Contents GazetteLawSociety

Regulars Cover Story The hand that robs the cradle Child abduction is a growing problem both here and internationally. President’s message 3 8 Geoffrey Shannon describes the current framework for handling News 4 child abduction cases and suggests how the law could be reformed

Book review 35

Stockwatch 36 The changing face of discovery 14 The master of the High Court recently issued a series of judgments Briefing 37 clarifying the practice and procedure for seeking discovery of documents. Andrew Fitzpatrick analyses Council report 37 the master’s decisions Committee report 38 Legislation Split decision update 39 18 Two recent cases have set a benchmark for SBA annual the distribution of assets in ‘clean-break’ accounts 41 divorce settlements. Ann FitzGerald discusses the judgments and the new Personal injury questions they raise judgments 42 FirstLaw update 46 Eurlegal 51 Accounting for crime 24 Auditors who suspect clients of serious company law offences now People and have to report this to the director of corporate enforcement. places 56 Solicitors can expect plenty of requests for advice from them and Apprentices’ page 59 their clients as a result, as Emmet Scully explains

Professional information 61 US and them 28 The Competition Authority is getting tougher on cartels, armed with new powers to pursue price-fixers. The US busted its cartel problems years ago and Ireland might take some pointers from that experience, writes Terry Calvani

Special agents 31 Employers can’t turn a blind eye to the behaviour of their independent contractors, especially if uniforms or rules associate them with the company. Murray Smith looks at Irish law on vicarious liability and a recent case that made waves in Australia

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

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

Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Volume 97, number 3 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: €57.15

1 Law Society Gazette April 2003

President’s message Nothing but the same old story

scar Wilde once said that the only thing jail. That includes any worse than being talked about is not solicitor who knowingly being talked about. I’m not entirely assists in bringing a sure that Oscar got that right. He fraudulent claim. might have felt differently had he been O Propaganda war a solicitor rather than a playwright. Once again we have found ourselves under public scrutiny, and not This is merely another just on one front but on two. We have been the salvo in the on-going subject (along with seven other professions) of a propaganda war being report from the Competition Authority’s fought by vested interests independent consultants, Indecon, and – less such as IBEC and the benignly – of a widely-publicised Prime Time Irish Insurance documentary on RTÉ television. Federation. The underlying objective is to A good story to tell undermine the rights of You will find a detailed analysis of the Indecon ordinary citizens, who report on page 5 of this issue, but suffice it to say have been injured through that the Law Society welcomed the Competition the negligence of others Authority’s decision to study the provision of (usually members of those same vested interests), to ‘I have no professional services, including our own. We have seek compensation for their injuries. These victims doubt but always believed that the solicitors’ profession has a must not be intimidated to prevent their recovering good story to tell on competition and have been the compensation to which they are entitled. I can that our pleased to get the opportunity to tell it. Early in the assure you that the Law Society will fight tooth- engagement process, we retained expert legal and economic and-nail to make sure that this assault on a advice and the society’s response has been co- fundamental right does not succeed. with ordinated by a very hardworking and able task force, But I do think it is important to nail one of the Indecon to whose members I wish to pay tribute. I do not subliminal messages that seemed to be contained in believe I am breaking a confidence in saying that the Prime Time ‘scoop’. The programme appeared to ensured that Indecon informed the members of the task force that imply that the Law Society turns a blind eye to many false the society’s 220-page submission, with supporting fraudulent claims and to those who help to bring documentation, was by far the most impressive them. Let me put the record straight. The Law impressions submission made to it in the course of this study. I Society believes that the law should be changed so were have no doubt but that our engagement with that those who bring fraudulent personal injuries Indecon ensured that many false impressions were claims are prosecuted and convicted. We want to see dispelled dispelled and thus falsely based recommendations the full weight of the law brought against anyone and thus avoided. who brings or knowingly assists in bringing such Having said that, there are of course claims. We believe a new specific criminal offence falsely recommendations in the Indecon report with which should be created to cover the bringing of such based the Law Society would disagree and we certainly claims. We believe that the tiny number of spurious believe we have very cogent reasons for doing so in and invented claims is having a disproportionate recommend- the public interest. We look forward to the next effect on the personal injuries compensation system. ations stage in the process of dealing with this Competition We said as much in a press release that we issued Authority study. two months ago but which news outlets by and large avoided’ By contrast, the Prime Time documentary took a chose to ignore in favour of rehashed allegations and different – and, sadly, more hackneyed – approach. their own version of spurious claims. The programme noisily proclaimed that it was going For the solicitors’ profession, sometimes it’s to ‘blow the lid’ on Ireland’s ‘compo culture’. It also nothing but the same old story. But we won’t stop trumpeted that it was aware of 20 or 30 solicitors trying to put the record straight. that knowingly encourage and process false personal injury claims. Let me state this as bluntly as I can: Geraldine Clarke, anyone who brings a fraudulent claim should go to President

3 Law Society Gazette April 2003 News First meeting of society’s public relations officers

n taking office last ONovember as president of the Law Society, Geraldine Clarke made the profession’s public relations one of her top priorities, writes director general Ken Murphy. In this she touched a cord with members everywhere. She re-established the society’s Public Relations Committee (which had been abolished four years previously) under the chairmanship of Donald Binchy. Among the ideas adopted at the first meeting of the new committee was one which I had proposed to the Council last year. The Public faces: the first meeting of the newly-appointed public relations officers idea is that each bar association Seated (left to right): Michele O’Boyle (Sligo), Marian O’Donovan-Mackey (Cavan), director general Ken Murphy, should nominate a public chairman of the Public Relations Committee Donald Binchy, president Geraldine Clarke, junior vice-president relations officer, first, to avail of John Fish, Geraldine Conaghan (Donegal and Innisowen) and Jackie Durcan (Mayo); standing (left to right): Rosemarie Loftus and Jerome O’Sullivan (both from the Public Relations Committee), Ronan Connolly (Clare), every opportunity to promote Kieran Boland (Kilkenny), John O’Sullivan (Carlow), James McCourt (Dublin), Tom Murran (Waterford), Maura the profession through the Derivan (Tipperary), John O’Connor (Public Relations Committee), Karl Carney (Wicklow), Collette McCarthy media generally, although (West Cork) and Brian O’Sullivan (Midlands) especially through the local radio and print media in the bar The society will seek to be media. It will hold meetings of contentious. Encouraging and association’s part of the country of assistance to the public the public relations officers to assisting the bar associations to and, second, to act as a liaison relations officers in three ways. seek and share ideas on how play a role in dealing directly person on public relations It will arrange for them to media and public relations with the media will share the matters with the society. undertake training in media matters can best be handled. burden and recognise that it is The idea is to encourage the skills. It will copy any society Public relations officers will impossible for the society to bar associations to play a much press releases or briefing not be spokespersons for the deal with all of the media all of greater role in public relations materials by e-mail at the same Law Society. They will the time on behalf of the on behalf of the profession. time as they are sent to the represent the bar associations profession. or simply themselves as From November to the end individual solicitors, expressing of March, the president and I DSBA to launch new website their own views based on their have visited and met the own experiences. members of the bar associations he Dublin Solicitors’ Bar on contributions from members Almost all bar associations of Tipperary, Sligo, Leitrim, TAssociation (DSBA) is set to and from outside’. have now nominated public Kilkenny, Mayo, Roscommon, roll out a new website this He added that the DSBA relations officers (in many cases Waterford, Dublin, Louth, month. Association president would be inviting contributions it is the bar association’s Galway, Limerick, Kerry and James McCourt told the Gazette as soon as the site is president). An excellent first Meath. The public relations that the site will feature a launched. It will also include a meeting of the public relations officers idea has proved very number of interactive elements wide range of practical content officers was held in Blackhall popular at every meeting. that will allow members and such as updated standard form Place recently. It was agreed Public relations is a much others to contribute to content. documents and news stories. that the public relations officers wider concept than media ‘There will be options to The new website is currently should seek opportunities to relations. Ultimately, we need allow us to conduct polls of going through the final stages explain the law and the hugely to encourage every solicitor to members on various issues and of design, and McCourt important role that lawyers recognise that he or she has a to get their views on-line’, he predicted that it should be play on behalf of their clients personal role to play in seeking said. ‘It will also allow us to put launched early this month. in a whole range of areas, to improve the profession’s contentious and non- public image.

4 Law Society Gazette April 2003 News No major surprises in Competition Authority study he Law Society has and Scotland was ‘a damp Twelcomed the recent report squib’ in terms of market on competition in the impact. ‘Indecon acknowledges profession, but has stated that that the market share by some elements of it do not strike licensed conveyancers is no the right balance between more than 5% in England and competition and protecting the Wales, and in Scotland, which public. is more comparable to Ireland Indecon International in terms of size, the number of Economic Consultants produced licensed conveyancers is the report following a survey currently two’, he said. carried out for the Competition The Law Society welcomed Authority. Law Society director Indecon’s recommendation that general Ken Murphy said that the ban on solicitors forming the society agreed with many of Pictured at the launch of the Indecon report were (left to right): limited liability partnerships be the report’s findings, ‘not least Declan Purcell, member of the Competition Authority, Dr John Fingleton, dropped. At the same time, chairman of the Competition Authority and Alan Gray of Indecon the extremely positive because of the obvious dangers assessment’ of its regulatory and could restrict entry. ‘The post-qualification experience of conflicts of interest, it wants education systems. He pledged society cannot be said to have a was because barristers’ practical the prohibition on solicitors that the society would study the restrictive policy on recognition training starts after forming multi-disciplinary report carefully. of appropriate qualifications in qualification. Practical training partnerships with non-lawyers Murphy said that the society circumstances where the is a pre-qualification to remain. Murphy pointed out believed in competition and in solicitors’ profession here is requirement for solicitors. that in the recent landmark protecting the public. But he open to 110,000 solicitors Murphy also questioned an NOVA ruling, the European noted there were some areas qualified in England and Wales Indecon claim that it doubted Court of Justice said such a ban where Indecon got the balance and a further 2,000 from whether standards would fall if was in the public interest, even between the two wrong. Northern Ireland’, he said. the market was opened up to if it was anti-competitive. In the area of entry to the He pointed out that the specialised licensed The authority stated that the profession, Indecon found no reason entry from the bar was conveyancers. He pointed out report represents the views of evidence to suggest that the restricted to those members that the introduction of this Indecon, not the authority’s society’s educational and who had more than three years’ system in England and Wales own views. training requirements were used to restrict or damage competition. The consultants INDECON REPORT’S MAIN POINTS stated that they believed the Entry Conduct The absence of licensed current educational and training The Law Society’s monopoly on With the exception of personal conveyancers reduces requirements are not the provision of professional injuries, the restrictions on competition in this segment of disproportionate to achieving practice courses for trainee comparative advertising and the the market. their intended goals of ensuring solicitors is likely to restrict entry. prohibition on making unsolicited minimum standards of The requirement that solicitors approaches to clients or the Organisational form competence and professionalism whose second or subsequent public in any area of law is likely The prohibition on solicitors among newly-qualified solicitors. place of qualification is Northern to restrict normal competitive forming limited liability Murphy welcomed the Ireland or England or Wales have behaviour in the market. partnerships and companies finding, but questioned whether three years’ post-qualification hinders the profession in a suggestion that training be experience in that jurisdiction Demarcation competing internationally and provided outside Dublin was before entering the roll of Irish The restrictions on solicitors may reduce economic really practical since the solicitors may act as a barrier to based in Northern Ireland and efficiency. concentration of solicitors entry. England and Wales, and on The prohibition on solicitors needed – over 500 teach on the The requirement that barristers lawyers from other EU states, practising with other course at present – would be have three years’ post- offering conveyancing, trust and professions is likely to reduce available elsewhere. qualification experience before probate services in Ireland are competition and dynamic He also rejected assertions transferring to practise as likely to restrict competition in efficiency (for example, that the rules governing entry solicitors is likely to act as a these particular services in innovation in legal and by lawyers from other barrier to entry. Ireland. financial services). jurisdictions and from the bar

5 Law Society Gazette April 2003 News

HARDIMAN BLAMES THE MEDIA The lack of legal experts in the Irish media leaves us with Cork court crisis coverage that emphasises the result instead of the process, according to Mr Justice Adrian solved on the double Hardiman. Launching Criminal procedure by Professor Dermot Walsh, Hardiman criticised the he Courts Service has lack of specialist legal Tallocated two temporary journalists in the Irish media. visiting judges to the Cork ‘Legal coverage tends to circuit to help ease a bottleneck emphasise the result and not to in family law cases. explain the process or the According to Southern Law reasoning’, he said. ‘In the case Association (SLA) spokeswoman of important written judgments, Fiona Twomey, the number of a felt need for immediate family law cases awaiting assessment often does not hearing has doubled over the leave time to read what is being last year from approximately commented on’. He added that 500 to 1,000, and the average cases like Sinnott and the waiting time from notice of trial Abbeylara judgment, which raise to trial date stands at an fundamental questions about the unacceptable 18 months. Delahunt and Patricia Ryan Moran had been seeking the powers of government, She told the Gazette that the have both presided over family extra resources for some time. legislature and the courts have appointment of two visiting law sessions since the extra Moran himself took on extra these aspects ignored while the judges effectively resulted in an time was allocated. Others were family law work to help ease media concentrates on individual extra four-week family law expected to have filled in by the the pressure. facts. session in Cork Circuit Court. end of the four-week period. Fiona Twomey paid tribute The extra hearings began on The SLA, the Cork Family to the Courts Service and the STATUTES ON CD-ROM 11 March and will run until the Law Association and Cork Circuit Court Office for All acts of the Oireachtas, Easter vacation. Catherine Circuit Court judge Patrick responding to their request. ‘It statutory instruments and is working. The extra four- chronological tables from 1922 week session is proving to be to 2001 are available on a CD- Cork courthouse ‘no quirk of fate’ very helpful’, she said. ROM for just €35 from The Courts Service has issued a statement contesting a report in Government Publications Sales last month’s Gazette that Cork Corporation’s decision to allocate Office, Sun Alliance House, €25 million for the refurbishment of the city’s Washington Street RETIREMENT TRUST SCHEME Molesworth Street, Dublin 2, courthouse came about by a ‘quirk of fate’. Unit prices: 1 March 2003 and by mail order from ‘The funding for this project, like all the major developments Managed fund: 359.764c Government Publications, 51 St associated with us, came about as a result of much hard work by All-equity fund: 80.842c Stephen’s Green, Dublin 2. It is the board, the executive of the service, the minister and his Cash fund: 249.081c also available on the attorney officials’, the statement said. Long bond fund: 107.846c general’s website (irlgov.ie/ag). ONE TO WATCH: NEW LEGISLATION Unclaimed Life Assurance which is not needed to provide for be made and by whom, either the for a specified term, it becomes Policies Act, 2003 future claims and management policy owner if the policy has dormant five years after the This act (no 2 of 2003) is a expenses is available for matured or the beneficiary if maturity date or the date of last sequel to the Dormant Accounts community purposes as set out in payable on a death. The legislation communication from the policy Act, 2001 and was commenced by the Dormant Accounts Act. The provides for the encashment value holder. If it is for an unspecified the minister for community, rural rights of policy holders will not be to be separated from the insurance term, it becomes dormant 15 years and gaeltacht affairs on 6 March affected. element, which remains the after the last communication from (SI 92/03). Its first objective is to Life assurance policies are a responsibility of the insurance the policy holder. The act does not set up a system whereby owners of more complex proposition than company. apply to a policy which forms part policies are notified of their savings accounts because they can The legislation applies to of the assets of an occupational interests, by post, newspaper be so varied, often tailored to suit unclaimed policies in respect of pension scheme, a group advertisements and notices. The individual needs. They typically which monies are payable in the permanent health insurance or second objective is to ensure that comprise some risk cover and an state to a policy holder who has a disability benefit scheme or a the benefit of unclaimed policies is investment element, which will correspondence address in the sponsored superannuation scheme transferred by the insurance itself be subject to conditions. The state. There are two criteria for (as defined). companies to the dormant contract of assurance sets out the dormancy, depending on the type Sections 8 and 9 set out the accounts fund, where any surplus conditions under which claims can of policy (section 6). If the policy is notice procedure. Insurance

6 Law Society Gazette April 2003 News

COMMISSION WANTS SENTENCE AND FINE REVAMP PIAB timetable set The Law Reform Commission has recommended that he Personal Injuries committee that that justice offenders should only be TAssessment Board (PIAB) minister Michael McDowell sentenced to prison terms of legislation is due before the intended introducing perjury more than six months after a Oireachtas by the autumn, legislation. ‘The intention is jury trial. In its latest report, tánaiste Mary Harney revealed that people will be pursued for Penalties for minor offences, recently. She told the joint perjury in case of fraudulent the commission urges district Oireachtas committee on claims’, she said. judges to ‘re-think’ sentencing enterprise and small business Commenting on Harney’s along those lines, but stops that the cabinet will see the remarks, Law Society director short of recommending heads of the bill by the summer. general Ken Murphy said: legislation for this. The report She added that she intended ‘Solicitors look foward to seeing also proposes that district putting the legislation ‘before the tánaiste’s bill. It may give us judges be required to give the houses in early autumn and a real insight for the first time written reasons for imposing Harney: PIAB legislation have it enacted by the end of into precisely how the PIAB is custodial sentences. It calls for ready by autumn this year so the PIAB can be intended to operate. However, legislation to allow fines to be established on a statutory basis’. require as many lawyers as is what is astonishing to us is the increased for wealthier Harney made it clear that the the norm in other places’, and fact that the PIAB project has offenders and to require that government intended that added: ‘Lawyers should not reached this advanced stage, on corporations found guilty of lawyers should not be involved necessarily be involved every the tánaiste’s acknowledgment, regulatory offences be subject in the assessment board process. time somebody seeks to make a without a proper cost-benefit to maximum fines of three Responding to a question from claim’. The tánaiste stressed analysis being conducted. times those imposed on people. Ollie Wilkinson TD, she said that it would not be a forum for Political needs, rather than the PIAB would be a piece of advocacy. economic sense, appear to be LAWYER SETS MARATHON infrastructure ‘that might not In addition, she told the driving the PIAB initiative’. GOAL FOR CHARITY Solicitor Cormac O’Ceallaigh plans to run three marathons in Conveyancers warned on property VAT changes a total of ten hours and 30 minutes to raise money for a The Law Society’s Probate, Administration and clients disposing of or acquiring such property, the number of charities. He began Taxation Committee has said it wants to draw the committee warns. If you are in doubt about any with the Rome marathon in attention of practitioners to section 4(3a) of the matter relating to section 4(3a) or any other March and will end in Dublin in VAT Act, 1972 and the amendment to it provision dealing in VAT and property, you should October. The charities for which introduced by section 113 of the Finance Act, consult a practitioner with expert knowledge. After he is raising cash are Festina 2003. Section 4(3a) has been in operation since the enactment of the Finance Act, 2003, an Lente Equestrian College and 25 March 2002. Failure to deal properly with VAT article on the implications of the VAT Act, 1972, Cavan Monaghan Down’s issues on the granting of a lease and the section 4(3A) as amended will be published on Syndrome Association. assignment or surrender of a lease of property the Law Society’s website and later in the O’Ceallaigh is a partner in the subject to VAT can have serious consequences for Gazette. Dublin law firm Sean O’Ceallaigh & Co.

companies are required to write to notices on its premises containing traced. According to Minister less management costs. policy holders annually each prescribed information. The McCreevey in the Dáil, it is very Part 3 sets up mechanisms to October with details of the minister has issued regulations difficult to estimate the amount ensure that the act is complied unclaimed policy (if over the value under section 9 (SI 93/03). and value of dormant funds held. with. It requires each insurance of €500), notifying the holder that If no communication is received This will only become evident in company to file an annual the policy may be claimed and that, before the next 31 March, the net May 2004, when the proceeds of certificate of compliance with the if not, the net encashment value encashment value of the policy the first transfers arrive with the requirements in the act. will be transferred to the dormant must be transferred to the fund National Treasury Management Inspectors may be appointed to accounts fund. If the policy holder without further notice by 30 April Agency, which is the fund manager. ensure compliance, and have has given instructions not to be following, accompanied by a Section 15 deals with appropriate powers. There are directly contacted or if the value is summary report, even if no funds processing of claims by people who provisions to protect the anonymity under €500 or direct contact has are transferred. Each insurance realise that they have unclaimed of policy holders in most failed to achieve results, the company must keep a register of policies, the proceeds of which circumstances. G insurance company must publish unclaimed policies in respect of have been transferred to the fund. two advertisements in national which monies are transferred, so The intention is that they should be Alma Clissman is the Law newspapers and in the Iris oifigiuil that the proceeds of policies able to claim the full value of the Society’s parliamentary and law in early October, and display transferred to the fund can be policy, plus any interest accruing, reform executive.

