the PRACTICE AND cation, holding that the court the decision of the court refusing premises could be put. The defen- PROCEDURE would have to be satisfied that leave. It was of some significance dant’s real concern was that the there was something wrong in the that the present application was plaintiff was attempting to use the Interim relief decision-making process in res- not made at the time when the premises for a purpose for which Application for interim relief – stay on pect of the Circuit Court orders application for leave to seek judi- they were never intended by ref- Circuit Court order – production before it would grant the relief cial review was made. Given the erence to the planning permis- order in respect of infant – whether sought. The applicant could have overall import of the legislation sion. It believed that the plaintiff relief should be granted – alternative applied for interim access to her and the clear indications of the was attempting to turn the centre remedies – whether application pre- child pending a full hearing of the courts regarding time restrictions, into a concert and entertainment mature – whether applicant should appeal of the Circuit Court orders, parties should be aware of the venue. In essence, the court was pursue appeal before bringing applica- which she did not do, therefore no importance of acting promptly. asked to grant a declaration as to tion order in respect of the production The applicant was not entitled to the true meaning of the planning The applicant sought an interim of the infant or his passport would apply for a certificate after the permission. stay on orders of the Circuit be made. As the attorney general application had been determined Kelly J in the High Court made Court granting the respondent did not have any role to play in the by the court. In addition, no issues a declaration that the plaintiff’s custody of the infant MS, an order proceedings, he would not be arose involving points of law of centre could be used for the type for the inclusion of the attorney joined as a party thereto. exceptional public importance. of uses set out in the schedule of general as a party to the proceed- FS v MN, High Court, Mr Ní Ghruagáin v an Bord activities, including the service of ings, an order for the production Justice Gilligan, 15/4/2003 Pleanála and Others, High food and drink ancillary to such of the infant MS to the High [FL8068] G Court, Mr Justice Murphy, cultural activities. The plaintiff Court, an order for the surrender 19/6/2003 [FL8033] could not use the centre for non- of the passport of the said infant The information contained here cultural activities and could not and an order prohibiting the is taken from FirstLaw’s Legal Construction, environment use it to hold weddings or as a removal of the said infant from Current Awareness Service, pub- Planning permission – declaratory nightclub. the state by anyone apart from lished every day on the Internet at relief – true meaning of planning Grianan an Aileach Interpreta- herself. She indicated her inten- www.firstlaw.ie. For more informa- permission – approach to construction tive Centre Company Ltd v tion to appeal the said Circuit tion, contact [email protected] or The defendant granted the plain- Donegal County Council, High Court orders but had not yet filed FirstLaw, Merchants Court, tiff planning permission. This case Court, Mr Justice Kelly, the appeal papers. Merchants Quay, Dublin 8, tel: 01 involved a dispute between the 22/8/2003 [FL8100] Gilligan J in refused the appli- 679 0370, fax: 01 679 0057.

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56 Law Society Gazette December 2003 Briefing Eurlegal News from the EU and International Affairs Committee Edited by TP Kennedy, director of education, Law Society of Ireland

Intellectual property licensing in Europe – proposed new EU competition rules

n 1 October 2003, the sors/licensees to review and, if automatic exemption from OJ L 31/2), for example, IP OEuropean Commission necessary, amend their existing article 81 may need to be licensing of the results of published for public consulta- IP licensing agreements that do notified for individual assess- jointly-developed R&D to tion a proposed EU regulation not meet the proposal’s condi- ment by the EU member other companies on the application of the EU tions for exemption from the states’ national competition • Implications for global IP licens- competition rules to agreements application of article 81 of the authorities (’national agen- ing – because of the key dif- for licensing of patent (and EC treaty. cies’) and not the commis- ferences between the propos- other types of) intellectual sion. This is the result of a al and the competition and property (IP). Change of licensing culture separate reform of the EU IPR regimes in, for example, This note summarises why • Market share thresholds – the competition rules (regulation the US and Japan, IP licen- readers of the Gazette (and their proposal will require licen- 1/2003, OJ L 1/1, 4 January sors/licensees will probably advisers) should take account of sors and licensees of intellec- 2003). Having regard in part welcome more certainty these changes in developing tual property rights (IPR) to to other EU guidelines, IP about how their global their individual IP licensing constantly review that their licensors/licensees will need licensing strategies can be strategies and why, in response shares of the market affected to be confident that these developed in Europe without to the consultation, they may by the licensing agreement national agencies will apply risking violation of article 81. wish to submit comments to the do not exceed certain thresh- the proposal correctly and commission. olds, thus avoiding the risk of consistently across the Existing IP licensing violating article 81 of the EC expanded European Union, agreements Exemption from article 81 of treaty and attracting possible especially where an assess- After 31 October 2005, the pro- the EC treaty fines and/or legal challenges. ment of the possible anti- posal will apply to IP licensing The proposed EU regulation Staying below these thresh- competitive effects of a par- agreements signed by IP licen- (published with 60 pages of olds will be especially rele- ticular licensing agreement sors/licensees on or before 30 draft guidelines) sets out the vant for IP licensors/ requires a full understanding April 2004. Therefore, before conditions that IP licensing licensees in dynamic, innova- of the relevant industry then, both licensors and agreements must satisfy to be tion technology markets • Outside the scope of the new EU licensees should check that the automatically exempted from •Prohibited restrictions – under regulation – the proposal also proposal’s fundamental changes the application of article 81 of the proposal, including certain explains how the European do not undermine the legal value the EC treaty (the prohibition prohibited restrictions on Commission and national of their existing IP licensing on anti-competitive agree- competition (for example, cer- agencies should apply article agreements drafted under the ments). The proposal also tain types of cross-licensing 81 to licensing agreements current EU competition rules. explains the circumstances in obligations between ‘competi- that are not covered by the which that exemption will not tors’) in their licensing agree- new regulation (for example, Next steps be available to, or could even be ments will prevent IP licen- patent pool agreements and The proposal can be down- withdrawn from, IP licensors/ sors/licensees enjoying the multiparty licensing) loaded from the European licensees. legal and commercial benefits •What else is new? – the pro- Commission’s website at http:// of automatic exemption from posal also explains how the europa.eu.int/eur-lex/pri/en/oj/ Enforcement the application of article 81 commission will apply many dat/2003/c_235/c_23520031001 The proposal will enter into • Individual assessment – from 1 aspects of the law that are not en00100054.pdf. G force on 1 May 2004. There will May 2004, IP licensing covered by the current EU be a transition period (only until agreements that do not meet competition rules (regulation Conor Maguire is a solicitor prac- 31 October 2005) for IP licen- the proposal’s conditions for 240/96 of 31 January 1996, tising in Brussels.

