Contents GazetteLawSociety

Regulars Cover Story Hold the front page! News 2 8 There’s been considerable speculation about the potential impact of the European Viewpoint 6 convention on human rights on family law and criminal law – but how will it affect the Tech trends 30 media and the issue of free speech? Michael Briefing 34 Kealey discusses the articles most likely to keep editors up at night Practice notes 34 Legislation update 36 Till deceit do us part? Personal injury The Supreme Court recently reassessed Irish judgments 38 12 nullity law in the context of one party’s FirstLaw update 40 infidelity and adultery. John Healy examines Eurlegal 45 fresh attempts to widen the basis of nullity law as it applies to marriages People and based on deception places 49

Obituary: Ernest Margetson 51 A healthy alternative As in so many other countries, Apprentices’ page 53 16 medical malpractice cases are on the rise Professional here. Kieran Doran looks across the Atlantic to US efforts to information 54 stem the tide there by using non-binding mediation to resolve disputes and restore confidence in the doctor/patient COVER PHOTO: [email protected] relationship

Arbitration and public policy 20 A recent case decided by the Pakistani Supreme Court involved major issues in commercial arbitration. Max Barrett considers the lessons that may be important to practitioners in other jurisdictions, including Ireland

The dangers in paying the piper 27 Joint lodgments are a viable way for defendants to handle liabilities in court cases. But, as Dessie Shiels and Karl Henson argue, they’re not always appropriate

Editor: Conal O’Boyle MA. Assistant Editor: Maria Behan. Designer: Nuala Redmond. Editorial Secretaries: Catherine Kearney, Louise Rose. Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel/fax: 837 5018, mobile: 086 8117116, e-mail: [email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial Board: Pat Igoe (Chairman), Conal O’Boyle (Secretary), Eamonn Hall, Mary Keane, Ken Murphy, Michael V O’Mahony, Michael Peart, 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 4801. Volume 95, number 2 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: £45

1 News

SBA ANNUAL GENERAL MEETING Law Society expresses concern over The 137th annual general meeting of the Solicitors’ no-fault compensation body Benevolent Association will be held at the Law Society, he Law Society has practitioner in the chair creates Blackhall Place, Dublin 7, on Texpressed its concern over at least the perception that the Monday 9 April at 12.30pm the composition of the working working group begins its to consider the annual report group set up to examine consideration of the “tort v no- and accounts for the year proposals for a no-fault fault” issue with an in-built ended 30 November 2000, to compensation scheme for bias in favour of a change to a elect directors, and ‘to deal brain-damaged babies. no-fault system’, he concludes. with other matters The scheme was first • The Law Society has appropriate to a general mooted over a year ago by the nominated solicitor Michael meeting’. For more then health minister Brian Boylan as its representative on information, contact SBA Cowen, who was reported as Ken Murphy: working group the No-Fault Compensation ‘lacks balance’ secretary Geraldine Pearse keen to introduce a no-fault Working Group and on the on 01 283 9528. compensation scheme for working group should be Enterprise Liability Advisory children born with cerebral chaired by a High Court judge, Group, the body overseeing GOAL CHARITY CYCLE palsy, in an effort to reduce rather than by a member of the the working group’s A leisure cycle in aid of the medical negligence costs in medical profession as proposed deliberations. Boylan has charity GOAL has been state hospitals (see Gazette, by the minister. ‘The very fact extensive experience of medical organised for members of January 2000, page 5). But in a of having a medical negligence litigation. the legal profession. The letter to the minister for health event will take place on and children, Michéal Martin, Saturday 26 May, starting at the society’s director general, Gazette reader survey results the National Basketball Ken Murphy, says that the leven of the whopping 18 one good turn deserves Stadium in Tallaght and recently-announced Eresponses we received to another). The other four continuing over 65 miles membership of the working our 2000 reader survey rated readers who win a bottle of through Wicklow, the Sally group ‘lacks balance’ and that the Gazette as ‘very good’ whiskey are: Ray Finnegan, Co Gap and the Wicklow Gap, the absence of relatives of overall, which we’ve decided to Meath; Norma Garvey, Co returning via Blessington to brain-damaged infants or their interpret as thunderous Monaghan; Katherine Killalea, the starting point. representatives is a ‘a serious approval. Six rated the Co Mayo; and Garry Clarke, Each participant on the omission’. He adds that this magazine as ‘good’ and one Co Donegal. cycle is expected to raise omission ‘could foster the generous soul even rated us The rest of you stayed pretty £250 in sponsorship and all belief that the views and ‘excellent’ (Oliver O’Sullivan of quiet, which we’ll take as a are welcome to attend. insights which can be provided Castlepollard, Co Westmeath, compliment. But if you want to For further information, by such individuals are not of who wins the bottle of the Law have your say, you’ll get a call 01 676 7192 or 676 interest to the working group’. Society’s special Millennium second chance when we do 7193. Murphy also argues that the Malt whiskey because, after all, another survey later this year. ONE TO WATCH: NEW LEGISLATION

National Minimum Wage Act, • The act does not apply to minister) must take into their second year 2000 relatives, who are quite account, including national • People already in employ- Signed into law on 31 March widely defined wage agreements, the ment who reach the age 18 2000, implemented from 1 • It cannot be contracted out impact the proposed rate are likewise entitled to 80% April 2000, the act sets the of may have on employment, of the minimum wage in current minimum wage at • It sets up a means of the overall economic their first year and 90% in £4.40 an hour. calculating working hours in conditions in the state and their second year This legislation is one of a a ‘pay reference period’ national competitiveness • There are reduced rates number of measures taken by • Employees whose working • People aged 18 or over are for training – 75% of the the government as part of its hours are not controlled entitled to the minimum minimum wage for the first contribution to the social must keep records of hours wage – this is a general rule third of the training course partnership. It sets up a worked, and cheating is an • People under 18 are (up to one year), 80% for framework for a national offence punishable with a entitled to at least 70% of the second third, 90% for minimum wage, estimated by fine of up to £1,500 the minimum wage the last third an ESRI impact study to apply • The act lays down the • People over 18 starting • Employers must keep rec- to 163,000 people. factors which the minister employment are entitled to ords for three years; failure The following are its key or Labour Court (making a 80% of the minimum wage to comply is punishable with elements in brief. recommendation to the in their first year and 90% in a fine up to £1,500

2 News Major shake-up for High Court offices New number of High Court • In a separate development, Aoffices are to move shortly the Central Office of the High marketing from their current home in Court will be moving in guide for Aras Ui Dhalaigh to the Courts December to the second floor Service’s new corporate of the Aras Ui Dhalaigh, and the legal headquarters in Smithfield as all of the registrars attached to part of a sweeping the High Court will be moving profession administrative shake-up. to that building. The Judges’ Meanwhile, the High Court Library will also relocate there. y now every law firm in Central Office is set to move The east wing of the Four Bthe country should have into the space vacated in Aras Four Courts: big changes ahead Courts will be converted to received a copy of the Ui Dhalaigh. provide additional courtrooms Marketing handbook for Among the offices scheduled promised to make every effort for criminal trials. Work on solicitors by Matthew Moore. to move are the Probate Office, to minimise the disruption in this project is planned to begin Based on a similar publication the Examiner’s Office, the service to the profession and in January 2002, and it is from the Law Society of Office of the Official Assignee, the public. In the meantime, if intended that separate access to England and Wales, the the Office of the Wards of you plan to visit one of the this part of the building will handbook has been specially Court, the Office of the offices mentioned above, you both protect the privacy of adapted to suit the Accountant of the Courts of might want to telephone ahead people in custody and requirements of the Irish legal Justice, and the Office of the to check on its location. enhance security. market and aims to help General Solicitor for Minors practitioners in the marketing and Wards of Court. The of their firms. Courts Service says that the Plain English is best, says LRC The handbook concentrates relocation is part of a drive to egislation should be worded and ‘aforesaid’ should be used on illustrating the basic improve the quality of service Lso that ordinary citizens can only when strictly necessary, principles of successful to users. The corporate easily understand it, according says the commission, and marketing for professional headquarters will be based in to the most recent report from common words such as ‘must’ service firms and contains Phoenix Street, at the south the Law Reform Commission. should replace more esoteric many useful examples of good end of Smithfield Plaza. The report, Statutory drafting ones like ‘shall’ whenever marketing practice. The Courts Service chief and interpretation: plain language possible. Management concepts such as executive officer and directors and the law,recommends that Similarly, the report also business planning and market will also move to the new familiar vocabulary should be recommends that the language research are outlined and building when it’s ready for used when drafting legislation, used to draft laws reflects both explained, and key business occupation, probably in early and that Latin and French new technology and modern strategies such as the April. terminology should be usage, for instance, replacing development of inter-personal Telephone and fax numbers consigned to the dustbin of cumbersome phrases such as selling skills and effective will remain unchanged, and the history. Archaic legal terms ‘electronic communication’ presentations and pitches are staff of the offices have such as ‘herein’, ‘heretofore’ with ‘e-mail’. set out in detail.

• Employees may request a investigate. Another remedy as the company Employees may recover written statement of for an employee is to • The act gives protection to money due as a simple average hourly pay for any request an investigation by employees who use this contract debt. period in the previous 12 an inspector, who may refer legislation, including months. Failure to comply the matter to a rights against dismissal The Oireachtas debates on is an offence commissioner • There are limited the act give excellent • The remedy lies in referral • Failure to pay the minimum exemptions for employers background and are available to a rights commissioner wage is an offence, in financial difficulty on the government website at within six months, or 12 at punishable by a fine of • The act provides that any www.irlgov.ie/oireachtas. the outside. An appeal lies £1,500 on summary increase in pay resulting Look up Legislative to the Labour Court. prosecution or £10,000 on from this legislation is not information first to get the Enforcement is through a indictment, and/or to be used as the basis for dates, and then Parliamentary determination of the Labour imprisonment for three higher pay claims for others debates, where the debates Court being enforced by years. Every day the to restore a pay differential are listed by date. G order of the Circuit Court offence continues, it • There are special • The minister is empowered attracts further penalties. provisions to give priority to Alma Clissmann is the Law to appoint inspectors who Officers of a company can minimum wage arrears on Society’s parliamentary and have wide authority to be personally liable as well winding-up or bankruptcy. law reform executive.

3 anglo irish bank page 4 seps enclosed News Law Society sets up panel Great leap backwards? to help solicitors in trouble ondon barrister-turned- Lsolicitor Brian Kennedy plans he Law Society has created to submit a claim to the British Ta panel of solicitors to help Lord Chancellor that solicitor- colleagues about whom a advocates be allowed to wear complaint has been made to wigs. As reported in the UK the society. When solicitors are Law Society’s Gazette, he feels notified of a complaint by the that the wig commands ‘respect Law Society, some fail to and authority and bestows on respond. This can exacerbate a the wearer gravitas and situation which might be anonymity’ when addressing a resolved quite easily and court, so defendants might be quickly if the solicitor had prejudiced if represented by given it the proper attention. bare-headed advocates. The problem often arises But Bar Council chairman because many solicitors find it Roy Amlot QC maintains that hard to confront and cope with barristers should have the the situation when a complaint exclusive right to wig out in is made or when other court. ‘We train more difficulties arise. They need extensively as advocates’, he says. assistance to do so. Blackhall Place: giving practical help to the profession ‘Solicitors don’t have the same To address this problem, level of training or constant Law Society Council members assistance will select a solicitor difficulty, the letter will be experience in advocacy’. were asked to nominate of his or her choice. For accompanied by a list of the solicitors, not Council instance, the solicitor could panel members. It will then be a Beauchamps does members or members of the select (or avoid) a local matter for the solicitor involved, society’s regulatory colleague. The solicitor on the if he or she requires assistance, the business committees, who would have panel will be free to choose not to contact a panel member. usinessman Tom Hardiman appropriate experience to be to become involved in any Commenting on the Bhas been appointed on a panel to help solicitors in particular matter and to initiative, John P Shaw, chairman of Dublin law firm difficulty. The panel now request the solicitor seeking Chairman of the Guidance & Beauchamps. This is believed to comprises approximately 50 assistance to approach another Ethics Committee, which was be the first time that an Irish law solicitors. One group has member. The solicitors will asked to set up the scheme, said: firm has appointed a non-lawyer already attended a seminar communicate directly with ‘We are delighted to have been chairman. Hardiman is chairman designed to give them an each other. The society will part of this initiative which of IBM International Treasury overview of the regulatory have no involvement. offers practical help to our Services and holds a number of machinery of the Law Society. The scheme will operate colleagues in difficulties’. company directorships. This will better equip them to only during the period when understand the context in the matter is being processed which they may be asked to by the secretariat. The ECHR CONFERENCE help. A further seminar is majority of complaints are being arranged for the resolved during this period remaining group. without reference to a The solicitor seeking committee. The primary objective of the scheme is to help the solicitor send an appropriate response to the LAW SOCIETY society. This will be a OF IRELAND voluntary scheme, but it is envisaged that the relationship ON E-MAIL of solicitor/client will exist between the panel solicitor and Contactable at the solicitor he or she is Last month the Law Society hosted a conference on The [email protected] helping. implementation of the European convention on human rights into Individual mail The scheme will start on 1 Irish law: effective remedies under the ECHR. Pictured at the conference in Blackhall Place were Law Society President Ward addresses take the form: March. From that date, when a [email protected] McEllin, Minister for Justice John O’Donoghue, Attorney General solicitor is notified by the Michael McDowell and Law Society Director General Ken Murphy society of a complaint or other

5 Viewpoint Computer records: the undiscovered country New technologies such as e-mail have created vital new evidence that can – or should – be unearthed by the discovery process. Yet, as Declan O’Reilly points out, many are still oblivious to the helpful or damning potential of computer documents

he role of discovery has document, the form which it Tundergone a somewhat takes seems to me to be silent, though nonetheless immaterial; it may be anything cataclysmic, change of late. on which the information is Traditionally, discovery has written or inscribed – paper, been restricted to paper parchment, stone or metal’. documents, but with the advent To this one can now surely and widespread use of e-mail, add bytes of information many truths that would written on a computer disk. otherwise not be admitted are The question of whether coming to light. What people computer files are the subject dare not write on paper for fear of discovery on the basis of of litigation, they often seem being a ‘document’ has come happy to send by e-mail. There before English courts. In Grant is a common tendency to treat v Southwestern and County e-mail in a casual manner, akin Properties Ltd ([1974] 2 All ER to casual chit-chat. 465), the court was faced with Yet the seemingly unknown whether a tape recording of a reality is that e-mails can have telephone conversation was a unparalleled longevity of life. document. Walton J rejected Computer records in most the argument that the companies are backed-up, recording was not a document copied and archived on a daily merely on the grounds that it basis. While such processes are could not be visually inspected, intended to facilitate the stating: ‘A litigant who keeps restoration of damaged files, law firms, cites an example of the case of McCarthy v O’Flynn all his documents in microdot they have the potential to form an age-discrimination case ([1979] IR 127), the Supreme form could not avoid discovery a fountain of information to where the letter of termination Court considered that a because in order to read the litigants. Even deleted messages was on the face of it reasonable document was ‘something information extremely remain relatively intact when and fair. However, during the which gives information’. So powerful microscopes or other deleted, unless extraordinary discovery process, computer the test is not whether an item sophisticated instruments steps are taken to permanently consultants were engaged to would be required. Nor again destroy the file. It is an undelete previously deleted e- if he kept them by means of impossible task to recover a mails. The case which seemed ‘There is a common microfilm which could not be burnt letter, yet a deleted certain to fail suddenly settled read without the aid of a message may be ‘undeleted’ for a reported $250,000 when tendency to treat projector’. with surprising ease, often with an undeleted e-mail revealed e-mail in a casual This reasoning was extended the double-click of a mouse. the true sinister and unlawful to computer files in Derby & Co It is in the US where the full reasoning behind the dismissal. manner, akin to Ltd and Others v Weldon and potential of discovery was first Not even computer experts are casual chit-chat’ Others ([1991] 2 All ER 901). realised. For instance, United exempt from careless e-mails. Vinelott J concluded that States v Poindexter (Crim No Bill Gates, creator of Microsoft, computer records were, on the 88-0080-01 [HHG] 1990, US has recently suffered at the basis outlined above, subject to Dist LEXIS 6173, at 12, n12 hands of ghost e-mails that is paper-based in the discovery under RSC, order [DDC May 29, 1990]) have come back from the grave traditional sense, but whether 24. Moreover, the court can concerned the undeleting of to haunt him in the recent the item is capable of giving order reprogramming so as to previously deleted White House Microsoft anti-trust case. information. Kenny J cites enable relevant material to be e-mails in the Iran-Contra Under the Rules of the Humphreys J in the case of retrieved. affair. Morgan Lewis and Superior Courts, a ‘document’ Hill v King ([1945] KB 329) in The recent case of Western Bockius, one of the largest US remains undefined. However, in stating: ‘To constitute a Provident Association v Norwich

6 Viewpoint

Union, which concerned disclosure. E-mails and Similar acts are to be found can reasonably be recovered. In allegedly defamatory remarks computer files can, in common in the US case of Playboy many cases, what the casual made by employees on the with all discovery, be subject to Enterprises Inc v Terri Welles (60 computer user considers defendant’s internal e-mail an order for inspection. As with F Supp 2d 1050), where the impossible becomes completely system, serves as a salutary all inspection, the party seeking court held that it had the power reasonable when left to a warning. While the case did discovery is entitled to have the computer expert. not come to trial, reports documents inspected by experts, Hamlet referred to the suggest that it settled for more so computers may be examined ‘Unbeknownst to future as ‘the undiscovered than half a million pounds. It by computer experts who country’. Today we live in that should also be noted that specialise in e-mail recovery. many, computers futuristic country of e-mail, certain reports suggest that Where a party fails to make have an uncanny SMS messages, voice-mail and Western Provident obtained an adequate disclosure of computer files. And order for e-mails to be documents, or when a litigant knack of compiling unbeknownst to many, preserved and handed to its fears destruction of computer data files more computers have an uncanny solicitors even before issuing files pertinent to an action, that knack of compiling data files the writ. The threat of party may seek remedy under extensively, more extensively, thoroughly imminent destruction of the order 50, rule 4. This rule thoroughly and and permanently than their subject matter of an action may provides the court with the paper counterparts. In light of warrant such a step. authority to order the permanently than the gems of information that It is therefore quite clear preservation of the subject their paper can be revealed in e-mails, that e-mails, together with matter of the cause and may draft word-processed deleted messages that are authorise any person to enter counterparts’ documents and voice-mail stored on back-up systems, are any property to obtain full messages, this futuristic liable for discovery under RSC, information or evidence. country is well worth order 31. A litigant who fails to Accordingly, litigants should to appoint a neutral expert to discovering. G disclose e-mails in the ordinary not consider computer records recover deleted e-mails. The course of discovery potentially as undiscoverable merely court also held that the Declan O’Reilly is an apprentice exposes himself or herself to because ordinary office practices defendant’s attempted deletion solicitor with Dublin and the full sanctions available for have never necessitated of e-mails does not render the Waterford solicitors Kenny failure to make proper discovery of computer records. e-mails undiscoverable if they Stephenson Chapman. leaders… in the quest for excellence…

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7 Cover story

The incorporation of the European convention on human rights will have a major impact on the practice of law in this country, not least in the areas of media and defamation law. Michael Kealey discusses the convention articles that are most likely to put editors in a sweat Hold the fr

t the Law Society’s conference on incorporating the European convention on human rights into Irish law last October, Gerard Hogan SC predicted that ‘the Aincorporation of the ECHR will make an important difference in some cases – especially, perhaps, in the vitally important free speech cases’. Prophesying the future is a dangerous pastime, but it might be possible to identify some trends. In any event, with legislation incorporating the ECHR into Irish law due in this Dáil session, it is certainly an opportune time to look at the likely impact of the convention’s provisions on the law affecting the media.

ECHR and the Irish constitution The right to freedom of expression is guaranteed in article 10 of the ECHR. Article 10 also recognises the need for restrictions on the exercise of this right such ‘as are prescribed by law and are necessary in a democratic society’; these restrictions include laws ‘for the protection of the reputation … of others’ (see also article 40.3.2 of the Irish constitution). It has been argued that the right to freedom of expression guaranteed by article 10 is stronger than that contained in the equivalent provision of the Irish constitution, namely article 40.6.1. The former chief justice, Liam Hamilton, disagreed, saying: ‘There does not appear to be any conflict between article 10 and the common law or the constitution’ (De Rossa v Independent Newspapers plc [1999] 4 IR 432 at 450). Also of significance is article 8 of the convention, which provides that: ‘Everyone has the right to respect for his private and family life, his home and

8 Cover story front page!

• Conflicting rights of freedom of expression and right to a good name • De Rossa v Independent Newspapers • The impact on media law in the UK MAIN POINTS

9 Cover story ARTICLE 10: directing juries. The existing common law and constitutional rules were adequate protection against FREEDOM OF EXPRESSION disproportionately high awards and did not infringe 1 Everyone has the right to freedom of expression. This right shall include freedom the ECHR. While accepting that the damages were to hold opinions and to receive and impart information and ideas without ‘at the top of the bracket’, the majority of the court interference by public authority and regardless of frontiers. This article shall not felt that they appropriately marked the gravity of the prevent states from requiring the licensing of broadcasting, television or cinema defamation and were proportionate to the damage enterprises. done (the case was decided by a four-to-one majority 2 The exercise of these freedoms, since it carries with it duties and with a dissent by Denham J). responsibilities, may be subject to such formalities, conditions, restrictions or This decision has come in for some criticism. penalties as are prescribed by law and are necessary in a democratic society, in Eoin Quill of the University of Limerick has said: the interests of national security, territorial integrity or public safety, for the ‘The principles (upheld by the Supreme Court) prevention of disorder or crime, for the protection of health or morals, for the are the traditional rules of defamation at common protection of the reputation or rights of others, for preventing the disclosure of law and do not differ significantly from the information received in confidence, or for maintaining the authority and principles applied by the English courts in Tolstoy, impartiality of the judiciary. which were held to violate article 10 of the convention. The bare assertion of proportionality by Hamilton CJ is surely inadequate if the substantive his correspondence’. The right to privacy has long legal principles are largely the same as those which been recognised as an unenumerated right were held to lack such proportionality in Tolstoy. The guaranteed by article 40.3 of the constitution (see constitutional gloss, by way of a back-drop in Irish Kennedy & Arnold v Ireland [1988] ILRM 472). law, is meaningless if there is no change in the substantive principles’. Defamation and the convention (‘Jury instructions on the quantum of damages in The need to balance the constitutionally- and defamation cases in the wake of de Rossa’, paper convention-protected rights of freedom of expression delivered at a seminar in Trinity College, Dublin, on and to a good name was highlighted in the case of De 22 January 2000.) Rossa v Independent Newspapers. Independent Newspapers have lodged papers In July 1997, a jury awarded the former challenging the determination of the Supreme Court government minister, Proinsias de Rossa, £300,000 to the European Court of Human Rights. damages for a libel contained in an Eamon Dunphy Subsequently, the Supreme Court again upheld the article published in the Sunday Independent in practice of issuing jury instructions which leave the December 1992. The newspaper appealed on question of quantum at large.1 It will be interesting quantum only, arguing that the award was excessive to see if the European Court shares this view. and disproportionate to any damage done to Mr de Rossa’s reputation. It also argued that the present Privacy issues practice whereby juries are given only limited There have been very few Irish decisions on the guidance as to appropriate damages (unlike in the sometimes conflicting rights of free expression UK, where financial parameters are laid down by the enjoyed by the media and of privacy. This may be parties and judge) rendered the system of awards so due, to some extent, by a reticence on the part of erratic as to infringe the media’s rights under article media defendants to allow cases on the point to run 10. In this respect, they relied on a decision of the to trial, which would give the Irish courts the European Court in Tolstoy Miloslawsky v UK (1995 20 opportunity to clarify and perhaps extend the ambit EHRR 442), where the absence of adequate and of the right to privacy guaranteed in article 40.3 of effective safeguards at trial, including very limited the constitution and in article 8 of the ECHR. jury guidance, lead to an award of stg£1.5m. The lack Some pointers on how the Irish courts might view of proper safeguards was held to infringe article 10. article 8 of the ECHR (or its constitutional The newspaper’s appeal failed. The Supreme equivalent) are contained in a recent decision of the Court declined to change the rules on judges Court of Appeal in the UK. On 18 November 2000, the celebrity couple, Michael Douglas and Catherine ARTICLE 8: Zeta-Jones, married in New York. OK! magazine THE RIGHT TO RESPECT FOR paid approximately £1m for exclusive rights to cover the wedding. Shortly before publication, however, a PRIVATE AND FAMILY LIFE rival magazine, Hello!, began printing an edition 1 Everyone has the right to respect for his private and family life, his home and his containing unauthorised photographs of the nuptials. correspondence. An ex-parte injunction was granted on 21 November 2 There shall be no interference by a public authority with the exercise of this right but lifted by the Court of Appeal on 23 November except such as is in accordance with the law and is necessary in a democratic 2000. In a judgment shortly before Christmas, the society in the interests of national security, public safety or the economic well- Court of Appeal gave the reasons for its decision. being of the country, for the prevention of disorder or crime, for the protection of The injunction was lifted, primarily on American health or morals, or for the protection of the rights and freedoms of others. Cynamid principles, on the grounds that the balance of convenience favoured publication of the