7 Law Society Gazette April 2003 Cover story The HAND TH the CR

Child abduction is a growing problem both here and internationally. In this country, for example, the tensions between Muslim Sharia law and our own domestic law have led to an increase of cases. Geoffrey Shannon explains the current international framework for handling child abduction cases and suggests how the law could be reformed

n the last ten years, Ireland has been at the • Hague centre of over 1,400 child abduction cases. The convention Department of Justice’s Central Authority (the 1980 body that handles child abduction cases) dealt • Impact of with 72 incidents last year alone. Child Sharia law I abduction occurs when a child is taken, without • Brussels IIA permission or consent, from a parent who has legal regulation custody of the child. Not surprisingly, both Irish and

MAIN POINTS international law contain provisions that aim to secure the return of the child to the jurisdiction of his habitual residence as soon as possible. Since 1980, the international approach to child abduction has been governed by two main legal instruments, the Hague convention on the civil aspects of international child abduction and the European convention on recognition and enforcement of decisions concerning custody of children and on restoration of custody of children (known as the Luxembourg convention). Both of these were signed into Irish law on 1 October 1991 by the Child Abduction and Enforcement of Custody Orders Act, 1991. The most important difference between the two conventions is that an applicant must have a court order to invoke the Luxembourg convention. Under the 1980 Hague convention, it is not necessary to have a formal court order; the emphasis is on a breach of custody rights.

8 Law Society Gazette April 2003 Cover story HAT ROBS RADLE

9 Law Society Gazette April 2003 Cover story

return of the child to the jurisdiction of his habitual residence. The 1980 convention applies to any child who was ‘habitually resident’ in a contracting state immediately before he was abducted. In the recent case of EM v JM (unreported, High Court, 18 July 2002), O’Donovan J held that ‘habitual residence’ and ‘ordinary residence’ amount to one and the same thing and means the place where someone lives. To trigger the mechanisms of the convention, there must have been a wrongful removal of the child from the place where he was habitually resident.

Rights of custody The removal or retention of a child is wrongful, within the meaning of the convention, where it is in breach of a right of custody as defined in article 3. This article gives ‘rights of custody’ a very wide interpretation and specifies three possible legal origins of a right of custody: •By operation of law, or • By reason of a judicial or administrative decision, or • By reason of an agreement having legal effect under the law of that state.

Article 3 requires that rights of custody were actually PIC: REX FEATURES exercised at the time of the removal. It should be noted that in P v B ([1994] 3 IR 507), the Supreme The principle of comity of courts applies to the Court unequivocally determined that within Hague abduction of children from a non-contracting state. convention proceedings, the Irish courts should not Irish courts recognise and enforce decisions and decide the merits of a custody dispute until it has been orders made by courts in jurisdictions with determined that a child is not to be returned under comparable legal systems. However, it is likely that the convention (see also W v W [1993] 2 FLJ 47). the courts will be mindful of the convention The scope of the term ‘rights of custody’ was principles in dealing with such cases (see AS v EH considered in HI v MG ([1999] 2 ILRM 22). The and RMH, unreported, High Court, Budd J, May applicant, an Egyptian citizen, married the 1996). respondent, a British citizen, according to the rites of the Muslim faith. The Islamic marriage ceremony Hague convention was not recognised by New York law. Following the The Hague convention of 1980 has set down the removal by the respondent of her son H to this summary return mechanism in 73 countries for jurisdiction, the applicant, a non-marital father, wrongfully removed or retained children. It provides sought the return of H under the Child Abduction and a robust solution to the problem of child abduction Enforcement of Custody Orders Act, 1991. by requiring the courts of the state to which the It was submitted on behalf of the applicant that he child has been abducted to return the child to the was entitled to apply to the New York courts for state from which he was taken. The convention rights to custody of or access to H, once the issue of states its objectives in article 1: paternity was formally confirmed. The defendant •To secure the prompt return of children had acknowledged that the plaintiff was H’s father; wrongfully removed to, or retained in, any therefore, he had inchoate rights in respect of the contracting state, and child, which would almost inevitably have crystallised •To ensure that rights of custody and access under into established rights. It was submitted that he the law of one contracting state are effectively should then be entitled to invoke the 1980 Hague respected in the other contracting states. convention. The Supreme Court, however, reversing the The central principle of the convention, therefore, is finding of the High Court, rejected the assertion that that in cases of wrongful removal or wrongful the requested state should have regard to an retention contracting states are required to recognise undefined body of inchoate rights not recognised by the state of a child’s habitual residence as being the that state. Keane J, delivering judgment for the jurisdiction best equipped to adjudicate on any majority, stated that the term ‘rights of custody’ did disputes relating to the child. The convention is not embrace ‘an undefined hinterland of inchoate unambiguous in its objective of seeking to secure the rights of custody, not attributed in any sense by the

10 Law Society Gazette April 2003 Cover story law of the requesting state to any party asserting them or to the court itself’. RECOMMENDATIONS FOR REFORM Defences under the convention Child abduction within the state A defendant in Hague convention proceedings may Section 16 of the Non-Fatal Offences Against the Person Act, 1997 established a find recourse in the ‘defences’ provided by articles 13 new offence of abduction of a child under the age of 16 out of the state by his or her and 20. That said, it is only a very small proportion parent or guardian. While this section makes abduction out of the state an offence, of cases where return orders are not made on the it does not appear to cover taking a child within the state. The latter situation can basis of one of the defences being established. Return only be dealt with through normal custody proceedings. Section 16 of the Non-Fatal orders always specify a country, rather than a specific Offences Against the Person Act, 1997 should therefore be amended without delay place or person. but in a manner that will not prejudice domestic violence victims who leave the family The court is not bound to order the return of the home to escape violence. Similarly, section 36 of the Child Abduction and child if the person, institution or other body Enforcement of Custody Orders Act, 1991 should be amended. This section, which opposing the return establishes that: gives the court the power to order the disclosure of a child’s whereabouts, is •There was consent to the removal/retention confined to child abductions out of the state, but does not appear to cover a •There was acquiescence in the removal/retention situation where a child is not taken out of the country. •Proceedings are instituted after one year has elapsed since the wrongful removal and it is Domestic violence demonstrated that the child has settled in his new The 1980 Hague convention can operate unjustly when applied to domestic violence environment victims who abduct to escape that violence. The courts of the member states are •There is a grave risk that to return the child would only now waking up to the injustices that can result from applying the 1980 Hague expose him to physical or psychological harm or convention to domestic violence victims (see Re F (Child abduction: risk if returned) otherwise place him in an intolerable situation [1995] 2 Fam L Rep 31). Greater efforts must be made to be sensitive to the 1980 • The child objects to being returned and has Hague convention’s remedy of return in circumstances where the abductor is a victim attained an age and maturity at which it is of domestic violence. appropriate to take account of his views, or • The person, institution or other body having the Rights of non-marital father care of the person of the child was not actually The rights of non-marital fathers under the 1980 Hague convention present particular exercising the custody rights at the time of the difficulties and need to be addressed, given the fact that in a number of countries, removal or retention, or had consented to or including Ireland, they do not have an automatic right to custody equivalent to those subsequently acquiesced in the removal or of the married parents. retention. Delay Once an applicant proves that there has been a Time is of the essence in child abduction cases. Article 11 of the 1980 Hague wrongful removal or retention, the onus shifts to the convention states that applications should be resolved within a six-week period. In S respondent to establish a defence. v S ([1998] 2 IR 244), the Supreme Court expressed its concern at the considerable The Child Abduction and Enforcement of Custody delay (of 18 months) between the date of the commencement of the High Court Orders Act, 1991 confers exclusive jurisdiction in proceedings seeking the return of the children in question and the date on which the convention cases on the High Court, subject to an matter concluded in the Supreme Court. appeal to the Supreme Court. It is important to note Noting that delay has the potential to defeat the purpose of the convention, that articles 3 and 4 of the Hague convention are Denham J said that parties and professionals should display special diligence in conditions precedent to any application under that expediting child abduction proceedings. The current delay in the procurement and convention: the child must have been under 16, the completion of social reports in Ireland and the difficulties encountered in retaining child must have been wrongfully removed or guardians ad litem must surely fall to be considered in this context. retained, and the child must have been habitually resident in the contracting state immediately before Continuity of judges the breach. There is a lack of continuity in the judges hearing convention cases. This is a matter that can be addressed with relative ease. High risk of abduction Where parents feels that their child may be abducted Mediation as a solution from Ireland, they can apply to the Circuit Court or It is obviously desirable for all parties that, if at all possible, a solution be reached the High Court for an injunction restraining the by means other than court proceedings. To this end, mediation should be actively removal of the child, together with an order promoted to help secure the return of the child to the parent who has the legal permitting a port alert and notification of the custody. airports and the gardaí. They can also apply to the courts for orders under section 11 of the Guardianship of Infants Act, 1964 and of the Hague convention. Practitioners should section 37 of the Child Abduction and Enforcement of consider invoking the wardship jurisdiction where a Custody Orders Act, 1991. The latter section confers child may be removed to a non-convention country. extensive powers on a member of An Garda Síochána Article 8 of the Hague convention states: ‘Any to detain a child who he reasonably suspects is about person, institution or other body claiming that a to be, or is being, removed from the state in breach child has been removed or retained in breach of

11 Law Society Gazette April 2003 Cover story

custody rights may apply either to the central automatic recognition and enforcement. While the authority of the child’s habitual residence, or to the remedy of automatic return works well if the central authority of any other contracting state, for abductor is a non-custodial parent, it is inappropriate assistance in securing the return of the child’. when the abductor is a primary carer who is seeking In summary, the 1980 Hague convention establishes protection from the other parent’s violence. a procedure where a left-behind parent applies to the At their council meeting of 29 November 2002, central authority in his or her own state for the return the EU justice ministers addressed the relationship of his child. The central authority then passes the between Brussels IIA and the 1980 Hague convention. application to the central authority in the state to It was agreed that the court in the child’s home which the child has been removed. Proceedings are country is to have jurisdiction to make rulings on brought in that jurisdiction to have the child returned custody and access rights. The exception to this is summarily under the convention. Section 9 of the where the child has been living with the non- Child Abduction and Enforcement of Custody Orders Act, custodial parent for over a year, and the custodial 1991 requires the central authority to take the parent has made no request for his or her return. appropriate action to secure the return of the child. Since the implementation of the Non-Fatal Offences New provisions Against the Person Act, 1997, parental child abduction Under the new proposed regulation, the courts of has been a criminal offence. Under section 16 of that the requested member state can continue to refuse to act, where a child is under the age of 16 years, it is an return a child by invoking the defences provided by offence for any person (a parent, a guardian, or a the 1980 Hague convention. person to whom custody of the child has been •Article 11 requires that the court to which such an granted by a court) to take, keep or send the child out application has been made issues a judgment on of the state in contravention of a court order without custody without delay, and, in doing so, the child the consent of any other guardian. This offence must be heard unless it is inappropriate because of attracts a maximum sentence of seven years’ his age and maturity imprisonment and entitles the gardaí to arrest on •Article 11(3) of the proposed regulation provides suspicion of an attempted abduction. Section 17 of that the court shall, unless exceptional the Non-Fatal Offences Against the Person Act, 1997 can circumstances make this impossible, issue its order be invoked where a non-guardian abducts a child. no later than six weeks after it is seised of the application. Significantly, as regards the return of Sharia law the child, a court cannot refuse to return a child ‘It would It would appear that parental child abduction is a unless the person who requested the return of the appear that growing problem in the Irish Muslim community. At child has been given an opportunity to be heard the centre of this problem are tensions between Irish • Under article 11(6), if a court issues an order for parental child and Sharia law. Sharia law – Islamic religious law – is non-return under article 13 of the 1980 Hague abduction is a an all-encompassing religious law that governs all convention, the court must send a copy of the court family relationships in the Islamic world, order on non-return and the relevant documents growing independent of any state interference. Under Sharia to the competent court in the member state where problem in the law, a Muslim parent is required, without exception, the child was habitually resident immediately to bring his or her children up as a Muslim. The before the wrongful removal or retention. The Irish Muslim Muslim parent may therefore argue that he is latter court must receive all the mentioned community’ justified, once conflict arises, in using this as an documents within one month from the date of the excuse to abduct his children for the purpose of non-return order. taking them back to an Islamic state. That said, there is no moral or legal justification for the use of culture The court in the member state where the child was for the purpose of the abduction of a child. habitually resident immediately before the wrongful On 22 August 2002, Morocco became the first removal or retention is expected to invite the parties, Muslim state to ratify the Hague child protection including the health board, to make submissions convention 1996. This is a significant development within three months of the date of the notification. and one that, it is hoped, will facilitate close co- Should the judgment on custody involve the return operation between Morocco and the other state of the child, it will take precedence over a non- parties to the convention in solving the complex return order made under article 13 of the 1980 problem of child abduction. Hague convention. The provisions on the rights of the child in the Forthcoming changes proposed regulation are very much to be welcomed ‘Complete automatic enforcement’ is the basis of an and will require important procedural changes in EC proposal for a new council regulation modifying Irish domestic law. Any such changes will need to be or repealing Brussels II (known as Brussels IIA). A fully backed up with adequate public funding of legal automatic enforcement regime takes no account of representation for children. the fact that circumstances change rapidly in child In summary, the effect of the proposed regulation matters. Indeed, the interlocutory nature of a will, in my opinion, be to change the application of parental responsibility order makes it unsuitable for the 1980 Hague convention within the EU. It will

12 Law Society Gazette April 2003 Cover story allow courts in the member states to which the child has been abducted to make non-return orders under CHILD ABDUCTION RULES the convention, but leave the courts of the child’s Statutory instrument 94 of 2001 sets down the rules regarding child abduction habitual residence to make final orders on custody and inserts order 133 into the Rules of the Superior Courts. Rule 2 principally according to the merits until the child has acquired a governs applications for the return of a child removed to or from the state. It habitual residence in another member state. provides that all applications shall be brought by way of special summons. A different regime will apply to abduction within Rule 2 requires an affidavit verifying proceedings and having regard to the member states and outside such states. This is matters detailed in article 8 of the 1980 Hague convention (rule 3(1)). The regrettable, given the fact that the majority of affidavit should, where possible, be accompanied by the following: applications to member states come from outside the • Information on the identity of the applicant, the child and the person alleged to European Union. While Brussels IIA will take have removed or retained the child precedence where the child is within the EU, the • The child’s birth certificate, where available 1980 Hague convention applies where the child is • The grounds on which the application for the return of the child is based outside the European Union. This should make for •All available information as to the child’s whereabouts and the identity of the some interesting forum shopping by personal person with whom the child is presumed to be. litigants. Rule 4 provides that a respondent may deliver a replying affidavit, which must be Hague child protection convention 1996 served on the applicant within seven days of the grounding affidavit being served. The Hague child protection convention 1996 came into The replying affidavit must detail the grounds of the defence that will oppose the force on 1 January 2001. The 1996 convention has a application (rule 4(2)). Rule 4(3) enables the applicant to file a further affidavit potentially much wider scope than any of the other within seven days of the replying affidavit being served, to respond to any issue Hague conventions affecting children. Its ambit is or matter alluded to by the respondent. wider than that proposed under Brussels IIA. Ireland Rule 5 requires the court to facilitate an early hearing, which is to be has already passed the implementing legislation in conducted on the basis of affidavit evidence only, save in exceptional the form of the Protection of Children (Hague circumstances where the court may ‘direct or permit oral evidence to be Convention) Act, 2000. At their meeting on 29 adduced’. November last, the EU council approved a draft decision authorising the member states to sign the 1996 convention. A declaration attached to the states to fulfil the purposes of the 1996 convention. decision states that this convention is to enter into Article 32 could be useful in the context of child force at the same time as the Brussels IIA regulation. abduction in that it provides that the authorities of As regards jurisdiction, there are a number of another state may, for specified reasons, request the rules dealing with different aspects of the 1996 central authority of a child’s habitual residence to convention. The main rule, contained in article 5, is begin measures to protect a child’s to ascribe jurisdiction to the state of the child’s person. In summary, the habitual residence, and jurisdiction will change 1996 Hague convention with any changes in habitual residence. That provides an important application of the law of the state of habitual additional control on residence is unaffected by a wrongful international child abduction. removal or retention unless Compared to other circumstances similar to the international instruments, the exceptions to parental child 1980 Hague convention is generally abduction in the 1980 Hague regarded as a success. The number convention are applicable. of cases where returns are refused Article 7 provides that, on the basis of one of the in cases of wrongful exceptions having been proven is removal or retention, very low. It would seem, however, jurisdiction remains in the that the progress achieved by the state of the child’s former convention could be imperilled habitual residence unless there by a competing EU instrument. has been acquiescence or one year has Insofar as the proposed Brussels IIA elapsed since the wrongful removal and regulation will impact on the client, the child is settled in its new any material conflict in substance or environment. Authorities can decline jurisdiction practice between it and the 1980 Hague convention is on the basis of forum non conveniens (the likely to cause difficulty, uncertainty and increased doctrine that gives courts a discretionary power to costs. The advantages brought about by an added refuse to take jurisdiction if there is some other tier of legislation in the form of the draft regulation available forum which is clearly more suitable for the are not obvious, though the pitfalls and tripwires are trial of the case). many. G As with other modern child conventions, it will be incumbent on each member state to establish a Geoffrey Shannon is the Law Society's deputy director of central authority to assist co-operation between education.