FOR BOOKINGS CONTACT MARY BISSETT OR PADDY CAULFIELD TEL: 668 1806 Meet at the Four Courts LAW SOCIETY ROOMS Courtat the Four Courts 57 Law Society Gazette December 2003 Briefing Recent developments in European law COMPETITION €450 for processing personal which the worker is working, at the sidiaries in other member states. data by automatic means without employer’s disposal and carrying This was an unjustified restriction Case T-203/01 Manufacture notifying the Swedish supervisory out his … duties’. A German court on freedom of establishment. Française des Pneumatiques authority in writing, for transferring sought a ruling from the ECJ as to Michelin v Commission of the data to third states without autho- whether the German law was in FREE MOVEMENT OF European Communities, 30 risation and for processing sensi- conformity with the directive. The PERSONS September 2003. Michelin has a tive personal data (that relating to ECJ held that the totality of time dominant position on the French the foot injury). A Swedish court spent on call is working time. The Case C-109/01 Secretary of State market for replacement tyres for referred the case to the ECJ, ask- decisive factor is that the doctor for the Home Department/Hacene trucks and buses. In 2001, the ing whether the activities with is required to be present at a Akrich, 23 September 2003. Mr commission adopted a decision which she was charged are con- place determined by the employer Akrich is a Moroccan citizen. finding that Michelin had abused trary to the provisions of the Data and to be available to provide Since 1989, he has made a num- its dominant position through a protection directive. The ECJ held their services immediately in case ber of attempts to enter and system of discounts, refunds and that referring to people on a web of need. Doctors are not free to reside in the United Kingdom. His financial advantages with its deal- page and identifying them by choose the place where they stay applications for leave to remain ers. The system operated by name and giving other information during waiting periods. The court were always refused. In 1996, Michelin tied dealers to the com- about them constitutes ‘process- held that its interpretation was while residing illegally in the UK, pany and undermined competi- ing of personal data … by auto- not altered by the fact that a rest he married a UK citizen and tion. Michelin was fined €19.76 matic means’. Reference to the room was made available to the applied for leave to remain in his million. Michelin brought an action state of an employee’s health doctor. A doctor who is required to capacity as her spouse. His before the CFI for annulment of amounts to processing of data make himself available at a place spouse was established in Ireland the decision. It argued that the concerning health. The court held specified by his employer is sub- from June 1997 and he was discounts and bonuses were not that the directive does not restrict ject to greater constraints than a deported to Dublin in August loyalty-inducing and challenged freedom of expression or other doctor on stand-by, as he is apart 1997. His spouse was offered a the commission’s argument that fundamental rights. It is for from his family and social environ- position in the UK commencing in the cumulative effect of the vari- national courts and authorities ment and has less freedom to August 1998. In early 1998, Mr ous systems of rebates amounted responsible for applying the manage the time during which his Akrich applied for permission to to a further abuse. The CFI upheld national legislation implementing professional services are not enter the UK as the spouse of a the decision of the commission. It the directive to ensure a fair bal- required. Under these conditions, worker exercising her EC rights of held that a company in a domi- ance between the rights and inter- a doctor required to be available free movement. The secretary of nant position that operates a sys- ests in question, including those at the place determined by his state refused his application. The tem of loyalty discounts and fundamental rights. employer cannot be regarded as refusal was on the basis that the bonuses impedes normal price- being at rest during the periods of move to Ireland was no more than based competition. EMPLOYMENT his on-call duty when he is not a temporary absence designed to actually carrying on any profes- manufacture a right of residence DATA PROTECTION Case C-151/02 Landeshaupt- sional activity. for Mr Akrich and to evade the pro- stadt Kiel v Norbert Jaeger, 9 visions of the UK legislation. He Case C-101/01 Bodil Lindqvist, 6 September 2003. Mr Jaeger is a ESTABLISHMENT appealed against the refusal to November 2003. Ms Lindqvist German doctor who works at a the Immigration Appeal Tribunal, was involved in preparing people hospital in Kiel. He performs on- Case C-168/01 Bosal Holding BV which referred the matter to the for communion in a parish in call duty that requires him to be v Staatssecretaris van Financien, ECJ. The court observed that a Sweden. In 1998, she set up a present in the hospital and avail- 18 September 2003. Bosal is a member state is obliged to grant website to enable parishioners to able to work when called on. This Dutch company involved in financ- leave to enter and remain on its obtain information they were likely additional duty is partly offset by ing and licensing transactions. It territory to the spouse of a nation- to need. These web pages includ- additional time off and partly by is subject to corporation tax in the al of that state who has gone, with ed data on Ms Lindqvist and her additional pay. He is allocated a Netherlands. In 1993, it declared his spouse, to another member parish colleagues. The names of room with a bed in the hospital costs in excess of €1,800,000 in state to work there as an her colleagues were given, along where he can sleep when his serv- relation to the financing of its employed person and who returns with a description of their work ices are not required. Mr Jaeger holdings in companies estab- to settle in the state of which he and their hobbies. In several argues that this on-call duty must lished in nine other member is a national. Regulation 1612/68 cases, family information, tele- be deemed to constitute working states. It claimed that these costs refers only to freedom of move- phone numbers and other infor- time. German law defines on-call should be deducted from its own ment within the EC and is silent mation was given. She mentioned service as rest time except for profits. The Dutch tax office as to the rights of a national of a that one of her colleagues was that part of it where professional refused to allow this deduction. non-member state, who is the working part-time on medical tasks are actually performed. The The case was referred to the ECJ. spouse of a citizen of the EU, in grounds, as she had injured her Working time directive defines It held that the Dutch rules were regard to access to the territory of foot. She was fined approximately working time as ‘any period during an obstacle to setting up sub- the EC. In order to benefit from

58 Law Society Gazette December 2003 Briefing the right to move with the citizen side the areas set aside by law for 1986 as a university professor in ments of EC law attributable to it: of the EU, the spouse must be gambling. The Portuguese court Austria. In 1996, he applied for a the rule of law infringed must be lawfully resident in a member made a reference to the ECJ as to long-service increment for univer- intended to confer rights on indi- state when he moves to another the compatibility of the national sity professors. Austrian law con- viduals, the breach must be suffi- in order to work there as an law on gambling with EC law. The fined the grant of that benefit to ciently serious, and there must employed person. The court held ECJ found that the activity of oper- service for 15 years solely in be a direct causal link between that the motives of an EU citizen ating gaming machines is a serv- Austrian universities. The appli- the breach of the obligation intending to seek work in another ice within the meaning of the cant had 15 years of service, but incumbent on the state and the member state are irrelevant in treaty. Article 59 applies to much of it had been spent in uni- loss or damage sustained. In assessing the legal situation of national legislation where it is versities in other member states. determining whether the infringe- the couple at the time of their liable to prohibit or impede the His request for the increment was ment of a national court of last return to the member state of ori- activities of a provider of services refused and he challenged this instance is sufficiently serious, a gin. Where a marriage is genuine established in another member refusal in the Austrian courts, national court must determine and a national of a member state, state where he legally provides arguing that it amounted to indi- whether the court of last instance married to a national of a non- such services. This was the case rect discrimination. The Austrian manifestly infringed the applica- member state, returns to this here, where national legislation administrative court of last ble law. The ECJ also held that state of origin, where the spouse restricts gambling solely to casi- instance (the Verwaltungsgericht- the Austrian legislation concern- does not enjoy EC rights, not hav- nos located with areas estab- shof) referred the matter to the ing the grant of the increment ing resided lawfully on the territo- lished under the law. Such restric- ECJ. Following a judgment of the was incompatible with EC law and ry of another member state, the tions can be justified by overriding ECJ in a similar case, the could not be justified. Confining authorities of that state must reasons relating to the public Austrian court withdrew its the increment to those who expe- none the less take into account interest, provided that the restric- request for a ruling. On 24 June rience was gained solely in the right to respect for family life tions are proportionate. Portugal 1998, the applicant’s action was Austrian universities is an obsta- under article 8 of the European defended its restrictions on the dismissed. The Austrian court cle to the free movement of work- convention on human rights. ground that it was seeking to held that the increment was a loy- ers. The ECJ held that the judg- maintain fairness in games of alty bonus that justified a deroga- ment of the Austrian court of last FREE MOVEMENT OF chance and there was the possi- tion from the provisions on free instance was based on an incor- SERVICES bility of deriving some benefit for movement of workers. The appli- rect reading of an ECJ judgment the public sector. The ECJ identi- cant then brought an action for and infringed EC law. However, Case C-6/01 Associaçno Nacional fied these as objectives that pur- damages against the Republic of the infringement cannot be de Operadores de Máquinas sue the protection of consumers Austria, arguing that this judg- described as manifest. The ECJ Recreativas (Anomar) and Others and the maintenance of order in ment was contrary to EC law. The had not had an opportunity of rul- v Portuguese State, 11 society. These objectives can jus- court hearing this action referred ing whether a loyalty bonus could September 2003. In Portugal, tify interference with the freedom a number of questions to the ECJ. be justified under EC law. Thus, gambling can only take place in to provide services. The ECJ held that member states its reply in that regard was not casinos holding a public licence. are obliged to make good damage obvious. The court of last Anomar is an association of STATE LIABILITY caused to individuals by infringe- instance should have maintained Portuguese gaming machine oper- ments of EC law attributable to its request for a preliminary rul- ators. Together with a number of Case C-224/01 Gerhard Köbler v national courts adjudicating at ing. It was owing to its incorrect private companies, it brought an Republic of Austria, 30 last instance. There are three reading of the previous ECJ judg- action arguing that they were enti- September 2003. Mr Köbler had conditions that are necessary to ment that it did not persist with tled to operate slot machines out- been employed since 1 March make the state liable for infringe- its request. G