10 Cover story

identification for the rest of their lives. They were supported in this by the Home Office. While in detention, Venables and Thompson had received death threats and the authorities proposed to give them new identities on their release. Notwithstanding resistance by lawyers for the print media, the injunctions were granted. Dame Elizabeth Butler-Sloss determined that Venables and Thompson were ‘uniquely notorious’ and for the rest of their lives would be at serious risk of attacks from members of the public, as well as from relatives and friends of the murdered child. Therefore: ‘If any section of the media decided to give information leading to the identification of either young man, such publication would put his life at risk. In the exceptional circumstances of this case and applying English domestic law and the right to life enshrined in article 2 of the European convention, I have come to the conclusion that I am compelled to take steps in the almost unique circumstances of this case to protect their lives and well-being’. photographs complained of, as damages would be an The Human Rights Act has only been in force in adequate remedy. England since 2 October 2000, but the incorporation Although English law had been willing to of the European convention has already had a real and recognise an enforceable obligation of confidentiality, substantial impact on the law there. While the Irish the Court of Appeal emphasised that it had not to courts have long experience of balancing and enforcing date been relied upon to preclude an unwarranted intrusion into people’s privacy, where the obligation of confidence did not apply. However, while stressing ARTICLE 2: that it was not making a final decision, as the case was THE RIGHT TO LIFE at an interlocutory stage, the court recognised the 1 Everyone’s right to life shall be protected by law. No-one shall be deprived of his importance of article 8 of the ECHR and life intentionally save in the execution of a sentence of a court following his determined, in the words of Lord Justice Sedley, that: conviction of a crime for which this penalty is provided by law. ‘Mr Douglas and Ms Zeta-Jones have a powerful 2Deprivation of life shall not be regarded as inflicted in contravention of this prima facie claim for redress for invasion of their article when it results from the use of force which is no more than absolutely privacy as a qualified right recognised and protected necessary: by English law’. That the Court of Appeal a) In defence of any person from unlawful violence entertained arguments on a convention right to b) In order to effect a lawful arrest or to prevent the escape of a person lawfully privacy is of itself significant; that it would do so in detained the case of two well-known public figures, who by c) In action lawfully taken for the purpose of quelling a riot or insurrection. their own admission were in the business of selling strictly controlled insights into their family life, is a powerful indication of the strength of article 8. constitutional rights, there can be little doubt that UK convention-based jurisprudence will be of persuasive The media and the right to life effect here. It would certainly be surprising if Article 2 guarantees the most basic human right, the practitioners, acting for and against the media, did not right to life. Perhaps surprisingly, this has already had seek to rely upon the principles applied in, for an impact on media law in the United Kingdom. example, the Douglas and Zeta-Jones and Thompson The murder of James Bulger by Jon Venables and and Venables cases in appropriate cases here. Robert Thompson on 12 February 1993 was a Allied to the existing bank of European horrific crime that caused much public outrage and jurisprudence, it is clear that the ECHR will have a attracted international media attention. At the end of major impact on all aspects of practice, including the murder trial the judge determined that, media law. G notwithstanding the youth of the accused, they could be named and their images shown by the press. Michael Kealey is a partner at the Dublin law firm During the period of their detention, however, McCann FitzGerald. injunctions were in place which restricted the information which the media were entitled to Footnote publish. Those injunctions came to an end when 1 O’Brien v MGN Limited (Sup Ct, unreported, 25 Venables and Thompson reached the age of 18. They October 2000). The court did, however, overturn then applied to the president of the Queen’s Bench an award of £250,000 as excessive and ordered a Division in the UK for injunctions preventing their re-trial.

11 Family law

The Supreme Court recently reassessed Irish nullity law in the context of one party’s on-going infidelity and adultery. John Healy examines fresh attempts to widen the basis of nullity law as it applies to marriages based on lies and deception Till deceit d

lthough divorce is the normal avenue defect of which they complain existed at the time the for those seeking to dissolve their parties purported to create the state of marriage. marriages, the High and Circuit courts The element of consent has assumed prominence can declare marriages null and void if in recent years, chiefly because lawyers increasingly Aspecified exceptional circumstances are contrived to import into the nullity arena devices proved. The decree of nullity effectively declares that cultivated elsewhere by the law which attempt because the marriage lacked some fundamental to invalidate or vitiate an apparent consent element, such as the consent of one of the parties, it (typically through the doctrines of had never validly been created. misrepresentation, mistake and fraudulent The drastic nature of the nullity declaration is best concealment). These gradually chipped away understood by contrasting its effects with those of at the general rule that ‘no marriage shall be divorce. Whereas the divorcing spouse typically faces held void merely upon proof that it had been negotiation and compromise over present and future contracted upon false representations and rights to property, and that, but for such remains obliged to provide contrivances, maintenance for the GROUNDS consent would support of his or her FOR SEEKING NULLITY never have been former spouse, parties to The main grounds on which a nullity can be sought obtained’ (Swift v the successful nullity are as follows: Kelly, 1853). application leave the court 1 Lack of capacity to marry, where, for example, The courts with their conjugal slates one of the parties was already married were encouraged wiped clean. 2 Lack of consent to the marriage, where, for to reason that While the nullity example, one of the parties was forced to because some declaration does not affect undergo the ceremony relevant fact was the parties’ obligations to 3 Non-observance of the necessary formalities concealed from the support their children 4 Refusal or failure to consummate the marriage by petitioner, his or her (enforceable under the ‘ordinary and complete’ sexual intercourse, and consent rested upon Guardianship of Infants Act, 5 Inability to enter and sustain a ‘normal marital’ false premises and was 1964, as amended by the relationship, where, for example, one of the not as such ‘real’. This Status of Children Act, parties is not by nature heterosexual. gradually developed 1987), nowadays its into the broader principal effect is to disentangle the petitioner from argument that the marriage was invalid because of any statutory obligations to the former partner which the failure to secure an informed consent – a would have arisen by reason only of the marriage. In concept more familiar to medical negligence law, and brief, it treats the marriage as never having occurred, synonymous with recent attempts to expand the duty and as such it is the remedy par excellence for the on doctors to disclose ‘material risks’ in the run-up spouse who feels wronged. to a patient’s decision to submit to medical treatment In each and every nullity application, petitioners or surgery. The trend seemed to have the support of must establish their case to a very high level of proof Shatter who, perhaps over-hastily, declared in the (occasionally described as being equal to the standard fourth edition of Family law that ‘a full, free and of proof in criminal trials, namely, ‘beyond all informed consent to marriage is essential for a valid reasonable doubt’). They must further prove that the marriage’.

12 Family law o us part?

In F v L (orse F) ([1990] 1 IR 348), the petitioner’s consent was found to lack ‘reality’ in light of the respondent’s deceitful concealment of his homosexuality, which he had continued to indulge after the marriage. Though the decree was awarded partly on the basis that the respondent lacked the capacity to ‘maintain the life-long relationship required of marriage’, the High Court was equally persuaded to nullify the marriage on the basis that the petitioner had ‘deliberately painted a false picture of himself’. In BJM v CM ([1996] 2 IR 574), the High Court declared a marriage null and void because the respondent had failed to disclose a physical disfigurement suffered as a child which had left her with pale white scar tissue across her torso. The court accepted the petitioner’s explanation that his fiancée had resisted pre-marital sexual intimacy in an effort to conceal the scars, though at the time he had put this down to her religious beliefs. The court further accepted his assertion that if he’d seen the scars in time he would never have consented to marry her, as the disfigurement ‘in the sensual province gave rise in his mind not to desire but to revulsion’. Although the point was also considered in the context of the man’s inability to enter a normal marital (that is, sexual) relationship upon sight of the scarring, the court separately reasoned that the respondent’s deliberate concealment of her disfigurement deprived him of a necessary ‘election’, and meant that he had ‘in fact not entered into the • Main contract of marriage with a full, free and informed grounds for consent’. seeking a In MO’M (orse O’C) v BO’C ([1996] 1 IR 208), the nullity Supreme Court appeared to endorse this emerging • Recent attempts to association between information and consent, widen between concealment and invalidity. The man, a grounds former priest, had resisted informing his fiancée that • Supreme he’d had to undergo a protracted laicisation over six Court years, and consulted a psychiatrist for depression. The decision in consultations had taken place about three to six times PF v GO’M

a year, and had been terminated some three years MAIN POINTS

13 Page 14 blackhall publishing AD

(repeat of page 8 last issue, Turners hold seps) Family law before the marriage. Despite accepting evidence that the specific context of adoptions. In G v Bord Uchtála at no stage had the respondent been found to ([1980] IR 32), Walsh J had spoken of the need to suffer a ‘psychiatric illness’, the court ensure that a mother’s consent to the placing of her was satisfied that this information child for adoption was a ‘fully informed, free and regarding his ‘mental health’ was a willing intention’. This rightly had emphasised that ‘circumstance of substance’ – in the the mother must have been in a position to sense that if it had been disclosed, it understand the alternatives to adoption. would have caused the petitioner not Subsequently, ‘informed consent’ emerged in to marry the man. On this basis, the nullity applications in the comparable context of court reasoned that her consent to ascertaining whether the petitioner by reason of her marry him was not valid because it was pregnancy had been coerced into marriage, so that not ‘informed’. her consent to the marriage contract could not The most disquieting aspect of the realistically be said to have been free or voluntary (see decision was its acceptance of a subjective test of N (orse K) v K [1986] ILRM 75 and DB (orse O’R) v the information necessary to disclose in order to O’R [1991] 1 IR 289). In those decisions, however, secure an informed consent to marriage. By its ‘informed’ referred to information about the nature, such a test grants undue weight to an alternatives to marriage available to the young girls in applicant’s self-serving claims that if the information question, and not to information about the character had been disclosed, consent to marriage would never or conduct of the respondent. have been given. It also encourages the court to McGuinness J accepted that, historically, mistake, examine the matter with 20-20 hindsight. Indeed, in misrepresentation and fraud had never been grounds this case the court’s findings were very much coloured for nullity, save in exceptional cases where their effect by the knowledge that the marriage had proved was to drain the consent of any reality (such as where stormy and occasionally violent. one party misrepresents his identity, or misrepresents Seen in this light, MO’M suggested the possibility the nature of the ceremony and the vows being of nullity on demand, with disastrous consequences exchanged). A consent could also be invalidated by for the ousted partner. But in a decision late last year, evidence of duress or undue influence, but, again, the Supreme Court wisely jammed the brakes on this only to the extent that it showed the consent to have attempt to widen and deepen the grounds for nullity, lacked the crucial element of voluntariness. Marriages albeit in a case which understandably attracts much had never been invalidated merely due to non- sympathy for the petitioner. In PF v GO’M (orse GF) ‘The most disclosure of information relating to one party’s (28 November 2000), the respondent had pursued an fortune, rank, conduct or personality. affair with another man throughout her two-year disquieting Finally, McGuinness J was of the view that MO’M engagement to the petitioner, a wealthy businessman, aspect of the had been concerned with concealment of ‘some and subsequently throughout the marriage. Relying condition, disposition or proclivity rather than merely upon MO’M v BO’C, Mr F argued that because his decision was a matter of conduct’ – a view shared by O’Higgins J wife’s infidelity had been concealed from him, he had its acceptance in the High Court. never been in a position to give an informed consent The decision in PF rightly lays down limits to the to marry her, and for this reason the marriage was of a subjective consent/informed consent line of attack in nullity invalid. test of the proceedings, but it is likely that further bids will be Rejecting the application, McGuinness J of the made along these lines, chiefly because PF restricts Supreme Court was evidently concerned to limit the information but does not overrule the decision in MO’M. Future availability of the nullity decree to exceptional cases, necessary to nullity applications are likely to exert strain on this for reasons of public policy, and to encourage distinction between disposition and conduct, for how recourse instead to judicial separation or divorce disclose in robust can a distinction be which assigns such weighty proceedings in the event of marital breakdown. Were order to secure consequences to the decision to treat in one case past the law to accept a test of consent based on depression as evidence of ‘disposition’, and in another information relevant to the respondent’s conduct, the an informed case sustained deceitfulness and infidelity merely as validity of a great number of marriages would be consent to evidence of ‘conduct’? called into question. The courts had always stressed A review of the series of decisions which led the need for certainty with respect to the marriage marriage’ inexorably but unhappily to MO’M demonstrates commitment, and this flowed from a constitutional how easily judicial logic sometimes bends to principle imperative under article 40.3.1, whereby the ‘state at the expense of policy, and this may well have been pledges itself to guard with special care the institution in McGuinness J’s mind when she advised that nullity of marriage on which the family is founded, and to law should be governed less by judicial precedent protect it against attack’. than by statute, particularly given the comprehensive In response to the argument that the marriage was legislative scheme now in place for judicial invalid because the petitioner had never given an separations and divorce. G ‘informed’ consent to it, McGuinness J accepted submissions by Máire Whelan BL that the notion of John Healy is a practising barrister and author of an ‘informed consent’ had wrongly slipped into more Medical negligence: common law perspectives (Sweet general family law use having first been adverted to in & Maxwell, 1999).

15 Medico-legal

As in so many other countries, medical malpractice cases are on the rise in Ireland. Kieran Doran looks across the Atlantic to US efforts to stem the tide there by employing non-binding mediation to resolve disputes and restore confidence in the doctor/patient relationship

MEDICAL MALPRACTICE A healthy • The average jury award in US medico- legal cases is $2 million • The non- binding mediation process explained •A case study of mediation in practice MAIN POINTS

16 Medico-legal

ccording to the most recent research by Unfortunately, the doctor’s specific role in the the US Insurance Information Institute, HMOs’ cost-control process has driven a wedge in the there are an increasing number of clinical relationship with the patient. The physician medical malpractice claims against acts as a financial gatekeeper for the HMO, AAmerican doctors. The institute’s most determining whether or not a subscriber to the HMO up-to-date statistics indicate that the average jury is eligible to obtain medical care, given the medical award in 1996 was more than $2 million, an increase resources available and the budgetary constraints of over 100% on the previous year. In the first half of imposed by the HMO. The ability of the physician to the 1990s, million-dollar verdicts accounted for over advise his or her patients of alternative (and more a third of all decisions in that period. By 1996, this expensive) treatments is severely restricted by the cost figure had increased to a staggering 74%. The level controls imposed by the HMO. of settlements have also been on the increase, So how can this distrust in the clinical relationship, averaging just under $700,000 in 1995, up from a with its origins in poor communication between doctor level of $677,000 the previous year. and patient, be addressed? Is there an alternative to All of this has had dire consequences for doctors’ legal proceedings in medical malpractice cases? livelihoods through increased insurance premiums. This, coupled with the growing levels of medical Mediation to the rescue? malpractice litigation awards and out-of-court To many, mediation seems to be the answer. According settlements, has caused widespread disillusionment to Barry C Dorn, author of Renegotiating health care among the medical profession. In turn, this has (Josey Bass, 1995), the process of non-binding undermined the sense of trust and mutual respect mediation has a number of distinct stages. First, there between doctors and patients. is the pre-mediation stage. Here, the primary aim is to A major contributory factor is the series of establish whether the parties to the dispute are technological advances in medical science in recent disposed to using non-binding mediation as an years, which have given rise to unrealistic expectations alternative to litigation. The main purpose is to initiate on the part of patients and their families of complete communication between both parties, who may be and rapid cures for even those most difficult and entrenched in their respective positions, and help them complicated illnesses. Doctors blame overly-aggressive to consider alternatives to judicial proceedings. and demanding patients, who expect more than is In the event of an agreement to proceed with reasonable from the course of treatment or medical mediation, the next stage is the pre-meeting procedure being undertaken. investigation. Here, the mediator further examines the The other major cause in the growth of medical factual background to the case. In this regard, the malpractice litigation is the emergence and subsequent mediator is required to be incisive in evaluating the predominance of managed care in America. There has relative merits of the claim, to discern opportunities been a dramatic increase in patient membership of for settlement, and to encourage both sides to consider alternative? health maintenance organisations (HMOs), which one another’s perspective on the case. The objective is provide comprehensive healthcare services to an to build a relationship of trust between the mediator enrolled membership for a fixed per capita fee. In 1980, and the parties involved. 9.1 million US citizens subscribed to HMOs, but If the pre-meeting investigation is successful, the within ten years that number had quadrupled. At the next step is for the parties to meet. Here, the mediator current rate of growth, it is estimated that managed seeks to further develop trust with the parties, and care will cater for the healthcare requirements of over consequently gain support for the objectives of the 80% of the population by the end of the year 2001. mediated settlement. This growth can be attributed to the ability of these Medical malpractice cases are characterised by organisations to provide affordable healthcare by tension between the plaintiff patient and defendant cutting costs, achieved by employing closed panels of physician, with both sides well known to one another, full-time physicians who agree to participate in, and primarily on an antagonistic basis. Initially, there is an co-operate with, the HMOs’ cost-containment plans. attempt to change the nature of exchanges between

17 Medico-legal

of ‘brainstorming sessions’, where the parties express preferences in relation to the options for settlement presented by the mediator. The consequences of the preferred option are considered, namely the probable impact on the other party and whether or not this will be acceptable. Overall, the basic goal is to help the parties to state their own preference, assess the elements of the proposals that are acceptable, and so move closer to a mutually- acceptable settlement. If this point is reached, the final stage of the mediation process begins. On reaching the ‘solution stage’, the mediator works with the parties to draw up a specific list of potential settlement options. These alternatives are based on the exchange of preferences by each side during the course of the brainstorming sessions. The collective options are used as a general blueprint for an overall settlement to the claim, elements of which may either be rejected or accepted in the course of the deliberations during the solution stage. In the event that a settlement proposal is rejected by one of the parties, the mediator refers both sides back to the original draft agreement, to reconsider and evaluate the options as well as the probable outcomes, and ultimately achieve a final settlement. If this is successful, the mediation process has achieved its original aim of shifting both parties from positions of confrontation and disagreement to one of compromise and ultimately settlement.

Putting the theory into practice This is the theory behind the process of non- the parties, and hence improve the character of the binding mediation, but how does it work in practice? overall relationship. At the opening session, the Is it effective in settling cases of medical malpractice mediator structures the seating arrangements and litigation and restoring trust in the doctor-patient controls the course of the discussion so as to ensure relationship? Let us examine a case study of a a full and fair exchange of views. The forum is programme of non-binding mediation operated by opened with a brief outline of the process by the Rush-Presbyterian-St Luke’s Medical Centre in mediator, and an explanation of the settlement Chicago. A HMO hospital, Rush is a major medical procedure. Overall, the primary goal is to encourage facility with more than 900 beds and nearly 1,300 the release of anger or frustration that may have healthcare professionals. On average, Rush is built up over the course of the dispute, and satisfy involved in litigating more than 200 tort law claims the desire to air any sense of grievance. Once this a year, of which 90% are medical malpractice cases has been achieved, both sides will be more amenable (reported in the August 1998 Illinois Bar Journal). to the drawing up of settlement proposals. However, As a result of this on-going level of malpractice before a solution is reached, points of agreement and litigation, Rush decided to develop its own contention need to be established. programme of non-binding mediation. After This is achieved through the next part of the consultation with the city’s trial bar, and the mediation process, the ‘issue clarification’ stage. The specialised assistance of a retired Circuit Court mediator’s priority here is to establish the areas of judge, the hospital introduced its programme in late agreement between the parties. In relation to the 1995. areas of contention, he lists the points of According to Max D Brown, Rush’s general disagreement in specific order, ranging from those counsel, there are a number of basic stages to the most likely to be settled to those most difficult to hospital’s mediation programme, which is based on reconcile. By gaining agreement on a number of less the theoretical model outlined earlier. First, there is controversial issues, the mediator tries to engender the pre-mediation process, which focuses on six an atmosphere of conciliation and agreement. basic questions: By drawing up alternative options for solution in • Do the parties genuinely want to settle? this part of the procedure, the mediator seeks to • Is the hospital prepared to offer a monetary bring both sides closer to consensus on the disputed settlement? aspects of the case. This is undertaken in the course •Are the sides informed as to the relative strengths

18 Medico-legal

and weaknesses of each party’s case? where a more proactive approach is adopted by • Have the parties attempted discovery of any legal amending the proposals with the mediator’s own documentation relevant to the case? suggestions. Finally, there is the ‘clarification’ tactic, • Is the result of the case unpredictable for either in which responses are elicited, proposed terms for side? and settlement reiterated, and previous statements that • Have the parties been negotiating or are they may help the parties reach a solution are highlighted. about to begin the process? In the Rush mediation process, the settlement stage begins when both sides have returned to the Initially, there is the selection of the mediator(s), negotiating room. This may or may not result in a which is pivotal to the entire procedure. Usually, settlement being reached. But even in the absence of retired judges and experienced litigators are an agreement to settle, this is an opportunity to bring recruited. Ordinarily, the Rush programme offers the the parties face-to-face again and maintain the services of a retired judge as a mediator, or two channels of communication. At this point, it is an litigators drawn from the Chicago plaintiff and established policy at Rush to apologise to the patient. defendant bars respectively. Candidates are chosen The intention is to preserve the cordial nature of the on the basis of possessing the required traits of meeting and establish a basis for future dialogue and honesty, trustworthiness, patience, flexibility and an ultimate settlement of the claim. It is the creativity. The training of the selected mediators is maintenance of communication between both absolutely crucial, with all new mediators undergoing parties, even in the absence of an agreed settlement an intensive coaching and education programme in to the claim, which is the most beneficial aspect of relation to the general techniques of mediation. non-binding mediation in relation to the Either party can withdraw and reactivate the legal preservation of trust in the doctor-patient proceedings at any time. In addition, there is a relationship. confidentiality clause, which prohibits the use of any How successful has the Rush programme been material statement or evidence raised during the since its introduction in late 1995? In purely mediation in any subsequent legal proceedings. This statistical terms, the hospital has mediated 33 cases at is designed to encourage the parties to communicate a total cost of $15 million. The highest settlement openly and effectively, without fear of the legal figure was $4.5 million, the lowest $21,700, at an consequences of disclosure. average of just over $450,000 a case. As a process, it Once the pre-mediation stage is completed HOW has helped Rush settle claims for amounts which are through the signing of the written mediation DOCTORS AND compatible with the hospital’s insurance reserves. agreement, there is the pre-meeting investigation PATIENTS SEE The costs of mediation are estimated to be half those stage. Here, each side submits a statement of the THE PROBLEM even for a case which is settled out of court or pre- facts of the case, estimates of the damages suffered by In a recent US trial, while the number of cases in which Rush has the plaintiff, reports of the consultants and expert survey, two-thirds been named as a defendant has been reduced steadily. witnesses, the existing status of the claim, and details of doctors who Once patients sue their doctor, there is no realistic (if any) of an offer to settle. After this comes the were subject to prospect of them returning to their physician’s mediation meeting itself. medical practice or clinic. However, mediation does provide The meeting usually begins with a brief outline of malpractice both doctor and patient with a sense of closure. In the mediator’s background in medical malpractice litigation thought addition, the collective sense of grievance seems to litigation. Once the parties have been introduced to they had been open be somewhat alleviated, and faith in the clinical one another, there are the opening representations by and honest with relationship partially restored. While there is usually their respective counsel. The presentations take the patients. However, no winner or loser in the mediation procedure, both form of a 15-minute address to the meeting, with the only a third of parties leave feeling that there has been some benefit aim of initiating dialogue between the parties, as well patients agreed, from participating in the process. as helping the mediator clarify the issues involved in with more than More importantly, perhaps, non-binding the case. This establishes areas of agreement and 20% stating that mediation is less confrontational and more flexible contention for the mediator, as well as the likely the clinician was than litigation. It provides a faster, more efficient and strengths and weaknesses of the case. The initial part actually dishonest. cost-effective alternative to a legal claim. And the fact of the meeting can last up to an hour-and-a-half. Although most of that it can be used to expedite a satisfactory and Finally, there are the ‘breakout sessions’, where the the respondents mutually-acceptable settlement to a medico-legal mediator gathers information and shares relevant were of the opinion claim makes it a worthwhile alternative to court pieces of evidence to encourage both sides to that their own proceedings. consider the options for settlement. According to clinical relationship This is an important consideration for Irish doctors, general counsel Max Brown, there are a number of was characterised lawyers and patients alike, especially as levels of different tactics available to the mediator at this by good medical negligence claims continue to rise. It is time stage. First, there is the ‘conduit’ tactic, which is communication, for this country to learn from the American experience restricted to the reporting of the settlement 33% of patients and to consider non-binding mediation as a viable proposals from each side to the other. Another and one-tenth of alternative to medical malpractice litigation. G choice is the ‘surrogate’ tactic, which involves physicians reported providing additional justification for a proposed that it was poor. Kieran Doran is an apprentice solicitor with the Dublin settlement. A third option is the ‘reshaping’ tactic, law firm Gannon and Liddy.