13 Law Society Gazette April 2003 Discovery The changing of DISCOV

The Master of the High Court, Edmond Honohan, recently issued a series of judgments clarifying the practice and procedure for seeking discovery of documents. Here, Andrew Fitzpatrick analyses the master’s decisions and provides draft documentation that should ensure your discovery application • Recent judgments in meets with success the Master’s Court hile order 31, rule 12(1) of the ‘necessary for disposing fairly of the cause or matter or for • Rules of the Rules of the Superior Courts has saving of costs’), the Irish courts frequently applied the Superior Courts always provided for two first condition (the ‘relevance’ test) but did not • Draft docu- conditions to be met by an examine the effect of the second (the ‘necessity’ test) mentation for W applicant seeking an order for in any great detail. practitioners discovery (that the documents sought relate ‘to any The authority dealing with the relevance test

MAIN POINTS matter in question therein’ and that discovery be effectively began and ended with the 1967 judgment of Kenny J in Sterling-Winthrop Group Limited v Farbenfabriken Bayer Aktiengesellschaft ([1967] IR 97). He held that ‘every document relates to the matters in question in the action … which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the [applicant] to advance his own case or to damage the case of his adversary’. For the following 30 years, this was the sole test applied by the courts when considering applications for discovery and was consistently followed without variation and without any analysis of the necessity test.1 Consequently, as the categories of document that satisfied this definition were quite broad, it used to be the case that one could obtain discovery of almost any document so long as it was possible to make some tenuous connection between it and the matters in issue in the case. The face of discovery began to change in 1999 with the Supreme Court judgment in Brooks Thomas Limited v Impac Limited ([1999] 1 ILRM 171). In that case, the plaintiff had brought an action claiming that the defendant had been negligent and in breach of a contract to provide management consultancy services and sought discovery of all documents ‘indicating the Impac approach to management consultancy’. Having observed that that it would be no answer to the plaintiff’s claim for the defendant to ‘point to any of these books and say that they followed what is laid down here’ (at p176), the court held that discovery

14 Law Society Gazette April 2003 Discovery DRAFTLETTER OF DISCOVERY face Re: Mark Smith v Peter Jones Dear Sirs,

We refer to the above matter and hereby request that your client make voluntary discovery of the following categories of documents: a) All medical records relating to the plaintiff for a period of five years prior to the date of the accident the subject matter of these proceedings Reason: The plaintiff has claimed in the statement of claim delivered herein ERY that he has suffered extensive injuries to his spine. The defendant disputes this claim and notes that the particulars of personal injury disclose that, prior to the accident, the plaintiff suffered from a painful condition of the lumbar ‘hardly seems necessary when it is remembered that spine. The documents are relevant to the state of the plaintiff’s health at the the respondents must first and foremost show a time of the accident and to the relationship between the lumbar spine breach by the [defendant] of some obligation or condition and the injuries of which he now complains other … arising out of the contract/relationship … b) All documents or memoranda concerning or relating to any earnings, business which in itself would entitle the respondents to interest, work or gainful employment carried on by the plaintiff in the five-year succeed’. period prior to the alleged accident the subject matter of these proceedings The court concluded by observing that because of Reason: The plaintiff has claimed that as a result of the alleged accident, he the growth in the number of discovery applications suffered serious injuries which he claims have caused him to lose earnings coming before the courts, the Superior Court Rules both immediately after the accident and into the future. The above Committee might consider changing the rules so as documents will allow the defendant to ascertain the earnings received by the to require a party seeking discovery to file an defendant in the five-year period prior to the alleged accident and the affidavit stating why it needed discovery of the relationship between that figure and the amount of earnings claimed to have particular documents. been lost c) All documents or memoranda concerning or relating to instructions and/or Material reasons training as received by the plaintiff from the defendant or any other source The committee considered this recommendation Reason: In the particulars of contributory negligence pleaded herein, the and, in 1999, order 31, rule 12 RSC was amended by defendant has alleged that the plaintiff failed to undertake the task as he the entry into force of the Rules of the Superior Courts had been trained. The above documents will provide evidence of the nature of (No 2) (Discovery), 1999 (SI 233 of 1999). Intending the training provided to the plaintiff discovery applicants were now required to first serve d) All documents or memoranda recording the contents of any communication the respondent with a letter specifying ‘the precise between the parties during the two-month period prior to the date of the categories of documents required and … the reasons conclusion of the contract the subject matter of these proceedings why each category of document is required’. One of Reason: The pre-contract representations made by the parties to the the effects of this amendment is that practitioners proceedings are in issue and the above documents will provide evidence of now need to ask themselves: ‘what documents do I what representations were made by the parties prior to the conclusion of the want and why do I need them?’ contract. The master of the High Court has delivered a series of written decisions that aim to provide Accordingly, please confirm that you will give voluntary discovery of the said guidance to practitioners on how to answer these documentation within 21 days hereof or alternatively an application will be questions. The most recent are Kelly v Van Den Burgh brought to this honourable court seeking said discovery pursuant to order 31, Foods Limited and Another (unreported, 16 January rule 12(1) RSC. 2003) and Clarke v Drogheda Corporation (unreported, Please note that any agreement on your part to make discovery would require 16 January 2003). These cases effectively summarise same to be made in like manner and form, and would have such effect as if the master’s approach when considering applications directed by order. Please also note that any failure on your part to honour any for discovery and are discussed in detail below. such agreement would result in an application being brought to this honourable In Kelly v Van Den Burgh Foods Limited and Another, court pursuant to order 31, rule 21 RSC. the master outlines several factors that should be [Author’s commentary: Where a party agrees to a request to make voluntary considered in discovery applications, of which the discovery but subsequently fails to honour that agreement, order 31, rule most pertinent are: 12(3) allows for an application to be made to have the plaintiff’s claim ‘b)Only material facts ought to have been alleged: if non- dismissed or the defendant’s defence struck out, depending on the identity of material (or ‘surplus’) facts have been alleged, discovery the defaulting party. will not be granted … However, such an application may only be brought where the original letter d) Only documents which may yield evidence probative of seeking voluntary discovery contains the statements contained in the a material fact will be discoverable … foregoing paragraph. If no such paragraph appears, an order for discovery will e) Has the party seeking discovery other proof or proofs of have to be sought before proceeding with any subsequent application.]

15 Law Society Gazette April 2003 Discovery

(b) to have caused or contributed to the accident. NOTICE OF MOTION Both these criteria (a) and (b) have to be met … [and] DRAFT c) The injury or loss sustained by the plaintiff’.

THE HIGH COURT The master has listed here all the facts that must be RECORD No 123P/2000 proved in order to succeed in the particular cause of action. Thus, in order to obtain discovery, Between: Mark Smith (plaintiff) and Peter Jones practitioners must show that the requested (defendant) documents relate to issues of fact upon which the applicant must succeed if he is to win his case. NOTICE OF MOTION The master’s description of facts that fail the test Take notice that on the … day of … 2003 at 10.30 in the forenoon or the first of materiality appears to be shorthand for facts available opportunity thereafter, counsel on behalf of the defendant herein will which are ‘non-causal’. The concept of a non-causal apply to the master of this honourable court sitting at the Master’s Court, The fact was dealt with by Murphy J in the case of Four Courts, Dublin 7 for: Cosgrove v Ryan and the ESB (unreported, 18 1) An order for discovery of all documents in the power, procurement or December 2002), who cited paragraph 2.18 of the possession of the plaintiff in the following categories: most recent edition of Law of torts by McMahon a) all medical records relating to the plaintiff for a period of five years prior to and Binchy, and continued: ‘McMahon and Binchy the date of the accident the subject matter of these proceedings classify causation (in the sense of searching for factual b) all documents or memoranda concerning or relating to any earnings, causes to an event) as a preliminary matter, intended to business interest, work or gainful employment carried on by the plaintiff in act as a filter for unstateable claims and to eliminate the five-year period prior to the alleged accident the subject matter of these factually inaccurate or far-fetched explanations for an proceedings event rather than an element the proof of which is c) All documents or memoranda concerning or relating to instructions and/or necessary to place legal responsibility upon a defendant. training as received by the plaintiff from the defendant or any other source They state that “when the field is narrowed by the d) All documents or memoranda recording the contents of any communication elimination of the factually irrelevant causes, the inquiry between the parties during the two-month period prior to the date of the must continue along those causes considered to be conclusion of the contract the subject matter of these proceedings. factually relevant, to establish whether they are legally [Author’s commentary: It should be noted that SI 233 of 1999 does not relevant to the court’s inquiry”.’ require that the reasons for which discovery of the documents is sought be re-stated in the notice of motion.] Other evidence 2) Such further and other orders Although the sorting of allegations of fact into 3) An order providing for the costs of this application. ‘material’ and ‘surplus’ piles may look like prejudgment of the factual issues in a case, such a Which said application will be grounded upon the proceedings already had criticism would only stand if the master embarked herein, this notice of motion and grounding affidavit of Roy Keane, the affidavit of on an analysis of the likely strength or weakness of service thereof, the nature of the case and the reasons to be offered. the evidence that might be adduced by each of the parties at the trial of the action. However, the Date: master does not take this approach and merely Signed: employs the methodology of the Supreme Court in Brooks Thomas Limited v Impac Limited and examines the elements that each party needs to prove in the fact to which the documents are stated to relate? If order to succeed in the case and whether the so, discovery is not necessary’. documents sought are relevant to these elements. In Clarke v Drogheda Corporation, the master From this it can be seen that that the master divides suggests the following list of questions that must be allegations of fact into two categories, material facts asked by applicants for discovery: and surplus facts, and in order to satisfy the necessity ‘Practitioners need to ask themselves simple questions: test an applicant must show that the facts to which what are the facts in dispute? which of these are the requested documents relate are ‘material facts’. material, and which surplus? what documents might What then is a ‘material fact’? The master makes lead to probative (and admissible) evidence concerning the following comments: the disputed material facts? can I prove the disputed fact ‘Difficulty often arises as to what is or is not a material without discovery?’ fact. Materiality is a question of law. The essential It is this final question that practitioners should ingredients of the (usual) cause of action in negligence especially note. Formerly, it may have been the case are: that a party could obtain discovery of documents a) The circumstances giving rise to the existence of a duty which related to a certain issue even though one of of care his own witnesses would be able to give evidence on b) The behaviour of the defendant alleged that same issue at the trial of the action. Now, (a) to fall short of the reasonable care to which the however, if at the trial of the action a party will be plaintiff is entitled either under common law or able to call a witness who will give evidence on a pursuant to statute, and particular issue, that party does not need discovery

16 Law Society Gazette April 2003 Discovery of documents which relate to that issue. Consequently, as can be seen from Kelly v Van AFFIDAVIT Den Burgh Foods Limited and Another, discovery of DRAFT safety statements will not be granted as such a document ‘is never the yardstick by which the THE HIGH COURT court determines the measure of what constitutes RECORD No 123P/2000 “reasonable care”: that adjudication is by reference to the standard of the reasonable man’. This would Between: Mark Smith (plaintiff) and Peter Jones (defendant) appear to have been the rationale followed by the Supreme Court in Brooks Thomas Limited v Impac AFFIDAVIT OF ROY KEANE Limited. Therefore, where safety is in issue, the I, Roy Keane, solicitor, of Station Road, Dublin 2, aged 18 years and upwards, master has held that a plaintiff does not need make oath and say as follows: access to the safety statement to prove want of 1) I am a solicitor in the firm of Murphy Solicitors, solicitors on record for the care; he can do that by simply calling expert defendant herein, and I make this affidavit for and on his behalf and from facts engineering evidence. within my own knowledge save where otherwise appears and whereso Furthermore, the master has held on previous otherwise appearing I believe the same to be true and accurate in every occasions that plaintiffs in personal injury actions respect do not need discovery of any accident report form 2) I beg to refer to the proceedings herein. As appears from the statement of that may have been prepared in respect of their claim herein, the plaintiff claims that on the … day of … accident; rather, they can simply give their own [Author’s commentary: A brief statement of the circumstances of the case evidence of what happened. may be inserted here but is not strictly required.] 3) I wrote to Messrs McGinty Solicitors, solicitors on record for the plaintiff in the Order for costs proceedings herein, on the … day of … 2003 seeking voluntary discovery of In summary, in order to obtain discovery of a the following documents: particular category of document, an applicant will a) all medical records relating to the plaintiff for a period of five years prior to have to demonstrate the following: the date of the accident the subject matter of these proceedings a) That the documents in question relate to issues b) all documents or memoranda concerning or relating to any earnings, of fact upon which the applicant must succeed if business interest, work or gainful employment carried on by the plaintiff in he is to win his case against the respondent, and the five-year period prior to the alleged accident the subject matter of these b) That he will not be able to prove his case on this proceedings issue unless discovery of the documents is c) all documents or memoranda concerning or relating to instructions and/or ordered. training as received by the plaintiff from the ESB or any other source d) All documents or memoranda recording the contents of any communication Apart from forcing practitioners to consider the between the parties during the two-month period prior to the date of the necessity of their applications for discovery, the conclusion of the contract the subject matter of these proceedings. effect of the Rules of the Superior Courts (No 2) I beg to refer to the said letter, upon which marked with the letters RK1 I have (Discovery), 1999 was broadened by the judgment of signed my name prior to the swearing hereof Morris P in Swords v Western Protein Limited ([2001] 4) I say that the reasons for which the defendants seek discovery of the said 1 IR 324), where he held that where the letter used documents are set out in the said letter to seek voluntary discovery failed ‘to pinpoint the [Author’s commentary: While SI 233 of 1999 states that the reasons for documents … required and … give the reasons why which discovery of the documents is sought be re-stated in the grounding they were required’, the master had no power to affidavit, the master has held that an averment is sufficient.] make a determination on the application. 5) I say that to date the plaintiff has failed to make discovery of the documents Since it was handed down, this decision has led set out at paragraph 3 above to numerous applications for discovery being 6) I say that discovery of the documents set out at paragraph 3 above is struck out in the Master’s Court, with an order for necessary for disposing fairly of the cause herein and/or for saving costs in the costs against the relevant applicant, on the grounds following circumstances: the plaintiff has no evidence of …/ the locus of the that the letter used by the applicant to seek accident has been substantially altered since the date of the accident … voluntary discovery failed to sufficiently identify 7) Accordingly, I beg this honourable court for an order in the terms of this notice both the documents sought and the reasons for of motion together with an order for costs. which their discovery was required. One of the reasons behind the large number of dismissals is that many parties seeking discovery Footnote have failed to appreciate the exacting nature of the 1 See Irish Shell Limited v Dan Ryan Limited burden placed upon them by Swords v Western (unreported, Costello J, 22 April 1986), Woodfab Protein Limited. On the basis of the master’s Limited v An Coillte Teoranta and Medite of Europe previous decisions, the draft letter, notice of (unreported, Flood J, 11 August 1995), and motion and grounding affidavit (see panels) are Aquatechnologie Limited v National Standards offered as sample documents that in previous Authority of Ireland (unreported, Supreme Court, applications have been upheld as complying with 10 July 2000). G Morris P’s dicta. Commentaries on certain aspects of these documents appear in square brackets. Andrew Fitzpatrick BL is a Dublin-based barrister.

17 Law Society Gazette April 2003 Family law SPLITDEC Two recent cases have set a benchmark for the distribution of assets in ‘clean-break’ divorce settlements. Ann FitzGerald discusses the judgments and the new questions they raise for family lawyers

erhaps one in five Irish marriages now run into trouble, yet the development of our jurisprudence in the area of what constitutes in financial terms a fair P outcome of divorce or judicial separation proceedings is only in its infancy. Is it possible to predict the likely distribution of family assets in these proceedings? Judicial separation was first introduced here in 1989 and divorce in 1997. The number of cases coming before the courts is increasing sharply. They are more complicated and frequently there are highly valuable estates involved. However, there have been few written judgments from the courts and so any new ones are greeted with great interest. Even if only the well-off can afford to contemplate proceedings in the High Court, nonetheless the judgments emanating from there and from the Supreme Court provide an insight into how the judiciary views the role of either spouse in a marriage. Up to recently, the leading case in this area was the High Court judgment of Mrs Justice Catherine McGuinness in D v D in 1997, which addressed the issue of finality, finding that a clean break was not permitted under Irish divorce or separation legislation. The seminal case of T v T (which produced five written judgments from the Supreme Court in October 2002) demonstrated how a wealthy couple fared when that court was called upon to ensure so- called proper provision was made for the wife, when her husband sought a decree of divorce. These judgments will form the basis of guidelines for property settlement on divorce and separation into the future.

18 Law Society Gazette April 2003 Family law CISIONS In T v T, the husband appealed an earlier High Court order granting him a divorce, subject to • T v T means payment of a lump sum of £5 million (€6.35 million) clean-break and a pension adjustment order whereby the wife divorce was to receive 55% of the accrued benefits on possible certain policies. The wife was also to renounce her • Yardstick for inheritance rights against his estate. The couple awards in big married in 1980 and had three children. Both were money cases professionals but the wife assumed the role of • Courts can homemaker and curtailed her career plans, while revisit pre-1989 allowing her husband to pursue his career agreements unhindered. They separated in 1994 and at that time the husband transferred about 30% of his wealth to MAIN POINTS the wife. By the time of the divorce, he had accumulated a further £14 million (€17.78 million) approximately. Thus, the case fell into the category known as ‘ample resources’ (formerly referred to as a ‘big money’ case). The Supreme Court dismissed the husband’s appeal and made a number of cardinal findings in its judgments.