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59 Law Society Gazette December 2003 People and places

Put a Cork in it Pictured at a meeting of the West Cork Bar Association are (back row, from left) Jim Brooks, Con Murphy, Sean Cahill, Jim Long, Anne Marie Hourihane, Tony Greenway, Paul O’Sullivan and Richard Barrett; (middle row, from left) Ciaran O’Brien, PJ O’Driscoll, Diarmuid O’Shea, Maria O’Sullivan, Fergus Applebe, Eamonn Fleming, Letty Baker, Veronica Neville, Maurice O’Connor, Flor McCarthy, Ted Hallissey and Malachy Boohig; and (front row, from left) Karen Crowley, Roni Collins, Colette McCarthy, Law Society immediate past-president Geraldine Clarke, director general Ken Murphy, Ray Hennessy, Áine O’Donovan and Flor Murphy

Great balls of fire Taking the FLAC SADSI committee members at the annual SADSI ball on 15 November, Mrs Justice Catherine McGuinness speaking at the opening of the (from left): Sonya Heney, Eamonn Kelly, Lorraine Rowland, Sinead Lynch, new head office of the Free Legal Advice Centre, Dorset Street, Cormac O’Regan, Nessa Barry Dublin, in October

Guests of honour Parlez-vous? Guest speakers at the SADSI careers day (from left): SADSI Law Society director general Ken Murphy in the company of Alan treasurer Eamonn Kelly; Keith Walsh, Fawsitt Solicitors; Kevin Kinsella, Dukes, director general of the Institute of European Affairs, François Bank of Scotland (Ireland); Orla Fee, Thomson Round Hall; Mary Chambraud, director of Alliance Française, and Law Society director Reynolds, Chief State Solicitor’s Office; Mr Justice Michael Peart; and of education TP Kennedy at the recent conferral of the SADSI auditor Des Barry Diploma in legal French

60 Law Society Gazette December 2003 People and places

Gerard A Lee: 1917-2003

erard A Lee SC lectured on the law Gerry Lee was made a senior counsel in Gof practice and procedure of the 1979 and elected a bencher of King’s Inns. courts to a generation of solicitors. He Mr Justice Gerard Lardner, a former lectured in the 1960s and 1970s in the judge of the High Court, observed in his relatively early hours of the morning, foreword to Gerry Lee’s A memoir of the often in a hired room, such as the hall south-western circuit (1990) that the author’s adjacent to St Andrew’s Church, St book revealed a person ‘apt for friendship, a Andrew’s Street, Dublin. The location was lover of books and landscape, a man of barren of any atmosphere worth civilised tastes and interests, someone who remembering – save that of the genial and has been preserved from worldliness’. Gerry generous lecturer. Lee was both of the world and yet sensibly Gerry Lee was born on 17 October attuned to a ‘cosmos’ that he believed 1917 and died on 15 November 2003. He existed outside our comprehension of our is remembered with fondness by a mundane day-to-day existence. generation of solicitors, colleagues and In the foreword to Gerry Lee’s second friends. Son of a medical doctor, he was book, Dublin as a European city, Mr Justice educated at St Munchin’s College, Declan Costello, a former president of the Limerick, and UCD, where he was High Court, wrote that Gerry Lee had been awarded first class honours in his BA (arts and law subjects). He an enthusiast all of his life. As a young man, he travelled widely was subsequently awarded a master’s degree. throughout Europe. History and literature enthralled him; his He recalled how one afternoon in 1940, when he sat for the stories were legendary. He was a successful law reporter with the autumn degree examination in UCD, then located at Earlsfort Incorporated Council of Law Reporting for Ireland and the Irish Te rrace, a great noise filled the room as a black German law times series of reports. warplane flew past the window, apparently with a British Author of numerous articles in national and international fighter plane in pursuit. The noise interrupted the quietness publications, his writings on history (including legal history), of the intellectual endeavours of UCD’s finest as they constitutional law and literature will survive. Although he was a contemplated profound responses for the Roman law dedicated romantic, he never married. His sense of romanticism examination. Thankfully, ‘Roman law’ prevailed and there may be gleaned from the following words of one of his poems, followed a life-long love affair between Gerry and matters bearing the appropriate title Utopia: European. Find me a land where beauty never fades, Awarded a gold medal for oratory and legal debate in King’s Where love is not a promise for tomorrow Inns and the Law Society in UCD, Gerry Lee was called to the Or yesterday’s regret, find me a land bar in 1942 and practised principally in the southwestern circuit Where truth is reigning yet. and in Dublin. In 1952, he was awarded a Council of Europe In ancient towns where art is bred scholarship and studied at the University of Strasbourg and the My soul was thrilled with joy, Academy of International Law in The Hague. He lectured in But sadness whispered in my heart UCD, principally in constitutional law. He subsequently ‘This beauty too shall die’. G lectured on practice and procedure for the Law Society during the 1960s and 1970s. Dr Eamonn Hall.

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61 Law Society Gazette December 2003 Apprentices’ page SADSI