19 Arbitration

The Pakistani Supreme Court recently decided a case involving significant issues in commercial arbitration. Max Barrett considers the lessons that may be important to practitioners in other jurisdictions, including Ireland

n The Hub Power Company Limited v Pakistan cause wrongful loss to WAPDA and the government Water and Development Authority (14 June 2000, of Pakistan’. It suggested that certain officers of combined civil appeals nos 1398 and 1399 of WAPDA and certain government officials who were 1999), the Pakistani Supreme Court was asked in a position to exert influence over WAPDA had Ito decide whether an arbitration clause in a been persuaded by corrupt means to bring about the principal agreement unaffected by illegality could be supplementary agreements. It contended that, as a relied upon when disputes arose under result of the alleged illegalities surrounding the supplementary agreements that were alleged to have genesis of the supplementary agreements, those been procured by corrupt means. There was no agreements were of no legal effect. And it sought the doubt that the arbitration clause in the principal recovery of an alleged Rs16 billion (approximately agreement was worded broadly enough to capture IR£252 million) loss that it claimed to have suffered disputes arising under the supplementary agreements. on foot of the supplementary agreements. ARBITRATION

The issue for the Pakistani Supreme Court to decide was whether the alleged illegality surrounding the genesis of the supplementary agreements was sufficient to preclude the arbitration of disputes arising from them, notwithstanding the fact that the relevant arbitration clause was contained in a separate valid agreement. The HUBCO case had its origins in a series of contracts concluded between the Hub Power Company Limited (HUBCO) and the Pakistan Water and Power Development Authority (WAPDA) in 1992 concerning the construction and operation of an electricity power plant. There were three core contracts: the implementation agreement, the fuel supply agreement, and the power purchase agreement. Under the implementation agreement, HUBCO was responsible for designing, building, operating and maintaining the electricity power plant. Under the fuel supply agreement, HUBCO agreed to buy its fuel requirements from a particular supplier. • The background And under the power purchase agreement, WAPDA to the was required to buy the electricity generated by the HUBCO case power plant. Any disputes between the parties arising explained out of this last agreement were to be resolved by • Section 13 negotiation between the parties. If the dispute of the persisted, there was provision for referral to an expert Arbitration and ultimately for the matter to be resolved by (International arbitration. Commercial) Between 1993 and 1994, HUBCO and WAPDA Act, 1998 • Public policy entered into three supplementary agreements in the whereby the amount payable by WAPDA to context of HUBCO under the power purchase agreement was international increased. WAPDA later claimed that these amending arbitration agreements were ‘illegal, fraudulent, collusive,

MAIN POINTS without consideration, mala fide, and designed to

20 Arbitration

HUBCO’s immediate response was to seek two tainted by illegality, it followed that the dispute temporary injunctions, one restraining WAPDA from between the parties could not be the subject of terminating its liabilities under the supplementary arbitration. The Pakistani Supreme Court was asked agreements, the other restraining WAPDA from to rule on the matter. invoking the jurisdiction of any judicial or quasi- By a 3-2 majority, the court decided that there judicial tribunal in connection with or in furtherance was sufficient prima facie evidence before it to of the dispute between the two parties. This was the suggest that the allegation of corruption made in first of a number of applications that were to be this case did require further investigation and was made by each of the parties before the courts in not merely a spurious allegation made to frustrate Lahore and Karachi. the arbitration process. As there was prima facie To a great extent, these applications sprang from evidence of corruption, this meant that a the question of whether or not the dispute between determination as to the validity of the the parties should be allowed to proceed to supplementary agreements would involve reaching a arbitration. A core argument against allowing finding as to whether those agreements had been arbitration of the dispute was that, as the public brought about by means of corrupt (criminal) acts, policy of Pakistan does not allow disputes arising and, because public policy required that criminal from illegal activities to be arbitrated, and as the matters be adjudicated by the courts, it followed supplementary agreements in this case were allegedly that any question as to the validity of the AND PUBLIC POLICY

Dammed if you do, dammed if you don’t: the construction of a Pakistani power plant sparked more than just electricity

21 © Baker & McKenzie, 2000

"We’ve got chaps in overseas offices. No idea about their names." DUBLIN 5th April 2001

We have 61 offices in 35 countries spread over 5 continents. We are proud to be able to bring expertise from over 3,600 fee-earners to work on assign- ments, often from a number of offices. We are comprised of top-quality prac- tice groups where people communicate on a global basis. We are truly inter- national. Our banking and finance practice is rapidly gaining a reputation for dealing with Europe's largest transactions, while maintaining a relaxed, close knit and informal culture where communication at both junior and senior level is key. With a corporate practice that is global and allows an overlap of specialist areas where International work means exactly that. It forms a major part of our work and the chance to travel is actively encouraged. You will be immersed in an environment where your opinion counts and where the scope of your career is determined by you. Don't just take our word for it, come and join us to find out more in Dublin where we will be joining our retained recruitment consultants, Michael Page Legal, on a career based seminar on the 5th April 2001. For more details, please contact Katrina Spence at Michael Page Legal by telephone on +44 (0)20 7269 2434 or e-mail: [email protected] OR YOU CAN JOIN Arbitration supplementary agreements would have to be reserves criminal issues to the courts. And because a decided by the courts. determination as to the validity of the The conclusion of the majority that public policy supplementary agreements in that case would required ostensibly credible criminal allegations to involve an investigation of allegations of corrupt be the subject of judicial consideration, and not behaviour (which, of course, is criminal behaviour), commercial arbitration, met with a lengthy dissent the case fell to be decided by the courts and should from Jehangiri J. He also addressed two further not be referred to arbitration. issues that are of interest to those involved in In his minority judgment, Jehangiri J sounded a international commercial arbitration: the doctrine general note of caution over the degree of of separability and the relationship between the lex receptiveness that the courts should display when actus (the law of the transaction) and the lex fori presented with public-policy arguments in cases (local law). Much of what Jehangiri J has to say is coming before them. He quoted a dictum of not new, but all of what he has to say is of interest. Donaldson MR in the English Court of Appeal to His judgment involves something of a ‘refresher the effect that ‘considerations of public policy should course’ on a number of the core issues that arise in be approached with extreme caution’ (DST v Ras Al the field of international commercial arbitration. Khaimah National Oil Co [1987] 2 All ER 769 at 779). He also referred to case law from New Public policy as a ground for challenge Zealand and Pakistan which strikes a similarly Just as prayer is sometimes portrayed as the last cautious note. refuge of a desperate sinner, it is fair to say that Jehangiri J then referred to the opportunities for public policy-based arguments are viewed by some abuse that could arise if individuals were able to halt as the last refuge of a desperate litigant. Indeed, arbitration proceedings merely by making almost two centuries ago, Burrough J was moved to allegations of fraud or criminality. He noted the remark in Richardson v Mellish that a public policy proposition in Russell on arbitration (Sweet and point ‘is never argued at all but when other points Maxwell, 1997) that ‘fraud can be within the scope fail’. Be that as it may, the decision of the majority in of an arbitration agreement’, and referred to the HUBCO case would suggest that, at least in the Westacre Investments v Jugoimport ([1988] 4 All ER ‘Just as prayer context of international commercial arbitration, a 570), in which allegations of bribery of Kuwaiti is sometimes public policy-based challenge to an arbitration can government officials were held to be within the be well worth making. scope of a standard ICC arbitration clause, and the portrayed as the The role of public policy within the context of US case of Mar-Len of Louisiana v Parsons-Gilbane,in last refuge of a international commercial arbitration is not only a which certain amendments to a contract that were live issue in Pakistan; it is also a live issue in Ireland. alleged to have been induced by fraud were likewise desperate Here, section 13 of the Arbitration (International held to come within the scope of an arbitration sinner, it is fair Commercial) Act, 1998 provides that the three-month agreement ([1985] 773 F2d 633, decision of the US time limit on challenges to awards prescribed by Court of Appeals, 5th Circuit). Continuing in this to say that article 34(3) of the UNCITRAL Model law on vein, he also referred to a precedent from Pakistan, public policy- international commercial arbitration (which the 1998 Island Textile Mills Ltd, Karachi v V/O Technoexpert act effectively transcribes into Irish law) ‘shall not and another in which it was held that there was no based apply to an application to the High Court to have an legal principle to the effect that an arbitration arguments are arbitral award set aside on the grounds that the tribunal cannot try the question of fraud or award is in conflict with the public policy of the misrepresentation ([1979] CLC 307). viewed by some state’. Shortly after the 1998 act was passed into law, In short, Jehangiri J was able to point to a line of as the last the then attorney general (now the Irish member of Anglo-American authorities and one Pakistani case the European Commission), David Byrne, opined in which the issue as to whether there was unlawful refuge of a that the type of awards he envisaged being set aside behaviour had been allowed to go to arbitration. He desperate under section 13 are those obtained by fraud, considered that this line of authority was relevant in bribery or corruption. This may be so, but it is the HUBCO case because the arbitration agreement litigant’ nonetheless fair to say that there will be an element at issue had itself provided that it was to be of uncertainty about the precise ambit and effect of governed by English law. He did not agree with or section 13 pending a decision by the Irish courts. dissent from the version of Pakistani public policy In the meantime, guidance must be sought espoused by the majority judges. Instead, he elsewhere. The HUBCO decision is of some interest decided the issues which the case presented by in this regard. Although the decision was concerned reference to the line of authority just mentioned. with a challenge to arbitration proceedings and not a He considered it appropriate to do this because of challenge to an arbitral award (the focus of section the doctrine of separability and the role which that 13), it provides an insight into how the supreme doctrine accords to the lex fori in international court of another jurisdiction has grappled with the commercial arbitration proceedings. In short, he issue of public policy within the context of considered that the answer to the question as to international arbitration. whether the disputes between HUBCO and The essence of the majority judgment in the WAPDA were open to arbitration lay not in public HUBCO case was that the public policy of Pakistan policy but in the arbitration agreement itself.

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Jehangiri J observed that the validity of the power that where a dispute raises criminal issues, then purchase agreement had not been disputed by the national courts should resolve that dispute. There parties to the case. And he opined that the validity of does seem to be something amiss in having issues that agreement could not be, and was not, tainted by that touch on criminal law resolved behind the closed the alleged fraud which had surrounded the door of arbitration proceedings. National courts conclusion of the later supplementary agreements. He would naturally be concerned at any ‘privatisation’ of referred to the doctrine of separability, whereby criminal justice, not only because they want to see arbitration clauses contained in agreements are fairness done, but because the sovereignty of a state is treated as separate and self-contained agreements: ‘[If necessarily qualified if allegedly criminal acts within that] were not so, arbitration clauses would not at all its jurisdiction fall to be adjudicated by an survive an attack on the main contract’. international arbitrator or arbitral tribunal. On the other hand, of course, there is the danger Separability and lex fori (highlighted by Jehangiri J in the HUBCO case) that He mentioned that a consequence of the doctrine of truculent litigants who wish to delay or frustrate separability is that even where the agreement arbitration proceedings will bring some form of public containing an arbitration agreement is alleged to be policy challenge to do so. In the HUBCO case, the invalid, the arbitration agreement itself can be valid majority stated that they were persuaded there was a and thus the question as to the validity or otherwise prima facie case of criminality that required further of the main agreement can be referred to arbitration. investigation. Had the allegations of corruption been Jehangiri J also mentioned a further attribute of the spurious in nature, the majority would, one suspects, doctrine of separability, namely, that while the law of have allowed the arbitration to proceed. the arbitration agreement usually follows the proper The difficulty is that, even with a prima facie case law of the main contract, the separability of the requirement, the fact that a court shows itself at all arbitration agreement means that it can actually be receptive to public policy challenges is likely to subject to a separate law from the main contract. encourage litigants to take a chance, to bring Strictly speaking, Jehangiri J did not actually challenges (thereby delaying arbitration) and to see if consider that the issue of separability arose in the they can avoid a previous commitment to arbitration. HUBCO case because the validity of the power An alternative solution touched upon by Jehangiri J purchase agreement (the agreement within which the in his closing comments is to allow arbitrations to ‘There does relevant arbitration agreement was contained) had not proceed and thereafter to allow a public policy been disputed, nor was there any doubt raised about challenge to an award. Such a challenge would, of seem to be the validity of the arbitration agreement. However, course, be akin to the type of action envisaged by something amiss having mentioned the issue of separability, Jehangiri J section 13 of the Arbitration (International went on to cite a number of authorities from England Commercial) Act, 1998. in having issues and Pakistan in which the doctrine of separability has How would such an action fare in Ireland? The that touch on been endorsed and applied. Irish courts have traditionally adopted a positive He accepted the limit placed on the doctrine of approach to arbitration, but without case law on the criminal law separability by the English Court of Appeal in the matter, it is not at all certain what their approach resolved behind recent case of Soleimany v Soleimany ([1999] 3 All ER would be. That, of course, is why the HUBCO case is 847), in which it was decided that contracts for illegal so interesting from an Irish perspective. It illustrates the closed door adventures which are illegal or tainted in their very how the supreme court of another state has sought to of arbitration purpose (such as a contract of co-operation between balance the competing demands of effecting justice highwaymen) could not be the subject of arbitration. and fairness on the one hand and ensuring the proceedings’ However, he did not consider that the case at hand practicability of the arbitration process on the other. was such a case. Here, the agreement within which The judgments in the case demonstrate the the arbitration clause was contained (the power contrasting approaches that can be adopted by judges purchase agreement) was, by common consent, a when presented with public policy challenges to lawful agreement pertaining to the provision of international commercial arbitrations. And the case electricity by HUBCO to WAPDA. Such illegality as possibly provides a certain comfort to those who was alleged arose in connection with the might be concerned that section 13 of the 1998 act supplementary agreements. Jehangiri J did not could diminish the attractiveness of Ireland as a consider that an arbitration clause contained in a valid venue for international commercial arbitrations. agreement which had been amended by The role that national public policy should play supplementary agreements that may or may not have within the context of international commercial been tainted by illegality could be considered to be arbitrations is, as the HUBCO case makes clear, a part of an overall illegal arrangement and hence of no vexed issue that confronts all nations interested in effect. encouraging international trade by fostering an The respective approaches adopted by the majority effective system of international commercial and the minority judges in the HUBCO case each arbitration. G have their own advantages and disadvantages. Notwithstanding case law to the contrary, there is an Dr Max Barrett is a solicitor at McCann FitzGerald in instinctive attractiveness to the view of the majority Dublin.

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PIPER Joint lodgments are a viable way for defendants to handle liabilities in court cases. But, Dessie Shiels and Karl Henson argue, they’re not always without risks – or appropriate in all circumstances

here are many instances in modern litigation in which plaintiffs bring a case where defendants realise that they are liable and will be so held at trial. It may Tbe, however, that settlement negotiations will break down because the plaintiffs’ estimate of what their claim is worth is wholly unrealistic. In such circumstances, defendants who are guilty in the sense of being liable to the plaintiffs, but who are innocent in the sense of being willing to settle a claim realistically, may avail of order 22 of the Rules of the Superior Courts. That rule permits defendants to pay a sum of money into court in purported satisfaction of a claim which, if not exceeded at trial by plaintiffs who persist with a claim, will relieve them of any liability for the plaintiffs’ costs in bringing the claim. While it is clear that this lodgment device provided in order 22 may be availed of by a single defendant, the question arises as to whether it may be availed of by multiple defendants • Drawbacks in jointly, something which is not provided for in the making joint Rules of the Superior Courts. lodgments •Order 22 of Are joint lodgments permissible? the Rules of the Superior Where there are two or more defendants to an action, Courts it may be desirable, in appropriate circumstances, to • Distinctions make a joint lodgment. The defendants may decide between between them that each will accept a proportion of single and liability and then make an appropriate lodgment made multiple up of each defendant’s agreed proportion of liability. plaintiffs Take the case of two defendants who decide that a

MAIN POINTS lodgment of £1,000 would be appropriate and who

27 Litigation

accept 70% and 30% of the liability respectively. In the plaintiff is liable to pay and pays to the defendant making a joint lodgment, the first defendant will or defendants against whom he has failed’. make a lodgment of £700 and the second defendant This section may be problematic if one is will make up the remaining £300 necessary to make a considering making a joint lodgment. It allows a cumulative lodgment of £1,000. Would such a joint plaintiff to proceed against all defendants and then, if lodgment be permissible under order 22? unsuccessful against all of them but successful against In the case of Robertson v Aberdeen Journals Ltd and some of them, to seek a court order attaching the Others ([1954] 2 AER 766), three defendants sought entire costs of the action to the defendant he to make a joint lodgment in respect of the plaintiff’s succeeded against. If two defendants make a joint two causes of action. The court held that by virtue of lodgment, there is a risk that while the plaintiff might the English equivalent of order 22, rule 1(1), not beat the full lodgment made, he might combined with another English rule, namely order nevertheless beat the lodgment made by one of the 71, rule 2 (which provides that: ‘In these rules, unless defendants. In the example given above of the two repugnant to the context, the singular number shall defendants making a joint lodgment of £1,000 include the plural, and the plural shall include the (contributing £700 and £300 respectively), if the court singular’), the defendants were entitled to join were to award the plaintiff £900, he would have failed together in making a payment into court. This was so to beat the entire lodgment, but if the court awarded notwithstanding the provisions of the English him £500 against the first defendant and £400 against equivalent of Ireland’s order 22, rule 12. While there the second defendant, then arguably he would have is no rule in the Irish Rules of the Superior Courts succeeded against the second defendant so as to allow which is equivalent to order 71, rule 2 of the English him to apply under section 78 to attach the entire rules, there is section 11(a) of the Interpretation Act, costs of the action to the second defendant. Whether 1937, which states that ‘every word importing the section 78 could apply in this way depends on whether singular shall, unless the contrary intention appears, a court would allow a plaintiff to use it to effectively be construed as if it also imported the plural, and deprive the whole procedure of making a joint every word importing the plural shall, unless the lodgment of any value to a defendant whose portion of contrary intention appears, be construed as if it also a joint lodgment was insufficient to meet a plaintiff’s ‘When a imported the singular’. Therefore, by applying the award against him. Ultimately, this would depend on lodgment is Robertson v Aberdeen Journals case to the Rules of the whether the court, ‘having regard to all the Superior Courts, there is no reason why two or more circumstances’, ‘thought it proper so to do’. made, a defendants to an action in Ireland cannot make a joint In this regard, the case of Rice v Toombes ([1971] IR plaintiff must lodgment. 38 at 41) is relevant. In that case, O’Dalaigh J was of Such a joint lodgment may also be made in respect the opinion that section 78 was ‘an enabling provision, be able to of each of a plaintiff’s causes of action without not a restrictive one’ for the benefit of plaintiffs. determine apportionment. In this regard, the court in Robertson Arguably, section 78 stands independent of the pointed out that it could properly exercise its lodgment rules available for the benefit of defendants what he will jurisdiction under the English equivalent of order 22, and would permit a plaintiff succeeding against an receive if he rule 1(5) in permitting all the defendants to pay into individual contribution in a joint lodgment to attach court a single sum in respect of all the causes of his entire costs of the action to the defendant who had accepts, and action. This was so as ‘it would be a grave hardship made the inadequate contribution. However, it should whether he on the defendants if they had to pay in separate sums be remembered that a plaintiff might fail to beat a in respect of each cause of action’, whereas there lodgment and also fail to beat each defendant’s thinks that would be no hardship on the plaintiff if a joint individual contribution to the lodgment. In such will satisfy lodgment was made in this way. Essentially, the circumstances, section 78 could have no application. plaintiff was in a position to determine which of his his claim’ causes of action was his main cause of action, and Apportionment therefore worth the most, whereas the defendants The case of Walker v Turpin ([1993] 4 AER) is also were unable to determine this and so make a relevant here. In that case, the court held that a proportionate lodgment. defendant, in making a payment into court in an action where there were multiple plaintiffs, could be The Courts of Justice Act, 1936 ordered to make an apportionment of the sum paid in, In Ireland, we need to consider section 78 of the so as to inform each plaintiff of what money was being Courts of Justice Act, 1936, which reads: ‘Where, in a paid in respect of their respective claims. In so civil proceeding in any court there are two or more deciding, the court placed emphasis on the English defendants and the plaintiff succeeds against one or equivalent of order 22, rule 1(5) of the Rules of the more of the defendants and fails against the others or Superior Courts. The Irish courts would order other of the defendants, it shall be lawful for the apportionment of a defendant’s lodgment in an action court, if having regard to all the circumstances it brought by multiple plaintiffs so as to ensure that the thinks proper so to do, to order that the defendant or plaintiffs would not be prejudiced. defendants against whom the plaintiff has succeeded Thus there is a distinction between the case where shall (in addition to the plaintiff’s own costs) pay to there is a single plaintiff with multiple causes of action the plaintiff by way of recoupment the costs which and the case where there are multiple plaintiffs and so

28 Litigation multiple causes of action. This distinction is wholly of the Rules of the Superior Courts, the infant plaintiff justifiable. When a lodgment is made, a plaintiff must will have to apply to the court to accept that be able to determine what he will receive if he lodgment. Where, however, the judge decides that accepts, and whether he thinks that will satisfy his the action should instead go to trial, as the lodgment claim. A single plaintiff with multiple causes of action is insufficient and the plaintiff fails to beat the can make that decision. On the other hand, multiple lodgment, the court may nevertheless, under section plaintiffs would not be able, without apportionment, 63 of the Civil Liability Act, 1961, award the plaintiff to weigh up what they would each receive on his or her costs anyway. This mechanism is even acceptance of the lodgment against what they estimate wider than section 78, since in such a case all the their claim to be worth. Were apportionment not defendants could be liable to their proportionate ordered, the prejudice to the plaintiffs would greatly degrees of liability (at the discretion of the judge) to outweigh that to the defendants. This is because contribute to the infant plaintiff’s costs, even if they where there are multiple plaintiffs the defendant can had made a successful joint lodgment together. All make a judgement on the value of each plaintiff’s of this presupposes that an infant plaintiff is willing claims, and non-apportionment would give them an to accept a lodgment. Where he or she is not, and unfair advantage which would go against the no application is made to the court under order 22, constitutional ethic of fair procedures which the Rules rule 10 to accept the lodgment, section 63 will not of the Superior Courts seek to uphold. apply. It is, of course, also possible that the judge The position from a plaintiff’s perspective was would not award the infant plaintiff costs under summed up by Sir Donald Nicholls in Walker v section 63. Turpin, when he said in relation to multiple plaintiffs In conclusion, the possibilities that might arise in that: ‘the plaintiffs are individuals, with their own respect of joint lodgments may be summarised as separate interests, and each is pursuing his own follows: separate causes of action. Joinder as co-plaintiffs •Where there is one plaintiff with one cause of should not be allowed to deprive them of the action, a joint lodgment by defendants should be opportunity for each to decide independently of the permissible. There will, however, always be a risk other whether he wishes to accept the payment or for defendants that their individual contribution wishes to continue’. will be defeated and that they might be singularly It is always possible that in certain circumstances a liable for the plaintiff’s costs of the action because court could remove the benefit of an apportionment. of section 78. The risk is even greater where an For example, where there has been a material change infant plaintiff is involved of circumstances which affects the risks of the •Where there is one plaintiff with multiple causes litigation for the plaintiff. If there has been such a of action, the position is the same as it is above change, a defendant could obviously object to any •Where there are several plaintiffs, and thus application for acceptance of an apportioned sum several causes of action, a joint lodgment should where this would give a plaintiff an opportunity to be permissible. An apportionment of the accept an apportioned sum greater than he was likely lodgment between the different causes of action to receive after the event detrimental to his case (for may be ordered because only each individual example, after the exchange of medical reports). plaintiff can estimate what they consider the value of their claim to be. The risk posed by section 78 Infant plaintiffs for defendants is greatly increased because any The position of defendants trying to make a joint one of the plaintiffs may defeat a contribution lodgment is further complicated where a plaintiff is made in respect of their cause(s) of action. an infant. In such instances, under order 22, rule 10 However, a defendant who was held liable for an individual plaintiff’s costs because of section 78 would only be liable for that plaintiff’s costs. WHAT THE RULES OF THE SUPERIOR COURTS SAY Again, an infant plaintiff will complicate the risk. Order 22, rule 1(1) states: ‘In any action for a debt or damages (other than an action to which section 1(1) of the Courts Act, 1988 applies or in an There will be cases where a joint lodgment is very admiralty action), the defendant may at any time after he has entered an advantageous to defendants, and should be appearance in the action and before it is set down for trial, or at any later permitted. The advantages, however, will in many time by leave of the court, upon notice to the plaintiff, pay into court a cases be balanced against the risk of being held sum of money in satisfaction of the claim or (where several causes of liable for the costs of action because of section 78 action are joined in one action) in satisfaction of one or more of the and the rules in relation to infant plaintiffs. In the causes of action’. end, however, where such matters result in dispute, Order 22, rule 12 states: ‘Money may be paid into court under this order the courts will determine any issues according to by one or more of several defendants sued jointly or in the alternative upon notice to the other defendant or defendants’, while order 22, rule 1(5) the rule of constitutional fair procedures which the stipulates that: ‘Where money is paid into court in satisfaction of one or Rules of the Superior Courts seek to uphold for both more causes of action, the notice shall specify the cause or causes of plaintiffs and defendants. G action in respect of which payment is made, and the sum paid in respect of each cause of action unless the court orders otherwise’. Dessie Shiels and Karl Henson both work at the Dublin law firm McCann FitzGerald.