Fairness versus finality The Chief Justice, Mr Justice Keane, disapproving of the judgment in D v D, declared that, where possible, and to avoid future litigation between the parties, the courts should facilitate a so-called clean break on divorce to achieve certainty. According to Mr Justice Fennelly, ‘the desire of litigants for finality should not be frustrated’. This is a welcome change in approach and now allows spouses the possibility of a clean break when proper provision has been made. The court found in T v T that the wife had contributed greatly to the husband’s ability to accumulate wealth, even though the cream of this wealth had been accumulated after the separation. Mrs Justice Denham was of the view that there was a direct link between these increased assets and the wife’s input into her husband’s professional practice. Thus, if there was no such link and if one party after separation ‘commenced and achieved success in a wholly new area’, then Mrs Justice Denham suggested that these newly-acquired assets might not form part of the asset base on a divorce. All assets in principle come into the reckoning,

PIC: REX FEATURES and to facilitate a clean break the court considered

19 Law Society Gazette April 2003 Family law

that the ‘reasonable requirement’ of the in each case. Yet this begs the question as to why a dependent spouse in an ‘ample resources’ one-third and not one-half distribution? This is not case called for a yardstick of 33% to 50% of further elaborated on in the judgment of the chief the capital assets. justice save that reference is made to a rule of thumb Frequent reference is made to the recent calculation when assessing maintenance payments, House of Lords judgment in White v White which does not appear to have an automatic and the Court of Appeal judgment in Cowan application to the distribution of capital assets. It is v Cowan. However, direct comparison is not to be hoped that a further opportunity will arise in possible. First, the stated objective of the the future to examine this thorny issue. Irish Divorce Act is the need to make ‘proper provision’, which is not Lack of money replicated in the UK Mrs Justice Denham’s judgment provides perhaps legislation. Second, the more clarity: ‘The Irish law on divorce does not provide clean break has been a for property division. Indeed, it is irrelevant in very many given in the UK for cases where there is not enough money for two homes many years whereas it where one had existed and where lack of money is a severe has only become a concern and limiting factor for both spouses and children. possible option in In cases of ample provision, such as this, the sums involve limited cases in this more than essentials. Each case must be decided on its own jurisdiction by virtue of circumstances. However, there are relevant fundamental T v T. Third, the legal principles – such as to recognition of spouses’ work in Irish Succession Act the home – as to spouses’ rights under the Succession Act grants automatic – as to the place of the family in our society. inheritance ‘Consequently, I agree with the chief justice that a entitlements to figure of one third of the assets may be a useful benchmark spouses. This is not to fairness. Against that bench may be aligned, both mirrored in the UK. positively and negatively, the specific circumstances of a case, and in particular the factors set out in section Yardstick of equality 20(2)(a) to (i) of the act of 1996. The UK judgments and the Supreme Court in T v T ‘The concept of one third as a check on fairness may examined the so-called ‘yardstick of equality of well be useful in some cases; however, it may have no division’ of assets. While rejecting such equality, they application in many cases. It may not be applicable to a suggest that ‘a calculation of what would be the family with inadequate assets. It may not be relevant to a result of equal division is a necessary cross-check family of adequate means if, for example, such a sum against discrimination against the stay-at-home could only be achieved by a sale of assets which would ‘A calculation spouse’ (see Thorpe LJ in Cowan v Cowan). destroy a business, or the future income of a party or In plain English, our legislation does not mandate parties, or if it related to property brought solely by one of what would equal division because ‘proper provision’ is the test. party to the marriage, or any other relevant circumstance. be the result Nonetheless, the trial judge should calculate what It may not be applicable to a situation where a party has amounts to equal division so that in making ‘proper wealth from his or her own endeavours to which the other of equal provision’ he or she ensures that there is no party has no claim except under the factors set out in division is a discrimination against the non-earning spouse. section 20(2)(a) to (i) of the act of 1996’. In T v T, Mr Justice Keane declared that: ‘The use The time for determination of what is so-called necessary of the one-third share of the estate to which the respondent ‘proper provision’ is the date of the hearing of the cross-check would otherwise have been entitled under the Succession divorce application, not the date of separation, nor Act as a yardstick is more questionable. Such an the date when the divorce proceedings were against inheritance depends on the contingency of the applicant initiated. discrimination predeceasing the respondent and, in the normal course, The concept of ‘proper provision’ comes directly would, in any event, be deferred for many years. The Irish from the wording of the divorce referendum put to against the courts, however, dating from times when family law cases the people in 1996 as the 15th amendment to the stay-at-home were far less frequent and complex, traditionally constitution, inserted in article 41, and passed by the approached the assessment of maintenance on the basis narrowest of margins. Thus, one can only be granted spouse’ that, all things being equal, the amount of maintenance a divorce by a judge if the judge is satisfied that should be one third of the disposable income of the earning proper provision exists or will be made for the (first) partner, then almost invariably the husband. To that spouse and any dependent children. The criteria to limited extent, the court might be justified in treating, in be taken into account in determining this issue are “ample resources” cases, one third of the net assets as a elaborated on in the divorce legislation, the Family yardstick at the lower end of the scale’. Law (Divorce) Act, 1996, and includes explicit So we finally arrive at a ‘one third yardstick at the recognition of the role of a spouse in ‘looking after lower end of the scale’, which indicates a distribution the home or caring for the family’ (section 20(2)(f)) on divorce of not less than one third, rising up to and the ‘effect on the earning capacity of each spouse possibly an ‘equal division’, depending on the factors of the marital responsibilities assumed by each’ and

20 Law Society Gazette April 2003 Family law

‘the degree to which the future earning capacity of a repugnant to anyone’s sense of justice. spouse is impaired by reason of having relinquished In such a case, the court remains free or forgone the opportunity of remunerative activity to decline to afford financial support or in order to look after the home or care for the to reduce the support which it would family’ (section 20(2)(g)) (see panel). These factors otherwise have ordered. But, short of first entered the Irish legislative framework in the cases falling into this category, the Judicial Separation and Family Law Reform Act, 1989 court should not reduce its order for and were repeated, with slight changes, in the later financial provision merely because of divorce legislation. what was formerly regarded as guilt Given the magnitude of the lump sum awarded, or blame. To do so would be to the court made it clear that it would be ‘unlikely in impose a fine for supposed the extreme that a court would see fit to order misbehaviour in the course of an payment of an increased lump sum or payment by unhappy married life’. way of maintenance’, in the future, thereby effecting We now have the more recent a ‘clean break’ between the parties in financial terms. High Court decision in the case of K In particular, the chief justice approved of this v K,a judgment of Mr Justice approach ‘given the desirability of avoiding future Iarfhlaith O’Neill of litigation between spouses whose marriages have January 2003, which, irretrievably broken down’. Mr Justice Keane went coming hot on the on to declare that ‘it seems to me that, unless the heels of the courts are precluded from so holding by the express Supreme Court terms of the constitution and the relevant statutes, judgment in T v T, Irish law should be capable of accommodating those aspects of the “clean break” approach which are clearly beneficial’.

Judicial discretion FAMILY LAW As Denham J observed in F v F (Judicial Separation) ([1995] 2IR 354), certainty and finality can be as (DIVORCE) ACT, 1996, SECTION 20(2) important in this as in other areas of the law. The court shall, in particular, have regard to the following matters: Undoubtedly, in some cases finality is not possible a) The income, earning capacity, property and other financial recourses which and thus the legislation expressly provides for the each of the spouses concerned has or is likely to have in the foreseeable variation of custody and access orders and of the future level of maintenance payments. I do not believe that b) The financial needs, obligations and responsibilities which each of the spouses the Oireachtas, in declining to adopt the ‘clean has or is likely to have in the foreseeable future (whether in a case of the break’ approach to the extent favoured in England, remarriage of the spouse or otherwise) intended that the courts should be obliged to c) The standard of living enjoyed by the family concerned before the proceedings abandon any possibility of achieving certainty and were instituted or before the spouses commenced to live apart from one finality and of encouraging the avoidance of further another, as the case may be litigation between the parties. d) The age of each of the spouses, the duration of their marriage and the length It was emphasised by the court that ultimately of time during which the spouses lived with one another each case must be judged on its merits and the judge e) Any physical or mental disability of either of the spouses should specifically examine each of the factors set out f) The contributions which each of the spouses has made or is likely in the in section 20 of the Divorce Act so as to produce a foreseeable future to make to the welfare of the family, including any fair result. This reliance on judicial discretion contribution made by each of them to the income, earning capacity, property renders it difficult for lawyers to advise clients on the and financial resources of the other spouse, and any contribution made by potential outcome of their case where no two cases either of them in looking after the home or caring for the family can ever be the same. Further, given the in camera g) The effect on the earning capacity of each of the spouses of the marital rule and its strict interpretation in this jurisdiction, responsibilities assumed by each during the period when they lived with one much of the information emanating from the courts another and, in particular, the degree to which the future earning capacity of a is anecdotal only, and this arguably does not serve spouse is impaired by reason of that spouse having relinquished or forgone the the public interest. opportunity of remunerative activity in order to look after the home or care for The issue of what weight a spouse’s (bad) conduct the family should be given as a factor under section 20(2)(i) is h) The conduct of each of the spouses if that conduct is such that in the opinion dealt with by Mrs Justice Denham, and she adopts of the court it would in all the circumstances the case be unjust to disregard it with approval the approach of the former British i) The accommodation needs of either of the spouses Master of the Rolls, Lord Denning, in 1973 as j) The value to each of the spouses of any benefit (for example, a benefit under a follows: pension scheme) which, by reason of the decree of divorce concerned, that ‘There will no doubt be a residue of cases where the spouse will forfeit the opportunity or possibility of acquiring conduct of one of the parties is in the judge’s words “both k) The rights of any person other than the spouses but including a person to obvious and gross”, so much so that to order one party to whom either spouse is remarried. support another whose conduct falls into this category is

21 Law Society Gazette April 2003 Family law

makes interesting reading. (The case has not been appealed as of the date of writing.) In a lengthy and well-reasoned judgment, Mr Justice O’Neill has an early opportunity to implement the guidelines set out in the Supreme Court judgments in T v T. The couple married in 1963 and there were six children of the marriage. They separated in 1980 and concluded a deed of separation as of January 1982. The husband sought a divorce in the Republic of Haiti in 1984 without notifying the wife and went on to ‘re-marry’ in the United States in 1985. This second marriage is clearly not recognised in this jurisdiction. At the same time, he progressed from his early days on the shop floor in a factory in Britain to end up as president of a multinational company in the USA. Meanwhile, the wife remained in Ireland caring for the six children and did not work outside the ‘Should home. The husband continued to pay the original marriage sum agreed in maintenance, which was only increased in line with the consumer price index. The provide the judge was of the view that the husband was fortunate non-earning not to have faced an earlier variation application. The husband did make other payments in addition to spouse caring the maintenance and responded to a variety of for home and requests to defray the cost of the children’s education and to contribute towards maintaining and repairing the children the family home, in which the wife continued to with a so- reside, although it remained jointly owned. In 1994, the wife rented out the family home and moved to called meal live in a Dublin bedsit so that she could attend a of living had improved greatly. From the time he had ticket? Is third-level college. She completed a primary degree, moved to the US, ‘he moved, as it were, in a an MA and contemplated further post-graduate different league and from then on enjoyed a very divorce a studies. At the date of the High Court judgment, the wealthy standard of living, commensurate with the feminist couple were in the 40th year of their marriage. very large income he had from then on’. The judge went on to examine individually and at issue?’ The best years length each of the other factors set out in section 20 Mr Justice O’Neill made explicit reference to the of the 1996 act, and, while conscious of the so-called judgments in the T v T case and found that ‘the role one third yardstick at the bottom end of the scale as of the dependent homemaker and child carer, usually a bench mark, believed he would avoid any the wife, should not be disadvantaged in the discrimination against the wife because of her status distribution of assets by reason of having a non- as homemaker and child carer. He ordered payment economic role’. In K v K, the wife had spent 30 years of a lump sum to the applicant of €450,000 plus the nurturing and rearing the children of the marriage respondent’s half-share in the family home, while the basis for the husband’s ultimate success was amounting to approximately 33% of the respondent’s in place from the breakdown of the marriage in 1980 assets. In addition, he awarded maintenance to the and, as Judge O’Neill put it at page 41: ‘No doubt wife of €40,000 a year, secured in part by an order when the separation did take place, it was probable over 100% of the respondent’s Irish pension. that his freedom thereafter from day-to-day family Mr Justice O’Neill concluded by declaring: ‘I am responsibilities would have further enhanced his quite satisfied that at the time when this application was capacity to devote himself to the development of his initiated, the terms of the separation agreement fell far career’. The wife’s standard of living declined in the short of providing “proper provision” for the applicant and years subsequent to the separation, whereas by the indeed I would be of the view that for many years prior to end of the 1980s the husband’s income and standard the initiation of these proceedings the separation

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22 Law Society Gazette April 2003 Family law agreement failed to make adequate provision for the maintenance into the future applicant. The gap or shortfall that has occurred is the 7) A spouse anxious to move on and progress after a result of the passage of time, the limited range of legal separation would be well advised – all other things reliefs available in 1981 and the enormous gulf that being equal – to seek a divorce as soon as possible developed between the fortunes of the applicant and the after the four years’ minimum living apart period respondent over the intervening years’. has passed so as to minimise exposure of assets The case of K v K dealt with a very old separation acquired post-separation agreement entered into prior to the Judicial 8) Future variation of capital and/or maintenance is Separation Act, 1989. This act provided for legislative not likely where a large capital sum is awarded, recognition of the stay-at-home spouse, moving away thereby allowing severance in financial terms. from the position up to then which gave such a Finality on maintenance to a spouse will be spouse a shared interest in the family home or other difficult to achieve, but not impossible – all the assets only where that spouse could prove a direct or more so if dependent children remain, even with a indirect contribution to the acquisition of those separate award of maintenance for the children assets, which, more often than not, a non-earning 9) The jury remains out on whether a recent spouse was unable to do. It was therefore quite separation agreement or consent order for judicial predictable that a judge, reviewing an agreement separation incorporating a clause ‘in full and final more than 20 years later on a divorce application, settlement’ is likely to hold good on a divorce. would consider it just and prudent to re-open The decision in T v T gives grounds for optimism matters in the light of changed circumstances, that it will eventually receive judicial approval, including the more progressive legislation. particularly where full disclosure has been made with an exchange of affidavits of means. All assets considered Insofar as it is possible to extrapolate from the Debate will centre on the age-old issue of reward or particular to the general in this area of the law, let us compensation to the spouse with the non-economic examine suggested parameters for future cases: role. This model of a marital relationship may be 1) All assets in principle, from whatever source and outdated, as Mr Justice Keane declared in T v T regardless of when acquired, come into below: consideration when examining what might be ‘In Irish society today, it can no longer be assumed that ‘proper provision’ for divorce. Inherited assets are the husband and wife will occupy their traditional roles in more likely to be disregarded where the overall which the husband has been the breadwinner and the wife size of the estate for distribution is large the homebuilder and carer. The roles may on occasions 2) ‘Old’ separation agreements dating back to before even be reversed and, in many instances, both husband the 1990s are likely to be reviewed for proper and wife will be in receipt of income from work. In those provision if a divorce is sought cases where one spouse alone is working and, in the result, 3) The stay-at-home spouse (of either sex) who has a significantly greater responsibility for looking after the given their ‘best years’ will be entitled to share in home has devolved on the other, it is clear that under the good fortune of the spouse freed to develop section 20(f), the court must have regard to that as a their own career. The long shadow thrown over relevant factor. Moreover – and this is of particular the accumulated wealth of the career spouse can significance in the present case – the court is obliged by go back more than 20 years as in the K v K case virtue of sub-paragraph (g) to have regard to the and is not ‘disconnected’ or too remote, financial consequences for either spouse of his or her particularly where there are numbers of dependent having relinquished the opportunity of remunerative children activity in order to look after the home or care for the 4) By contrast, a recent separation agreement or family’. consent judicial separation entered into with Clearly, in the Ireland of the 21st century, in many appropriate advice, where all assets and the various cases both spouses will engage in economic activity factors have been addressed, could form the basis outside the home and thus the ‘yardsticks’ may have of ‘proper provision’ for divorce unless there has less relevance. Responsibility for the care of the been a material change in circumstances children remains a live issue, and couples will make 5) Where assets are limited and not in the ‘ample appropriate adjustment to their careers as required. resources’ bracket, arguably a benchmark of an However, in so-called ‘ample resources’ cases, one equal distribution of the net assets will apply, once spouse may have the opportunity to accumulate far consideration of the factors in section 20 has been greater assets than the other, and a number of made questions must be addressed: Is marriage a 6) Where the ‘proper provision’ hurdle is overcome, partnership? Should marriage provide the non- the question of whether this can be a final or a earning spouse caring for home and the children clean-break settlement will depend on the factors with a so-called meal ticket? Is divorce a feminist in section 20 (of the Family Law (Divorce) Act, issue? And what does the Irish public want? G 1996). Where there are ample resources, a benchmark of 33% to 50% of the net assets is Ann FitzGerald is a partner in the Cork law firm suggested, possibly including capitalised FitzGerald and O’Leary.

23 Law Society Gazette April 2003 Company law Accounting for

Auditors who suspect clients of serious company law offences now have to report this to the director of corporate enforcement. Solicitors can expect plenty of requests for advice from them and their clients as a result, writes Emmet Scully

he fallout from last year’s Enron scandal reporting obligation, it cannot be relied on as a legal put senior Andersen partner David interpretation of the legislation. In fact, the director Duncan and his colleagues in a US senate has specifically reserved the right to take action that committee dock, because they ignored may or may not be in accordance with the provisions T the public interest element of the of the decision notice. auditor’s job and collided with the company. At the Section 194(5) is concerned with suspected same time, auditors in this country found themselves indictable offences committed by a company or its under a new public interest duty to report serious officers or agents. The term ‘company’ means a corporate crime to the authorities. company established under the Companies Act, 1963 Section 74 of the Company Law Enforcement Act, and certain preceding legislation. The obligation does 2001 expands auditors’ duties to report certain not extend to companies formed outside the state or breaches of the Companies Acts. It inserts a new sub- to building societies or friendly societies and so on. section (5) into section 194 of the Companies Act, Appleby states in paragraph 8.7 of the decision notice 1990, stating that: that ‘where the audit is of the consolidated financial ‘Where, in the course of, and by virtue of, their carrying statements of a group of companies, the obligation to out an audit of the accounts of the company, information report applies to each group company individually’. comes into the possession of auditors of a company that leads them to form the opinion that there are reasonable Reasonable grounds grounds for believing that the company or an officer or The officers of a company include its directors agent of it has committed an indictable offence under the (including shadow directors, as defined in the Companies Acts, the auditors shall, forthwith after Companies Act, 1990, s27), the secretary and/or the • Auditors’ new having formed it, notify that opinion to the director [that company’s auditor in certain specified circumstances. duty to report is, the director of corporate enforcement] and provide The term ‘agent’ can conceivably include a company’s offences the director with details of the grounds on which they solicitor where the solicitor is authorised to bind the • Offences must have formed that opinion’. company and is acting in that capacity. come to light By the end of 2002, the Office of the Director of Section 194(5) of the Companies Act, 1990 requires during audit Corporate Enforcement (ODCE) had received 395 an auditor to report to the director where the auditor • Reporting not reports from auditors. In a statement issued on 3 has formed the opinion that there are reasonable a breach of January, Director of Corporate Enforcement, Paul grounds for believing that an indictable offence under confidentiality

Appleby, said his office was getting 80 such the Companies Acts has been committed. The acts MAIN POINTS notifications a month from auditors and predicted provide for both summary and indictable offences. It that the number of notifications for 2003 could be is up to the director to decide if any particular double that received in 2002. reported matter should be prosecuted summarily or He has issued a decision notice (D/2002/2, see referred to the director of public prosecutions (DPP) www.odce.ie) giving guidance on the application of for prosecution on indictment. Appendix two of the section 194(5). The ODCE prepared this in decision notice lists the indictable offences under the conjunction with the Auditing Practices Board (APB) Companies Acts, 1963 to 2001. and the Consultative Committee of Accountancy In considering whether or not to report a matter Bodies – Ireland (CCAB-I). In light of the fact that under section 194(5), it would be irrelevant for an the APB and CCAB-I have approved the decision auditor to enquire whether the offence will be notice, it is likely that many auditors will rely heavily prosecuted summarily or on indictment. Equally, an on its contents for guidance until a new statement of auditor should not take into consideration the fact accounting standards is published on this topic. that another party may have already brought the While the decision notice contains a useful matter to the director’s attention, when deciding discussion of some of the implications of the new whether or not he will report it to the director.