Solicitors Apprentices Debating Society of Ireland Bigger and brassier

ctober and November saw who worked tirelessly on and collecting sponsorship. The committee is hard at work Otwo spectacularly successful scheduling and arrangements regional reps, Cormac preparing for the upcoming events: the trainee career for the guest speakers while O’Regan, Dawn Carney and elections and AGM. A mailshot development day and the SADSI keeping his usual close eye on Sonya Heney, ensured that the detailing the nomination and ball. Both events were bigger expenditure. Lorraine Rowland ball was well attended by election process will be sent out and more flamboyant then ever was central to the organisation trainees based outside Dublin. soon. We would encourage all before, and recognition must be of the SADSI ball. The Finally, kudos to public interested trainees, particularly given to those that made the committee was in awe of her relations officer Nessa Barry for those on the current PPC1 events possible. Careers day dedication and efficiency. Sinead organising sponsorship and course, to involve themselves in would not have happened Lynch, Simon Hannigan, and wine for both SADSI events. the formation of next year’s without the invaluable work of PPC1 rep Michelle Geraghty As we hurtle towards the committee. our treasurer Eamonn Kelly, were involved in selling tickets Christmas vacation, the SADSI Des Barry, auditor SADSI ball 2003 – yet another flaming success he highlight of the trainee the main ballroom. Dinner was helm. Everyone present will Tsocial calendar was 15 followed by a bonanza of agree that they provided the November in the salubrious enviable spot prizes, kindly finest of entertainment, and surrounds of the Berkeley sponsored by BrightWater were overshadowed only by a Court Hotel. An unprecedented Selection, Kelly & Ping rendition of Suspicious minds by number of guests gathered for a Restaurant, HMV, the Unicorn PPC2 trainee Karl Sherlock, pre-dinner wine reception in Restaurant, Sunway Holidays who took to the stage in the the main lobby sponsored by and Arthur Cox Solicitors. It guise of Elvis, no less (see Comans Wholesalers, before was then time for the band, photo, bottom left). The live enjoying a five-course meal in Lightning Strikes, to take the performances were followed by Trainee career development day his year, the annual SADSI Tcareers day was held on Thursday 30 October in the a disco DJ, before an Presidents’ Hall at Blackhall entourage made their way to Place, and was followed by a Leggs on Leeson Street, wine reception in the Blue Room. despite the crisp weather Our guest speakers, drawn conditions. All in all, it was a from across the legal field, great night, and I would like to highlighted the spectrum of thank everyone for coming options available to trainees and along. soon-to-be-qualified solicitors. The committee would like Keith Walsh of Fawsitt Solicitors to thank the sponsors who gave much-appreciated advice Voice of experience made the 2003 SADSI ball on career options for those of Mr Justice Michael Peart addressing the 2003 SADSI careers day possible: BrightWater us soon to face the job market. in October Selection; Rochford Brady Mary Reynolds of the Chief Michael Peart spoke warmly of The committee would like to Law Searchers; BCM Hanby State Solicitor’s Office made us his career in litigation and offer our sincere thanks to the Wallace; Ivor Fitzpatrick & envious of the career benefits advised us to seek job guest speakers, who put on a Company; Whitney Moore & available to those who choose satisfaction above all else in the great show for the largest Keller; McCann FitzGerald; to represent the state’s legal workplace. And, finally, Kevin audience in years. We would LK Shields; Ellis & Ellis Law interests. Orla Fee of Thomson Kinsella of Bank of Scotland also like to thank our sponsors, Searchers; Dillon Eustace; Round Hall described her career (Ireland) talked about the the Law Society and Ulster Frances E Barron & Co; in legal publishing, an challenging and satisfying Bank, without whom the event Harrison O’Dowd; Holmes interesting alternative to experience of working as an ‘in- would not have been possible. O’Malley Sexton; and Blake becoming a solicitor. Judge house’ lawyer. Eamonn Kelly, treasurer and Kenny Solicitors. Lorraine Rowland, eastern rep

62 Law Society Gazette December 2003 Parchment ceremonies

P ARCHMENT CEREMONIES 2003

63 Law Society Gazette December 2003 Parchment ceremonies ins, William Cummins, Marianne Deely, Ian Devlin, Sandra Doyle, Emma ins, William Cummins, Marianne Deely, n O’Reilly, Daire T O’Shea, Michael A Otobo, Connor Quigley, Michael Quinlan, Daire T O’Shea, Michael A Otobo, Connor Quigley, n O’Reilly, ealy, Francis Harty, Catherine Kearney, Aisling Hayes, Gareth Henry,ealy, Helen Kealy, McDaid, Una McEvoy, Patricia McHugh Treacy, Celine Monaghan, Patrick E Moran, Patricia McHugh Treacy, McDaid, Una McEvoy, Gerard Rudden, Sinead Ryan, Mary Peter White Scriven, Michael Small, Karina Smyth, Sabine Walsh, of their parchments on 7 March 2003 Newly-qualified solicitors at the presentation Fidelma Bane, David Beggan, Mel Bourke, Deirdre Brophy, Laurence Burke, Liam Collins, Ruth Collins, Marianne Crowley, Orla Cumm Laurence Burke, Liam Collins, Ruth Marianne Crowley, Fidelma Bane, David Beggan, Mel Bourke, Deirdre Brophy, Farrell, Aine Feeney, Triona Feeney, Averil Field, Susan Fleming, Reginald Ferguson, Averil Jane Emma Garry, Feeney, Bernadette Goff, Triona Farrell, Aine Feeney, Eilis Gr Roisin Kelly, James Kinch, Fergus Kinsella, Jacqueline Lacey, Eoin Langford, Olivia Lynch, James Kinch, Fergus Ciara Macklin, John McCarthy, Olive Kinsella, Jacqueline Lacey, Roisin Kelly, Dermot F Murphy, Helena O’Carroll, Gerard O’Donoghue, Michael O’Flaherty,Dermot Darren Noirin O’Connor, F Murphy, O’Keeffe, Simon O’Neill, Susa

64 Law Society Gazette December 2003 Parchment ceremonies Newly-qualified solicitors at the presentation of their parchments on 12 March 2003

Annette Barry, Deirdre Blackwell, Jaqueline Breen, Hilary Callanan, Antonia Canney, Colin Carroll, Shane P Connolly, Daragh Feeney, Rory Fitzgerald, Garrett Fitzpatrick, Hazel Flynn, Mary Flynn, Dorothea Gleeson, Elaine Guinan, Jennifer Haughton, Alan Heuston, Pauric Hyland, Deirdre Kennedy, Siobhán Laighléis, Ian Lynam, Gearoid Lynch, Jennifer A McCarthy, Andrea McGill, Marc McLoughlin, Antonia Moore, Gerard O’Brien, Martin O’Carroll, Róisín Peart, Donnacha O’Connor, Violet Quigley, Louise Rouse, Jean P Scanlan, Marcella Sheehy, Brendan Slattery, Aislinn Walshe, James Wall Newly-qualified solicitors at the presentation of their parchments on 4 September 2003

Hilkka Becker, Mary Jo Bradley, Mary Campbell, Niall Clancy, Mona-Claire Costelloe, Susan Donegan, Anthony Donagher, Suzanne Dunphy, Mary Hegarty McRedmond, Vanessa Hogan, Raymond Lannon, Christine Le Beau, Niall Lenihan, Thomas A McDonnell, Ciara McElinn, Paul McKenna, Alexander McLean, Kate Madden, Ian Mallon, Nicola Murtagh, Sharon Oakes, Sinead O’Sullivan, Linda Power, David Thorpe, Stefan Ziegenhagen