29 Gadgets Tech trends By Maria Behan

Your car’s guardian angel Picture this alking cars are a staple of ong de riguer in science Tbad television shows, but Lfiction movies, it looks as if did you ever hear of one the video phone may finally making a phone call? Well, move out of fantasyland and that day has dawned at last, onto your desk. The best thing courtesy of the people behind about this model, which sends the Hawkeye car-monitoring and receives video images, is device. It connects to your that it uses normal phone lines, mobile phone, raising the so you just have to plug it in alarm with a call if anyone and dial – the call costs the tries to nick your car. You can same as old-fashioned voice- even subscribe to a web-based only calls. The downside is that tracking service that tells you the video portion of things only exactly where your car is if works with people who also you don’t arrive in time to foil have phones from the European the intruder. And speaking of Video Telephone foiling, parents hoping to Co, so your circle of limit junior’s behind-the- visible friends will wheel exploits will be probably be limited. At delighted by the feature that installation) from Danny least the phones come in lets you programme Hawkeye Corcoran at Cellular World on pairs, so you can give the to send you text messages if 086 606 2666; additional second one to the person the car exceeds a designated information is available on the you most want to see on speed. Available for about CellularWorld website, the other end of the line. £1,200 (which includes www.cellularworld.ie. But before you get carried away with the saucy possibilities, get your head out of the gutter and consider the A portable for paranoids? manufacturer’s claim that the es, paranoids do have starters, it can’t even be turned keyboard make it easy for you Video Phone is an easy-to- Yenemies and, yes, your on without entering a PIN to communicate with your install alternative to mobile PC – and all the data code, and once it’s running, it notebook. Available from complicated video-conferencing on it – could be at risk from a protects itself with pre-loaded computer outlets for about equipment. Available from number of sources, including virus protection software. It £1,950. CompuStore outlets for £1,675. thieves and viruses. The even comes with a lockable, Lifebook E-6560 from Fujitsu galvanised steel cable to thwart Siemens Computers is a high- anyone with light fingers. If end notebook that aims to you’re into power and storage Banking on cyberspace alleviate some of capacity as well as safety, you’ll ank of Ireland’s Business On banking needs, level 2 is for those appreciate this silver beauty’s BLine is an Internet banking those who need to make cross- fears. 700 MHz Pentium III service tailored to – you guessed border payments and level 3 is For processor and 10 GB hard it – businesses. You can access for those who want to go full drive. The infrared port means account information and carry whack with what BOI bills as ‘a the Lifebook can out transactions from any comprehensive electronic easily computer, wherever banking and treasury communicate you are in Ireland or service’. Pricing varies with similarly- around the world. based on the type of equipped desktop Designed to be fast services required, and pocket PCs, and, above all, secure (we’re contact the Business On Line sales printers and talking about your money, after team on 01 618 7435; additional mobile phones, all), Business On Line comes in information can be found on the and the large 14.1-inch three different flavours. Level 1 Bank of Ireland website, display and user-friendly covers standard domestic www.bankofireland.ie.

30 Gadgets A word to the wise? esigned to be used by billing applications. Down the information sharing, for yourself. Dsolicitors, accounting road, you might add on the e- not to mention data Prices start at personnel and secretaries mail and marketing modules entry. The about £5,000 alike, Avenue Legal Systems’ and a couple of case- manufacturers even and increase Wisdom Suite is a collection management functions in claim that this software with the of software that can be as areas such as conveyancing, package ‘increases number of basic – or as comprehensive – probate or matrimonial law. available fee-earner users and as your practice demands. To Whatever part of the Wisdom chargeable time’. If you software start off, you might keep it Suite you’re using, you can have doubts about that, click modules added; available from simple, just using the client pull information from other on the program’s fee-earner Legal IT at 021 432 1829 or database, word-processing and areas, which streamlines analysis button and find out [email protected]. Sites to see LEXicon (www.courtservice.gov.uk/lexicon/links.htm). A round-up of links that will whisk you off to sites offering free information on UK, European and international law, as well as human rights-related material.

Museum stuff (www.museumstuff.com). Adults and children can get lost for hours on this site (watch those phone bills!), which lets you explore both virtual and real museums – including the wax kind and even zoos. The vast array of topics covered includes art, fun facts for kids, and sports. Tomkins and Co (www.tomkins.ie). Sponsored by the Dublin firm of patent attorneys, this site offers info on Irish and European patents, trademarks – even Internet domains.

Sheridan’s cheesemongers. (www.irishcheese.com). Fancy a little gubeen or coolea? Wander over to this site, where you can read about mouth-watering delicacies and, if you’re not near the AltaVista Ireland (www.altavista.ie). This comprehensive search Sheridan’s shops in Galway and Dublin, you can arrange to have engine lets you scour all of cyberspace or just the Irish portion your cheesy delight delivered right to your doorstep. of it.

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Contact Áine Ryan, Catering Manager, Law Society of Ireland, at 672 4918 Briefing Practice notes

Foreign lawyer’s opinion t is becoming increasingly com- 2. That the deed, as executed by foreign lawyers when giving these addressed. It would be prefer- Imon in property transactions to the company, has been correct- opinions to choose to use an opin- able that the opinion letter find that you are dealing with a ly executed by it and that the ion in a form which they feel com- should not be limited in this company which is not incorporat- document binds the company fortable with and clearly this is way. In a case where this ed in Ireland. A foreign company and is enforceable against it acceptable, provided the relevant becomes a sticking point, the may be selling property, taking a 3. That any corporate or statutory points are covered in that opinion. letter could be limited so that it lease, giving a guarantee or issu- procedures required in the There are a couple of points worth can be relied upon by the par- ing security for an advance. In jurisdiction in which the comp- noting: ties whom it could be reason- those circumstances, the any was incorporated (required 1. The practice of issuing these ably anticipated will need to Conveyancing Committee recom- in relation to the execution of letters of opinion has carried rely on the letter mends that you should ask the the deed) have been attended forward from commercial trans- 2. There is a tendency for lawyers solicitors representing the foreign to, and actions, and the party giving in certain tax havens to seek company to provide to your client 4. That there are no charges or the opinion will often try to put very substantial fees to issue on closing an opinion from a other encumbrances registered in numerous exclusions which these letters. It is therefore lawyer based in the jurisdiction against the company which can have the effect of watering strongly recommended that you where the company was incorpo- affect it or which are capable of down the letter so that it is of clarify the question of the cost rated to cover the following affecting the property involved little value. The most frequent in advance of obtaining the let- points: in the transaction. clause that foreign lawyers ter. It is the view of the com- 1. That the company was properly tend to insert in these opinion mittee that the cost of obtain- incorporated, is still in exis- A precedent of an opinion is set letters is one limiting the ing the opinion should be borne tence and has power to enter out below and this could be adapt- reliance on the opinion to the by the foreign company. into the transaction in question ed for use. It is not uncommon for person to whom it is Conveyancing Committee

PRECEDENT OPINION Draft [ ] 2.2 that the certified copies pro- the laws of [specify jurisdic- the documents con- [Date] duced to us of minutes of tion in which the company is stituting them, state [Your ref] meetings and/or of resolu- incorporated]. Subject to or regulation) to be [Ref/matter no] tions are true copies and that qualification and to the exceeded; or correctly record the proceed- other qualifications set out 3.2.2 any law or order to To: [your client] ings of such meetings herein we are of the opinion be contravened. and/or the subject matter that: 3.3 The agreement has been Dear Sirs, which they propose to 3.1 [the company] is a company duly executed and delivered We have acted on behalf of [the record and that the resolu- duly incorporated under the on behalf of [the company] company] who has requested us tions contained in the min- laws of [specify jurisdiction], and the obligations on the to give you this opinion in con- utes remain in full force and is a separate legal entity, part of [the company] are nection with [specify transaction]. effect; subject to suit in its own valid and legally binding on 1We have examined: 2.3 the genuineness of the sig- name. It is validly existing and are in a form capable of 1.1 [specify document] (‘the natures and seals on all under the laws of [specify enforcement against [the agreement’), and1 original or copy documents jurisdiction] and no steps company] under the laws of 1.2 [specify ancillary docu- which we have examined; have been taken or are [specify jurisdiction] in the ments]; 2.4 that the certified up-to-date being taken to appoint a courts of [specify jurisdic- and such other documents memorandum and articles receiver, examiner, liquida- tion] in accordance with as we have considered nec- of association of [the com- tor or similar officer over or their respective terms. essary or desirable to exam- pany] or other constitutional to wind it up. 3.4 All authorisations, ine in order that we may give documents furnished to us 3.2 [the company] has the nec- approvals, licences, exemp- this opinion. by [the company] are correct essary power and authority tions and consents of gov- [Terms defined in the [speci- and up to date; and all necessary corporate ernmental or regulatory fy document] shall have the 2.5 without having made any and other actions have been authorities required in [spec- same meaning herein].2 investigation, that the terms taken to enable it to sign, ify jurisdiction] with respect 2 For the purpose of giving of [the agreements] are in deliver and perform the obli- to the agreement have been this opinion we have all respects lawful and gations undertaken by it obtained. assumed: enforceable under Irish law; under the agreement and 3.5 Under the laws of [specify 2.1 the conformity to the origi- 2.6 the accuracy and complete- implementation by [the com- jurisdiction] in force at the nals of all copies of all doc- ness of all information pany] of the foregoing will date hereof [the company] uments of any kind fur- appearing on public records. not cause: will not be required to make nished to us by 3We express no opinion as to 3.2.1 any limit on [the com- any deduction or withholding [company/company’s Irish any matters falling to be pany] or its directors from any payment it may solicitors]; determined other than under (whether imposed by make under the agreement.

34 Briefing

3.6 Under the laws of [specify instrument relating thereto 3.11 The agreement will not be appropriate. jurisdiction] in force at the be signed, delivered, filed, liable to ad valorem stamp 2 This clause is helpful in a date hereof the claims of registered or recorded.4 duty, registration tax, or complicated transaction but [your client] against [the 3.8 In any proceedings taken in other similar tax or duty in otherwise it may be sufficient company] will rank at least [specify jurisdiction] for the [specify jurisdiction]. simply to define the company pari passu with the claims enforcement of the agree- 3.12 Based solely on searches and the property. of all other unsecured credi- ment the choice of Irish law which we have carried out 3 This is usually only required tors except claims which as the governing law of the on [date of search] in where the opinion relates to a rank at law as preferential agreements would be [details of search carried lending transaction. claims in a winding-up or upheld by the [specify juris- out] there are no charges 4 The reference to priority in this receivership [save for a diction] courts. registered against the clause is usually only required claim of [your client] against 3.9 The submission by the par- assets of the company.5 in a lending transaction. [the company] under the ties to the [exclusive or non- 4 This opinion is addressed to 5 This clause will usually be [security document] which exclusive] jurisdiction of the [your client] and may be amended but it is helpful and will rank in priority to the Irish courts will be upheld by relied upon by [your client] more cost effective if the over- claims of any other credi- the [specify jurisdiction] for its benefit in connection seas lawyers carry out basic tor].3 courts. with the transaction contem- searches which can be sup- 3.7 It is not necessary or desir- 3.10 It is not necessary under plated. It may also be relied plemented by the purchaser’s able under the laws of the laws of [specify jurisdic- on by all assignees of the own searches here. This is [specify jurisdiction] in order tion] (a) in order to enable interest of [your client] mainly because the external to ensure the validity, [your client] to enforce its under the agreement but register in the Companies enforceability and priority of rights under the agreement not by any other person.6 Office may not show the full the obligations and rights of or (b) by reason of the exe- position. [your client] under the cution of the agreement that Footnotes 6 Overseas lawyers will usually agreement that it be filed, it should be licensed, quali- 1 Depending on the nature of try to limit the opinion so as to registered, or notarised in fied or otherwise entitled to the case, it may be simpler to limit their liability. Ideally this any public office or else- carry on business in [speci- refer here to ‘the con- limitation would not appear in where or that any other fy jurisdiction]. veyance’, ‘mortgage’ etc as the opinion letter.

Undertakings re: timber-framed houses t has come to the attention of several queries from solicitors tract with the supplier of the house undertaking would be sought. Ithe Conveyancing Committee from whom undertakings have for the supply and construction of Solicitors asked to provide such that companies in the business of been demanded by the supplying the timber-framed dwelling in the an undertaking should refuse to do providing construction systems or companies before they will deliver same way. In both cases, the ven- so as they might compromise their kits for wooden-framed houses the timber-framed structure to the dor/builder and the supplier/ client’s rights under the contract in frequently insist on obtaining a purchaser’s site. It is the recom- builder agree to provide a dwelling- the event of a dispute arising bet- letter of undertaking from a pur- mendation of the Conveyancing house and the purchaser agrees to ween the client and the supplier as chaser’s solicitor to discharge the Committee that a purchaser’s pay a certain purchase price for to the suitability or adequacy of the cost of the system/kit to the sup- solicitor should not under any cir- same. It is not necessary in either materials supplied. In such cases, plying company. This notwith- cumstances give an undertaking of case to obtain a further undertak- solicitors might find themselves standing the fact that there is a this nature. In the same way as a ing from a solicitor to pay the ven- personally liable to comply with written contract in place between purchaser and vendor/builder of a dor/builder or the supplier/builder their undertaking while the client the purchasing client and the sup- conventional block-built dwelling the amount as agreed in the con- might instruct them not to pay any plying vendor which states that will enter into a contract for the tract. This is tantamount to asking monies due to the inadequacy or the purchaser will pay the cost of construction of the dwellinghouse, a solicitor to pay for his/her unsuitability of the materials sup- the system to the vendor. the purchaser of a timber-framed client’s house and the committee plied or the service rendered. The committee has received dwellinghouse will enter into a con- is most concerned that such an Conveyancing Committee Law Society general conditions of sale/ building agreement t has come to the notice of the current Law Society’s conditions in the course of construction and/or building agreement’ in the Icommittee that some practition- of sale and/or building agree- where a building agreement has certificate of title documentation ers have attempted to exclude the ment’. The committee is of the been entered into. Practitioners was intended to mean that the Law Society general conditions of view that to preclude any such con- are therefore forewarned to be conditions of sale are required in sale where reliance is placed ditions en bloc would prevent the very careful about accepting any relation to the purchase of a sec- upon a building agreement solely, purchaser’s solicitor giving a cer- condition in the building agree- ond-hand property and both the incorporating some special condi- tificate of title. ment which expressly or by impli- conditions of sale and building tions dealing with title. The committee is further of the cation excludes the Law Society agreement are required in relation Practitioners are reminded that the view that it is not correct to state general conditions of sale. to the purchase of a newly-con- format of the certificate of title that the Law Society form of con- For the avoidance of doubt, the structed property or property in clearly expresses that the ‘pur- ditions of sale was never intended committee confirms that the use the course of construction. chase was effected on foot of the for use in relation to new houses of the wording ‘conditions of sale Conveyancing Committee Briefing

PRACTICE NOTE Solicitors’ certificates v family law declarations he Family Home Protection the best evidence that is rea- only offer certificates where the that proceedings have not been TAct, 1976, Family Law Act, sonably available in relation to best evidence is not available. In commenced or threatened by the 1981, Judicial Separation and the above-mentioned acts on giving certificates, vendors’ vendor’s spouse. Accordingly, Family Law Reform Act, 1989, any disposition. The best evi- solicitors should be able to vendors’ solicitors may find Family Law Act, 1995 and Family dence in the case of a disposi- stand over the reason for the themselves in personal difficul- Law (Divorce) Act, 1996. tion by a married individual non-availability of the best evi- ties if the certificate in question The practice of providing and would be a statutory declaration dence and also have a personal turns out to be incorrect. accepting solicitors’ certificates from the vendor and the ven- knowledge which allows them to Purchasers’ solicitors should in relation to the above-men- dor’s spouse. In some cases, it give a certificate. While it may always ask for the best evidence tioned acts on dispositions by may be reasonable to accept a appear relatively straightforward that is reasonably available. individuals (otherwise than in declaration from the vendor to certify that a disposition is They should only accept a certifi- exceptional circumstances) is a alone. The practice of giving cer- not affected by the Family Home cate where the best evidence is matter of concern to the commit- tificates simply because it is Protection Act, 1976, it is diffi- not reasonably available and tee. more convenient should be dis- cult, if not impossible, to certify where there is good reason for Solicitors should always seek couraged. with absolute certainty that any its non-availability. or provide (as the case may be) Vendors’ solicitors should disposition is not reviewable or Conveyancing Committee G

LEGISLATION UPDATE: ACTS PASSED IN 2000 This list was updated by the Law Copyright and Related Rights Education (Welfare) Act, 2000 which shall be deemed to have Society Library on 13 February Act, 2000 Number: 22/2000 come into force and take effect 2001 Number: 28/2000 Date enacted: 5/7/2000 as and from 1/7/1999 and Date enacted: 10/7/2000 Commencement date: Com- ss111 and 113 which shall be Appropriation Act, 2000 Commencement date: Com- mencement order/s to be made deemed to have come into force Number: 36/2000 mencement order/s to be made (per s1(2) of the act); 5/7/2000 and take effect as and from Date enacted: 15/12/2000 (per s1(2) of the act): 1/1/2001 for any sections of the act not in 1/3/2000 (per s166(10)(a), (b) Commencement date: 15/12/ for the following sections of the operation by that date (per s1(3) and (c) of the act). Various com- 2000 act: part I – all sections except of the act) mencement dates for other sec- s10(2) insofar as it applies to s56 tions – see act Cement (Repeal of Enactments) of the Copyright Act, 1963; part II Electronic Commerce Act, 2000 Act, 2000 – all sections except ss98, 198 Number: 27/2000 Finance (No 2) Act, 2000 Number: 31/2000 and 199; part III – all sections Date enacted: 10/7/2000 Number: 19/2000 Date enacted: 24/10/2000 except s247; part IV – all sec- Commencement date: Com- Date enacted: 5/7/2000 Commencement date: Com- tions; part V – all sections; part VI mencement order/s to be made Commencement date: 15/6/ mencement order to be made (per – all sections; part VII – all sec- (per s1(2) of the act) 2000 for part 1 (stamp duties), s2(2) of the act): 28/11/2000 tions (per SI 404/2000) except where otherwise provided; (per SI 361/2000) Equal Status Act, 2000 see act for part 2 (anti-speculative Courts (Supplemental Provisions) Number: 8/2000 property tax) and part 3 (miscella- Comhairle Act, 2000 (Amendment) Act, 2000 Date enacted: 26/4/2000 neous) Number: 1/2000 Number: 15/2000 Commencement date: Com- Date enacted: 2/3/2000 Date enacted: 28/6/2000 mencement order/s to be made Firearms (Firearm Certificates Commencement date: 2/3/ Commencement date: 28/6/ (per s48 of the act): 14/6/2000 for Non-Residents) Act, 2000 2000. Establishment day order to 2000 for s47 of the act which deals with Number: 20/2000 be made (per s3 of the act): transitional arrangements for the Date enacted: 5/7/2000 12/6/2000 appointed as the Criminal Justice (Safety of Employment Equality Act, 1998 Commencement date: 14/7/ establishment day (per SI United Nations Workers) Act, (per SI 168/2000); 25/10/2000 2000 (per s8(3) of the act) 167/2000) 2000 for all other sections of the act Number: 16/2000 (per SI 351/2000) Fisheries (Amendment) Act, Commission to Inquire into Child Date enacted: 28/6/2000 2000 Abuse Act, 2000 Commencement date: 28/6/ Finance Act, 2000 Number: 34/2000 Number: 7/2000 2000 Number: 3/2000 Date enacted: 15/12/2000 Date enacted: 26/4/2000 Date enacted: 23/3/2000 Commencement date: 15/12/ Commencement date: 26/4/ Criminal Justice (United Nations Commencement date: 2000 2000; establishment day order to Convention Against Torture) Act, 6/4/2000 for part I (ss1-89) be made for the purposes of the 2000 except where otherwise express- Gas (Amendment) Act, 2000 act (per s2 of the act): Number: 11/2000 ly provided (per s166(9) of the Number: 26/2000 23/5/2000 appointed as the Date enacted: 14/6/2000 act); 23/3/2000 for part III Date enacted: 10/7/2000 establishment day for the com- Commencement date: 14/6/ (ss107-124) except for ss107, Commencement date: 10/7/ mission (per SI 149/2000) 2000 121 and 123(a) and 123(b) 2000

36 Briefing

LEGISLATION UPDATE: ACTS PASSED IN 2000 (contd)