24 Law Society Gazette April 2003 Company law AUDITORS AND THE LAW While recognising that an auditor cannot be expected to detect all possible non-compliance of laws and regulations, Statement of accounting standards 120 CRIME (SAS 120) specifically identifies two main categories of laws and regulations which are relevant to an audit. The first is those which relate directly to the preparation of, or the inclusion or disclosure of, specific items in the client’s financial statements. The second category is those which provide the legal framework within which the client conducts its business, and which are essential to the client’s ability to conduct its business. SAS 120 specifies that laws and regulations are essential to a client’s ability to carry out its business where compliance is necessary to obtain a licence to operate it, or where non-compliance may reasonably be expected to result in the client ceasing operations, or otherwise call into question the client’s continuation as a going concern. For example, SAS 120 instances a situation where the non-compliance accounts for a substantial portion of the client’s profits, or where the level of fines or damages that the client could suffer could jeopardise the company’s future as a going concern. SAS 120 provides a number of practical examples of where auditors are expected to have some knowledge of the laws and regulations affecting a client’s business. Where a client’s major activity is the development of a single property, the auditor would be expected to obtain a general understanding of the planning regulations or consents to which the company is subject or may need. Director of Corporate Another example is where the client is a waste disposal Enforcement Paul The new law does not impose legal obligations on company. In this case, the auditor may need to get a Appleby accountants or firms that are only providing non-audit general understanding of the licences for disposing of services to clients. But the position is not as hazardous waste that the client holds. straightforward where a firm performs, or has SAS 120 directs that auditors should ask performed, non-audit services for a client and is then management to outline the laws or regulations that are appointed auditor to that company. essential to the company’s ability to conduct its The duty to report applies to information that business. It also requires them to ask management to comes to the attention of the auditor ‘in the course of, outline the policies and procedures for complying with and by virtue of, their carrying out an audit of the ‘Auditors those laws and regulations. In addition, it directs accounts of the company’. In his notice, Appleby will have to auditors to discuss with management the policies and argues, with reference to Statement of accounting procedures for identifying, evaluating and dealing with standards 620 (SAS 620), that an auditor should take react if they litigation risk. proper account of information obtained in the course suspect an Auditors are also directed to help identify possible of non-audit work carried out by the firm’s staff, where or actual incidences of non-compliance by: it could affect the audit. offence has •Obtaining a general understanding of the legal and Section 194(5) does not require an auditor to form a been regulatory framework that applies to the client and definitive view that an indictable offence under the the industry, and the relevant compliance procedures Companies Acts has been committed. Rather, it provides committed’ • Inspecting correspondence with the relevant that the reporting obligation arises when he has licensing or regulatory authorities formed the ‘opinion that there are reasonable grounds •Asking the directors if they are aware of any for believing that’ such an indictable offence has been possible incidents of non-compliance with laws and committed. regulations, and The director of corporate enforcement states that • Obtaining written confirmation from the directors auditors will be expected to react to information that they have disclosed to the auditors all those coming into their possession which suggests that an events of which they are aware that involved indictable offence has been committed, and to make possible non-compliance.

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them to form an opinion. Paragraph 11.3 of the notice lists specific examples of where an auditor’s delay in notifying the director of a suspected offence could compromise the effectiveness of enforcement or other remedial action which the director could take. These include fraudulent trading, insider dealing and failure to keep proper books of accounts. Where auditors intend reporting a company, Appleby’s notice encourages them to give its officers and agents the opportunity to submit their views with the report, except where the auditors doubt the integrity of anyone involved. The submission should include details of any corrective or remedial action they have taken or propose taking. The notice recommends that the company be given two days for this. It appears to be open for officers and agents to make separate submissions to the ODCE.

PIC: REX FEATURES When a report is made, the ODCE will investigate On oath: David Duncan, former Anderson partner-in- charge of Enron testifies before a senate committee the matter further. The director has extensive powers to demand additional information from the company. ‘Auditors the necessary enquiries to enable them to form a Its policy on bringing prosecutions is not clear, but it may wish to considered opinion on the matter. He draws attention has indicated that it is less likely to prosecute if the to auditors’ powers under section 193(3) of the suspected offence has been rectified. seek Companies Act, 1990 which entitles them to require the Section 74 of the Company Law Enforcement Act, independent company’s officers to give them any information that 2001 introduces a new sub-section (6) into section 194 they think necessary for the performance of their duties. of the Companies Act, 1990: legal or If the auditor has sufficient information to form an ‘No professional or legal duty to which an auditor is subject professional opinion that there are reasonable grounds for believing by virtue of his appointment as an auditor of the company that an indictable offence under the Companies Acts has shall be regarded as contravened by, and no liability to the advice as occurred, then that triggers the obligation to notify the company, its shareholders, creditors or other interested part of the director of corporate enforcement. parties shall attach to, an auditor, by reason of his If the information does not of itself ground such an compliance with an obligation imposed on him by or under process of opinion, existing professional standards require the this section.’ forming their auditor to investigate further. If a company officer refuses to give any information or explanations Consequences for lawyers opinion, but requested of him, then that, together with the other If an auditor is to benefit from the statutory says they information known to the auditor, may form the basis protection afforded by section 194(6) of the Companies for coming to the required opinion. Act, 1990, the suspected offence and the circumstances are not In his decision notice, Appleby recognises that giving rise to the formation of the auditor’s opinion obliged to auditors may wish to seek independent legal or must come within the scope of section 194(5). If an professional advice as part of the process of forming auditor consults a client’s solicitor in the course of do this’ their opinion, but says they are not obliged to do this. forming his opinion on matters covered by section He warns that obtaining such advice does not excuse 194(5), the solicitor should be mindful of his duties of an auditor from exercising his professional judgement confidentiality to his client as section 194(6) does not on whether the information he holds should be afford solicitors any protection. reported. The decision notice specifically states that an Section 194(5) is so broadly drafted it is inevitable auditor will not be entitled to rely on legal or other that auditors will report to the ODCE with increasing professional advice if he felt that it was mistaken, frequency. These are likely to range from fairly incomplete or otherwise inadequate. technical breaches of the Companies Acts to far more Section 194(5) states that auditors are required to serious infringements. In many cases, auditors will notify the director immediately after forming the seek advice from either client companies’ solicitors or opinion that there are reasonable grounds to believe from independent solicitors on the application of the that an indictable offence under the Companies Acts has reporting obligation. Solicitors will also be asked for been committed. (Appendix three to notice D/2002/2 is advice on whether an auditor is justified in making a the report form.) report, and on the likely consequences of making a Appleby acknowledges that auditors may not be able report. Finally, they will have to deal with follow-on to form an opinion immediately, as they may need to investigations by the ODCE and to defend clients get further more information from company officers where such reports result in prosecutions. G and/or employees. But he states that auditors must also carefully consider the nature of the circumstances that Emmet Scully is a partner in the Dublin law firm LK have come to light in assessing how urgent it is for Shields Solicitors.

27 Law Society Gazette April 2003 Competition law

The Competition Authority is getting tougher on cartels, armed with new powers to pursue price-fixers. The US busted its cartel problems years ago and Ireland might take some pointers from that experience, writes Terry Calvani

he success of American cartel • Meaningful enforcement can be attibuted to sanctions criminalisation of the offence. The • Sentencing American experience cannot necessarily guidelines T be ‘transplanted’ to here. Ireland is a • Immunity different country with different traditions, somewhat programme different laws, and a different judicial system. We must understand and respect those differences. MAIN POINTS Nonetheless, there may be lessons from the American experience that have value to Ireland. This article seeks to explore some of these experiences and to share a few thoughts on their applicability to this country. The Irish cartel programme has evolved and its current contours are not fixed in stone. The insights US and them

of the business and legal communities and the public The situation today in the US is dramatically at large are most welcome. different from what it was not so many years ago. Price-fixing in America occurs much less often There are at least five reasons for the change. than it did in the past. This is a good thing for First, Congress amended the law to make price consumers. Like their Irish counterparts, they have a fixing a felony (see 15 USC s1 (2000)). As a result of right to expect that prices paid for goods and services that amendment and more recent changes in the law, are determined by operation of the free market. one can serve three years’ imprisonment and pay Competition increases consumers’ well-being and substantial fines. better ensures a vibrant economy. While there are Examples of changes include the Comprehensive some price-fixing cases in the US, for example, the Crime Control Act and the Criminal Fine Improvement art auction cases (see United States v Taubman, no 02- Act, which provides that a fine may be increased to 1253, 2d Cir: filed April 20, 2002), there is much less twice the gain from the illegal conduct, or twice the domestic cartel activity today than before. loss to the victims. Levied fines have been as high as $500 million. It is a serious offence. Call in the feds Second, the antitrust division began using special When I was called to the Californian bar in 1972, agents of the Federal Bureau of Investigation (FBI) price-fixing was illegal in the US. It was also for assistance in cartel investigations. FBI agents now common. Many in the business community thought routinely staff these investigations. Indeed, agents are it ‘technically’ illegal; certainly not illegal in the same actually seconded to the field offices of the antitrust sense as stealing. While the antitrust division of the division, where they work together with division US Department of Justice prosecuted price-fixers, the attorneys in jointly investigating cartels. sanctions imposed by the courts were often trivial. Third, these FBI agents have brought with them For example, a well-respected judge (who later served the techniques used to combat serious crime. as deputy attorney general under President Carter) Antitrust investigators now routinely employ sentenced convicted price-fixers to give speeches to computer forensics, ‘wire’ witnesses, conduct Rotary club lunches on the evils of price fixing. ‘ambush’ interviews and other such tactics in the

28 Law Society Gazette April 2003 Competition law

These changes have significantly reduced the incidence of cartel behaviour in the US. What lessons do these changes in US law and practice hold for Ireland? Mindful that such lessons may not be transplantable in different soil, some merit discussion. As a result of recent legislative changes and the reorganisation of the Competition Authority, Ireland is now poised for serious cartel enforcement. Significantly, sanctions have been increased under the Competition Act, 2002. Like the US, Ireland today treats price-fixing as an indictable offence, with meaningful sanctions. Conviction carries a maximum five-year term of imprisonment under section 8 of the act. Second, the cartel division now has career detectives seconded to the unit to assist in the development of cases. These professionals, seconded or hired from An Garda Síochána, now work together with case officers at the Competition Authority. The mere presence of a garda detective in an interview or on a search has a demonstrable effect: suspects appreciate that cartel activity really is a crime.

Wires and phone taps Third, the cartel division is also employing criminal investigative techniques in its investigations. For example, the unit now has the ability to employ computer forensics to better capture electronic communications on searched computers. It now has the power to arrest suspected offenders and detain them for questioning. Unlike the US, the unit has not, to date, ‘wired’ individuals nor tapped phone lines. While the laws of m this country limit the use of these investigative methods, we should not reject applications for authorisation to use such devices in cases where it is course of antitrust investigations. Investigation has appropriate. The cartel division is now beginning to been professionalised. investigate cartel behaviour as the crime that it is. Fourth, the antitrust division implemented an Fourth, Ireland now has a cartel immunity immunity programme which has enjoyed dramatic programme (published on 20 December 2001, available success. The corporate leniency policy was from the Competition Authority). In time, we believe it promulgated by the Department of Justice in 1978 will prove to be a most valuable arrow in the authority’s and revised in 1993. An immunity programme for quiver. The success of the programme is contingent on individuals was established the following year. the wrongdoers’ perception that the choice is between Under this programme, a cartel participant can get providing evidence and going to prison. Having said complete immunity from criminal prosecution by that, one ought not conclude that the immunity providing new evidence to the division that enables it programme is not working. Suffice it to say that it is to prosecute. This classic ‘divide and conquer’ tactic now active. has been spectacularly successful, demonstrating once Finally, Ireland has nothing quite like the US again that ‘there is no honour among thieves’. Recent sentencing guidelines, and one may question what Irish prosecutions in the vitamins and art auction cases are judges will do when confronted with convicted good examples of the value of such an immunity offenders. The competition law defendant sitting in the programme. dock may look much more like the judge than the usual Finally, Congress enacted changes in the law that thief or robber. He or she may be prominent in the removed a great deal of sentencing discretion from community, active in their parish, belong to the right judges and helped to ensure that price-fixers see the clubs, have a reasonable golf handicap, and support inside of a prison. The Sentencing Reform Act 1984 meritorious charities. Does this person really belong in requires that courts apply the sentencing guidelines prison? Only if you want to curtail price fixing. to antitrust offences. Convicted felons in the US also To that end, it is important that judges and the lose many of their rights of citizenship, such as the community at large recognise that price fixing is theft. right to vote. But most importantly, they go to Its victims are often those who can afford it least – prison. particularly when the objects of the conspiracy are

29 Law Society Gazette April 2003 Competition law

present directors, officers and employees who admit REQUIREMENTS FOR FULL IMMUNITY their involvement in a cartel as part of the corporate 1) The applicant must take effective steps, to be agreed with the authority, to admission, and who also comply with the terminate its participation in the illegal activity requirements discussed above, will also qualify. 2) The applicant must do nothing to alert its former associates that it has applied Applications for immunity for an individual employed for immunity under this programme by an undertaking involved in a cartel will be 3) The applicant, including all its relevant past and present employees, must satisfy considered, even where the employer undertaking the authority that it has not coerced another party to participate in the illegal does not apply or otherwise co-operate under the activity and has not acted as the instigator or played the lead role in the illegal programme. activity Another important reason for the decrease in 4) Throughout the course of the authority’s investigation and any subsequent American cartel activity is the significant role of the prosecution, the applicant must provide complete and timely co-operation. In bar in educating the business community. particular, the applicant must: Recognising the importance of antitrust compliance a) reveal any and all offences under the Competition Acts in which it may have to the well-being of their clients, lawyers have been been involved able to interest their clients in undertaking antitrust b) provide full, frank and truthful disclosure of all the evidence and information compliance programmes. The significance of this known or available to it or under its control, including all documentary and other effort cannot be underestimated. This convergence of records, wherever located, relating to the offences under investigation with no virtue and self-interest is important to effective misrepresentation of any material facts, and antitrust compliance. There should be increased c) co-operate fully, on a continuing basis, expeditiously and at its own expense opportunities for Irish legal advisors to counsel their throughout the investigation and with any ensuing prosecutions business clients and their trade associations. 5) In the case of corporate undertakings, the application for immunity must be a corporate act. While applications from individual directors or employees will be Dawn raids considered, they will not be regarded as made on behalf of the undertaking in Where appropriate, Irish legal advisors ought to the absence of a corporate act. Corporate undertakings must take all lawful ensure that their clients have effective competition law measures to promote the continuing co-operation of their directors, officers and compliance programmes in place. A section in an employees for the duration of the investigation and any ensuing prosecutions. unread employee manual is not effective. If written guidelines are disseminated, steps should be taken to make them both interesting and comprehensible. Legal advisors may prefer to consider presentations to necessities. Violation of competition law is often employee gatherings. much more remunerative than bank robbery. A competition audit is generally an authorised, but Whether Irish judges will impose custodial sentences unannounced, review of personnel and files (including remains to be seen, but the Competition Authority’s electronic files) to assess actual compliance. In that cartel division is committed to finding out. sense, it is essentially an internal ‘dawn raid’. A few more words on the immunity programme are Competition audits may be valuable to clients who are probably in order. Applicants are entitled to a particularly at risk. qualified grant of immunity from criminal prosecution The competition lawyers’ role in a trade association by the director of public prosecutions (DPP). context is important. Trade associations have been a An applicant (or his legal advisors) seeking to avail particularly fruitful area for finding anti-competitive of the programme must contact the authority’s conduct, recalling Adam Smith’s famous maxim (from designated immunity officer. Contact can be made in The wealth of nations) that ‘people of the same trade person or by telephone. The current designated seldom meet together, even for merriment or officer is Ciaran Quigley. He can be reached between diversion, but the conversation ends in a conspiracy 10am and 4pm, Monday to Friday, on (087) 763 1378. against the public, or in some contrivance to raise The applicant must present an outline of the facts, prices’. Prudent counselling would seem to demand but may do so through legal advisors in hypothetical that special attention be devoted to antitrust terms. The immunity officer will place a ‘marker’ in compliance in this context. the queue, which will hold the place for the applicant In summary, criminal cartel enforcement is a for a period determined by the immunity officer. central mission for the Competition Authority today, The applicant must then complete the application and is the exclusive focus of the cartel division. The with a sufficient description of the illegal activity. If new sanctions, the increase in enforcement resources, satisfied, the authority will then present the the immunity programme and the employment of the application to the DPP, seeking a written grant of gardaí and criminal investigative methods will qualified immunity. If the DPP concurs, the applicant enhance the authority’s success. That, together with must then satisfy both the DPP and the authority that compliance counselling provided by legal advisors, he has satisfied the requirements for immunity. should reduce the anti-competitive injury imposed by If the first applicant to request immunity fails to cartels on Irish consumers. G meet these requirements, a subsequent applicant that does meet the requirements can be considered for Te rry Calvani is a member of the Competition Authority, immunity. If a corporate undertaking qualifies for a director of its cartel division, and acting manager of its recommendation for full immunity, all past and mergers division. The views in this article are his own.