65 Law Society Gazette December 2003 Parchment ceremonies James St John Lee, Elaine McCormack, Fiona McGinn, Hilary McGrath, Fiona enda Costello, Daniel Cronin, Niall Crowley, Deirdre Crowley, Denise Dockery, Deirdre Crowley, enda Costello, Daniel Cronin, Niall Crowley,

ien, Moira O’Connor, Grainne O’Donovan, Clodagh O’Hagan, Ciara O’Kennedy, ien, Moira O’Connor, Michael Gavin, Aoife Gibson, Aine Gleeson, Aoife Hallissey, John Herbert,Michael Gavin, Aoife Gibson, Aine Gleeson, Hallissey, Claire ra Scott, Peter Stapleton, Collette Staunton, Therese Thornton, Patrick Turley, ra Scott, Peter Stapleton, Collette Staunton, Therese Thornton, Patrick Turley, Fiona Webber, Fiona Woodyatt, Kathleen Burke Fiona Woodyatt, Fiona Webber, of their parchments on 15 May 2003 Newly-qualified solicitors at the presentation Michelle O’Leary, Claire O’Regan, Alice O’Reilly, Patrick Timothy O’Riordan,Michelle O’Leary, Alison Quail, Russell Rochford, Alice Scollan, Lau Claire O’Regan, Alice O’Reilly, Julienne Dockery, Paula Fearon, Eimear Fitzgibbon, Annette Fogarty, Sinead Gallagher, Winifred Gallagher, Sinead Garry,Julienne Dockery, Winifred Paula Fearon, Gallagher, Eimear Fitzgibbon, Annette Fogarty, Muiris Sinead Gallagher, Higgins, Valerie Hourigan, Caroline Paul Keogh, Anne Marie Kiernan, Keane, Margaret Catherine King, Caitriona Lanigan, Kennedy, Higgins, Valerie McLafferty, Arleen McMahon Elliott, Lesley Morris, Martina Nicola Murray Hayden, Gavan Neary, Edel O’Brien, Finola O’Br Murphy, Sinead Baggott, Roisin Bennett, Alice Boland, Elizabeth Bradley, Kelly Breen, Mary Br Sinead Baggott, Roisin Bennett, Alice Boland, Elizabeth Bradley, Browne, Lisa M Chambers, Stephen Coakley,

66 Law Society Gazette December 2003 Parchment ceremonies Nevin, Lynne Northridge, Dan O’Connor, Eibhlin O’Donnell, Mary O’Farrell, Brid O’Flynn McSwiney, Hazel O’Keeffe, Aileen O’Leary Brid O’Flynn McSwiney, O’Farrell, Hazel O’Keeffe, Dan O’Connor, Eibhlin O’Donnell, Mary Northridge, Nevin, Lynne Costelloe, Ian Cunningham, Claire Curran, Lisa Davy, Curran, Gillian Dully,Costelloe, Ian Cunningham, Claire Iseult Doherty, Simon Earls, Helen Flynn, Ian Foley, Simone Connor Bass, Sabrina Burke, Brian Burns, Aisling Butler,Connor Bass, Sabrina Burke, Brian Burns, Dara Callaghan, Jill Callanan, Rachel Carney, Cassandra Byrne, Lisa Ca Patrick McClean, Ruth McDonagh, Derval McGinley, McGrady, Maureen Patrick McClean, Ruth McDonagh, Derval Plunkett McGreevy, John McKenna, Anna McLaughlin, Leona McMah Houlihan, Collette Hunt, Edward Johnston, Maeve A Joyce, Malachy Kearney,Houlihan, Collette Hunt, Edward Emma Keegan, Yvonne Kelly, Stephen Lyd Evana Kirrane, Robinson, Neasa Ryan, Sarah Scally, Zoe Mary Smith, Mairead Sweeney, Caitriona Timmins, Jennifer Tuite, Claire Mary Waterson, Sweeney, Smith, Mairead E Sarah Scally, Jennifer Tuite, Caitriona Timmins, Mary Robinson, Neasa Ryan, Claire Zoe Mary Newly-qualified solicitors at the presentation Newly-qualified solicitors at the presentation of their parchments on 29 May 2003 of their parchments

George, Michelle Golden, Thomas Karl Gordon, Anita Gubbins, Kerry Hiles, Donal Anita Gubbins, Kerry Michelle Golden, Thomas Karl Gordon, George, , Niamh O’Leary, Rosemary O’Loughlin, Michael Reilly, Thomas Reynolds, Keith Rosemary , Niamh O’Leary, rt y,

Niall Colgan, Eamon Concannon, Joanne Conlon, Kathleen Connolly, Cliona on, Noeleen Maughan, Simon McArdle, Eileen McCabe, Aine on, Noeleen Maughan, Simon McArdle, on, Orla McMullin, Barry Moloney, Edel Murray, Leo Moore, Gerard on, Orla McMullin, Barry laine C White

67 Law Society Gazette December 2003 Parchment ceremonies Nolan, Karl O’Connor, Kathy O’Connor, Michael O’Doherty, Siobhan Kathy O’Connor, Nolan, Karl O’Connor,

ling Kelly, Cliona Kelly, Barry Kennelly, John James Lacy, Hazel Larkin, Ian Barry John James Lacy, Cliona Kelly, Kennelly, ling Kelly, triona McMahon, Kevin McMeel, Kelly McNamara, John J David rie Collins, Majella Costello, Katrina May Crooks, Conor Delaney, Quentin Denis, rie Collins, Majella Costello, Katrina May Crooks, Conor Delaney, of their parchments on 4 June 2003 O’Donoghue, Katharine O’Reilly, David Ridgway, Aisling Ryan, Robert David Ridgway, Michelle Scarry,O’Donoghue, Katharine O’Reilly, J Ryan, Jonathan Tomkin Scally, Avril Newly-qualified solicitors at the presentation Meares, David Molloy, Patricia Murphy, Carol Murphy, Charles Murtagh, Carol Murphy, Anthony Nagle, Linda Ni Chualladh, Michael Nicell, Sinead Patricia Murphy, Meares, David Molloy, Peter Fagan, Anthony Greenway, Jennifer Higgins, Maura Hurley, Audrey Huggard, Laurena Hughes, Alan Johnston, Graham Jones, Ais Jennifer Higgins, Maura Hurley, Peter Fagan, Anthony Greenway, Larkin, Rachel Lee, Barry Lonergan, Emily MacNicholas, Robin McDonnell, Brian McGill, Jennifer McGivern, Stephen McLoughlin, Ca Marc Bairead, Anne Ma Erin Barrett, Brian Clarke, Muireann Cillian Bergin, Cody, Louise Boughton, Suzanne Carthy, Angela Casey,

68 Law Society Gazette December 2003 Parchment ceremonies Gleeson, Michael Kieran Griffin, Dara Harrington, Sinead Healy, Dara Harrington, Helen Hennessy,Gleeson, Michael Kieran Griffin, Clodagh Keating, Donal Keenan, Shane Kelleher, Marie Therese Allen, Etain Boyce, Sinead Boyle, Freda Rosemary Brennan, Eileen Burke, Katherine Butterly, Brennan, Robert Michael Byrne, Rosemary Allen, Etain Boyce, Sinead Boyle, Freda Marie Therese Sean Conlan, Garry Connolly, Aisling Costello, Ann Coyle, Orla Cullinan, Ann Marie Dooley, Wendy Doyle, Robert Duff, Mary Cathe Mary Connolly, Duff, Aisling Costello, Ann Coyle, Orla Cullinan, Marie Dooley,Sean Conlan, Garry Wendy Doyle, Robert McFeely, Claire McGrade, Anita Mary Moran, Lynda Mullin, Enda Nevin, Sinead Nolan, Susan Noone, Sharon Oakes, Heather Maria O’B Mullin, Enda Nevin, Sinead Nolan, Susan Noone, Sharon Moran, Lynda McFeely, McGrade, Anita Mary Claire Fionnuala O’Sullivan, Lillian O’Sullivan, Alison Power, Margarita Purtill, Alyson Rodi, Richard Ryan, Jonathan Sheehan, Andrew Jonathan Sheehan, Andrew Ryan, Alyson Rodi, Richard Fionnuala O’Sullivan, Lillian Alison Power, Purtill, Margarita Newly-qualified solicitors at the presentation of their parchments on 9 July 2003 of their parchments rine Dwyer, Anne Ellis, William Fogarty, Louise Forrest, Noelle Galvan, Peter rine Dwyer, Louise Forrest, Anne Ellis, William Fogarty, Alma Kelly, Catherine M McDarby, Ludhaidh Kerin, Edwena Lynch, John Mark