Harbours (Amendment) Act, Intoxicating Liquor Act, 2000 ss20, 21, 22 of part II of the act the first schedule of the act (per 2000 Number: 17/2000 (per SI 414/2000) SI 349/2000); 1/1/2001 for s2 Number: 21/2000 Date enacted: 30/6/2000 Explan memo: Yes (insofar as it relates to the sec- Date enacted: 5/7/2000 Commencement date: 6/7/ tions commenced on that date), Commencement date: 5/7/ 2000 for all sections, other than National Minimum Wage Act, s50 (insofar as it relates to deci- 2000 sections 5, 17 and 27; 2000 sions under subsection (2)(b)(iii) 2/10/2000 for section 27 (per SI Number: 5/2000 of that section), ss71-78 incl, Hospitals’ Trust (1940) Limited 207/2000) Date enacted: 31/3/2000 182, 210-223 incl, 263, 264 (Payments to Former Commencement date: 1/4/2000 (insofar as it relates to the repeal Employees) Act, 2000 Irish Film Board (Amendment) (per SI 96/2000) of s55A of the Roads Act, 1993, Number: 23/2000 Act, 2000 as inserted by s6 of the Roads Date enacted: 8/7/2000 Number: 35/2000 National Pensions Reserve (Amendment) Act, 1998), 265(3), Commencement date: 8/7/ Date enacted: 15/12/2000 Fund Act, 2000 267, 268(1) (other than para- 2000 Commencement date: 15/12/ Number: 33/2000 graphs (a), (b), (c) and (d) of that 2000 Date enacted: 10/12/2000 subsection), 271-277 incl (per SI Human Rights Commission Act, Commencement date: 10/12/ 449/2000) 2000 Local Government Act, 2000 2000; establishment day order to Number: 9/2000 Number: 25/2000 be made (per s3 of the act) Protection of Children (Hague Date enacted: 31/5/2000 Date enacted: 8/7/2000 Convention) Act, 2000 Commencement date: 31/5/ Commencement date: 8/7/2000 National Stud (Amendment) Number: 37/2000 2000; establishment day order to Act, 2000 Date enacted: 16/12/2000 be made for the purposes of the Local Government (Financial Number: 40/2000 Commencement date: Com- act Provisions) Act, 2000 Date enacted: 20/12/2000 mencement order/s to be made Number: 6/2000 Commencement date: 20/12/ per s19(2) of the act ICC Bank Act, 2000 Date enacted: 20/4/2000 2000 Number: 32/2000 Commencement date: 20/4/ Social Welfare Act, 2000 Date enacted: 6/12/2000 2000 National Training Fund Act, 2000 Number: 4/2000 Commencement date: Com- Number: 41/2000 Date enacted: 29/3/2000 mencement order/s to be made Medical Practitioners Date enacted: 20/12/2000 Commencement date: Various – (per s8(2) of the act): 7/12/2000 (Amendment) Act, 2000 Commencement date: Com- see act, and SI 101/2000, SI for all sections other than ss3, 5 Number: 24/2000 mencement order to be made 311/2000, SI 312/2000, SI and 7 (per SI 396/2000) Date enacted: 8/7/2000 (per s11(2) of the act): 339/2000, SI 471/2000 Commencement date: 8/7/ 21/12/2000 (per SI 494/2000) Illegal Immigrants (Trafficking) 2000 Statute of Limitations Act, 2000 National Treasury Management (Amendment) Act, 2000 Number: 29/2000 Merchant Shipping Agency (Amendment) Act, 2000 Number: 13/2000 Date enacted: 28/8/2000 (Investigation of Marine Number: 39/2000 Date enacted: 21/6/2000 Commencement date: 5/9/2000 Casualties) Act, 2000 Date enacted: 20/12/2000 Commencement date: 21/6/ (per SI 266/2000) Number: 14/2000 Commencement date: Com- 2000 Date enacted: 27/6/2000 mencement order/s to be made Insurance Act, 2000 Commencement date: Com- for part 2 of the act (per s1(2) of Town Renewal Act, 2000 Number: 42/2000 mencement order/s to be made the act); 20/12/2000 for all Number: 18/2000 Date enacted: 20/12/2000 (per s1(2) of the act): 1/8/2000 other sections Date enacted: 4/7/2000 Commencement date: Com- for ss44, 45 and 46 of the act Commencement date: 16/2/ mencement order/s to be made (per SI 252/2000) Planning and Development Act, 1999 for ss3, 4, 5 and 6; (per s1(4)(a) and (b) of the act): 2000 17/7/2000 for all other sections 1/1/2001 for part 1; part 2, Multilateral Investment Number: 30/2000 (per SI 226/2000) other than s8; s6 for the purposes Guarantee Agency (Amendment) Date enacted: 28/8/2000 of s3; scheds 1 and 2. 1/4/2001 Act, 2000 Commencement date: Com- Wildlife (Amendment) Act, 2000 for s8, except insofar as it pro- Number: 10/2000 mencement order/s to be made Number: 38/2000 vides for the repeal of s47 of part Date enacted: 7/6/2000 (per s270 of the act): 1/11/2000 Date enacted: 18/12/2000 IV of the Insurance Act, 1989; Commencement date: 7/6/ for ss1, 2 (insofar as it relates to Commencement date: Com- part 3, insofar as it did not come 2000 the sections commenced on that mencement order/s to be made into operation on 1/1/2001; part date), part V (ss93-101) on hous- (per s2 of the act) 4 (per SI 472/2000) National Beef Assurance ing supply, part IX (ss165-171) on Scheme Act, 2000 strategic development zones, cer- PRIVATE ACT PASSED International Development Number: 2/2000 tain sections in part II on plans The Trinity College, Dublin Association (Amendment) Act, Date enacted: 15/3/2000 and guidelines – ss13, 28, 29, (Charters and Letters Patent 2000 Commencement date: Com- 30, and ss262, 266, 269 and Amendment) Act, 2000 Number: 12/2000 mencement orders/s to be made 270; 1/1/2001 for s2 (insofar as Number: 1P/2000 Date enacted: 20/6/2000 (per s1(5) of the act): 29/5/2000 it relates to the sections com- Date enacted: 6/11/2000 Commencement date: 20/6/ for part V of the act (per SI menced on that date), the rest of Commencement date: 6/11/ 2000 130/2000); 22/12/2000 for part II – ss9-12, 14-27, 31, and 2000 Briefing Personal injury judgments

Tort – personal injury – accident in swimming pool – dispute as to medical condition of injured person CASE

Breda Whelan v Tom Mowlds (in his capacity as secretary to the Glenalbyn Social and Athletic Federation), High Court, before Mr Justice Daniel Herbert, judgment of 12 October 2000. THE FACTS

reda Whelan, 55 years of Mrs Whelan claimed that her showed no evidence of fracture ly referred to a specialist in pain Bage, with three children position was not improving. She or disease. An MRI scan was management. She was about to and two grandchildren, was considered that she was unable to subsequently carried out in undergo a diagnostic facet block participating in a swimming les- get through her household May 1999 which showed early injection but became distressed son at Glenalbyn pool on 3 chores. She gave evidence that degeneration of discs which, in at the thought and was reluctant October 1996. She was acciden- she was never without some pain the opinion of a consultant, had to proceed. There was evidence tally kicked in the area of her at the base of her spine and the no relationship to her symp- that the purpose of the diagnos- coccyx. right hip area. She stated that she toms. Mrs Whelan was seen by tic facets was primarily to estab- Later in the same day, she had a lot of discomfort at night a surgeon on behalf of the lish if there was any organic consulted her general medical and had difficulty in sleeping. swimming pool and, on exami- pathology accounting for her practitioner who recorded that After consulting her solicitors, nation, the surgeon found ten- persistent discomfort, notwith- she complained of pain in the she was sent to a consultant derness over the right sacro- standing the silent bone scan. coccygeal and sacro-iliac zones. orthopaedic surgeon. The sur- iliac joint, but he felt somewhat The specialist considered that X-rays showed no evidence of geon concluded that Mrs surprised that she should have because of Mrs Whelan’s reluc- bony injury to her pelvis, Whelan had low- to medium- such symptoms on such a pro- tance to have any further inter- sacrum or coccyx. The general grade discomfort, probably due tracted basis. In his opinion, her vention to try to establish the practitioner was of the opinion to soft-tissue injury to her gluteal symptoms two years from the cause of her pain, one could that there was no need to refer muscle and sacro-iliac areas. He accident were quite minor and only assume that she had a soft- Mrs Whelan to an orthopaedic recommended physiotherapy. should not specifically interfere tissue complaint, no more and surgeon. The local doctor rec- Subsequently, Mrs Whelan with her activities. In his opin- no less. The specialist stated ommended that she adhere to a had several sessions of physio- ion, there certainly would be no that he could see no further good posture and prescribed therapy. A bone scan was carried long-term complications. purpose in follow-up review anti-inflammatory medication. out in March 1997 which Mrs Whelan was subsequent- examinations. THE JUDGMENT erbert J, having outlined keen set dancers and now she grade pain and discomfort in day-to-day activities. He Hthe facts, stated that he was obliged to dance more the right sacro-iliac and coc- accepted on the balance of greatly doubted if the doctors – slowly, tired easily and had to cygeal zones of her body. The probability that there were especially in these litigious sit down. judge stated that this pain and intermittent episodes of times – had left Mrs Whelan in The judge held that Mrs discomfort diminished with increased pain and discomfort any doubt as to the purpose of Whelan suffered a moderate to time until it had become quite from time to time. the diagnostic facet block injec- mild soft-tissue injury. This minor and was not signifi- Herbert J accepted that if tion. If Mrs Whelan believed resulted in low- to medium- cantly interfering with her Mrs Whelan was suffering any that the purpose of the injec- significant pain or discomfort, tions was to relieve pain, the she would not have rejected judge found her explanation, or Herbert J stated he did not accept that Mrs Whelan what she believed to be a rather lack of explanation, as to now had or would have in the future any significant pain course of pain-relieving injec- why she would not accept such or discomfort associated with the incident in the swim- tions. The judge did not con- rapid minimally intrusive and ming pool. Accordingly, he assessed general damages sider that she was deliberately non-perilous treatment very at £10,000. Special damages had been agreed at exaggerating her symptoms. unconvincing. £1,394, which came to a total of £11,394 with costs However, in the absence of The judge also referred to appropriate to such a decree. In the exercise of his dis- any physical evidence or Mrs Whelan’s claim that prior cretion, the judge did not make an order under section explanation for the continu- to the incident in the swimming 14(5) of the Courts Act, 1991. ance of the symptoms com-

pool, she and her husband were THE AWARD plained of, and having regard

38 THE FACTS Ti THE JUDGMENT A soft-tissue injuries.MrCorbett glass inhisheadandhands, knee, abrasionsofembedded chest injuries,adeepcutonthe ing, arupturedliver, serious was evidenceofinternalbleed- injury wasabdominal.There threatening injury. Theprimary Corbett sufferedaseriouslife- between twolorriesandMr It wasahead-oncollision T M to seriouspsychologicalprob- Justice McCrackenalsoreferred unsightly scaronhisknee,Mr remarkably well,andarather abdomen whichhadhealed was leftwithascaronhis get muchbetter, ifatall. he wassatisfieditunlikelyto lorry increasedthebackpainand doubt thatthelongperiodsin farm, thejudgesaidtherewasno ing andhelponhisbrother’s carry onlong-distancelorrydriv- Corbett, sincehewasstillableto particularly restrictiveforMr the trial.Notingthatitwasnot pain hadpersistedtothedateof which hehadsuffered.Theback this wastriggeredbytheinjuries erative changeinhisbackand there hadbeenanexistingdegen- judge statedtherewasnodoubt some formoftissueinjury, the appeared tobeinitiallycausedby from wasbackpainwhich symptom MrCorbettsuffered mid-1997 on,theonlyphysical Forktruck. Notingthatfrom had beenadmittedbyMunster ment ofdamagesonly. Liability therapy orotherparamedical October 1996andanyphysio- medical treatmentssince to thetotalabsenceofany imothy Corbettwasinvolved. mothy CorbettvMunsterForktruck RT Observing thatMrCorbett 26 traffic A – liability admitted – assessment of damages – injuries to abdominal region –psychologicaltraumadepression A –liabilityadmittedassessmentofdamagesinjuriestoabdominalregion r that thiscasewasforassess- Jus Ma tice McCrackennoted accident occurredon rch 1996inwhich lable whenhetalkedaboutthe al outburstswerequiteuncontrol- accept thatMrCorbett’s emotion- Medical evidenceseemedto taking themregularlyeversince. anti-depressants andhehadbeen Corbett’s familydoctorprescribed depression. InearlyJuly1996,Mr tion didshow‘quitenoticeably’. his best,butnotedthattheemo- when hedidgiveevidence tional. Thejudgewassatisfiedthat accident withoutbecomingemo- dent andcouldnottalkaboutthe nightmares andrelivedtheacci- accident. MrCorbettsuffered developed intheweeksafter that thepsychologicalproblems prior totheaccident.Henoted lems whichhadnotexistedatall in considerablepainandmade charged on9April1996butwas life. Hewassubsequentlydis- would appeartohavesavedhis which wasverysuccessfulandit surgery wascarriedoutonhim Almost immediately, abdominal was takentoMallowHospital. tually cutoutofthelorry, he and awake. which timehewasconscious lorry fortwohoursduring was trappedinthecabof 1998 averylargesubjective had beensinceatthelatest the judgeconcededthatthere treatment sinceautumn1998, Then therewereboutsof When MrCorbettwaseven- THE AWARD , HighCourtoncircuit,beforeMrJusticeMcCracken,judgmentof4October1999. £92,900. special damagesof£12,900, makingatotalof and painand suffering £25,000forfuture He awarded wouldbesomedepression. would continueandthere ages tothedateoftrial, noting thatthebackpain MrCorbett£55,000indam- sation. Thejudgeawarded logically, anditwas a factorthatneededfaircompen- psycho- considerablytodate,particularly had suffered MrCorbett damages,thejudgeconsidered In awarding Briefing dent andultimatelyclearedup. pains werecausedbytheacci- However, itturnedoutthatthe result ofaheartattack. which hethoughtwerethe he sufferedseverechestpains accident occurred.Inmid-1997, ering thesameroadwhere long-distance lorrydriver, cov- work. Hereturnedtoworkasa was deemedfittoreturn over thenextfewmonths. slow butsatisfactoryprogress cross-examination that,because would notsimplyjustdisappear. was satisfiedthatthedepression when thelitigationwasover, but depression wouldimprovegreatly He notedthepossibilitythat still sufferingfromdepression. ered therewasnodoubthe considerably. Thejudgeconsid- sidered thathehadimproved changed andthepsychiatristcon- anti-depressant medicationwas time. Inearly1999,MrCorbett’s back tothepsychiatristforsome pened. MrCorbettdidnotgo depressants andseewhathap- was tokeephimontheanti- ered thatallcouldbedone atrist, butthepsychiatristconsid- accident. Hewassenttoapsychi- ings wouldunfocusheratten- conclusion oftheseproceed- plaint. Hebelievedthatthe element involvedinhercom- In January1997,MrCorbett It hadbeenmentionedin well-being. considerable nate incidentinherlifewith tion fromthismostunfortu- solicitor DrEamonnHall. These caseswere summarised by Solicitors. byMJHorgan&Sons, instructed H HickeySCandMrSeanLynch, Mr Counsel forMunsterForktruck: Kelleher &Tobin, Solicitors. McCarthy, byConway instructed McCullough SCandMrDon Counsel forMrCorbett: drove forlongperiods. continue tohavebackpainifhe there wasnodoubtthathewould able tocontinueasadriverbut obliged todoso,thathewouldbe dence wasthathewouldnotbe work, butallthemedicalevi- was thathemighthavetogiveup from working.MrCorbett’s view extent thatitwouldpreventhim continue, althoughnottothe improved, butitwasgoingto might easeifthedepression observed thatthebackpain Corbett feltthepain.Thejudge Mr Corbett’s caseandMr pain wasverysubjective.It some extentthatmightbeso,but pain. Thejudgenotedthatto tended toexaggeratetheback of thedepression,MrCorbett prescribed anti-depressants. emotional difficultiesandwas from hishand.Healsosuffered to havesomeglassremoved Corbett hadaminoroperation some formoftissueinjury. appeared tohavebeencausedby distance driving.Thebackpain some paininhiskneeafterlong- times extendedintohislegand fered waslowbackpainwhichat ous physicalsymptomhesuf- From mid-1997,theonlyseri- In February1997,Mr G benefit toher Briefing Update

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

ADMINISTRATIVE persons – custody hearing – appeal – dant. The first-named defen- sought to judicially review the whether High Court hearing dant sought an order for securi- convictions on the basis that the Planning and amounted to ‘moot’ – whether High ty for costs against the plaintiff summons was improperly environmental law Court order should be set aside alleging that the plaintiff was a served. Murphy J held that Local authority granted outline The proceedings related to pre- ‘shelf company’ and had no although service of a summons planning permission – planning per- vious High Court proceedings assets. This assertion was dis- on a company secretary could mission subsequently overturned by concerning the lawful custody puted by the plaintiff. O’Neill J be held to be good service on a An Bord Pleanála – development or otherwise of an infant. A held that it had been proved on company, it could not be said to located in special amenity area – party against whom an order the balance of probabilities that be good service on the director whether appropriate to grant leave had been made appealed on the the plaintiff would be unable to of a company. Accordingly, the to seek judicial review – whether grounds that at the material meet the costs of the defendants applicant was not properly applicant had raised ‘substantial time the infant in question was if unsuccessful. However, the served. However, in this grounds’ – Local Government no longer in the custody of the plaintiff had demonstrated a instance the appropriate remedy (Planning and Development) party in question. Keane CJ, connection between its impecu- was not to grant the remedy Act, 1963 – Local Government delivering judgment, held that niosity and the actions of the sought and to remit the matter (Planning and Development) the infant at the time of the defendants. This was a special back to District Court. Act, 1992, sections 4 and 19(3) court hearing was in the lawful circumstance which would act O’Shea v DPP,High Court, The applicants had been granted custody of the Eastern Health as a bar to refusing the order for Mr Justice Murphy, planning permission by their Board and the High Court had security for costs sought by the 30/11/2000 [FL3306] local planning authority in in fact decided a moot. The first-named defendant. respect of a development. appeal would be allowed and an Ochre Ridge v Cork Bonded, Subsequently, a third party order would issue holding that High Court, Mr Justice CONSTITUTIONAL applied to An Bord Pleanála the infant was at the time in the O’Neill, 20/12/2000 [FL3342] appealing against the decision in lawful custody of the Eastern Family law question. The third party Health Board. Road traffic Role of attorney general – divorce – claimed that the proposed devel- Eastern Health Board v EM & Service of summons – agency – nullity of marriage – recognition of opment would be located in an Others, Supreme Court, road traffic offences – criminal foreign divorces – domicile – valid- area of special amenity as desig- 19/10/2000 [FL3326] prosecution – right to fair trial – ity of decree of dissolution of mar- nated under the relevant county whether service valid – whether riage – finality of litigation – development plan. Subsequently necessary to have notice of intended whether attorney general should be An Bord Pleanála refused plan- COMPANY prosecution – whether pursuance of joined as notice party to proceedings ning permission for the develop- appeal estopped applicant from after final court order had been ment. The applicants sought Practice and procedure pursuing judicial review proceed- made – whether variation of High leave to judicially review the Security for costs – litigation – dis- ings – whether proper to extend Court order permissible – decision on the basis that An pute over the sale of lands – con- time for judicial review application Legitimacy Declaration Bord Pleanála had taken certain tract rescinded – order of specific The applicant, a managing (Ireland) Act 1868, section 6 – matters into account without performance sought – whether director of a company, had been Rules of the Superior Courts affording the applicants the right order for security for costs should charged with certain road traffic 1986, order 28, rule 11 – Family to make submissions with regard issue – whether actions of defen- offences. In pursuance of the Law Act, 1995, section 29 – to same. O’Neill J was satisfied dants should act as bar to granting charges, the relevant summons Family Law (Divorce) Act, 1996 that the applicants had raised a of relief sought – whether impecu- had been served on the work- – Status of Children Act, 1987, number of substantial grounds. niosity brought about by wrongdo- place of the accused. The section 35 – Bunreacht na hÉire- Leave to seek judicial review was ing of defendants – Rules of the accused was not present at the ann 1937, article 41.3.2 accordingly granted. Superior Courts 1986, order 29 time of the service of the sum- The proceedings concerned the Stack v An Bord Pleanála, – Companies Act, 1963, section mons and the gardaí purported validity of a marriage and the High Court, Mr Justice 390 to serve the summons on an recognition of a foreign divorce. O’Neill, 11/07/2000 [FL3309] The main proceedings con- individual at the applicant’s McGuinness J had held that a cerned the breakdown of an workplace. The proceedings in divorce granted in England agreement to purchase a lease- any event continued and the between the petitioner and the CHILDREN hold interest. The plaintiff, as applicant was convicted of the notice party was entitled to prospective purchaser, sought a offences in question. On appeal, recognition in this state and that Practice and procedure decree of specific performance the Circuit Court upheld the accordingly the marriage Family law – children and young against the first-named defen- convictions. The applicant between the petitioner and