30 Law Society Gazette April 2003 Employment law Special AGENTS Employers can’t turn a blind eye to the behaviour of their independent contractors, especially if uniforms or rules associate them with the company. Murray Smith looks at Irish law on vicarious liability and a recent case that made waves in Australia PIC: RAY TANG/REX FEATURES TANG/REX PIC: RAY

mployers, vicariously liable for the that the independent contractor is working under a conduct of employees in the course of contract for services. • Independent their employment, have traditionally However, a recent Australian judgment suggests contractor argued in court that this liability does an alternative strategy for such a plaintiff. He could agreements not extend to independent contractors, submit that the independent contractor, if not an • Recent E Australian submitting that these work on their own behalf and employee of an employer, is an ‘agent of a do not represent the company. principal’ and that the defendant is therefore still judgment A plaintiff seeking compensation for injury might responsible for his conduct. • Case law on argue that such a contractor nonetheless works vicarious under a contract of service, and that the ‘employer’ is Irish law: Denny and Tierney liability

responsible for torts committed while providing this The employee versus independent contractor MAIN POINTS service. The defence would hinge on the argument argument has come before the Supreme Court on a

31 Law Society Gazette April 2003 Employment law

where it held that the postmaster of a sub-post AGENTS AND STATUTE office was appointed under a contract for services. Keane J gave the judgment, using (and quoting) the EU directive 86/653/EEC (18 December 1986) was incorporated into Irish law by criteria he set out in Denny. He had regard to the two statutory instruments, the European Communities (Commercial Agents) fact that ‘the post office business is carried on in the Regulations 1994 (SI no 33 of 1994) and the European Communities same premises as the plaintiff’s own business’. The (Commercial Agents) Regulations 1997 (SI no 31 of 1997). monies spent by him in improving the premises and Under this directive, certain categories of self-employed commercial agents employing assistants, which had the effect of with authority to negotiate the sale or purchase of goods are entitled to certain increasing the volume of post office business and protections. These include: profit, would also increase the profit from his own • The principal needing to act ‘dutifully and in good faith’ in relations with the business (p545). agent • The agent’s entitlement to certain commissions, as well as when they become Australian law: Hollis v Vabu Pty Ltd due, and the components used to calculate them The same question was dealt with in a recent • The entitlement to a signed written document setting out the terms of the decision of the High Court of Australia in Hollis v agency contract Vabu Pty Limited ([2001] 207 CLR21). The • The notice periods regarding the termination of the contract respondent company engaged a number of • The indemnification or compensation for damages for the agent as a result of individual couriers. When one of them knocked this termination, and over and injured the appellant, he sued the • Restrictions on the types of restraint-of-trade clauses a principal can impose. company, claiming that it was vicariously liable for that courier’s negligence. In terms of prohibiting discrimination in employment, the provisions of the The case ended up before the High Court of Employment Equality Act, 1998 include discrimination by a provider of agency Australia, that country’s Supreme Court, which held work against an agency worker. ‘Agency workers’ (sections 2(1) and 8) are those by a 6-1 majority that the company was vicariously who agree with a person carrying on the business of an employment agency ‘to liable. Of the six judges, five so held on the ground do or to perform personally any work or service for another person’. that the courier was an employee of the company (pp25-47). The criteria they followed was broadly similar to those given by Keane J in Denny: few occasions, most notably in Henry Denny & Sons • The whole relationship between the parties must (Ireland) Ltd v Minister for Social Welfare ([1998] be examined ELR36). The court upheld a decision that a • The facts vary from case to case demonstrator of food products in a supermarket was • An independent contractor is someone in an employee. business on his own, not for another, and Keane J gave the main judgment. In terms of the • The control test, while important, is not an criteria that he said should be used in such cases, he exclusive factor. first held that the relevant appeals officer was ‘entirely correct’ in holding that he ‘should not The five were influenced by the significant level of confine his consideration to what was contained in control the company had over the couriers, who the written contract [it stated that the demonstrator were presented to the public as ‘emanations’ of was an independent contractor], but should have Vabu. Instructions were given to them regarding regard to all the circumstances of her employment’ the performance of their work, as well as on (p47). behaviour towards clients, appearance, including He continued: ‘It is, accordingly, clear that, while dress, and the need to wear a uniform with the each case must be determined on particular facts and company logo. The courier who knocked the circumstances, in general a person will be regarded as appellant down could not be personally identified, providing his or her services under a contract of but his wearing of this uniform established his service and not as an independent contractor where connection with Vabu. he or she is performing those services for another One of the six majority judges, McHugh J, person and not for himself or herself. The degree of though he reached the same conclusion as the other control exercised over how the work is to be five, did so on a different ground – that the courier performed, although a factor to be taken into was an ‘agent’ of Vabu. account, is not decisive. The inference that the While he agreed with his five colleagues that the person is engaged in business on his or her own couriers were not independent contractors, he said account can be more readily drawn where he provides that ‘features of the relationship’ between the two the necessary premises or equipment or some other parties were ‘not typical’ of the traditional form of investment, where he employs others to assist employment one. in the business and where the profit which he derives He looked at the fact that the couriers provided from the business is dependent on the efficiency with their own equipment and some provided their own which it is conducted by him’ (p48). motor vehicles. He was not in favour of ‘attempting The same court later considered Denny in the to force new types of work arrangements into the case of Sean Tierney v An Post ([2000] 1 IR536), so-called employee/independent contractor

32 Law Society Gazette April 2003 Employment law

“dichotomy”, based on medieval concepts of candidate was liable for the torts of his personation servitude’ (pp48-50). agent, who had wrongly charged a voter with the In his judgment, he referred (pp51, 58-60) to a offence of personation. previous High Court case, Colonial Mutual Life The voter took a successful action against the Assurance Society Ltd v The Producers and Citizens Co- agent and the candidate for libel, slander, unlawful operative Assurance Company of Australia Ltd ([1931] arrest, malicious prosecution, false imprisonment 46 CLR, 41). It held that a principal was vicariously and trespass to the person. The judge held that both liable for the torts of his agent. the agent and candidate were ‘equally liable’ for In this case, a person employed by a life insurance ‘While Irish damages. While the candidate was not personally company as a canvasser and agent, while trying to responsible, ‘he was legally responsible’ (p16). obtain business for the company, made defamatory case law on A more recent High Court case also established remarks regarding another life insurance company. the vicarious that a perceived relationship of principal and agent The second company took an action for slander can lead to the perceived principal being liable in against the first, alleging vicarious liability for the liability of tort. In Irish Permanent Building Society v Cornelius agent’s remarks. The court held in favour of this principals for O’Sullivan and Dymphna Collins ([1990] ILRM 598), argument, holding that the agent made the remarks the agent of a building society (the appellants) also within the authority given to him by the company, the torts of carried on an auctioneering business from the same despite the fact that such remarks were expressly their agents is office. A couple (the respondents) told him that they forbidden by it. needed a loan to buy a house, and were told by the The first company’s defence, that the person was small, it is agent to open an account with the building society. an independent contractor, was rejected by the conclusive’ He later told them that they qualified for a loan. court. One of the judges, Dixon J, made clear the This agent, in his capacity as an auctioneer, difference between an independent contractor and something known to the appellants, sold the couple a an agent: ‘The independent contractor carries out house, saying that it was in good condition, needing his work, not as a representative but as a principal. A only wallpapering and painting. In fact, the house difficulty arises when the function is to represent the had many defects and the couple were unable to fully person (who requested its performance) in a repair it. They fell behind in their mortgage transaction with others, so that the very repayments to the building society, which tried to service to be performed consists of recover possession of the house. The couple standing in his place and counterclaimed for damages for negligence and assuming to act in his right, breach of duty. and not in an independent Blayney J held in their favour. The building capacity’ (pp48-9). society was under a duty to ensure that it was made Following this clear to members of the public that, in selling precedent, McHugh J houses, Mr Coyne (its agent) was not acting as its held in Hollis that Vabu agent but was acting as a principal. The plaintiff was vicariously liable for building society failed to discharge this duty and the the courier’s negligence defendant suffered damage as a result. It was because because: of their belief that Mr Coyne was the agent of the •The courier was plaintiff building society that they relied on his performing for Vabu its representations about the house (p600). duty to make deliveries to It should also be mentioned that, in terms of or on behalf of its clients statute law, domestic and EU law has intervened to •The courier performed the give some agents rights vis-à-vis their principals, duty for the economic benefit of narrowing the distinction between agent and Vabu employee (see panel opposite). •The courier was representative of Vabu. This was Where the defendant uses an ‘independent apparent to the public and clear between Vabu contractor’ defence to an allegation of vicarious and the couriers ([2001] 207 CLR, 21 at 60). liability for the torts of an alleged employee, the plaintiff can argue from the judgment of McHugh J He, in common with the other five judges, spoke in Hollis that a relationship of principal and agent about the significant degree of control exercised over exists, making the defendant still vicariously liable. the couriers, including the wearing of the uniform This, I hasten to add, is not available in a case with the company logo. wholly based on statute, where the words ‘employer’ and ‘employee’ or ‘contract of service’ are used. Irish and EU agents Also, the Hollis case was decided on its particular While Irish case law on the vicarious liability of facts, that the company exercised a significant degree principals for the torts of their agents is small, it is of control over the couriers, particularly regarding conclusive, and runs along the same lines as those their behaviour and dress, including an obligation to mentioned in Colonial Mutual Life. In Higgins v wear uniforms with the company logo. G O’Reilly and Monaghan ([1940] Ir Jur Rep 15), Johnson J in the High Court held that an election Murray Smith is a Dublin-based barrister.

33 Law Society Gazette April 2003

Books Book review EC state aid: law and policy Conor Quigley and Anthony Collins. Hart Publishing (2003), Salters Boatyard, Folly Bridge, Abingdon Road, Oxford OX1 4LB, England. ISBN: 1-84113-162-8. Price: stg£50 (hardback).

any countries give formal There is more to state aid considered by many as being of unlawful aid, and reporting Msupport to particular that the issue of a subsidy. The the poor cousin of EC mechanisms. industries within their territory. authors consider the other competition law. They correctly In a short note such as this, it This is so for many reasons. interventions that may have draw attention to the fact that is only possible to give a broad However, article 87(1) of the similar effect. For example, up high levels of state aid are just overview of the work of the EC treaty declares state aid to 25% of all state aid takes the as capable of distorting authors. Eight chapters are incompatible with the common form of exemptions from taxes competition to the ultimate included in the book, with market, where aid is granted by or social security. Other detriment of consumers. The detailed sub-headings enabling a member state or through state interventions include the authors consider the statutory the reader to get to the heart of resources in any form which provision of market research framework for exempting the matter. The chapters distorts or threatens to distort and advertising activities or certain aid from the notification consider state aid under article competition by favouring logistical and commercial requirements and consider the 87(1) EC, the compatibility of certain undertakings or the assistance at reduced rates. EC regulation which codified state aid with the common production of certain goods in The authors in their the complex rules governing market, state aid for investment so far it affects trade between foreword submit that state aid notification and assessment of purposes, state aid with member states. (law and policy) has been aid, suspension and repayment horizontal objectives, particular industries in the context of state aid, supervision by the BOOKS PUBLISHED European Commission, judicial The law of private companies Health and safety: law and Four Courts Press (2003), review of EC decisions and (second ed) practice 7 Malpas St, Dublin 8. Thomas B Courtney Geoffrey Shannon ISBN: 1-85182-583-5. judicial enforcement of EC Butterworths Ireland (2002), Round Hall (2002), Price €60 state aid law. 24-26 Upper Ormond Quay, 43 Fitzwilliam Place, Dublin 2. There is a comprehensive Dublin 7. ISBN: 1-85800-277-X. Gaeilge agus Bunreacht table of cases, divided into cases ISBN: 1-85475-2650. Price: €89 Seamas O’Tuathail of the European Court of Price €150 Coisceim (2003), Justice and the Court of First Evidence 91 Bóthar Bhinn Éadair, BAC 13. Instance (in alphabetical and Criminal procedure Ruth Cannon and Niall Neligan Price: €5 numerical order), and national Dermot Walsh Round Hall (2002), courts. There is also a table of Round Hall (2002), 43 Fitzwilliam Place, Dublin 2. Two texts or two constitutions? EC legislation and a very useful 43 Fitzwilliam Place, ISBN: 1-85800-276-1. Michael O’Cearuil index. Dublin 2. Price: €142 (hb), €70 (pb) Ireland Institute (2002), ISBN: 1-85800-223-0. 27 Pearse St, Dublin 2. Written by leading lawyers, Price: €299 Local Government Act, 2001 ISBN: 1649-2889. Conor Quigley, barrister of Mark Callanan Price €5 Brick Court Chambers, London Irish perspectives on EC law Round Hall (2002), and Brussels, and Anthony Edited by Mary Catherine 43 Fitzwilliam Place, Dublin 2. eCommerce: a practical guide to Collins, barrister, Dublin, this Lucey and Cathrina Keville ISBN: 1-85800-331-8. the law (revised edition) book not only gives a detailed Round Hall (2003), Price: €63 Susan Singleton analysis of this important area 43 Fitzwilliam Place, Gower Publishing (2003), Gower of Community law, but Dublin 2. Social welfare law House, Croft Road, Aldershot, advances our understanding ISBN: 1-85800-280-X. Mel Cousins Hampshire GU11 3HR, England. with critical insights. Lawyers, Price: €110 Round Hall (2002), ISBN: 0-566-08515-1. academics and students will find 43 Fitzwilliam Place, Dublin 2. Price: stg£25 Clinical practice and the law ISBN: 1-85800-289-3. a wealth of information in this Simon Mills Price: €79 Can you manage? stimulating and concisely Butterworths Ireland (2002), Ivor Kenny written book. It represents a 24-26 Upper Ormond Quay, The Factory Acts in Ireland, Oak Tree Press (2003), 19 valuable contribution to our Dublin 7. 1802-1914 Rutland Street, Cork. law. G ISBN: 1-85475-2537. Desmond Greer and James W ISBN: 1-86076-266-2. Price: €74.99 Nicolson Price: €15 Dr Eamonn Hall is company solicitor of Eircom Limited.

35 Law Society Gazette April 2003 Stockwatch Know when to hold ’em Beware of derivatives, advises Warren Buffet in his annual letter to shareholders, they could be ‘weapons of mass destruction’. Cedric Heather reports

arren Buffet published valuations reached during the problems in analysing the Whis annual chairman’s great bubble. Unfortunately, financial condition of firms that letter to the shareholders of this hangover may prove to be are heavily involved with Berkshire Hathaway on 8 proportional to the binge. derivatives contracts. When March. The letters have been ‘The aversion to equities Charlie and I finish the published annually since 1965 that Charlie and I exhibit today footnotes detailing the and have become a much- is far from congenital. We love derivative activities of major anticipated event in the owning common stocks – if banks, the only thing we investment world. Regarded by they can be purchased at understand is that we don’t Cedric Heather: world market valuations are still too high many as one of the world’s attractive prices. In my 61 years understand how much risk the greatest investors, Buffet’s of investing, 50 or so years institution is running’. annual letters give a unique have offered that kind of ‘Charlie and I believe insight into the investment opportunity. There will be Toxic genie Berkshire should be a fortress style and philosophy behind his years like that again. Unless, ‘The derivatives genie is now of financial strength – for the extraordinary success. however, we see a very high well out of the bottle, and these sake of our owners, creditors, In this month’s article we probability of at least 10% pre- instruments will almost policy holders and employees. have highlighted some of the tax returns (which translate to certainly multiply in variety We try to be alert to any sort of letter’s key points, his view of 6% to 7% after corporate tax), and number until some event mega-catastrophe risk, and this equity markets in general and, we will sit on the sidelines. makes their toxicity clear. posture may make us unduly more specifically, his views on With short-term money Knowlege of how dangerous apprehensive about the derivatives, which both he and returning less than 1% after they are has already permeated burgeoning quantities of long- Charlie Munger (Buffett’s tax, sitting it out is no fun. But the electricity and gas business, term derivatives contracts and partner in Berkshire Hathaway) occassionally, successful in which the eruption of major the massive amount of believe to be potential time investing requires inactivity. troubles caused the use of uncollateralised receivables that bombs. The following are ‘Charlie and I are of one derivatives to diminish are growing alongside. In our extracts from the letter. (The mind in how we feel about dramatically. Elsewhere, view, however, derivatives are full publication can be found at derivatives and the trading however, the derivatives financial weapons of mass www.berkshirehathaway.com) activities that go with them. business continues to expand destruction, carrying dangers We view them as time bombs, unchecked. Central banks and that, while now latent, are Bubble trouble both for the parties that deal in governments have so far found potentially lethal’. ‘We continue to do little in them and the economic system. no effective way to control or While Buffet’s message may equities. Charlie and I are ‘Even experienced investors even monitor the risks posed by not necessarily be music to increasingly comfortable with and analysts encounter major these contracts. investors’ ears, it does sit well our holdings in Berkshire’s with our view of equity markets major investees because most DERIVATIVES EXPLAINED in general. With the exception of them have increased their of the Irish market, and the earnings while their valuations Put simply, derivatives call for money to change hands at a future UK markets to a lesser extent, have decreased. But we are not date, with the amount to be determined by, for example, interest we believe that world equity inclined to add to them. rates, stock prices or currency values. If, for example, you are valuations are still way too Though these enterprises have either ‘long’ or ‘short’ (you have bought or sold an Standard and high. Our message to investors good prospects, we don’t yet Poors (S&P) 500 futures contract), you are a party to a very simple is to continue to hold higher believe their shares are derivatives transaction with your gain or loss derived from than average weightings in cash movements in the index. undervalued. and to focus on the domestic Derivatives contracts are of varying duration (running sometimes ‘In our view, the same blue chip names. As Buffet to 20 or more years), and their value is often tied to several conclusion fits stocks generally. points out, despite being no variables. Despite three years of falling fun, successful investing Unless derivatives contracts are collateralised or guaranteed, prices, which have significantly sometimes requires level of their ultimate value also depends on the creditworthiness of the G improved the attractiveness of counter-parties to them. In the meantime, though, before a contract inactivity. common stocks, we still find is settled, the counter-parties record profits and losses – often very few that even mildly huge amounts – in their current earnings statements without so Cedric Heather is a portfolio interest us. This dismal fact is much as a penny changing hands. manager with Davy Stockbrokers’ testimony to the insanity of private clients unit.