Cannon, Hilary Nora Casey, Sarah Cassidy,Cannon, Hilary Emma Comyn, Eleanor Cleary, yrne, Aidan O’Connell, Joanne Mary O’Donnell, Clare O’Shea-O’Neill, O’Donnell, Clare Aidan O’Connell, Joanne Mary yrne, Synnott, Gerald Thornton

69 Law Society Gazette December 2003 Professional information

LOST LAND lands: Cuilly; area: 7.9242 hectares; CERTIFICATES Co Donegal LawSociety Regd owner: Andrew Brady; folio: Gazette Registration of Title Act, 1964 DN18373; lands: property situate in An application has been received from the townland of Crumlin and barony the registered owners mentioned in the of Uppercross; Co Dublin ADVERTISING RATES schedule hereto for the issue of a land Regd owner: John Collins; folio: Advertising rates in the Professional information section are as follows: certificate as stated to have been lost or DN8237; lands: property situate in inadvertently destroyed. A new certifi- the townland of Kilcrea and barony • Lost land certificates – €46.50 (incl VAT at 21%) cate will be issued unless notification is of Nethercross; Co Dublin • Wills – €77.50 (incl VAT at 21%) received in the registry within 28 days Regd owner: Shane Fearon and Valerie • Lost title deeds – €77.50 (incl VAT at 21%) from the date of publication of this Fearon; folio: DN21620F; lands: • Employment miscellaneous – €46.50 (incl VAT at 21%) notice that the original certificate is in property known as 33 Craigmore existence and in the custody of some Drive, Tallaght, situate in the town- HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – €30 EXTRA person other than the registered owner. land of Oldbawn and barony of All advertisements must be paid for prior to publication. Deadline for Any such notification should state the Uppercross, shown as plan 453K; January/February Gazette: 23 January 2004. For further information, contact grounds on which the certificate is Co Dublin Catherine Kearney or Valerie Farrell on tel: 01 672 4828 (fax: 01 672 4877) being held. Regd owner: Cormac Hade; folio: (Register of Titles), Central Office, Land 23042L; lands: property situate in Registry, Chancery Street, Dublin the townland of Jobstown and townland of Keeraunbeg and barony land of Abbeyfeale East and barony (Published 5 December 2003) barony of Uppercross situate to the of Moycullen; area: 0.2930 hectares; of Glenquin; Co Limerick north side of the Tallaght to Co Galway Regd owner: John Moran: folio: 2062F; Regd owner: John F Baxter, Bellsgrove, Blessington Road in the town of Regd owner: John Gaffney and Mary lands: townland of Cloonreask and Ballynarry, Co Cavan; folio: 894F; Tallaght; Co Dublin Josephine Gaffney (deceased); folio: barony of Connello Lower; Co lands: Bellsgrove; area: 0.7334 Regd owner: Henry Haynes; folio: 12036F; lands: townland of Tisaxon Limerick hectares; Co Cavan DN11308; lands: a plot of ground and barony of Tiaquinn; area: 0.500 Regd owner: David Jones, Dring, Regd owner: Suzanne Crowe; folio: known as 3 Shanliss Grove, in the acres; Co Galway Granard, Co Longford; folio: 6797; 666; lands: townland of Doon and parish of Santry and in the district of Regd owner: Patrick Keane (deceased); lands: Ballinrooey; area: 34.9547 barony of Bunratty Upper; area: Santry and in the county borough of folio: 20075; lands: townland of hectares; Co Longford 64.5163 hectares; Co Clare Dublin; Co Dublin Caheronaun and barony of Lough- Regd owner: James Shiels, Dungooley, Regd owner: John Hanrahan and Anne Regd owner: Daniel Patrick O’Connor; rea; area: 27 acres, 2 roods, 8 perch- Dundalk, Co Louth; folio: (1) 7108, Hanrahan; folio: 8149F; lands: town- folio: DN13151; lands: property sit- es; Co Galway (2) 8446; lands: Lurgankeel, land of Doonaun and barony of Tulla uate in the townland of Ballinteer Regd owner: Gerard Kenny; folio: Dungooley; area: 5.293 acres, 5.331 Upper; area: 0.422 acres; Co Clare and barony of Rathdown; part of the 3881F; lands: Headford and barony acres; Co Louth Regd owner: John Houlihan and property situate on the north side of of Clare; Co Galway Regd owner: James Moran (junior); Kathleen Houlihan; folio: 3719F; Ballinteer Avenue in the village of Regd owner: William Murphy folio: 8577; lands: townland of (1) lands: townland (1), (2), (4) Ross, (3) Ballinteer; Co Dublin (deceased); folio: 26277; lands: and (2) Carrowbrinoge and barony of Carrowmore South and barony of Regd owner: Laurence and Deirdre townland of (1), (2) Caherawoneen (1) and (2) Carra; area: (1) 9.0421 (1), (2), (4) Moyarta, (3) Ibrickan; O’Toole; folio: DN6331L; lands: and (3), (4) Northhampton and hectares and (2) an undivided moiety area: (1) 0.6660 hectares, (2) 32.8807 Shalamar, 11B Wellington Park, barony of (1), (2), (3) and (4) of 8.8575 hectares; Co Mayo hectares, (3) 0.1922 hectares, (4) Whitehall Cross, Dublin 6W; Co Kiltartan; area: (1) 3.1540 hectares, Regd owner: Kathleen and Robert 8.8197 hectares; Co Clare Dublin (2) 4.7190 hectares, (3) 2.0040 O’Regan (deceased); folio: 26097F; Regd owner: John Moylan; folio: Regd owner: Miriam Duffy and hectares, (4) 2.6700 hectares; Co lands: townland of (1), (2) and (3) 4137L; lands: a plot of ground being Michael Harris; folio: DN18673; Galway Keel East and barony of (1), (2) and part of the townland of Coolroe and lands: a plot of ground situate to the Regd owner: Gerald Quinn; folio: (1) (3) Burrishoole; area: (1) 0.334 barony of Muskerry East in the coun- north of the Howth Road in the 13449, (2) 14567; lands: townland of hectares, (2) 0.627 hectares, (3) 0.185 ty of Cork; Co Cork parish and district of Killester and (1) and (2) Cloonlyon and barony of hectares; Co Mayo Regd owner: the lord mayor, aldermen city of Dublin; Co Dublin (1) and (2) Killisn; area: (1) 3.4904 Regd owner: Patrick Walsh (deceased) and burgesses of Cork; folio: 12900; Regd owner: Kay Scanlon; folio: hectares and (2) 10.3650 hectares; folio: 13170; lands: townland of lands: a plot of ground being part of DN77210F; lands: property known Co Galway Cavanquarter and barony of the townland of Knocknaheeny and as 2 Mill Cottages, Dartry, situate in Regd owner: Michael Breslin; folio: Kilmaine; area: 8.1490 hectares; Co barony of Cork in the county of the parish of St Peters and district of 8951F; lands: townland of Liss and Mayo Cork; Co Cork Rathmines; Co Dublin barony of Dunkerron South; Co Regd owner: Maura McGuinness, Regd owner: Charles Doherty, Regd owner: Pierce White; folio: Kerry Oakley Park, Kells, Co Meath; folio: Greencastle, Co Donegal; folio: DN108523F; lands: property situate Regd owner: James and Maura Mortell; 9942; lands: Oakleypark or 308F; lands: Eleven Ballyboes; area: in the townland of Balgaddy and folio: 3511F; lands: townland of Lawreneetown; area: 11.1667; Co 0.1821 hectares; Co Donegal barony of Uppercross; Co Dublin Toor and barony of Dunkerron Meath Regd owner: Donald Loughran, 30 Regd owner: Declan Wogan; folio: South; Co Kerry Regd owner: Cornelius Gleeson Meadow Hill, Kiltroy, Letterkenny, DN119012F; lands: property situate Regd owner: Joseph Carr; folio: 795L; (deceased); folio: 12771; lands: town- Co Donegal; folio: 43710F; lands: in the townland of Ballisk Common lands: townland of Morristownbiller land of Maudemount and barony of Ardrawer; Co Donegal in the barony of Nethercross, known and barony of Connell; Co Kildare Kilnamanagh Lower; Co Tipperary Regd owner: Alfred and Stephen as site no 52 Hazelwood, Regd owner: Robert Cusack; folio: Regd owner: Michael J McGowan McCroary, Drumbane, Castlefin, Co Beaverstown Road, Donabate; Co 14920R; lands: townland of Farnane (deceased); folio: 13421; lands: town- Donegal; folio: 2588; lands: Graffy; Dublin and Liscreagh and barony of land of Carrowhubbuck South and area: 6.8040 hectares; Co Donegal Regd owner: Brendan Doran and Owneybeg; Co Limerick barony of Tireragh; area: 28 perches; Regd owner: Peter and Hugo Sweeney, Josephine Doran; folio: 49226F; Regd owner: Dina Fitzgerald; folio: Co Sligo Summerhill, Donegal; folio: 12274F; lands: townland of Treanalaur and 25929; lands: townland of Regd owner: Mary Keane, lands: Summerhill; area: 1.480 barony of Dunkellin; area: 0.146 Ballybrown and barony of Ballinagrenia, Rosemount, Moate, hectares; Co Donegal hectares; Co Galway Pubblebrien; Co Limerick Co Westmeath; folio: 5309; lands: Regd owner: George White, Cully, Regd owner: Michael Feehan Regd owner: William and Irene Custorum; area: 15.4387 hectares; Laghey, Co Donegal; folio: 4472R; (deceased); folio: 2275F; lands: Lenihan; folio: 6473F; lands: town- Co Westmeath