40 Briefing respondent was a valid one. was nothing in the affidavit of duced witness statements, the Fair procedures After judgment had been deliv- the plaintiff or in the circum- custody record and a memoran- Video identification evidence – ered in the High Court, the stances of the case to suggest, dum of an interview carried out applicant seeking order of prohibi- attorney general made an appli- less still establish, that the court with the accused. The applicant tion – detention of applicant – cation to be joined as a party to should set aside its previous was not satisfied with the docu- whether applicant entitled to have the proceedings, which was order. Accordingly, the court ments produced and sought fur- prosecution prohibited – Criminal refused. The attorney general would dismiss the application. ther documents. The District Law Act, 1997, section 4 – appealed that refusal. Denham J Kearney v Ireland, Supreme Court declined to make the Criminal Justice Act, 1984 – held that it was not mandatory Court, 10/11/2000 [FL3321] required orders and the appli- Larceny Act 1916 – Bunreacht that the attorney general be cant initiated judicial review na hÉireann 1937, article 38.1, joined to the proceedings. A proceedings. The applicant 40.1.1 final order had been delivered COSTS claimed that the disclosure of The applicant had been arrested so there were no proceedings in the materials in question was on foot of a robbery charge. being. The appeal would be dis- Practice and procedure necessary to vindicate his con- The prosecution claimed that missed. Murphy J held that the Education – children – duty of stitutional rights. Ms Justice there was video evidence in order of the High Court was health board to provide appropri- Laffoy was satisfied that the existence which connected the final and conclusive and dis- ate education facilities – appeal – applicant’s trial was being con- applicant with the relevant posed of the issues between the whether plaintiff entitled to order ducted in accordance with fair charge. The defence asserted parties. There was no basis for for costs procedures The withholding of that the prosecution had failed an amendment of the order and Proceedings had been institut- notebook entries by the prose- to provide copies of the video the appeal would be dismissed. ed regarding the alleged failure cution until the day of trial was evidence in question. The Murray J held that neither the of the Eastern Health Board to entirely justified in order that applicant sought an order of High Court nor the Supreme provide appropriate arrange- the trial judge could deal with prohibition to prevent his trial Court could attribute to itself ments regarding the education the question of privilege. from proceeding. The applicant some inherent jurisdiction for and welfare of the infant plain- McHugh v Judge Brennan and also claimed that his original the purpose of joining the attor- tiff. The case was not in fact DPP,High Court, Ms Justice detention had not been carried ney general to the proceedings proceeded with, the only out- Laffoy, 14/04/2000 [FL3322] out in accordance with fair pro- beyond those already set out in standing issue being the ques- cedures. Ó Caoimh J was satis- legislation. Accordingly, the tion of costs. The trial judge Evidence fied that the prosecution case application of the attorney gen- had refused to grant the plain- Appeal – admission of evidence – was relying upon a statement eral should be refused. Barron J tiff costs on the basis that the handling conviction – whether con- made by the accused and not and Hardiman J agreed with all Eastern Health Board had done tested evidence was hearsay – the visual identification evi- three judgments. the best it could in this Larceny Act 1916 – Larceny dence. The applicant was enti- GMcG v DW and AR, notice instance. The plaintiff Act, 1990 – Criminal Evidence tled to challenge all such evi- party, Supreme Court, appealed. Murphy J, delivering Act, 1992 dence at trial. The order of pro- 31/03/2000 [FL2906] judgment, held that the trial The applicant had been con- hibition would be refused. judge was justified in his ruling victed of a handling offence and Braddish v DPP,High Court, Courts and dismissed the case. An was sentenced to three years’ Mr Justice Ó Caoimh, Jurisdiction of Supreme Court – application might have been imprisonment. The applicant 21/12/2000 [FL3340] jurisdiction to set aside previous made under the Attorney had been refused leave to appeal court order – whether appropriate General’s Scheme but this had and appealed that refusal. The Fair procedures to set aside previous court order – not been done. applicant argued that the trial Garda Síochána – role of investi- Bunreacht na hÉireann 1937, Eccles v Minister for judge had wrongfully admitted gating garda – right to cross- article 34(4)(6) Education, Supreme Court, hearsay evidence and had not examine – judicial review – right The plaintiff had formerly initi- 24/11/2000 [FL3317] correctly charged the jury. of defending solicitor to consult ated proceedings against the Keane CJ, delivering judgment, with gardaí – whether all relevant state, which were dismissed in held that the evidence in ques- statements furnished to accused – the High Court on the basis CRIMINAL tion had been correctly admit- Larceny Act 1916 – Larceny that the statement of claim dis- ted and a certificate under sec- Act, 1990 closed no cause of action. The Discovery tion 6 of Criminal Evidence Act, The applicant had been arrested order was affirmed in the Fair procedures – applicant 1992 was not required. The jury and charged with larceny. The Supreme Court. The plaintiff charged with criminal damage and had been correctly charged by applicant sought an order of now sought an order to set aside trespass – furnishing of statements the trial judge and in the light of prohibition against the impend- the order of the Supreme Court – whether disclosure necessary to the directions received from the ing prosecution on the grounds on the grounds that it was vindicate constitutional rights of trial judge must have been that he was being denied fair unconstitutional. The plaintiff applicant aware of the correct standard in procedures. Principally, the alleged that the actions of the The applicant had been relation to the onus of proof. applicant complained that his state had brought down the charged with criminal damage The application would there- solicitor had not been provided ‘economic viability and the eco- and trespass and as a result had fore be refused. with all the relevant statements nomic independence’ of his sought disclosure of certain DPP v Michael Byrne, Court and that the defence had not household. Murphy J, deliver- documents held by the prosecu- of Criminal Appeal, been allowed to cross-examine ing judgment, held that there tion. The prosecution pro- 07/06/2000 [FL3332] one of the gardaí connected Briefing with the case. Ó Caoimh J held to issue judicial review proceed- Rehabilitation of accused received further sentences, that there was no onus on the ings seeking orders of certiorari, Sentencing – application to change some of which were consecu- garda in question to communi- mandamus and prohibition. review date – rehabilitation of tive, in respect of burglary cate with the applicant’s solici- Leave was refused by the High accused – larceny – armed robbery offences. The applicant sought tor. The relief sought would be Court (Finnegan J) in orders – whether appropriate to fix earli- leave to appeal against the sen- refused. dated 23 May 2000 and 8 June er review date tences imposed. Lynch J, deliv- Molloy v DPP,High Court, 2000. The applicant had charges The applicant had been sen- ering judgment, held that the Mr Justice Ó Caoimh, pending against him at tenced to ten years’ imprison- offences committed were out- 01/12/2000 [FL3352] Limerick, Killarney and ment in respect of larceny. In rageous. The application would Galway. The applicant was anx- this application, counsel for the be refused. Fair procedures ious that all these matters applicant sought to have the DPP v Fallon, Court of Garda Síochána – role of investi- should be dealt with in the review date altered. Barrington Criminal Appeal, 28/07/99 gating garda – refusal to permit Circuit Court in Galway and J, delivering judgment, held [FL3369] cross-examination – judicial that he should be sentenced in that in this instance, given the review – whether presiding judge that court. The applicant progress of the applicant, it was Sexual offences should have adjourned taking of appealed against the decision to appropriate to fix an earlier Sexual assault – evidence – convic- depositions – whether accused prej- refuse him leave. Mrs Justice review date. tion – appeal – jury verdict – udiced in his defence – whether all McGuinness, delivering the rul- DPP v Terence Coughlan, whether evidence improperly relevant statements furnished to ing of the court, held that the Court of Criminal Appeal, admitted – whether trial judge accused – Larceny Act 1916 – applicant had raised an arguable 24/01/2000 [FL3371] had properly charged jury – Larceny Act, 1990 issue and the appeal would be whether proper procedures followed The applicant had been arrested allowed. Leave would therefore Road traffic with regard to jury’s deliberations and charged with larceny. The be granted to the applicant to Conviction for dangerous driving – Criminal Law (Rape) applicant sought an order of seek a declaration by way of – appeal – whether conviction (Amendment) Act, 1990 prohibition against the impend- judicial review that the judge of unsafe – whether jury verdict The appellant was convicted of ing prosecution on the grounds the western circuit sitting at delivered in accordance with rele- an offence of sexual assault. that he was being denied fair Galway, when sentencing the vant legislation – Criminal The appellant appealed against procedures. The applicant applicant for offences commit- Justice Act, 1984, section 25(2) both the conviction and sen- claimed that he sought an ted in the area of the western The appellant had been con- tence. McGuinness J, deliver- adjournment of the taking of circuit, may also deal with victed of dangerous driving ing judgment, held that the depositions at the preliminary offences which were committed causing death. The appellant disputed evidence should not examination in the District in the Circuit Court areas of sought to overturn his convic- have been admitted. The evi- Court in order to instruct a Limerick and Kerry where the tion on the grounds that the dence of the garda, which solicitor. The applicant further applicant had admitted his guilt. jury’s verdict was unsafe and had been admitted, was hearsay claimed that the presiding judge Hasset v DPP, Supreme unsatisfactory. Keane CJ, deliv- and could not have been would not permit the cross- Court, 30/11/2000 [FL3318] ering judgment, held that the regarded as evidence of the examination of one of the gardaí jury’s verdict had not been truth of the complaint. In addi- involved in the case but only the Provocation delivered in accordance with tion, the procedures followed examination-in-chief. Ó Appeal – prejudicial pre-trial pub- section 25(2) of the Criminal by the jury in their delibera- Caoimh J held that there was no licity – murder conviction – evi- Justice Act, 1984. In addition, tions were improper. On these onus on the garda in question to dence – defence of provocation – sub- on the basis of the evidence grounds the appeal would be communicate with the appli- jective test – comments of trial judge adduced regarding the speed of allowed and the conviction cant. While it would have been – whether applicant received fair the appellant’s vehicle and the quashed. A new trial would not preferable for the presiding trial – whether defence of provoca- condition of the road, the ver- be ordered. judge to have granted an tion should have been put to jury dict could not be regarded as DPP v Anthony Gavin, Court adjournment, the applicant had The applicant had applied for safe or satisfactory. Therefore of Criminal Appeal, not shown that he had been leave to appeal against his con- the appeal would be allowed 27/07/2000 [FL3324] deprived of any essential advan- viction for murder. Hardiman J, and a re-trial would not be tage. Accordingly, the relief delivering judgment, rejected ordered. sought would be refused. the application. The evidence Higginbotham v DPP, Court DAMAGES Brennan v DPP,High Court, adduced during the trial clearly of Criminal Appeal, Mr Justice Ó Caoimh, supported the jury’s verdict. The 17/11/2000 [FL3310] Defamation 01/01/2000 [FL3353] publishing of photographs Libel – damages – compensation showing the accused during his Sentencing for injury suffered – meaning of Jurisdiction of Circuit Court trial in handcuffs was inappro- Robbery – consecutive sentences – ‘substantial’ – doctrine of stare Charges pending against applicant priate and could amount to con- appeal against sentences imposed – decisis – role of jury in awarding in different Circuit Court areas – tempt of court. The defence of whether sentences imposed exces- damages – freedom of speech – applicant wished to have all charges provocation had correctly not sive whether amount of damages dealt with in one Circuit Court been left to the jury to consider. The applicant had been sen- awarded excessive – whether juries area – whether appropriate to DPP v Davis, Court of tenced to seven years’ impris- should receive guidance from trial grant leave to seek judicial review Criminal Appeal, 23/10/2000 onment for a robbery offence. judge as to level of damages appli- The applicant had sought leave [FL3347] In addition, the applicant cable – whether Supreme Court

42 Briefing should depart from previous ruling tion of the plaintiff. The The applicant had sustained in the Sunday Business Post. in De Rossa case – European appeal would be dismissed. injuries while on duty. In addi- Proceedings were issued in convention on human rights, Shinkwin v Quin-Con, tion, the applicant some years the Dublin Circuit Court. article 10 – Bunreacht na hÉire- Supreme Court, 21/11/2000 later had suffered a fall which The defendant, who resided ann,articles 40.3, 40.6.1 [FL3372] he claimed had arisen as a in County Cork, issued a The plaintiff had been awarded result of the first accident. The motion seeking to have the damages of £250,000 in respect Employment law applicant sought compensation proceedings struck out for of a libel action taken against Negligence – plaintiff suspended for both accidents under the failing to show jurisdiction. the defendants. The defendants from Garda Síochána – fair pro- Garda Síochána Compensation The defendant contended appealed against the size of the cedures – whether claim statute- Acts. Lavan J held that on the that the plaintiff had not been award on various grounds. barred – whether damages for balance of probabilities the sec- identified in the article. Judge They claimed that the level of distress recoverable – Statute of ond accident could not be said Buckley was satisfied that the damages itself was excessive Limitations 1957 to be related to the first acci- plaintiff had a stateable case and argued that juries should The plaintiff had been accused dent. The applicant would be and the case should proceed. receive more guidance regard- of criminal embezzlement and awarded £20,000 for pain and The Dublin Circuit Court ing the level of damages appli- as a result had been suspended suffering arising from the first possessed the requisite juris- cable. Keane CJ, delivering the from An Garda Síochána since accident. diction to hear the case. Other leading judgment, held that the 1987. The plaintiff was subse- O’Longaigh v Minister for matters raised by the defen- award was disproportionately quently found not guilty in the Finance, High Court, Mr dant should be dealt with by high and should be set aside. Circuit Court. Subsequent Justice Lavan, 14/04/2000 the trial judge. Geoghegan J delivered a dis- attempts to hold a disciplinary [FL3335] Ahern v O’Brien, Circuit senting judgment. The plaintiff inquiry into the behaviour of Court, Judge Buckley, in a cross-appeal was awarded the plaintiff were prohibited Personal injuries 11/12/2000 [FL3316] the costs of an earlier trial. by various court orders. In this To rt – employer’s liability – dam- O’Brien v Mirror Group, claim, the plaintiff sought ages – employee suffered fall on Supreme Court, 25/10/2000 damages in relation to the loss- footpath – negligence – medical EXTRADITION [FL3354] es allegedly arising from loss of evidence – whether employer pay and the interest arising liable for injuries suffered – Sexual offences Employer’s liability, personal thereon and also in relation to whether damages awarded exces- Habeas corpus – correspondence injuries the alleged loss and distress sive of offences – delay – whether To rt – personal injuries – employ- that had arisen as a result of The plaintiff had suffered a fall offence alleged in warrant corre- ers’ liability – safe system of work the suspension. The president on a footpath leading to the car sponded with offence in this – negligence – company law – cor- of the High Court, Mr Justice park at her employer’s premis- jurisdiction – Extradition Act, porate liability – negligence – Morris, held that the delay in es. The plaintiff sued and was 1965, sections 47, 50 – industrial accident – proximity of concluding the proceedings awarded approximately Extradition (Amendment) relationship between plaintiff and was the responsibility of the £191,881 in damages. The Act, 1987 – Criminal Law owner of business – whether suffi- defendants. The claim was not defendant appealed in relation (Rape) (Amendment) Act, cient element of control by defen- statute-barred. The defendants to the amount of damages 1990, section 4 – Criminal Law dant over actions of plaintiff to had been negligent in not con- awarded. Hardiman J, deliver- (Rape) Act, 1981, section 2 – found claim in negligence – ducting matters with reason- ing judgment, held that the Bunreacht na hÉireann 1937, whether safe system of work in able care. The plaintiff would amount of general damages article 40 operation be awarded damages for the awarded was by no means The applicant had been The plaintiff had been amount of extra pay lost and excessive. The appeal would be arrested on foot of a warrant employed by the first defen- the accompanying interest. In dismissed and the High Court for extradition to Scotland. dant, which was owned by the addition, £40,000 would be order affirmed. The offence the applicant had second defendant. The plaintiff awarded for the stress and anx- Brennan v Lissadell Towels, allegedly committed was a sustained a serious injury while iety suffered bringing the total Supreme Court, 15/11/2000 sexual offence. The relevant at work. The first defendant amount of damages to [FL3357] extradition order had been was not insured. The second £52,198.04. made in the District Court defendant was found liable for McGrath v Garda Practice and procedure which the applicant chal- the accident and the plaintiff Commissioner, High Court, Libel – slander – practice and pro- lenged in High Court pro- was awarded £304,000. The Mr Justice Morris, cedure – Circuit Court jurisdic- ceedings. The applicant second defendant appealed. 09/11/2000 [FL3356] tion – application to dismiss on argued that the offence in Fennelly J, delivering judg- grounds that proceedings lacked question did not correspond ment, held that the second Garda Síochána jurisdiction – whether claim to an offence in this jurisdic- defendant had placed himself in To rt – personal injuries – garda maintainable in Dublin Circuit tion and, in addition to the a relationship of proximity to compensation – recurring back Court – Courts (Supplemental lapse of time, the extradition the plaintiff. The plaintiff had injury – whether compensation Provisions) Act, 1961 – Rules should not proceed. been put to work on a poten- adequate – Garda Síochána of the Circuit Court, rule 2 O’Donovan J dismissed the tially dangerous machine. The (Compensation) Act, 1941 – The plaintiff had issued pro- proceedings in a judgment second defendant was negligent Garda Síochána (Compensa- ceedings concerning certain delivered on 7 December in his supervision and instruc- tion) (Amendment) Act, 1945 allegations which were carried 1999. The applicant appealed. Briefing

Denham J, delivering the lead- have diagnosed the condition considered all the evidence, dants regarding a land transac- ing judgment, affirmed that and treated the deceased the plaintiff would be held to tion. Six of the nine defen- the offence in question corre- accordingly and were negli- be 90% at fault for the acci- dants brought motions to dis- sponded to the offence of rape gent for not having done so. dent while the liability of the miss the proceedings. The contrary to section 2 of the Barr J was satisfied that there defendants would be the action related to the sale of Criminal Law (Rape) Act, 1981, was a failure to investigate remaining 10%. land by the plaintiff’s father to as amended, and dismissed the fully the symptoms of the Callaghan v Dublin Bus, the first defendant. The plain- appeal. deceased. Negligence had High Court, Mr Justice tiff claimed that the fourth Stanton v O’Toole, Supreme been established. Further evi- Murphy, 01/12/2000 defendant, the Law Society, Court, 09/11/2000 [FL3305] dence was required before [FL3343] had failed to furnish the plain- damages could be assessed. tiff with a comprehensive list Wolfe v St James Hospital, of solicitors prepared to act for LIABILITY High Court, Mr Justice PRACTICE AND him. O’Sullivan J held that the Barr, 22/11/2000 [FL3376] PROCEDURE plaintiff had no case against Medical negligence the Law Society and the case To rt – failure to diagnose condi- Personal injuries Dismissal of proceedings, must be struck out. Many of tion of plaintiff – plaintiff suffer- Negligence – road traffic accident res judicata the issues raised by the plain- ing ‘panic attacks’ – standard of – plaintiff driving in excess of Finality of litigation – res judi- tiff had already been decided care – whether medical staff neg- speed limit – damages – whether cata – estoppel – motion to dis- and could not be raised again. ligent in treatment of patient – plaintiff guilty of negligence or miss proceedings – solicitors – The case against a number of Civil Liability Act, 1961 contributory negligence plaintiff seeking to re-litigate cer- defendants would be dis- The proceedings were brought The plaintiff had been tain matters concerning land missed. Certain other defen- by a widow of the deceased. involved in a traffic accident transaction – allegations of fraud dants were allowed time to file The deceased had suffered involving his vehicle and a – whether appropriate to dismiss a defence and the plaintiff’s from a rare form of abdominal bus. Evidence was given by action – Rules of the Superior motion for judgment was tumour known as a phaeo. It both the plaintiff and a witness Courts 1986, order 19, rule 27 denied. was common case that the pri- that the plaintiff was travelling – Solicitors (Amendment) Act, Ewing v Law Society,High mary cause of death was the at a speed which was greater 1994 Court, Mr Justice tumour. The plaintiff claimed than the relevant speed limit. The plaintiff had initiated pro- O’Sullivan, 16/05/2000 that the defendants ought to Murphy J held that, having ceedings against the defen- [FL3344] G

44 Briefing Eurlegal

News from the EU and International Law Committee Edited by TP Kennedy, director of education, Law Society of Ireland The free movement of persons: recent developments

John Handoll sums up the main developments in the European Union in relation to the free movement of persons up to February 2001

n November 1999, the com- which services are offered and account requirements satisfied where no particular urgency Imission published its Strategy taken up (COM(2000) 888 in the member state of estab- has been established. for Europe’s internal market for final). lishment, and (b) required per- 2000 to 2005. Continuing limits sons wishing to exercise a secu- The commission’s decision to on labour mobility were to be Free movement and rity activity in Belgium to be issue a reasoned opinion follows remedied by more effective residence issued with a special identity on from its July 1999 communi- application of internal market In Case C-176/96 Lehtonen, the document. The court held that cation on special measures con- rights, easier access to informa- court confirmed that the free the ‘official authority’ exception cerning the movement and resi- tion on jobs in the member movement of persons rules of article 45 EC did not apply, dence of citizens of the Union states and the development by apply to the sporting sector, that the ‘public policy’ deroga- on grounds of public policy, national administrations of a though non-nationals may con- tion could not be used to public security or public health ‘common administrative cul- tinue to be excluded from cer- exclude specific sectors from (COM(1999) 372 final). ture’ offering high levels of serv- tain matches – such as interna- free movement rules, that the In its November 1999 inter- ice and a means of swiftly tional matches – which are not residence requirement was dis- nal market strategy document, resolving problems. of an economic nature. Belgian proportionate, that the require- the commission announced its In early 2000, the commis- rules imposing a deadline for ment for prior authorisation was intention to make proposals for sion launched a new website, the transfer of foreign basket- disproportionate and failed to a regulation recasting the direc- Dialogue with citizens, on rights ball players as a condition for take account of the situation in tives on rights of residence and and opportunities in the internal their playing in official matches the state of establishment and for a regulation on a common market (http://europe.eu.int/ inhibited access by other that the requirement for an format for residence cards. scadplus/citizens/en/inter.htm). Community nationals to additional identity document There was a perceived need to In a recent report on EURES employment and appeared to go was also disproportionate and make Community legislation on (the Europe-wide employment beyond what was necessary to would make the provision of the free movement of persons service), the commission has ensure the regularity of sporting services more difficult. clearer and to restructure it referred to the need for geo- competitions. In the joined In relation to the rules of res- around the idea of Union citi- graphic mobility in a European cases C-51/96 and C-191/97 idence, the commission has zenship. labour market in the context of Deliège, which involved judo begun infringement proceed- the Union’s European employ- players, the court made it clear ings against Germany in rela- Non-discrimination ment strategy (COM (2000) 607 that a judoka with ‘amateur’ sta- tion to the expulsion of Italian The court has considered the final). The need to open up the tus could nonetheless be regard- nationals from Baden application of the principle of ‘new European labour market’ ed as a worker or service Württemberg (IP/00/747). It non-discrimination in a number by tackling barriers resulting provider. It held that rules on criticises: of cases. It will be recalled that from red tape, tax and benefits selecting athletes competing on • German legislation making article 12 of the EC treaty pro- systems, pensions and the a personal basis in high-level an automatic, or virtually hibits discrimination on grounds recognition of qualifications has sports events could not, in automatic, link between cer- of nationality within the scope of been highlighted in a recent themselves, be regarded as con- tain offences and expulsion application of the treaty. There commission communication stituting restrictions on the pro- • The failure to look at the per- are specific non-discrimination (COM (2001) 79 final) made in vision of services. sonal conduct of the individ- rules in the free movement pro- the framework of the Lisbon In a case brought by the com- ual concerned visions. Covert (or indirect) dis- strategy (council press release no mission against Belgium (C- • The absence of any real crimination is prohibited unless 100/1/00). 355/98), the court condemned threat to public policy objectively justified reasons, sat- In December 2000, the com- Belgian provisions which (a) • The violation of the princi- isfying requirements of propor- mission issued a communication made the operation of security ples of proportionality and of tionality, fitness for purpose and on an internal market strategy activities dependent on having a the protection of family life fundamental rights require- for services, which was intended place of business in Belgium, on •The assertion of the deter- ments, are present. to start the process of adapting managers and employees having rent effect of expulsion, and In the Angonese case, the court the internal market to the funda- residence there and on prior • The making with immediate considered the legality of a mental changes in the way in authorisation not taking into effect of expulsions, even requirement imposed by an Briefing

Italian bank that persons taking introduced by the Amsterdam to be taken of professional expe- subject, together with a proposal part in a recruitment competi- treaty, provides: rience where educational knowl- for amending the second general tion should provide evidence of ‘Without prejudice to the other edge is lacking, to improve co- directive, by December 2000. linguistic knowledge only by provisions of this treaty and within ordination and to update the A challenge by Luxembourg means of a diploma issued in the limits of the powers conferred by medical directives. to the validity of the 1998 Bolzano. The requirement con- it upon the Community, the council In the Haim case (Case C- Lawyers’ establishment directive has stituted discrimination. Persons acting unanimously on a proposal 424/97 Haim [4 July 2000]), the been rejected by the Court of not resident in Bolzano would from the commission and after con- court considered the question of Justice (Case C-168/98). be clearly disadvantaged and sulting the European Parliament, liability of an association of den- ‘since the majority of residents may take appropriate action to com- tal practitioners for loss and Union citizenship of the province of Bolzano are bat discrimination based on sex, damage caused by infringement There have been few concrete Italian nationals, the obligation racial or ethnic origin, religion or of mutual recognition rules. developments in relation to to obtain the requisite certificate belief, disability, age or sexual ori- Such an association, as a public Union citizenship as such. The puts nationals of other member entation.’ law body, could be held liable for Charter of fundamental rights (OJ states at a disadvantage by com- Three measures have been serious breaches of Community 2000 C364/1), adopted in parison with residents of the adopted on the basis of this pro- law. The court also considered December 2000, contains a chap- province’. The court pointed out vision. In June 2000, the council the legality of a linguistic ter on citizens’ rights, substan- that such a requirement could be adopted directive 2000/43 requirement, holding that a den- tially reflecting the EC treaty pro- justified only if it were based on implementing the principle of tist authorised to practise in one visions on citizenship. The ques- objective factors unrelated to the equal treatment between per- member state but without the tion of the legal status of the nationality of the persons con- sons irrespective of racial or eth- qualifications required by the charter has been deferred. A cerned and if it were proportion- nic origin (OJ 2000 L180/22). Dentists directive could be subject commission report on Union cit- ate to the aim pursued. It was The speed of adoption is to a linguistic requirement on izenship – which might herald not proportionate since the lin- impressive (and nearly unprece- public interest grounds, subject the beginning of the post-Nice guistic aim could be satisfied by dented). However, the member to requirements of non-discrim- debate – is now overdue. linguistic skills obtained and evi- states have over three years to ination, aptness for purpose and In December 2000, the com- denced elsewhere. The Angonese implement its provisions. In proportionality. mission issued a communication case is also significant since the November 2000, the council on the application of directive court held that the prohibition adopted council directive 93/109 to the June 1999 elec- of discrimination on grounds of 2000/78 establishing a general ‘The need to respect tions to the European Parliament nationality laid down in article framework for equal treatment member state (COM(2000) 843 final), focusing 39 of the EC treaty should apply in employment and occupation on difficulties of providing infor- to private persons. (OJ 2000 L303/16), which cov- sensitivities will mation on the right to participate In the Kaba case, the court ers discrimination on grounds of require great care in elections in the member state considered the case of a Yugoslav religion or belief, disability, age of residence. husband of a French national and sexual orientation. At the in selecting the Article 18(2) of the EC treaty working in the UK who had same time, the council adopted a appropriate basis currently provides a broad been denied indefinite leave to decision establishing a (though not yet utilised) basis for remain because his wife was not Community action programme for legislation’ council measures to facilitate ‘settled and present’ in UK terri- to combat discrimination (OJ Union citizens’ rights of free tory. Although the requirement 2000 L303/23). movement and residence under to be ‘settled and present’ was These measures are not The commission has issued article 18(1). In the Treaty of Nice, more easily satisfied by UK explicitly aimed at promoting reasoned opinions against a the member states have agreed to nationals, this did not constitute free movement within the number of member states, replace the current unanimity prohibited indirect discrimina- Community. They are neverthe- including Ireland, for their fail- requirement with the use of the tion. Member states were enti- less important since they create ure to notify measures imple- co-decision procedure in article tled to rely on objective differ- new standards which will benefit menting the 1998 Lawyers’ estab- 251 EC. However, this is to be at ences between their own nation- all Community nationals, and – lishment directive (IP/01/107). It the expense of excluding from als and nationals of other mem- subject to certain qualifications – has also continued proceedings the scope of article 18(2) action ber states when they laid down third-country nationals living against France (hospital admin- in the sensitive areas of passports, the conditions under which and working within a member istrators, pharmacists), Germany identity cards, residence permits, leave to remain indefinitely in state. (academic titles) and Italy (ski social security or social protec- their territory was to be granted instructors) (IP/01/186). tion. Article 18(2) will hence- to the spouses of such persons. A Mutual recognition In its 1999 resolution on forth be used as a residual provi- spouse of a person who did not The council has adopted a com- mutual recognition (OJ 2000 sion where the treaty has not enjoy an unconditional right of mon position on the 1997 pro- C141/5), the council called for otherwise provided the necessary residence could thus be required posal to amend the general and the need to improve the applica- powers. The opportunity to use to be resident for a longer peri- medical mutual recognition tion of the principle of mutual article 18(2) as an umbrella pro- od than that required for spous- directives. This will bring into recognition, in particular in rela- vision allowing the more effec- es of persons who did enjoy such the first general directive the tion to diplomas. The commis- tive development of ‘across-the- a right. concept of ‘regulated education sion has announced its intention board’ rules on free movement Article 13 of the EC treaty, and training’, to require account to issue a communication on the and residence will be consider-