36 Law Society Gazette April 2003 Briefing Report of Law Society Council meeting held on 21 February

Personal Injuries Assessment cost of hospital and medical Report of independent been allocated for Board and Motor Insurance expenses would be discharged adjudicator refurbishment of the Advisory Board from the damages, regardless of John O’Connor referred to the courthouse in Cork. Gerard The Council noted the the percentage of value of the fifth annual report to the Griffin said that the minister contents of a press release claim recovered. It was not society from the independent for justice, equality and law issued by the society on 14 prepared to accept a pro rata adjudicator, which had been reform had been the primary February in relation to the payment or any apportionment presented to the minister for force behind the allocation of prosecution of fraudulent of liability. It appeared that, justice, equality and law reform these funds. The director claims. where a solicitor was not and would be published shortly. general noted that the extent of The president noted that, prepared to provide such an The adjudicator was glowing in courthouse refurbishment had even though the society’s undertaking, treatment of the his praise for the society’s improved significantly over the position had been announced in injured party was being Complaints Section, which he past five years, although funds advance of the launch by the withheld. described as ‘a well-organised were now coming to an end. Irish Insurance Federation of Mr Boylan said that a draft and responsive unit’. He had, Mrs Quinlan said that the its campaign against fraudulent practice note to the profession however, expressed some difficulties did not relate purely claims, the society had obtained would be brought before the dissatisfaction in relation to to buildings, but also to the no media coverage for its press Council for consideration at its those solicitors who failed to listing system, with release, other than a passing next meeting. He confirmed attend before meetings of the unacceptable delays of up to reference in the coverage of the that the society had made Registrar’s Committee. two years in matrimonial cases. IIF campaign. several attempts to seek a The president noted that the Andrew Dillon said that the The director general re- resolution to the matter but downward trend in the number situation in the District Court ported that a special RTE Prime that the VHI was not prepared of complaints over the past two in Cork was simply Time programme devoted to to alter its position in any years was encouraging. John unthinkable. It was located in the topic of ‘compensation respect. O’Connor noted that the an old schoolhouse, with only culture’ would be broadcast adjudicator had been very one meeting room for all the towards the end of March. It Committee on Court emphatic in his comments to parties to an action. The was likely to be predictably Practice and Procedure the minister that self-regulation conditions, both before and hostile to the legal profession. The president reported on a was the only proper means of during court sittings, were meeting with the Committee regulating the profession and absolutely appalling and, if the Money-laundering directive on Court Practice and also that, when compared with situation was not improved, James MacGuill reported that Procedure, attended by the the neighbouring jurisdictions, family lawyers could be forced draft regulations designating president, the director general the society’s complaints- to cease providing a service. solicitors for the purposes of and the vice-chairman of the handling was second to none. Patrick O’Connor said that, the money-laundering legis- Litigation Committee, Pat because of a philosophical lation were expected from the Crowley, to discuss the Family law issues opposition to public/private Department of Justice, Equality structure and operation of the Moya Quinlan said that the partnerships within the and Law Reform within a court rules committees. The Family Law Committee was Department of Finance, the matter of weeks. They would be society’s representatives had receiving disturbing reports seven-year building plan within carefully considered by the task been warmly received by the about the conditions in family the Courts Service was proving force and a report would be committee and there appeared law courts outside the Dublin difficult to progress. The brought to the Council in due to be broad agreement with the area. There were also Council agreed that the society course. society’s views. considerable difficulties with should highlight the delays in having cases heard. unacceptable delays and poor Solicitors’ undertakings Proposed Commercial Court Patrick Dorgan confirmed that, conditions, particularly in to the VHI The president reported on a after sustained pressure, an relation to family law matters, Michael Boylan reported that meeting with Mr Justice Peter amount of €26 million had within the courts system. G the Litigation Committee was Kelly and Noel Rubotham to deeply concerned about the discuss the outline details for form of undertaking currently the proposed Commercial SOLICITORS’ HELPLINE being sought by the VHI from Court. The society had been The Solicitors’ Helpline is available to assist every member of the profession with any problem, whether solicitors where a claim for invited to put its views in personal or professional. THE SERVICE IS COMPLETELY CONFIDENTIAL AND TOTALLY damages for personal injuries writing and these were being INDEPENDENT OF THE LAW SOCIETY. was being pursued by an injured prepared by Roddy Bourke, If you require advice for any reason, phone: 01 284 8484 party. The VHI was insisting Isabel Foley and Richard on undertakings that the full Martin. 01 284 8484

37 Law Society Gazette April 2003 Briefing Committee report

BUSINESS LAW share capital of €1,269,738.08 €1.3 million, resulting in indi- divided into shares of vidual shares of €1.30 or to LAW SOCIETY OF IRELAND Renominalisation of share €1.269738 each. Under the reduce it to €1,250,000 divided capital: beat the 30 June rules relating to the redenomi- into 1 million shares of €1.25 ON 2003 deadline nation of share capital (con- each. On 1 January 2002, the share tained in section 24 of the These adjustments will E-MAIL capital of any company that had Economic and Monetary Union involve either an increase or a not already done so of its own Act, 1998), it is not permitted to reduction in the issued share cap- initiative was automatically round the figure representing ital of the company which, in converted (redenominated) the individual par value of each normal circumstances, would into euro. share. require an injection of fresh cap- For many companies, this It would make sense, there- ital (in the event of an increase) will have resulted in awkward fore, to adjust the figures to pro- or the approval of the court (in par values. For example, a com- duce even amounts (this proce- the case of a reduction). Contactable at pany that had an authorised dure is known as renominalisa- However, section 26 of the [email protected] share capital of IR£100,000, tion). Thus, the company with a 1998 Economic and Monetary divided into 400,000 shares of share capital of €126,973.81 Union Act allows these adjust- Individual mail IR£0.25 each, now has a share might decide to increase it to ments to be made by means of a addresses take the form: capital of €126,973.81, divided €128,000, with each share hav- simple (and therefore inexpen- [email protected] into 400,000 shares of ing a par value of 0.32 cents, or sive) process without the injec- €0.317434525 each; and a com- to reduce it to €120,000, giving tion of capital or court approval AND ON THE pany which formerly had an an individual par value of €0.30 – provided it is done before 30 authorised share capital of IR£1 cents. The company with a June 2003. The section sets out WEB million, divided into 1 million share capital of €1,269,738.08 the steps to be taken to make www.lawsociety.ie shares of IR£1 each, now has a might decide to increase it to adjustments. G

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38 Law Society Gazette April 2003 Briefing LEGISLATION UPDATE: 21 JANUARY – 14 MARCH 2003 ACTS PASSED Goods and Associated Securities) (Amendment) Contents note: Appoints 14/2/ Capital Acquisitions Tax Guarantees) Regulations 2003 Regulations 2003 2003 as the commencement date Consolidation Act, 2003 Number: SI 11/2003 Number: SI 51/2003 for ss121(3), 121(4), 121(5) and Number: 1/2003 Contents note: Implement direc- Contents note: Amend the 121(6) of the Pensions Act, 1990 Contents note: Consolidates tive 1999/44/EC on certain European Communities (Undertak- as inserted by s3 of the Pensions enactments relating to capital aspects of consumer goods and ings for Collective Investment in (Amendment) Act, 2002. These acquisitions tax associated guarantees. The direc- Transferable Securities) Regula- sections require employers to Date enacted: 21/2/2003 tive provides a common set of min- tions 1989 (SI 78/1989) by the remit contributions in respect of Commencement date: 21/2/ imum rules that can be relied upon substitution of a new regulation 5 PRSAs to the relevant custodian 2003 when a consumer is purchasing Prohibition on conversion of UCITS account of the PRSA provider with- goods in any member state of the into undertaking not subject to in a specified time limit and to pro- Unclaimed Life Assurance European Union directive vide statements to employees at Policies Act, 2003 Commencement date: 22/1/ Leg-implemented: dir 85/611 as least once a month showing the Number: 2/2003 2003 amended by dir 88/220 and dir amount remitted on the employ- Contents note: Provides a legisla- 95/26 ee’s behalf tive framework whereby all life European Communities Commencement date: 17/2/ assurance undertakings doing (Community Designs) 2003 Personal Retirement Savings business in the state are obliged Regulations 2003 Accounts (Disclosure) to notify holders of unclaimed poli- Number: SI 27/2003 Pensions (Amendment) Act, Regulations 2002 cies, the proceeds of which are Contents note: Give effect to 2002 (Section 3 (insofar as it Number: SI 501/2002 payable in the state, of the exis- council regulation (EC) 6/2002 on relates to the insertion of sec- Contents note: Make provision in tence of those policies. If the poli- Community designs. Regulation tions 91 to 120 into the relation to the disclosure of infor- cy-holder cannot be traced, pro- 6/2002 establishes a system for Pensions Act, 1990) and mation to be made by or on behalf vides for the transfer of monies registration of industrial designs Sections 4, 7, 13, 14, 38, 56 of a PRSA provider both prior to the payable under unclaimed life providing protection throughout the and 57) (Commencement) Order conclusion of a PRSA contract and assurance policies to the dormant European Union 2002 at specified times after a PRSA accounts fund established under Commencement date: 29/2/ Number: SI 502/2002 contract has been concluded the Dormant Accounts Act, 2001; 2003 Contents note: Appoints Commencement date: 7/11/ provides for the payment of 7/11/2002 as the commence- 2002 monies from the fund, for the European Communities (Directive ment date for s3 of the Pensions appointment of inspectors and for 2000/31/EC) Regulations 2003 (Amendment) Act, 2002 insofar as Personal Retirement Savings these and other purposes amends Number: SI 68/2003 it relates to the insertion of ss91 Accounts (Operational and extends the Dormant Accounts Contents note: Implement direc- to 120 into the Pensions Act, Requirements) Regulations 2002 Act, 2001 tive 2000/31/EC on certain legal 1990; also appoints 7/11/2002 Number: SI 503/2002 Date enacted: 22/2/2003 aspects of information society as the commencement date for Contents note: Prescribe the infor- Commencement date: 10/3/ services, in particular electronic ss4, 7, 13, 14, 38, 56 and 57 of mation which must be furnished to 2003 (per SI 92/2003) commerce, in the internal market the Pensions (Amendment) Act, the Pensions Board by a PRSA (Electronic commerce directive) 2002. Section 3 of the Pensions provider, detailing the information SELECTED STATUTORY Commencement date: 24/2/ (Amendment) Act, 2002 provides to be contained in: the three-month INSTRUMENTS 2003 for the insertion in the Pensions report and the three-month return Capital Gains Tax (Multipliers) Act, 1990 of a new part X (ss91 to required under s99 of the (2003) Regulations 2003 European Communities 124) which sets out the framework Pensions Act, 1990 relating to the Number: SI 12/2003 (Requirements to Indicate for the personal retirement savings database of statistics to be main- Contents note: Specify the multi- Product Prices) Regulations accounts (PRSAs). Section 4 of the tained by the board, and the annu- pliers by reference to which sums 2002 Pensions (Amendment) Act, 2002 al report to be delivered by a PRSA (such as the base cost of an asset Number: SI 639/2002 amends the Taxes Consolidation provider to the Pensions Board and enhancement expenditure Contents note: Revoke and Act, 1997 to provide for the intro- Commencement date: 7/11/ incurred on it) which are allowable replace the European Commun- duction of the new PRSAs. 2002 as a deduction from the considera- ities (Product Prices) Regulations Sections 7, 13, 14, 38, 56 and 57 tion for the disposal of an asset in 2001 (SI 422/2001) giving effect provide for amendments to other Planning and Development the year of assessment 2003 are to directive 98/6/EC on consumer sections of the Pensions Act, Regulations 2003 to be increased, under s556(2) of protection in the indication of the 1990 to reflect the arrangements Number: SI 90/2003 the Taxes Consolidation Act 1997, prices of products offered to con- for the new PRSAs Contents note: Make certain for the purpose of computing the sumers changes to part 5 of the Planning chargeable gain accruing to a per- Commencement date: 1/3/2002 Pensions (Amendment) Act, and Development Regulations son on such a disposal 2002 (Sections 121(3), (4), (5) 2001 (SI 600/2001) and provide European Communities and (6)) (Commencement) Order the format of a receipt for the pay- European Communities (Certain (Undertakings for Collective 2003 ment under section 96b of the Aspects of the Sale of Consumer Investment in Transferable Number: SI 78/2003 Planning and Development Act,

39 Law Society Gazette April 2003 Briefing

2000 (as inserted by section 4 of have regard to the report of include the expenses incurred in effect to council directive the Planning and Development 15/1/2002, made in accordance an application that has been set- 89/39/EEC. Substitute a new reg- (Amendment) Act, 2002) with s16 of the act, entitled tled ulation 5 (general duties of Commencement date: 6/3/2003 Towards redress and recovery Commencement date: 19/12/ employer), a new regulation 8 (pro- Commencement date: 19/12/ 2002 tective and preventive services) Residential Institutions Redress 2002 and introduce requirements relat- Act, 2002 (Miscellaneous Safety, Health and Welfare at ing to fire fighting and first aid Provisions) Regulations 2002 Residential Institutions Redress Work (General Application) Commencement date: 30/1/ Number: SI 645/2002 Act, 2002 (Section 33) (Amendment No 2) Regulations 2003 Contents note: Make provision in Regulations 2002 2003 relation to the written evidence of Number: SI 644/2002 Number: SI 53/2003 Solicitors (Continuing an applicant; the notice to and pro- Contents note: Make provision for Contents note: Amend the Safety, Professional Development) vision of evidence by a named rel- the payment of the expenses of an Health and Welfare at Work Regulations 2003 evant person and a specified rele- application under the act to the (General Application) Regulations Number: SI 37/2003 vant person; and the giving of evi- Residential Institutions Redress 1993 (SI 44/1993) as amended Contents note: Make provision for dence generally Board and/or to the Residential by the Safety, Health and Welfare a required number of hours of con- Commencement date: 19/12/ Institutions Review Committee. at Work (General Application) tinuing professional development 2002 Expenses to be paid in respect of (Amendment) Regulations 2001 (CPD) being undertaken by a solic- an award under the act shall (SI 188/2001) to give further itor as a prerequisite to being Residential Institutions Redress granted a practising certificate. Act, 2002 (Section 17) District Court (Fees) Order (SI 486/2001) Provide for the certifying of the Regulations 2002 2003 hours of CPD undertaken to the Number: SI 646/2002 Number: SI 87/2003 Supreme Court and High Court Law Society and provide that a Contents note: Specify the Contents note: Provides for the (Fees) Order 2003 breach of the regulations may be amounts of awards to be made in fees to be charged in District Number: SI 89/2003 found by the Disciplinary Tribunal accordance with a weighting scale. Court offices with effect from Contents note: Provides for the to be misconduct The weighting scale and the 10/3/2003. Provides for the fees to be charged with effect Commencement date: 1/7/2003 amounts payable for weightings exemption from fees of certain from 10/3/2003 in the Office of are set out in schedules 1 and 2 to proceedings, including family law the Registrar of the Supreme the regulations. Make provision for proceedings. Revokes the Court, the Central Office, the Correction to Legislation the making of an award above the District Court (Fees) (No 2) Order Examiner’s Office, the Office of update published in the last maximum amount in exceptional 2001 (SI 487/2001) the Official Assignee in issue of the Gazette cases. Make provision for the mak- Bankruptcy, the Taxing Master’s The following act was omitted ing of an additional award calculat- Circuit Court (Fees) Order 2003 Office, the Accountant’s Office, from the list of acts passed in ed by reference to the principles of Number: SI 88/2003 the Office of Wards of Court, the 2002: aggravated damages and for an Contents note: Provides for the Probate Office and District Statute Law (Restatement) additional award in respect of the fees to be charged in Circuit Probate Registries. Provides for Act, 2002 reasonable expenses of medical Court offices with effect from the exemption from fees of cer- Number: 33/2002 treatment which an applicant has 10/3/2003. Provides for the tain proceedings, including fami- Date enacted: 24/12/2002 received for the effects of the exemption from fees of certain ly law proceedings. Revokes the Commencement date: 24/ injury suffered. When making an proceedings, including family law Supreme Court and High Court 12/2002 award and implementing these proceedings. Revokes the Circuit (Fees) (No 2) Order 2001 (SI regulations, the Residential Court (Fees) (No 2) Order 2001 488/2001) Prepared by the Law Institutions Redress Board shall Society Library

New service from the Law Society TRIBUNAL AND ARBITRATION CENTRE Tribunal and arbitration facilities at Bow Street Friary: •Five minutes from Four Courts •Tribunal room with PA system and public gallery • State-of-the-art recording system •Six consultation rooms Also suitable for: • Board meetings •Training sessions For booking phone: 01 804 4150

40 Law Society Gazette April 2003 Briefing Solicitors’ Benevolent Association 139th report and accounts Year 1 December 2001 to 30 November 2002 he Solicitors’ Benevolent tors are conscious of the fact that port and, in particular, wish to TAssociation, founded in 1863, grants have not been increased express thanks to Elma Lynch, DIRECTORS AND is the profession’s voluntary for some time, despite rising immediate past-president of the OTHER INFORMATION charitable body. It consists of costs, and in several instances Law Society of Ireland, Alan members of the profession increased needs are apparent in Hewitt, past president of the Law Directors throughout Ireland who contribute cases where beneficiaries are of Society of Northern Ireland, Ken Thomas A Menton (chairman) to our funds, and its aim is to advanced age. For these reasons, Murphy, director general, John John Sexton (deputy chairman) assist members or former mem- the directors particularly welcome Bailie, chief executive and all the Sheena Beale, Dublin bers of the solicitors’ profession higher level of subscriptions, personnel of both societies. Desmond Doris, Belfast in Ireland and their spouses, donations and legacies and the I wish to express particular Felicity M Foley, Cork dependants and families who are general support of the profes- appreciation to all those who con- John Gordon, Belfast in need. The association also pro- sion. tributed to the association when Colin Haddick, Newtownards vides advice and financial assis- There are currently 15 direc- applying for their practising cer- Niall D Kennedy, Tipperary tance on a confidential basis and tors, three of whom reside in tificates, to those who made indi- Mary H Morris, Swinford functions independently of both Northern Ireland, and they meet vidual contributions and to the fol- John M O’Connor, Dublin law societies. monthly in the Law Society’s lowing: Sylvia O’Connor, Wexford The amount paid out during offices, Blackhall Place. They • The Law Society of Ireland Brian K Overend, Dublin the year in grants was €359,302. meet at Law Society House, •Northern Ireland Law Society Colm Price, Dublin Currently, there are 52 beneficiar- Belfast, every other year. The • Dublin Solicitors’ Bar Assoc- David Punch, Limerick ies in receipt of regular grants work of the directors, who provide iation Andrew F Smyth, Dublin and approximately one third of their services entirely on a volun- • Belfast Solicitors’ Association these are themselves supporting tary basis, consists in the main of • Faculty of Notaries Public In Trustees (ex officio directors) spouses and children. reviewing applications for grants Ireland Brian K Overend The directors anticipate that, and approving of new applica- •Limavady Solicitors’ Associa- John M O’Connor particularly in view of the increas- tions. The directors also make tion Andrew F Smyth ing number of families with young themselves available to those •Tipperary Bar Association children being helped, there will who may need personal or profes- •Northern Ireland Young Solici- Secretary be a need for increased assis- sional advice. tors’ Association Geraldine Pearse tance in the coming years. Again, The directors are grateful to •West Cork Bar Association in a number of cases, the direc- both law societies for their sup- • Sheriffs’ Association Auditors •Waterford Law Society Deloitte & Touche • Contributors to Irish con- Chartered Accountants RECEIPTS AND PAYMENTS ACCOUNT veyancing precedents Deloitte & Touche House Earlsfort Terrace YEAR ENDED 30 NOVEMBER 2002 •Oisín Publications, publishers of the Gazette yearbook and Dublin 2 2002 2001 diary. Stockbrokers RECEIPTS €€ To cover the ever-greater Bloxham Stockbrokers Subscriptions 256,029 240,736 2-3 Exchange Place Donations 39,416 38,060 demands on the association, additional subscriptions are more IFSC Investment income 31,416 44,588 Dublin 1 Bank interest 4,301 3,784 than welcome, as, of course, are legacies. Subscriptions and dona- Repayment of grants 16,380 – tions will be received by any of Bankers 347,542 327,168 the directors or by the secretary, AIB plc from whom all information may be 37/38 Upper O’Connell Street PAYMENTS Dublin 1 obtained at 73 Park Avenue, Grants (359,302) (312,122) Dublin 4, and I would urge all Bank charges (1,048) (1,952) First Trust members of the association, Administration expenses (17,582) (21,593) 31/35 High Street when making their own wills, to (377,932) (335,667) Belfast BT1 leave a legacy to the association. You will find the appropriate word- Offices of the association DEFICIT FOR THE YEAR ing of a bequest at page 26 of the Law Society of Ireland BEFORE SPECIAL EVENTS (30,390) (8,499) Law directory 2003. Lawyers diaries and Christmas cards 22,554 (469) Blackhall Place I would like to thank all the Dublin 7 Irish conveyancing precedents publication 983 5,940 directors and the association’s secretary, Geraldine Pearse, for Law Society of Northern DEFICIT FOR THE YEAR BEFORE LEGACIES (6,853) (3,028) their valued hard work, dedication Legacies 27,324 209,528 Ireland and assistance during the year. Law Society House 90/106 Victoria Street SURPLUS FOR THE YEAR 20,471 206,500 Thomas A Menton, Belfast BT1 3JZ chairman