70 Law Society Gazette December 2003 Professional information

Regd owner: Michael Kiernan, c/o Miss 9924/820 9925, fax: 01 820 9929, e-mail: Kathleen Smith, Carrick, Castlejor- [email protected] dan, Edenderry, Co Offaly; folio: www.liquidations.ie 4317; lands: Grange Beg; area: Farrell, Kieran (deceased), late of 21.6506 hectares; Co Westmeath Beltichburn, Drogheda, Co Louth. For information on insolvency, employees entitlements, Would any person having knowledge of defending a section 150 application, informal schemes the whereabouts of a will executed by of arrangement, dealing with the sheriff, services to WILLS the above mentioned deceased who died on 21 August 2003, please contact solicitors and free Insolvency Helpline Service. Brady, Margaret (deceased), late of 205 Branigan Berkery, Solicitors, 29 Brookvale Lawn, Drogheda, Co Louth. Laurence Street, Drogheda, Co Louth; Would any person having knowledge of tel: 041 983 1238, fax: 041 983 1145 tact Bryan F Fox and Co, Solicitors, 46 Salthill, Co Galway and formerly Santa a will made by the above named North Circular Road, Dublin 7 Maria, Knocknacarra, Salthill, Galway; deceased who died on 15 January 2003 Gallagher, Marita (deceased), late of 66 ‘Suncroft’, 61 Lower Salthill, Galway; 8 at Our Lady of Lourdes Hospital, Herberton Road, Rialto, Dublin 12 and Guidera, Timothy (deceased), late of Fr Griffin Road, Galway; and 90 Fr Drogheda, Co Louth, please contact formerly of Bridge Street, Donegal Sringfield, Borris in Ossory, Co Laois. Griffin Road, Galway. Would any per- Thornton Solicitors, 52 O’Connell Town. Would any person having knowl- Would any person having knowledge of son having knowledge of a will made by Street, Limerick; tel: 061 315 543, fax: edge of a will made by the above named a will made by the above named the above named deceased who died on 061 315 503, ref: BD/3894 deceased who died on 1 November 2003 deceased who died on 24 October 2003, 25 September 2001, please contact L at Killiney Nursing Home, Co Dublin, please contact Devitt Doorley O’Connor and Co, Solicitors, 196 Bukin, Betty (deceased), late of 45 please contact PC Carroll & Co, MacNamara, Solicitors, Roscrea, Co Upper Salthill, Galway; tel: 091 525 346 Forest Walk, Rivervalley, Swords, Co Solicitors, 115 Lower Baggot Street, Tipperary; tel: 0505 21176, fax: 0505 Dublin. Would any person having any Dublin 2; tel: 01 676 7676, fax: 01 676 22113, e-mail: [email protected] knowledge of the whereabouts of a will 2344, e-mail: [email protected] EMPLOYMENT made by the above named deceased McGath, Patrick (or Pat) (deceased), please contact O’Scanaill & Co, Glavin, Desmond Joseph (deceased), late of 9 Whitehall Place, Galway. Apprentice solicitor available. A Solicitors, 41 Main Street, Swords, Co late of 43 Hardiman Road, Drumcondra, Would any person having knowledge of mature law graduate seeks position as Dublin; tel: 01 840 4371, e-mail: Dublin 7. Would any person having a will made by the above named apprentice solicitor urgently. Hard [email protected] knowledge of a will made by the above deceased who died on 5 Septmeber working, bright and enthusiastic. named deceased who died on 12 August 2003, please contact Elaine Brady, Considerable employment experience. Donohoe, Eamonn (deceased), who 1980 at Jervis Street Hospital, please Hehir Mulryan, Solicitors, 17 Foster Computer literate. First Irish examina- died on 6 August 2003 and late of 187 contact Bryan F Fox and Co, Solicitors, Street, Galway; e-mail: hehirmul- tion passed. Available for immediate Clonsilla Road, Blanchardstown, Dublin 46 North Circular Road, Dublin 7 [email protected] start. Any area considered. Please reply 15, Crott, Moyne, Co Longford and 51 to box no 100 Cannanbury, Enfield, Middlesex, EN1 Glavin, Ann (deceased), late of 43 O’Reilly, Mary Bridget, late of 32 3LW. Would any person having knowl- Hardiman Road, Drumcondra, Dublin Glendoher Drive, Rathfarnham, Dublin Experienced solicitor available for edge of a will made by the above named 7. Would any person having knowledge 14 and formerly of Ardamagh, locum/part-time work in North Kerry deceased please contact O’Sullivan of a will made by the above named Ballyhaise in the county of Cavan, born area. Please contact box no 101 Steen and Co, Solicitors, Main Street, deceased who died on 3 March 2002 at 1 February 1921. Would any person Castleknock, Dublin 15; tel: 01 820 Wexford General Hospital, please con- having any knowledge of a will made by Experienced solicitor available for the above named deceased who died on locum, part-time, contract work in pro- 14 January 2003 at St James Hospital, bate and conveyancing – Sligo, Leitrim, Dublin 8, please contact Sarah Ryan, Roscommon, Longford. Reply to box DUBLIN SOLICITORS’ Mangan O’Beirne Solicitors, 31 no 102 PRACTICE OFFERS Morehampton Road, Dublin 4; tel: 01 ABACUS 668 4333, fax: 01 668 4252, e-mail: Locum solicitor required from AGENCY WORK [email protected] January 2004 to June/July 2004 with IN NORTHERN BOOK KEEPING experience in conveyancing and pro- IRELAND Power, Deirdre (deceased), late of 38 bate. Apply with CV to Niamh SERVICES Sherlock Park, Skerries, Co Dublin. Kavanagh, Keane Solicitors, Hardiman * All legal work undertaken Would any person having knowledge of House, Eyre Square, Galway; tel: 091 on an agency basis a will made by the above named 566 767 * All communications to clients deceased who died on 5 June 2003, through instructing solicitors SPECIALISING IN please contact Gerrard L McGowan, Part-time locum solicitor required * Consultations in Dublin if required LEGAL ACCOUNTS, Solicitors, 29 Thomas Hand Street, for conveyancing and probate practice, Contact: Séamus Connolly NORTH EASTERN Skerries, Co Dublin; tel: 01 849 2075, to cover six months’ maternity leave Moran & Ryan, Solicitors, REGION fax: 01 849 2098 commencing 5 January 2004 to 1 July Arran House, 2004. Clonmel practice. Reply to box 35/36 Arran Quay, Dublin 7. Walsh, Meadbh Agnes (orse Meadh/ no 103 For further information, Meadb/Meave) (deceased), retired shop Tel: (01) 872 5622 please contact assistant late of ‘Cascia’, San Antonio Fax: (01) 872 5404 Fleur @ Park, Salthill, Galway. Would any person having knowledge of a will TO LET e-mail: [email protected] 042-9382157 made by the above named deceased or Bank Building, Hill Street Second floor suite of offices at 086-8147270 who died on 21 March 2002, please Newry, County Down. 132 Lower Baggot Street, [email protected] contact L O’Connor and Co, Solicitors, Dublin. Short or long-term lease Tel: (0801693) 65311 196 Upper Salthill, Galway; tel: 091 offered. Will suit solicitors set- Fax: (0801693) 62096 525 346 ting up practice. For details, con- E-mail: [email protected] tact Patrick J Madigan, solicitor; Walsh, John Patrick (deceased), (doc- tel: 01 492 1111 tor) late of ‘Cascia’, San Antonio Park,