46 Briefing ably diminished. The need to has, unlike the UK, excluded dards for granting or withdraw- Lessons from Austria? respect member state sensitivi- cross-border surveillance from ing refugee status (COM(2000) Finally, mention should be made ties will require great care in its request: the commission 578 final) and for giving tempo- of the evolving system for selecting the appropriate basis accepts that there are special rary protection in the event of a ensuring the observance of core for legislation and may lead to considerations which currently mass influx of displaced persons values by the member states in continued delays in arriving at a warrant such exclusion. (COM(2000) 303 final). The their internal sphere. The Treaty coherent ‘citizenship-based’ commission is expected shortly of Amsterdam introduced a structure for free movement and Immigration and asylum to issue proposals for amending mechanism in the EU and EC residence. policy the Dublin convention. In treaties for the imposition of There have been significant December 2000, the council sanctions where the existence of Schengen developments in relation to adopted conclusions on condi- a serious or persistent breach by Council decision 1999/453 (OJ immigration and asylum policy, tions for the reception of asy- a member state of core princi- 1999 L176/1) provides that the though it should be remem- lum-seekers (council press ples – liberty, democracy, Schengen acquis was, in large bered that Ireland, together release 13865/00). respect for human rights and part, to be published in the with the UK, has obtained an In November 2000, the com- fundamental freedoms and the Official journal. This was done in ‘opt out’ of the new EC treaty mission issued an important rule of law – is established (see September 2000, with the publi- provisions. Only a brief indica- communication (COM(2000) articles 6 and 7 TEU and article cation of the Schengen agreement, tion of some of the most signif- 755 final) on a future common 309 EC). convention and accession agree- icant developments can be asylum procedure and a uniform This mechanism cannot be ments, together with decisions given here. status, valid throughout the used for anticipatory breach. and declarations classified under In the area of immigration Union, for people granted asy- Thus, when the extreme right- various headings: ‘horizontal’ policy, the commission present- lum. wing politician, Mr Haider and issues, abolition of checks at ed an amended proposal for a his party, the Austrian Freedom internal borders and free move- directive on the right to family Fundamental rights Party, gained power in a coali- ment of persons, police co-oper- reunification in October 2000 The Charter of fundamental tion government in Austria in ation, judicial co-operation in (COM(2000) 624 final). In rights of the European Union was February 2000, the other ‘XIV’ criminal matters and the November 2000, the commis- solemnly proclaimed by the member states could not invoke Schengen Information System. sion issued a communication on European Parliament, the coun- EU treaty mechanisms, but had The separate exercise of inte- a Community immigration pol- cil and the commission in Nice to express their disapproval by grating Schengen into the Union icy (COM(2000) 757 final), set- in December 2000 (OJ 2000 adopting controversial bilateral system, with the acquis divided ting out the framework for C364/1). The question whether sanctions. The crisis has been up between the Community, the debating the future of the charter will itself be binding resolved, or papered over, by the Third Pillar and the member Community policy on the and enforceable has been left XIV’s acceptance of the report of states continues. admission and integration of open and will be considered in the ‘three wise men’, presented Agreements with Norway and third-country nationals, focus- the intergovernmental confer- in September 2000. This report Iceland in relation to the imple- ing on economic migrants. A ence planned for 2004. If it is to considered, amongst other mat- mentation, application and proposal for a directive on the become binding and enforce- ters, the record of Austria in development of the Schengen status of long-term resident able, it will count as a significant observing international stan- acquis entered into force in June third-country nationals is advance in the ‘ever closer dards on the protection of 2000. expected in early 2001. French Union’ comparable to the Single refugees and on the rights of Under the Amsterdam treaty, proposals for measures to com- European Act and the Maastricht immigrants and, on these issues, the United Kingdom and bat illegal immigration were treaty. gave Austria a relatively clean Ireland have remained outside made in 2000 and may be The charter says nothing new bill of health. It is now clear that the Schengen integration adopted in mid-2001. In about free movement or about such issues have now become a arrangements. However, a December 2000, the council the way in which competences matter of Union concern. mechanism for their partial or adopted conclusions on co- are divided as between the In the Nice treaty, the member total involvement was intro- operation between member Union and the member states states have agreed to introduce a duced. The UK has availed of states in combating illegal (the latter issue is, again, mechanism for dealing with this mechanism under a May immigration networks (council deferred until 2004). As far as anticipatory breach by a mem- 2000 council decision in relation press release 13865/00). free movement is concerned, ber state of the core principles. to the acquis relating to law In the area of asylum, the the Union citizenship provi- Where there is a clear risk of enforcement and criminal judi- council adopted a decision sions on free movement are serious breach, which may be cial co-operation, including the establishing a European repeated in the draft charter, determined on the basis of an SIS (OJ 2000 L131/43). In June Refugee Fund in September discrimination of grounds of independent report, the council 2000, Ireland submitted a 2000 (OJ 2000 L252/12). The nationality within the EC and may, after hearing the member request to take part in the acquis ‘Eurodac’ regulation – provid- EU treaties is prohibited, social state concerned, address appro- relating to police and judicial ing for the fingerprinting of security benefits and advantages priate recommendations to that co-operation in criminal mat- asylum-seekers – was adopted are to be available to everyone state. No sanctions are provided ters, drugs and the SIS. A gener- in December 2000 (OJ 2000 residing and moving legally for at this stage. G ally favourable opinion has been L316/1). The commission has within the EU, the right to asy- given by the commission issued proposals for directives lum is stated and collective John Handoll is a partner in the (SEC(2000) 1439 final). Ireland on common minimum stan- expulsions are prohibited. Dublin law firm William Fry. Briefing Recent developments in European law DIRECTIVES awarded in 1982 by a Spanish uni- was fined for selling Emmenthal labelling, it cannot require the use versity. He acquired Spanish cheese without a rind. A French of a specific language without Direct effect nationality in 1986 and became a court asked the ECJ whether the allowing for the possibility of using Case C19/97 Criminal French citizen in 1998. In 1980, French legislation was compatible another language easily under- Proceedings against Kortas the Spanish authorities had recog- with article 28 of the treaty. The stood by purchasers or of ensuring ([1999] ECR I-3413). Criminal pro- nised his Argentinean qualification ECJ held that the French legislation that the purchaser is informed by ceedings had been taken in as equivalent to a Spanish medical could constitute a restriction of other means. Sweden against Kortas for selling qualification and allowed him to intra-Community trade or be a confectionery imported from train there as a specialist. As he measure having equivalent effect. LITIGATION another member state containing was not a national when he The court then examined whether a colorant E124. The colorant was obtained the urology qualification, the legislation was necessary to Brussels convention banned in Sweden but permitted he obtained it as an academic title. satisfy overriding requirements Pollard and Anor v Ashurst, Court by directive 94/36. This directive When he acquired Spanish nation- relating to fair trading and con- of Appeal (England), 21 November was to be brought into force by ality, he received authorisation to sumer protection. It also consid- 2000. An English husband and member states by 21 December practise as a specialist in urology. ered whether the rules imposed wife owned immovable property in 1995. Sweden on accession had After working in Spain for some were proportionate and whether Portugal, which was registered in requested a derogation from this years, he moved to France. He held they might be achieved by meas- their names. A bankruptcy order directive on public health grounds. posts as an assistant specialising ures less restrictive of trade. was made in England against the The commission did not reply but in urology in several hospitals. He International rules and the practice husband. A trustee in bankruptcy indicated that a decision would applied for registration to be enti- of several member states allowed obtained an order from a county soon be adopted. The ECJ was tled to practise in France. The for a cheese to be made as court for the sale of the asked to determine whether the French minister for employment ‘Emmenthal’ without a rind. The Portuguese property. The husband directive had direct effect and to and solidarity refused to register ECJ held, therefore, that EU law and wife argued that article 16(1) consider the effect of the deroga- him on the grounds that an precluded the French legislation. It of the Brussels convention applied tion request. It held that the direc- Argentinean diploma was not was for the national court to con- and that the Portuguese courts tive had direct effect. Direct effect recognised in France. The ECJ held sider whether national goods had exclusive jurisdiction to hear was not to be determined by refer- that national authorities must take should be given the same treat- and determine the claim. Article ence to whether its legal basis per- into account all qualifications and ment as that given to imported 16(1) provides for exclusive juris- mitted member states to apply for experience of an applicant who is goods. diction for the courts of a state in a derogation. The ECJ held that, applying for authorisation to prac- which immovable property is locat- although a failure by the commis- tise a profession, access to which Case C-366/98 Yannick Geffroy v ed for disputes concerning in rem sion to act with due diligence fol- is restricted to those with certain Casino France SNC, 12 rights to such property. At first lowing a notification could be a qualifications or experience. This September 2000. The case con- instance, Jacob J dismissed the failure to fulfil its obligations, it did principle had been laid down in cerned proceedings relating to appeal. The husband and wife not affect full application of the previous decisions of the court. misleading labelling. Mr Geffroy appealed. The Court of Appeal directive concerned. had been fined by a French court held that the application for sale FREE MOVEMENT OF for selling foodstuffs with mislead- of the bankrupt’s property did not EMPLOYMENT GOODS ing labels and for breach of French fall within the bankruptcy excep- rules that labels be in French. A tion in article 1(1) of the conven- Mutual recognition of Case C-448/98 Criminal Proceed- French appeal court made a refer- tion. Therefore the matter was a qualifications ings against Jean-Pierre Guimont, ence to the ECJ asking whether civil or commercial one falling with- Case C-238/98 Hugo Fernando 5 December 2000. French law article 28 of the treaty and direc- in the scope of the convention. Hocsman v Ministre de l’Emploi et lays down conditions for a cheese tive 79/112 precludes national The court held that the matter did de la Solidarité, 14 September to be allowed to be called legislation on labelling which not fall within article 16(1). The 2000. Dr Hocsman holds a med- ‘Emmenthal’. One of the most sig- requires the use of a particular application was in personam and ical qualification awarded in 1976 nificant of these is the presence of language. The court held that did not directly involve rights in by an Argentinean university and a a rind. Mr Guimont is the technical while national legislation can con- rem or changes to public records specialist qualification in urology director of a French company. He tain provisions about appropriate in Portugal. G Doyle Court Reporters EXCELLENCE IN REPORTING SINCE 1954 • Daily transcripts • Conferences • Real-time • Arbitrations • Search & Retrieval Software • Inquiries USA REGISTERED COURT REPORTING QUALIFICATIONS Principal: Áine O’Farrell 2 Arran Quay, Dublin 7. Tel: 872 2833 or 286 2097 (After Hours). Fax: 872 4486. E-mail: [email protected]

48 People and places

Council of the Law Society of Ireland 2000/2001 (Front row, left to right), Keenan Johnson, John Dillon-Leetch, Gerard Griffin, Francis D Daly, Immediate Past President Anthony Ensor, Junior Vice-President Michael Irvine, President Ward McEllin, Senior Vice-President Elma Lynch, Director General Ken Murphy, Moya Quinlan, Hugh O’Neill; (second row) Edward Hughes, Donald Binchy, Orla Coyne, John P Shaw, Simon Murphy, Anne Colley, Philip Joyce, Patrick Casey, Kevin O’Higgins, John Costello, Peter Allen, Gerard Doherty, Michael Peart; and (back row) James MacGuill, David Bergin, James McCourt, John Harte, David Martin, John O’Connor, Tom Murran, Owen Binchy, Eamon O’Brien, Stuart Gilhooly and Patrick Dorgan

Seems like old times Gathered at the February reunion for the 2nd and 3rd professional practice courses were (from left to right) Aidan Eames, Ber Young, Pat Barriscale, Patricia McNamara and Tim Shannon

SOLICITORS’ HELPLINE The Solicitors’ Helpline is available to assist every member of the profession with any problem, whether Georgie girl personal or professional. Well known and loved by every felon in South County The service is completely Dublin, George Lynam, who works the criminal desk confidential and totally inde- at the Partners at Law firm, celebrates her 90th Good bodies pendent of the Law Society. birthday with firm partners (from left to right) Rory Paul Carroll (left) has been appointed managing partner If you require advice for any O’Riordan, her son Ronald Lynam and of A&L Goodbody, Solicitors, while Frank O’Riordan will reason, phone: 01 284 8484 Justin McKenna become senior partner of the firm this May 01 284 8484

49 People and places Masters of moot Swinging solicitors he European Law Moot TCompetition is a he Lady Solicitors’ Golf competition in which teams of TSociety is holding its spring students prepare written outing at Luttrellstown Castle pleadings with respect to a Golf and Country Club on 6 problem of European April and its autumn outing is Community law and present planned for 25 September. To their arguments before the book or get further Court of Justice of the information, contact the European Communities. The society’s captain, Geraldine competition takes place Lynch, on 01 660 8955. annually and is bi-lingual, English and French being the official languages. Issues that arose in this year’s problem The Law Society team looked suitably proud after its impressive showing included advertising restrictions in the regional finals of the European Law Moot Competition in on the free movement of goods Maastricht last month. The team and their two coaches are (front row, and services and the E-commerce left to right): Jonathan Tomkin (McCann FitzGerald) and team coaches Linda Ní Chualladh (Philip Lee) and Bríd Moriarty (Law Society course co- directive. ordinator); (back row): Barry Sheehan (McCann FitzGerald), Rosemary Of approximately 100 teams O’Loughlin (O’Donnell Sweeney) and Jill Callanan (LK Shields) entering, 40 are invited to Arthur Cox man regional finals on the basis of teams from Denmark, Estonia, The team would like to on the move an appraisal of written Finland, Germany, Hungary, thank the following for the Rory Williams, formerly of submissions. The Law Society Latvia, Portugal, Spain and financial support which made Arthur Cox, has been appointed director of legal team scored an impressive Sweden. The Irish team its participation possible: the and commercial at Treasury 20.25 out of 25 marks for its finished in the top four in this Law Society, McCann Holdings, the Dublin written submissions. Also regional final, placing it in the FitzGerald, LK Shields and investment company competing in Maastricht were top 16 teams overall. O’Donnell Sweeney.

Making sure that quality counts Pick up a penguin (From left to right) Keenan Johnson, outgoing chairman of the Guidance Council member Gerry Doherty found himself a little out of place at a and Ethics Committee, Law Society President Ward McEllin and John P recent dinner hosted by Law Society President Ward McEllin. Shaw, incoming chairman of the Guidance and Ethics Committee, display Unfortunately for him, he was the only one that dressed to impress. the Quality Service Statement that the Law Society has developed for Sometimes it pays to read the fine print … firms interested in demonstrating their commitment to quality Law Society Bushmills Millenium Malt 25 YEARS OLD £85 (plus £9 post and packaging) First come, first served. Only one bottle per member Contact Alan Greene, Bar Manager, Law Society of Ireland, Blackhall Place, Dublin 7, tel: 01 6724919, e-mail: [email protected] MEMBERS ONLY SPECIAL OFFER

50 People and places

OBITUARY Ernest J Margetson

n 13 February, Ernie Limited, which was set up for OMargetson left us. He passed the benefit of the solicitors’ away peacefully after an illness profession and where he served which he bore with courage and as vice-chairman for many years. dignity and, as you might expect, You might ask yourself the without complaint and question: with all the duties surrounded by his family and which were imposed on him loved ones. His death leaves a during his busy life, where could void in the legal profession which he find the time for anything it will be difficult to fill. Ernest Margetson (left) pictured with Jack Charlton at the else? Space does not permit me Law Society’s annual conference in 1990 Ernest J Margetson (to give to mention in full the entire list him his full name) was born in of committees, both charitable 1930 and went to The High School in Dublin, from where he and sporting, to which he was attached during his lifetime, but, won a scholarship, and thereafter to Trinity. He studied law of all, he was probably most proud to have been elected and, on graduation, qualified as a solicitor in 1951. This had captain and president of Foxrock Golf Club, which was always given him the distinction, which is rare in this day and age, of very close to his heart. being 50 years as a practising solicitor. I could not let this occasion pass without the mention of the On being admitted to the roll, he practised in Dublin first great camaraderie and friendship experienced by being in his with Hardman Stokes and Winder and ultimately joined company on many trips – visits to the International Bar Matheson Ormsby Prentice in 1959, where he remained for Association and All Sphere Club in Edinburgh, Harewood the remainder of his working life. Downs Golf Club in England and our annual trip to the He became senior partner in the firm in 1988 until his British Open (which we attended for many years) spring retirement from the post in 1995. During his period as senior readily to mind. There was no greater friend that you could partner, he laid the groundwork for the development and have and no better companion whose company you could expansion of the firm to what it is today, one of the leading, enjoy. progressive and dynamic legal firms in the country. Ernest was always kind and generous with his time. He Despite a very busy professional practice, he still found time helped many a lame dog over the style and always had time for to devote a huge amount of his energy to the service of the a friendly word of encouragement and advice for any colleague profession through the Law Society. He was first elected to the who requested assistance. It is nice to be able to record in this Council in 1973 and served as chairman of the registrar’s and day and age that I never heard anyone in the profession say a finance committees, as junior- and senior-vice president, bad word about him. culminating in his election as president of the Law Society in But, as must happen to everyone, the path of life comes to a 1989/90, which office he filled with great distinction. close and we must say our goodbyes to a dear friend. The legal Practitioners will remember his conference in Killarney that profession is much the poorer for his passing, but it is year, when he introduced as his guest speaker Jack Charlton, consoling that the standards of excellence which he set for who regaled us with stories which had only a minimum of legal himself in his legal practice are being continued in the person content. of his son Stuart, to whom we can pay no greater tribute than His outstanding career was further recognised in his being that he is a true son of a great father. invited to serve on the Legal Aid Board, the Superior Court To his family, Maura, Julian and Adrian; to Ruth, Stuart and Rules Committee and as a chairman of the Insurance Gay; to his daughter-in-law Rhoda and grandsons Philip, Ombudsman Board, to name but a few of his distinguished Richard, Edwin and Scott, we extend our deepest sympathy. posts he held. Ernest Margetson, we salute you – a man amongst men, but Probably one of his greatest achievements was his work in a prince amongst solicitors. the establishment of the Solicitors’ Mutual Defence Fund TDS

51 www.lawsociety.iewww.lawsociety.ie

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Solicitors Apprentices Debating Society of Ireland Message from the new auditor

he year 2000 and last year’s corresponding understanding of TSADSI committee brought particular problems, and we the apprenticeship system encourage you to approach us kicking and screaming into the with any issue. We hope the 21st century. A purpose-built planned series of country-wide Law School saw its first influx of social events will help build a new apprentices a few short stronger network of apprentices weeks after representations from and serve as a forum for SADSI helped to achieve the discussion between committee most significant pay increase ever members and other apprentices. in the history of the master- There is a further opportunity apprentice system. And thanks to for feedback through public SADSI, apprentices currently in relations officer Conor Delaney, the Law School will be re- who is co-ordinating the receipt dispatched into the working and sending of e-mails, and any world with new rights of The 2001 SADSI committee: (front row, left to right) Clare O’Shea-O’Neill, correspondence can be sent to audience which further legitimise Una McEvoy, Louise Rouse, Deirdre Crowley, Claire O’Regan, Kieran Doran, [email protected]. To and highlight the role of John Herbert, TP Kennedy and (back row) Conor Delaney, Lillian assist in building up a robust O’Sullivan, Darragh Feeney, and Marc Bairead apprentices. regional network, secretary It is our job, as the committee Kieran Doran will begin for the year 2001, to guard The 2001 SADSI committee compiling an Apprentices’ against complacency and strive directory, including a county-by- Auditor: Claire O’Regan, firm: Galway; Southern representative: to redress the remaining county listing of apprentices. MacGuill and Co, Dublin; Vice Clare O’Shea-O’Neill, firm: inadequacies in the auditor/welfare officer: Deirdre Coakley Moloney, Cork; Mid- Those of you in offices before apprenticeship system. More Crowley, firm: A&L Goodbody, Western representative: John the professional practice course wage reform is required, and we Dublin; Honorary secretary: Herbert, firm: Holmes O’Malley 1 have been particularly under- are campaigning for payment on Kieran Doran, firm: Gannon and Sexton, Limerick; Eastern represented, but you can now Liddy, Dublin; Honorary treasurer: representatives: Una McEvoy and the professional practice courses. make your voice heard through Marc Bairead, firm: Mason Hayes Lillian O’ Sullivan, Una McEvoy’s Plans for the SADSI ball and and Curran, Dublin; Public firm: John Feaheny and Co, pre-professional practice course careers day are also in motion. relations officer: Conor Delaney, Dublin; Lillian O’Sullivan’s firm: rep Dawn Carney. And in line with new rights of firm: O’Hare and Co, Dublin; Arthur Cox, Dublin; Pre- SADSI is the only audience, we hope to introduce Debating co-ordinator: Louise professional course representative organisation for Rouse, firm: Arthur Cox, Dublin; representative: Dawn Carney, advocacy training on a nation- apprentices, and can only Western representative: Darragh firm: Lewis C Doyle and Co, wide basis. Feeney, firm: MG Ryan and Co, Galway function effectively with the SADSI began life as a debating assistance and enthusiasm of its society, and its victory over the committee and the endorsement King’s Inns in the John Edmund a particular victory for Louise SADSI team. As debating co- and participation of all Doyle Memorial Debate marked Rouse as a member of the ordinator for the year 2001, she apprentices. I’m honoured to will organise moot trials, have this opportunity to internal competitions and represent apprentices and look Availing of local authority grants international debates. forward to meeting you at the he application criterion for attained may be deemed eligible This year’s committee comes various events around the Tlocal authority grants has for grant aid. Those who are from a broad spectrum of small country. widened. Until now, those who commencing professional and large firms, with a Claire O’Regan held a post-graduate practice courses this year and qualification were not allowed wish to apply for funding to apply. Now, any candidate should contact their local HORSING AROUND who already holds a post- authority. All the other local The first-ever apprentices’ equestrian club was recently graduate qualification and is authority criteria apply. A letter established. Its principal aim is to cater for apprentices who have pursuing a further post-graduate from the Law School verifying an interest in horses. The club accommodates various levels of experience and membership is open to all apprentices. We have course (such as the professional that the PPC1 or PPC2 is already had a day out at the Leopardstown Races and ride-outs are practice course 1 or 2) at a ‘progression’ is also required, organised on a fortnightly basis. The club is currently seeking higher level that represents and may be obtained from TP sponsorship. For further information or queries, send an e-mail progression from the level at Kennedy at the Law School. to [email protected]. which the first qualification was Claire O’Regan

53 Professional information

2.1410 hectares, (4) 0.3280 hectares, (5) Regd owner: William Gogarty and William 0.3000 hectares; Co Galway LawSociety Gogarty Junior as tenants in common, Regd owner: Oliver Thomas Holden; Donore Road, Drogheda, County Meath Gazette Folio: 1883; Lands: Moanamought and Flat 1, 42 Merritt Gardens, Commons and Barony of Callan; Co Chessington, Surrey KT9 29J, England; Kilkenny Folio: 9398; Lands: Rathmullen; Area: ADVERTISING RATES Regd owner: Denis Lanigan; Folio: 305L; 0.95 hectares; Co Meath Advertising rates in the Professional information section are as follows: Lands: East side of Freshford Road and Regd owner: Gerald Murphy, Killycard, Barony of the Parish of St Canice; Co Castleblayney; Folio: 10388; Lands: • Lost land certificates – £30 plus 20% VAT (£36.00) Kilkenny Tullyskerry (part); Area: 21.65625 acres; • Wills – £50 plus 20% VAT (£60.00) Regd owner: Peter and Sheila Marnell; Co Monaghan Lost title deeds – £50 plus 20% VAT (£60.00) Folio: 6670F; Lands: Ballybur Lower Regd owner: Bernard McCormack, • and Barony of Shillelogher; Co Killyvane, Monaghan; Folio: 967F; • Employment miscellaneous – £30 plus 20% VAT (£36.00) Kilkenny Lands: Killyvane; Area: 0.944 acres; Co Regd owner: Kathleen Curran, Laragh, Monaghan HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – £25 EXTRA Gorvagh, Carrick-on-Shannon; Folio: Regd owner: Myles Cash; Folio: 5802; All advertisements must be paid for prior to publication. Deadline for April 2529; Lands: Laragh; Area: 43.3125 Lands: Derry Lower and Barony of Gazette: 23 March 2001. For further information, contact Catherine Kearney acres; Co Leitrim Eglish; Co Offaly Regd owner: Owen Fogarty and Mary Ita Regd owner: Augustine Lynch, Caplevane, or Louise Rose on 01 672 4828 Fogarty (deceased); Folio: 17556F; Lusmagh, Banagher, Offaly; Folio: Lands: Townland of Ballinard and 35392; Lands: Townland of Barony of Smallcounty; Co Limerick Cloongowanagh and Barony of Boyle; LOST LAND Ibrickan; Area: 12.7375 hectares; Co Regd owner: Philip Kirby (deceased); Folio: Area: 0.372 hectares; Co Roscommon CERTIFICATES Clare 29769F; Lands: A plot of ground situate Regd owner: John McManus, Elphin Street, Regd owner: Michael O’Gorman, on the West side of Shelbourne Road in Stroketown, Roscommon; Folio: 29706; Registration of Title Act, 1964 Carniskey, Kilmurray McMahon, Clare; the Parish of St Nicholas and County Lands: Lisroyne and Barony of An application has been received from the Folio: (1) 20419, (2) 14814; Lands: Borough of Limerick; Co Limerick Roscommon; Area: 0.0250 hectares; Co registered owners mentioned in the sched- Townland of Derryshaan and Barony of Regd owner: Michael Byrne, Minard, Roscommon ule hereto for the issue of a land certificate Clonderalaw; Area: folio: 20419 – Longford; Folio: 4967F; Lands: Minard; Regd owner: Fortland Easky Limited, 5 as stated to have been lost or inadvertently 22.1640 hectares; folio: 14814 – (1) Co Longford Foster Place, Dublin; Folio: 22774; destroyed. A new certificate will be issued 12.6211 hectares, (2) 0.3288 hectares; Co Regd owner: John Gartlan, Lurgankeel, Lands: Townland of (1) Cloonagleavragh, unless notification is received in the registry Clare Kilcurry, Dundalk; Folio: 12019; Lands: (2) Fortland, (3) Cloonagleavragh, (4) within 28 days from the date of publication Regd owner: James Colleran and Geraldine Lurgankeel; Area: 0.35 acres; Co Louth Kilmacurkan, (5) Fortland, (6) of this notice that the original certificate is Anne Colleran, Ballyminogue, Scariff, Regd owner: Reginald Naylor, Stapleton Kilacurkan, (7) Cloonagleavragh, (8) in existence and in the custody of some per- Clare; Folio: 3953F; Lands: Townland of House, Dublin Street, Dundalk; Folio: Cloonagleavragh, (9) Curraghnagap and son other than the registered owner. Any Ballyminogue and Barony of Tulla 7306; Lands: Marshes Upper; Area: Barony of Tieragh; Area: (1) 11.7485 such notification should state the grounds Upper; Area: (1) 0.1214 hectares and (2) 7.938 acres; Co Louth hectares, (2) 9.9173 hectares, (3) 0.0632 on which the certificate is being held. 0.0506 hectares; Co Clare Regd owner: Patrick Flannery, Kilbride, hectares, (4) 6.9809 hectares, (5) 4.4591 (Register of Titles), Central Office, Land Regd owner: Ashbourne Holdings Limited; Claremorris, Mayo; Folio: 9573; Lands: hectares, (6) 0.8093 hectares, (7) 00.1517 Registry, Chancery Street, Dublin (Published 2 Folio: 5759; Lands: Known as a plot of Townland of Houndswood and Barony hectares, (8) 0.1770 hectares, (9) 0.0379 March 2001) ground situate in the townland of of Kilmaine; Area: 15.3830 hectares; Co hectares; Co Sligo Downmacpatrick or Old Head and Mayo Regd owner: John McKeogh; Folio: 2910; Regd owner: Michael Byrne; Folio: 6164F; Barony of Courceys, and the County of Regd owner: Seamus Gavin, Greenfields, Lands: Ballyard and Barony of Owney & Lands: Bahana and Barony of St Mullins Cork; Co Cork Castlebar, Mayo; Folio: 2879F; Lands: Orra; Co Tipperary Lower; Co Carlow Regd owner: Richard Lombard; Folio: Townland of Tawnylaheen and Barony Regd owner: Michael Coffey; Folio: 5211; Regd owner: Patrick Clarke, Lisanalsk, 56478; Lands: Known as a plot of ground of Carra; Area: 0.903 hectares; Co Mayo Lands: Shower and Barony of Owney and Bailieborough; Folio: 2472 and 2473; situate in the townland of Tullogh and Regd owner: John and Margaret Harnedy, Arra; Co Tipperary Lands: Lisanalsk; Area: 20.99375 acres; Barony of Imokilly and the County of 9 The Willows, Beaufort Place, Navan, Regd owner: The Council of the County of Co Cavan Cork; Co Cork County Meath; Folio: 24298F; Lands: Tipperary (NR); Folio: 10115; Lands: (1) Regd owner: Stephen Liddy, Cragroe, Tulla, Regd owner: O’Flynn’s Stores Limited; Abbeyland; Co Meath Cloncracken, (2) Townparks, (3) Clare; Folio: 14134F; Lands: Townland Folio: 46255F; Lands: Known as a plot of Regd owner: Patrick Christie, 44 Demesne and Barony of Skerrin; Co of (1) Cragroe, (2) Craggaunkeel and ground situate in the south side of Davis Willowpark Road, Dublin 11; Folio: Tipperary Barony of Tulla Upper; Area: (1) 16.7340 Street, in the townland of Mallow, the 15954F; Lands: Glebe; Co Meath Regd owner: Seamus and Claire Quain; hectares, (2) 6.1260 hectares; Co Clare urban district of Mallow and the County Regd owner: Francis Egan and Nora Egan, Folio: 2071F; Lands: Townland of Regd owner: Alan and Siobhan Hogan, of Cork; Co Cork Friars Park House, Friars Park, Trim, Curragh and Barony of Decies within Tuamgraney, Scariff, Clare; Folio: Regd owner: Mary Breslin, Mountargus, County Meath; Folio: 24015F; Lands: Drum; Co Waterford 27591F; Lands: Townland of Tomgraney Redcastle; Folio: 1370; Lands: Ballyargus; Ballynafeeragh (second division); Area: Regd owner: Bernard McLoughlin, Corry, and Barony of Tulla Upper; Area: 0.144 Area: 15.00 acres; Co Donegal 5.329 hectares; Co Meath Rathowen; Folio: 4071F; Lands: (1) hectares; Co Clare Regd owner: Charles George Gordon Regd owner: John Marsh, Gort Road, Tulla, Newsom of 26 Merlyn Road, Ballsbridge, Clare; Folio: 11049; Lands: Townland of Dublin; Folio: 4136L; Lands: Property Doonaun and Barony of Tulla Upper; situate on the West side of Trimleston Area: 1.0409 hectares; Co Clare Gardens in the Parish of Taney, Borough Regd owner: John Marsh, Gort Road, Tulla, of Dun Laoghaire, Townland of Clare; Folio: 29040; Lands: Townland of Trimleston or Owenstown and Barony of TITLE RESEARCH Tulla and Barony of Tulla Upper; Area: Rathdown; Co Dublin YOUR PARTNER IN TRACING 0.2655 hectares; Co Clare Regd owner: Brendan O’Connor; Folio: Regd owner: Eileen Lee, Cappalaheen, DN10180; Lands: property situate in the MISSING BENEFICIARIES Kiltishen, Clare; Folio: 7381; Lands: townland of Piercetown and Barony of PROBATE & Balrothery East; Co Dublin Townland of Cappalaheen and Barony of SUCCESSION • Free professional assessments Tulla Upper; Area: 4.8580 hectares; Co Regd owner: Martin Casserly and Mary • Range of cost structures Clare Casserly; Folio: 3965F; Lands: Townland GENEALOGY – Regd owner: Eileen Lee, Cappalaheen, of Cregboy and Barony of Dunkellin; WORLDWIDE • Excellent success rate worldwide Kilkishen, Clare; Folio: 27657; Lands: Area: 0.1970 hectares; Co Galway • A complete service to the profession Regd owner: Mary Coneys, Ballyleame, Townland of (1) Lakyle, (2) Snaty For more information or our detailed brochure please call (Cooper) and Barony of Tulla Upper; Ballyconneely, Co Galway; Folio: 19512; Area: (1) 3.6240 hectares, (2) 4.5980 Lands: Townland of (1) Keerhaunmore, +44 020 7549 0900 hectares; Co Clare (2) Duck Island, (3) Chapel Island, (4) Charter House, 2 Farringdon Road, London EC1M 3HN Regd owner: Michael Cahill, Shragh, Doonglush, (5) Ballinaleama and Barony Fax: +44 020 7549 0949 DX: 53347 Clerkenwell Moyasta, Clare; Folio: 7758; Lands: of Ballynahinch and Doonglush; Area: (1) Email: [email protected] www.title-research.com To wnland of Sragh and Barony of 7.4940 hectares, (2) 2.8010 hectares, (3)

54 Professional information

Corry, (2) Joanstown, (3) Cappagh; Area: tact Becker Tansey & Co, Solicitors, Jubilee McCollum & Company, Solicitors, 52 (1) 73.997 acres, (2) 12.090 acres, (3) House, New Road, Clondalkin, Dublin 22, Regent Street, Newtownards, County 1.250 acres; Co Westmeath Ref MT, tel: 01 459 3927, 457 1294 Down BT23 4LP, tel: 028 9181 3142, fax: Regd owner: Rosemarie O’Leary; Folio: 028 9181 2499 13433; Lands: St Iberius and Barony of Gallegos, Adrian (deceased), late of 308

Forth; Co Wexford Andalucia del Mar, Marbella, Spain. Would O’Neill, Martin (deceased), late of The Irish Legal Recruitment Specialists Regd owner: Eamonn McGlone; Folio: any person having knowledge of a will made Balingale, Ferns, in the County of Wexford. 840L; Lands: South of Herbert Road in by the above named deceased who died on Would any firm of solicitors holding a will www.benasso.com the parish and urban district of Bray; Co 17 November 1996, please contact Paul or having knowledge of a will made by the Wicklow McCutcheon, A&L Goodbody, Solicitors, above named deceased who died on 20 July International Financial Services Centre, 1954, please contact John A Sinnott & Co, Benson & Associates North Wall Quay, Dublin 1, tel: 01 649 Solicitors, First National House, Enniscor- is a niche consultancy, WILLS 2000, e-mail: [email protected] thy, County Wexford, tel: 054 33111, fax: 054 33042 specialising in the David-Gray, Andree, late of 21 Hughes, Michael Valentine (deceased), recruitment of high Londonbridge Road, Sandymount, Dublin late of Tonashammer, Ballymanus, Walsh, Patrick, late of Killeen, Gort, Co 4. Would any person having knowledge of a Castlepollard, Co Westmeath. Would any Galway. Would any firm of solicitors hold- calibre lawyers for will executed by the above named deceased person having knowledge of a will made by ing a will or having knowledge of a will private practice, who died on 20 August 1998, please contact the above named who died on 19 January made by the above named deceased who Daly Lynch Crowe & Morris, Solicitors, 2001, please contact NJ Downes & Co, died on 10 January 2001, please contact commerce and The Corn Exchange, Burgh Quay, Dublin Solicitors, Mullingar, Co Westmeath, tel: Colman Sherry, Solicitors, The Square, industry. 2, tel: 01 671 5618, Ref: KM/D/98 044 48646, fax: 044 43447 Gort, Co Galway, tel: 091 631383, fax: 091 631993 Eustace, Matthew, otherwise known as Kilduff, Paul (deceased), late of For information on the Matthew John Eustace, late of Killua Rahandoon, Sallins, Co Kildare and 8A Whelan, Mary, otherwise known as Mai services we provide as well Lodge, Navan, Co Meath. Would any per- Connolly Street, Athlone, Co Westmeath Whelan (deceased), No 111 Lower Bridge as current vacancies, please son having knowledge of the whereabouts and 146 Monread Heights, Naas, Co Street, Portlaoise, Co Laois. Would any per- of a will made by the above named deceased Kildare. Would any person having knowl- son having knowledge of a will made by the visit our website or contact who died on 7 September 2000, please con- edge of a will made by the above named above named deceased who died on 10 Michael Benson (BCL) or tact Peter Morrissey & Company, deceased who died on 3 January 2001, January 2000, please contact Rollestons, Annaleen Sharkey (LLB) in Solicitors, Merrion Buildings, Lower please contact Hanahoe & Hanahoe, Solicitors, Church Street, Portlaoise in the strictest confidence, at: Merrion Street, Dublin 2, tel: 01 676 1556, Solicitors, 16 North Main Street, Naas, Co County of Laois, tel: 0502 21329, fax: 0502 Ref: NS/UoB Kildare, tel: 045 897784, fax: 045 976272 20737, DX 47 002 Portlaoise Carmichael House, 60 Lower Baggot Street, Gallagher, Michael (deceased), late of 28 Malone, Peter Hugh (deceased). It is Dublin 2, Ireland Wheatfield Avenue, Clondalkin, Dublin 22. understood that Mr Peter Hugh Malone EMPLOYMENT T +353 (0) 1 670 3997 Would any person having knowledge of a (deceased) may have made a will in the F +353 (0) 1 670 3998 will made by the above named deceased Dundalk area. If any solicitor has a refer- Solicitor required for general practice in E [email protected] who died on 25 February 2000, please con- ence to same, please contact Joseph F County Tipperary. Reply to Box No 20 BANK OF IRELAND SECURITIES SERVICES LTD recruitment group it’s tough at n opportunity has arisen to appoint a Lawyer to join the top! Athe BoISS Legal team Reporting to the Head of Legal Affairs, the role will involve working with new and existing clients: • Negotiating legal agreements • Liaising with clients, regulators and external advisors • On-going interpretation of both domestic and international legislation relevant to our business

The successful applicant must be a qualified solicitor with a minimum of 2 years’ post-qualification experience in a commercial field – either in private practice or in financial services A working knowledge of company/trust law is essential and experience of the securities/investment man- agement industry would be a decided advantage. T: 01 878 8669 F: 01 878 8710 BoISS offer a competitive remuneration package (nego- email: [email protected] tiable to match experience) in addition to excellent fringe Website: www.solv.ie benefits. Interested applicants should forward a detailed 5 Lower O’Connell Street CV to [email protected] Dublin 1

Tel: +353 (0)1 673 7298/99 Fax: +353 (0)1 670 1380. all the top legal positions

55 Professional information

For sale: seven-day ordinary publican’s Take notice that any person having licence, tel: 063 89667, reference Denis interest in the freehold estate or any Linehan superior leasehold estate in the follow- ing property: all the lands comprised in Established legal practice for sale: South indenture of lease dated 25 September West of Ireland. Box No 21 1908 made between Martha Espinasse of the one part and William Burnell of the Seven-day ordinary publican’s licence for other part and more particularly delin- immediate sale: contact John Hughes, eated on the map attached to the said Be Sure. Engage a Forensic Accountant. Solicitor, Bridge Street, Tullamore, Co lease being property located at Offaly, tel: 0506 52500 Deansgrange Road, Blackrock, now 26/28 South Terrace, Cork Tel:021 431 9200 Fax:021 431 9300 being part of Deansgrange Marble 60 Lower Baggot Street, Dublin 2 Tel:01 475 4640 Fax:01 475 4643 Ordinary seven-day publican’s licence for Works situate in the Barony of e-mail: [email protected] Web: www.jhyland.com sale: contact Mullaney’s Solicitors, Thomas Rathdown, parish of Monkstown and Street, Sligo, tel: 071 42529, fax: 071 44093, County of Dublin. e-mail: [email protected]. Ref: MM MISCELLANEOUS Take notice that Harrison Burnell & Co EYE INJURIES AND Publican’s ordinary seven-day licence for Ltd intends to submit an application: 1) Northern Ireland solicitors providing an OPHTHALMOLOGIAL sale, County Donegal. Please contact to the Circuit Court for grant of a rever- efficient and comprehensive legal service NEGLIGENCE O’Gorman Cunningham & Co, Solicitors, 16 sionary lease, and 2) upon resolution of in all contentious/non-contentious mat- Upper Main Street, Letterkenny, Co such application to the county registrar ters. Dublin-based consultations and else- Mr Louis Clearkin ChM, FRCS, Donegal, tel: 074 24828, fax: 074 21900 for the County of the City of Dublin for where. Fee apportionment. ML White, FRCOphth, DO, MAI, MEWI the acquisition of the freehold interest in Solicitors, 43-45 Monaghan Street, Consultant Ophthalmic Surgeon For sale: seven-day publican’s licence. the aforesaid property and any party Newry, County Down, tel: 080 1693 Experienced expert witness in Contact Wolfe & Co, Solicitors, Bantry, Co asserting that they hold a superior inter- 68144, fax: 080 1693 60966 ophthalmological personal Cork, Ref: RH/CP489 est in the aforesaid property is called injury, medical negligence and upon to furnish evidence of title to the Northern Ireland agents for all con- civil litigation Publican’s ordinary seven-day lic-ence: aforementioned premises to the below- tentious and non-contentious matters. please contact Wolfe & Co, Solicitors, named within 21 days from the date of Consultation in Dublin if required. Fee Renuntiabo, 8 Rose Mount, Market Street, Skibbereen, Co Cork, tel: 028 this notice. sharing envisaged. Offices in Belfast, Oxton, Wirral, Merseyside, 21177, fax: 028 21676, quote ref: POR/CK Newry and Carrickfergus. Contact L43 5SW In default of any such notice being Norville Connolly, D&E Fisher, secretary: +44 (0) 151 6047047 Seven-day licence for sale: part- received, Harrison Burnell & Co Ltd Solicitors, 8 Trevor Hill, Newry, tel: 080 fax: +44 (0) 151 6047152 iculars from Branigan Cosgrove Solicitors, 31 intends to proceed with the 14814 appli- 1693 61616, fax: 080 1693 67712 e-mail: [email protected] Pembroke Road, Dublin 4, tel: 01 6682477, cation before the Circuit Court and fax: 01 6670119, e-mail brancosg@secure- thence before the county registrar at the London solicitors will advise on UK mat- mail.ie end of 21 days from the date of this ters and undertake agency work. All areas. Publican’s ordinary seven-day licence notice and will apply to the Circuit Corporate/private clients. Ellis & for sale. For further particulars, please Court and the county registrar for the Fairbairn, 26 Old Brompton Road, South contact Fergus A Feeney, Solicitor, Legal TITLE DEEDS County of the City of Dublin for direc- Kensington, London SW7 3DL, tel: 0044 Centre, Ballinalee Road, Longford, tion as may be appropriate on the basis 171 589 0141, fax: 0044 171 225 3935 County Longford, tel: 043 45981, fax: 043 In the matter of the Landlord and Tenant that the person or persons beneficially 45981 Acts, 1967-1994 and in the matter of the entitled to the superior interest includ- Northern Ireland solicitors. Will advise Landlord and Tenant (Ground Rents) (No ing the freehold reversion in the premis- and undertake NI-related matters. All For sale: seven-day ordinary publican’s 2) Act, 1978: Harrison Burnell & Co Ltd es are unknown or unascertained. areas corporate/private. Agency or full licence. Enquiries to O’Donovan Murphy (applicant) and successors in title to Dated: 9 February January 2001 referral of cases as preferred. & Partners, Solicitors, Wolfe Tone Espinasse Estate or any superior lease- Signed: Pearse Mehigan & Company, Consultations in Dublin or elsewhere if Square, Bantry, Co Cork, tel: 027 50808, hold or freehold interest being person Solicitors, 83/84 Upper George’s Street, required. Fee sharing envisaged. Donnelly fax: 027 51554. Ref: MFC/CH/F4501 or persons unknown (respondent) Dun Laoghaire, Co Dublin Neary & Donnelly, 1 Downshire Road, Newry, Co Down, tel: 080 1693 64611, fax: 080 1693 67000. Contact KJ Neary NORTHERN DUBLIN SOLICITORS’ Personal injury claims, employment, family, criminal and property law special- IRELAND PRACTICE OFFERS ists in England and Wales. Offices in J. DAVID O’BRIEN SOLICITORS AGENCY WORK London (Wood Green, Camden Town and ATTORNEY AT LAW Stratford), Birmingham and Cardiff. ‘No We will engage in, IN NORTHERN 20 Vesey St, Suite 700 win, no fee’ available for accident and and advise on, IRELAND employment claims, legal aid for family New York, NY, 10007 and criminal cases. Contact Levenes all Northern Ireland- Tel: 001212-571-6111 * All legal work undertaken Solicitors at Ashley House, 235-239 High related matters, on an agency basis Road, Wood Green, London N22 8HF, Fax: 001212-571-6166 particularly personal * All communications to clients tel: 0044 20 8881 7777. Alternatively e- PERSONAL INJURY ACCIDENT injury litigation. through instructing solicitors mail us on [email protected] or visit our CASES Consultations where * Consultations in Dublin if required website at www.levenes.co.uk convenient. Contact: Séamus Connolly CONSTRUCTION Moran & Ryan, Solicitors, RAILROAD Fee sharing Arran House, MARITIME envisaged. 35/36 Arran Quay, Dublin 7. www.flynnassociates.ie AVIATION BLACKHALL CAR/BUS/TRUCK OLIVER M LOUGHRAN Tel: (01) 872 5622 Fax: (01) 872 5404 AREA MEMBER AMERICAN AND NEW & COMPANY Superb 3 bed detatched residence YORK STATE TRIAL LAWYERS 9 HOLMVIEW TERRACE, e-mail: [email protected] convenient to the ASSOCIATIONS OMAGH, CO TYRONE or Bank Building, Hill Street Four Courts and Newry, County Down. city centre. Enrolled as Solicitor Phone (004428) 8224 1530 Castleknock Tel: (0801693) 65311 in Rep of Ireland, England Fax: (004428) 8224 9865 01 821 1311 Fax: (0801693) 62096 & Wales e-mail: [email protected] E-mail: [email protected]

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