71 Law Society Gazette December 2003 Professional information

Publication of advertisements in this section is on a fee basis and does not Chartered Accountants, Orchard represent an endorsement by the Law Society of Ireland. House, Beaumont Avenue, Church- town, Dublin 14 LAW AGENCY SERVICES NORTHERN TITLE DEEDS ENGLAND & W ALES IRELAND In the estate of Mary Bridget SOLICITORS O’Reilly, late of 32 Glendoher Drive, SOLICITORS Rathfarnham, Dublin 14, and formerly Established 1825 We will engage in, and advise on, of Ardamagh, Ballyhaise in the county all Northern Ireland- of Cavan. Anybody with any informa- related matters, tion regarding the whereabouts of the particularly personal injury title deeds of 32 Glendoher Drive, litigation. Rathfarnham, Dublin 14, purchased on 9 September 1975 from Mr Eamonn Consultations where Mooney for the sum of £10,700, convenient. •Fearon & C o act for Irish residents in the fields of please contact Sarah Ryan, Mangan probate, property and litigation O’Beirne, Solicitors, 31 Morehampton • Each solicitor is available by direct line, fax or e-mail. Road, Dublin 4; tel: 01 668 4333, Conferences can be easily arranged OLIVER M fax: 01 668 4252, e-mail: solicitors@ •Fearon & C o is committed to the use of information LOUGHRAN manganobeirne.ie technology to help improve both the quality and speed of service for the benefits of all clients both at & COMPANY In the matter of the Landlord and home and abroad Tenant Acts, 1967-1994 and in the • The firm’s offices are within half an hour of London 9 HOLMVIEW TERRACE, matter of the Landlord and Tenant OMAGH, (Ground Rents) (No 2) Act, 1978: W aterloo station and within a short travel from both CO TYRONE Gatwick and Heathrow airports, with easy access from an application by Petrogas Engineering Ltd the London orbital M25 motorway Phone (004428) 8224 1530 Fax: (004428) 8224 9865 Ta ke notice that any person having an e-mail: interest in the freehold estate of the fol- PHONE NOW FOR A BROCHURE [email protected] lowing property: land situate at W estminster House 12 The Broadway, Woking, Surrey GU21 5AU England Conyngham Road, Kilmainham, Fax: +44 (0)1483 725807 Dublin 8, held under lease dated 9 Email: [email protected] www.fearonlaw.com August 1842 and made between LITIGATION PROPERTY PROBATE MISCELLANEOUS Martin Williams John Phillips Francesca Nash William Worthington of the one part Tel: +44 (0)1483 776539 Tel: +44 (0)1483 747250 Tel: +44 (0)1483 765634 and Andrew O’Toole of the other part Northern Ireland solicitors providing for the term of 200 years from 1 July an efficient and comprehensive legal 1842 at the yearly rent of £25. service in all contentious/non-con- Take notice that Petrogas tentious matters. Dublin-based consul- Engineering Ltd, the applicant, tations and elsewhere. Fee apportion- intends to submit an application to the ment. ML White, Solicitors, 43-45 county registrar in the county of the Monaghan Street, Newry, Co Down; city of Dublin for the acquisition of the tel: 080 1693 68144, fax: 080 1693 freehold interest together with any 60966 intermediate interest in the aforesaid property and any persons asserting that SPANISH LAWYERS Northern Ireland agents for all con- they hold a superior interest in the tentious and non-contentious matters. aforesaid premises are called upon to Consultation in Dublin if required. Fee furnish evidence of title to the afore- RAFAEL BERDAGUER sharing envisaged. Offices in Belfast, mentioned premises to the under- ABOGADOS Newry and Carrickfergus. Contact signed within 21 days from the date of Norville Connolly, D&E Fisher, this application. TWENTY YEARS ADVISING CLIENTS Solicitors, 8 Trevor Hill, Newry; tel: In default of any such notice being IN REAL ESTATE TRANSACTIONS IN SPAIN 080 1693 61616, fax: 080 1693 67712 received by the undersigned solicitors, PROFILE: FIELD OF PRACTICES: the said Petrogas Engineering Ltd panish Lawyers Firm focused eneral Practice, Administra- England and Wales solicitors will intends to proceed with the application Son serving the need of the for- Gtive Law, Civil and Commercial provide comprehensive advice and before the county registrar in the county eign investors, whether in compa- Law, Company Law, Banking and undertake contentious matters. Offices of the city of Dublin for directions as ny or property transactions and all Foreign Investments in Spain, in London, Birmingham, Cambridge may be appropriate on the basis that the attendant legalities such as ques- Arbitration, Taxation, Family Law, and Cardiff. Contact Levenes Solicitors person or persons beneficially entitled to tions of inheritance, taxation, International Law, Litigation in all at Ashley House, 235-239 High Road, the superior interest including the free- accounting and bookkeeping, Courts. Wood Green, London 8H; tel: 0044 hold reversion to the aforesaid property planning, land use and litigation in 2088 17777, fax: 0044 2088 896395 are unknown and unascertained. all Courts. Date: 26 November 2003 Solicitor’s practice for sale. Dublin Signed: McGarr Solicitors (solicitors for Avda. Ricardo Soriano, 29, city-centre practice. Fees circa €225K. the applicant), 34/35 Wicklow Street, Edificio Azahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain Replies to McCann Kane and Co, Dublin 2 Tel: 00-34-952823085 Fax: 00-34-952824246 e-mail: [email protected] Web site: www.berdaguerabogados.com

72 Law Society Gazette December 2003