41 Law Society Gazette April 2003 Briefing Personal injury judgment

Employer liability – employee exposed to asbestos dust – actual knowledge of employer that asbestos dust was in workplace – failure to inform employees on becoming aware of the problem – negligence of employer – no contrib- utory negligence on the part of the employee – High Court award – employer appealed to Supreme Court – criteria for recovery of damages for nervous shock – ‘fear of disease’ where no physical injury – policy considerations involv- ing limitations on potential claims – no damages for irrational fear of contracting a disease because of the negli- gent exposure to health risk by employers when the risk was characterised by medical advisers as being very remote

CASE Stephen Fletcher v Commissioners of Public Works in Ireland, High Court, judgment of O’Neill J of 15 June 2001; Supreme Court, Keane CJ, Denham, Murray, Hardiman and Geoghegan JJ, judgments of Keane CJ and Geoghegan J of 21 February 2003. THE FACTS tephen Fletcher was born done in difficult conditions in Mr Fletcher was angered and the question as to whether the Son 28 December 1947 and confined areas. annoyed on being informed medical experts should have was first employed by the In July 1984, an inspection that he had been unnecessarily been able to give him any help, Commissioners of Public was carried out of the working and without his knowledge he replied as follows: Works (the OPW) in 1977. He conditions on behalf of the exposed to risks associated with ‘They tell me not to be is married with one child. From minister for labour. The asbestos. Initially, he consulted worried and all that, but then 1985 onwards, he was engaged inspector concluded that the a solicitor, who in turn referred people, I know they are profes- in Leinster House as a general asbestos lagging had deterio- him to Professor Luke Clancy, sional people, but when I go out operative, helping plumbers, rated to such an extent that it consultant respiratory physician the door, I am back to square electricians and fitters in what should be removed section by at St James’ Hospital, Dublin, one, so it doesn’t matter what was described as ‘an enormous section until complete removal described as an acknowledged they tell me. I was being and labyrinthine central heating had been achieved. In a letter authority on respiratory dis- exposed to asbestos in system’. The piping in the cen- to the OPW, the Department eases generally and diseases 1985/1986 and that’s in my tral heating system in Leinster of Labour pointed out that the resulting from exposure to mind’. House was covered with a lag- inspector strongly recommend- asbestos in particular. Mr Fletcher was asked what ging containing asbestos of var- ed that immediate steps be Ultimately, Mr Fletcher went to his principal fear was and he ious types, and much of it was in taken to have all the asbestos a consultant psychiatrist, Dr said ‘death’. Mr Fletcher said he extremely poor condition – for removed under the conditions John Griffin. tried to forget about his anxiety example, it was friable, dusty pursuant to the relevant In his evidence in the High when he went to work but that and falling off in many places. statutes as if the building were Court, Mr Fletcher described at times his sleep was affected. As part of Mr Fletcher’s a factory for the purposes of his feelings of anxiety and Stephen Fletcher issued pro- work, he was regularly obliged the statutes. annoyance as a result of his ceedings against the OPW to hack off the lagging in order Mr Fletcher finished his work learning of his exposure to based on negligence, breach of to enable the tradesmen he was in Leinster House in 1991; asbestos. His general medical duty, including breach of statu- assisting to get access to the thereafter, his exposure to practitioner gave him medica- tory duty, on the part of his pipework. The work had to be asbestos dust ceased. tion for anxiety. In answer to employers. JUDGMENT OF THE HIGH COURT he case came before O’Neill of necessity, he inhaled very be supplied with appropriate absolutely clear that a danger- TJ, who delivered judgment large quantities of asbestos dust protective clothing and protec- ous situation pertained and that on 15 June 2001. Evidence was over a number of years. tive masks. The letter also stat- the state of the lagging in the given in the High Court as to Evidence was also given that ed that all removal of contami- basement area of Leinster the quantities of asbestos in the in February 1985 an engineer nated clothes and washing facil- House and other pipe work was area in which Mr Fletcher acting on behalf of the OPW ities must be within the con- in ‘a dreadful condition’ and was worked. O’Neill J found as a had written to submit a tender fined area and that workers, a danger to anyone who was fact, which was not contested, for the work involved in remov- when washed, should then move obliged to work with it, as Mr that significant quantities of ing insulation from a certain directly to their clean-change Fletcher was. asbestos polluted the air which area in Leinster House. That area. Based on that evidence, O’Neill J held as a fact that it Mr Fletcher breathed and that, letter stated that workers must O’Neill J concluded that it was was clear that the OPW knew

42 Law Society Gazette April 2003 Briefing all of this and knew it from, at was satisfied that the OPW was after. If it occurred, the progno- found that this could not be the very latest, mid-1984. The guilty of ‘gross negligence’ and sis would be very poor, since the assuaged by counselling or the judge stated it was also clear that no question of contributo- disease would be painful and best advice which was available. from correspondence that the ry negligence arose. likely to prove terminal within In the context of Mr OPW was well aware of the In the High Court, Professor two or three years of it develop- Fletcher’s anger and anxiety dangers of asbestos because in a Clancy (the respiratory consult- ing. Professor Clancy empha- reaction, it had been argued by tender document, it made the ant) gave evidence that Mr sised, however, that the risk of the OPW that that was not most stringent requirements of a Fletcher had been exposed to contracting the disease was very caused by the exposure to contractor coming in to bid for the risk of developing asbestosis remote. asbestos dust itself; it was, so to the work. Nevertheless, at the and was also at an increased risk Professor Clancy also testi- speak, caused by Mr Fletcher’s same time, Mr Fletcher was of lung cancer, but that Mr fied that while the likelihood exposure to the knowledge of it, obliged as part of his contract of Fletcher had not contracted was that Mr Fletcher had which he gained through the employment to carry out work either disease and that it was inhaled asbestos fibres, and that media in late 1996. O’Neill J in this area without being very unlikely that he ever some of them would have stated that Mr Fletcher’s psychi- informed at all of the existence would. Professor Clancy’s evi- remained in his body and atric condition was the result of of asbestos or the risks attached dence was to the effect that as a caused microscopic scarring, exposure to the asbestos dust to asbestos dust or without result of his exposure to there were in fact no physical and not his exposure to the being provided with protective asbestos Mr Fletcher was at risk manifestations of the scarring knowledge of it. However, the clothing or without any steps of contracting in later life the visible on x-ray. judge accepted that Mr whatsoever having been taken to disease called mesothelioma. A consultant psychiatrist, Dr Fletcher’s exposure to the protect him from the effects of This would not happen until at John Griffin, concluded in the knowledge of asbestos dust was a asbestos dust. least 20 years after the first High Court that Mr Fletcher trigger factor which started the O’Neill J found that from exposure to asbestos and might was suffering from ‘a reactive psychiatric complaint, but that 1985, and probably well into not occur until 40 years there- anxiety neurosis’ and O’Neill J did not mean that any psychi- 1989, Mr Fletcher was regularly atric illness did not arise from exposed in the course of his THE AWARD IN THE HIGH COURT exposure to the asbestos dust. employment to asbestos dust O’Neill J assessed general damages at IR£45,000 and special dam- The OPW appealed to the and during that time inhaled ages at IR£3,760. Supreme Court on the basis very significant quantities of the Total: IR£48,760 that no award for damages dust. In those circumstances, he ought to have been made at all. JUDGMENT OF THE HIGH COURT he case came before the to ensure that Mr Fletcher was culty’ in concluding that the 253). In that case, the Kelly TSupreme Court of five not exposed to any such risk. OPW was liable in negligence. family had been involved in a judges – Keane CJ, Denham, Keane CJ stated that it had serious car crash caused by the Murray, Hardiman and Recovery of damages for been the law in Ireland that a negligence of the defendant. Mr Geoghegan JJ – with judgments psychiatric illness plaintiff who suffers what usual- Kelly and one of his daughters delivered by Keane CJ and The chief justice noted that the ly has been described as ‘nerv- suffered permanent brain dam- Geoghegan J on 21 February fact that it was reasonably fore- ous shock’, even where unac- age. Mrs Kelly had not been 2003, with all judges concurring seeable that particular acts or companied by physical injury, present at the accident but had with those judgments. Both omissions would cause loss or can recover damages where the learnt of it by telephone. It was judgments dealt with the facts injury to another person does other ingredients of negligence accepted that Mrs Kelly suf- and the law and considered the not, of itself, give rise to liabili- are established. It was undoubt- fered as a consequence from submissions made to the ty in negligence. There must edly the law that damages were post-traumatic stress disorder. It Supreme Court by the various also be what judges have called a not recoverable for grief or sor- was held by the Supreme Court parties. relationship of ‘proximity’ row alone; no degree of mental that where a plaintiff came on Keane CJ stated that the issue between the plaintiff and the anguish arising from the wrong- the immediate aftermath of an which the Supreme Court had defendant which gave rise to the ful acts or omissions of another accident, either at the scene or to resolve was whether Mr legal duty to take care that the was compensatable at common in hospital, involving a person Fletcher was entitled to recover foreseeable consequence was law. However, he stated that with whom a plaintiff had a damages for the impairment of avoided. Keane CJ stated that nervous shock, even where close relationship, a duty of care his ‘mental condition’, which, that of itself did not present any there was no physical injury or arose. according to the evidence of the difficulty for Mr Fletcher. If this even fear of such injury, was The circumstances in which psychiatrist in the High Court, were a case in which the injuries compensatable when caused by damages for nervous shock were had resulted from his exposure sustained by him were purely the negligence of a defendant. set out by Hamilton CJ in the to the risk of contracting physical, in that situation, given The Supreme Court referred Kelly case and are as follows: mesothelioma, a risk which that the injuries were the fore- to the circumstances in which 1) The plaintiff must establish beyond doubt was created by seeable consequence of the damages for nervous shock were that he actually suffered the failure of the OPW to take actions or omissions of the recoverable. These were set out ‘nervous shock’. This term the precautions which a reason- OPW as his employer, there by Hamilton CJ in the case of has been used to describe able employer would have taken would not be the ‘slightest diffi- Kelly v Hennessy ([1995] 3 IR ‘any recognisable psychiatric

43 Law Society Gazette April 2003 Briefing

illness’ and a plaintiff must as a matter of probability Mr prove that he suffered a Fletcher would contract the dis- recognisable psychiatric ill- ease of mesothelioma and Mr WHERE THERE’S A WILL ness if he is to recover dam- Fletcher had, as a result, suffered ages for nervous shock the psychiatric disorder of which THIS IS THE WAY… 2) A plaintiff must establish that he now complained, it would his reasonable psychiatric ill- seem, according to the chief jus- ness was shock induced tice, unjust and anomalous that 3) A plaintiff must prove that the OPW should escape liability. When a client makes a will in favour of the Society, it would the nervous shock was caused The fact that the advice that Mr be appreciated if the bequest were stated in the following words: by a defendant’s act or omis- Fletcher received was that he sion was at no more than a very “I give, devise and bequeath the sum of X euros to the Irish 4) The nervous shock sustained remote risk of contracting the Cancer Society Limited to be applied by it for any of its by a plaintiff must be by rea- disease would not be a reason, in charitable objects, as it, at its absolute discretion, may decide.” son of actual or apprehended principle, for relieving the physical injury to the plaintiff OPW of liability in limine. The All monies received by the Society are expended within the or a person other than the general principle that the Republic of Ireland. plaintiff wrongdoer must take his victim “Conquer Cancer Campaign” is a Registered Business Name 5) If a plaintiff wishes to recover as he finds him should, in the and is used by the Society for damages for negligently- absence of other considerations, inflicted nervous shock, he apply. The chief justice consid- some fund-raising purposes. The must show that the defendant ered that it might be, on one “Cancer Research Advancement owed him a duty of care not view, questionable whether the Board” allocates all Research to cause him a reasonably law should apply the so-called Grants on behalf of the Society. foreseeable injury in the form ‘eggshell skull’ test in cases of of nervous shock. psychiatric illness. The fact remains that the test is applied The chief justice stated that the routinely in personal injury 5 Northumberland Road, Dublin 4. Tel: (01) 231 0500 ‘nervous shock’ suffered by an cases in Irish courts. The judge 15 Bridge Street, Cork. Tel: (021) 4509 918 Web: www.cancer.ie employee (who does not have to stated that he was very familiar be characterised as a ‘primary’ with minor soft-tissue injuries or ‘secondary’ victim of negli- which have, according to med- gence) in the workplace is prop- ical evidence, caused a plaintiff erly compensatable where it is as acute psychiatric injury which, Irish a result of the negligence of an he was assured, is of real signifi- employer. This was ‘admirably cance to the plaintiff, however Stenographers demonstrated’ by the Circuit surprising his or her reaction is Court decision of Judge Bryan to the objective finder of fact. McMahon in Curran v Cadbury ‘Nervous shock’ would prob- (Ireland) Limited ([2000] 2 ably be regarded by medical Ltd IRLM 343), where the chief experts today as an inexact justice stated the legal issues expression, to put it no more Director: Sheila Kavanagh were ‘analysed with [Judge strongly, according to the chief McMahon’s] customary erudi- justice. The authorities, howev- Experts in tion’. er, use it to define a set of cir- Overnight Transcripts Several other cases were con- cumstances which, when they sidered by the Supreme Court give rise to a specific psychiatric

Specialists in including Byrne v Great Southern disorder unaccompanied by and Western Railway Company of physical injury that was the rea- Court Reporting Ireland (unreported), Bell and sonably foreseeable conse- Medical Cases / Arbitrations Another v The Great Northern quence for breach of duty on the Conferences / Board Meetings Railway Company of Ireland part of the defendant, may lead ([1890] 26 LR (Ir) 428), to a finding of liability provided Contact: McLoughlin v O’Brian ([1983] the conditions laid down by Hillcrest House, AC 410), Alcock and Others v Hamilton CJ in Kelly v Hennessy Dargle Valley, Bray, Co. Wicklow. Chief Constable of South Yorkshire are met. Police ([1992] 1 AC 310), White v Telephone/Fax: (01) 286 2184 Chief Constable of South Yorkshire Policy considerations or Police ([1999] 2 AC 455), and The chief justice referred to the 4b Arran Square, Dublin 7 Page v Smyth ([1996] AC 155). issue of possible policy consider- Telephone: (01) 873 2378 If, for example, the advice of ations which, in the case of what Professor Clancy had been that could be conveniently cate-

44 Law Society Gazette April 2003 Briefing gorised as ‘fear of disease’ cases the added cost of insurance because of the stress and pres- employees would not contract such as the present, argue even could diminish the availability sures of his workload, an issue disease but that they would not more powerfully against the of new, beneficial drugs or resolved in favour of the plain- contract so serious a fear of con- imposition of liability. One issue increase their price beyond the tiff by the English High Court tracting a disease – however was the undesirability of award- reach of those who need them in Walker v Northumberland irrational – that they develop a ing damages to plaintiffs who most. County Council ([1995] 1 All ER psychiatric overlay. The court have suffered no physical injury The chief justice considered 737). should not permit compensa- and whose psychiatric condition that in cases where there was no Geoghegan J in his judgment tion for irrationality in that way. is solely due to an unfounded more than a very remote risk stated that the case of Kelly v Having considered at some fear of contracting a particular that a person would contract the Hennessy ([1995] 3 IR 253) did length the case law in various disease. The chief justice noted disease of mesothelioma, recov- not govern the present case jurisdictions, Geoghegan J set that a person who prefers to rely ery should not be allowed for because he said it should only be out certain principles. on the ill-informed comments of such a psychiatric illness. This taken to relate to ‘accident dam- Reasonable foreseeability was friends or acquaintances or inac- was because the policy consider- age’. He therefore considered not the only determining factor curate and sensational media ations which he had summarised that the Supreme Court was in in establishing a duty of care. reports rather than the consid- point clearly to the necessity of ‘virgin territory’ and that it must Proximity (given an elastic defi- ered view of an experienced imposing some limitations on a consider ‘unguided by any Irish nition in case law), the reason- physician should not be awarded number of potential claims precedent’ whether damages ableness of the imposition of a damages by the law of tort. which might otherwise come were properly recoverable in the duty of care and questions of The second policy argument, into being. particular case before the court. public policy can be additional which was closely related, con- The Supreme Court then He reviewed the case law of determining factors. cerned the implications for the considered cases relating to both Ireland and courts in many Geoghegan J took the view healthcare field of a more claims for emotional distress other jurisdictions. It was that it would be unreasonable to relaxed rule as to recovery for arising out of exposure to against that background that the impose a duty of care on psychiatric illness. The chief jus- asbestos that had come before Supreme Court must decide as a employers to guard against tice referred to the judgment of the United States Supreme matter of policy and of reason- mere fear of a disease, even if Baxter J, giving the opinion of Court. ableness whether claims for such a fear might lead to psychi- the majority of the California In conclusion, Keane CJ stat- damages for psychiatric injury atric condition. He deliberately Supreme Court in Potter and ed that he was satisfied that the only and resulting from fear of refrained from expressing any Others v Firestone Tyre and Rubber law in Ireland should not be asbestos-related diseases of a view as to whether the implanta- Company (682 NE 2d 253). In extended by the courts so as to degree which was objectively tion of fibres into the lung that case, Baxter J stated that allow recovery by plaintiffs of irrational were recoverable. He (which did occur in the Fletcher access to prescription drugs was damages for psychiatric injury was quite satisfied that for the case) or the development of likely to be impeded by allowing resulting from an irrational fear reasons set out in the American pleural plaques (which did not recovery of ‘fear of cancer’ dam- of contracting a disease because cases, and also by reason of rea- occur), and in neither case ages in negligence cases without of their negligent exposure to sonably objective irrationality of involving any immediate symp- the imposition of a heightened health risks by their employers, the fears of persons that they toms, could be described as a threshold. Thousands of drugs where the risk was characterised would contract asbestos-related physical injury, especially hav- with no harmful effects are cur- by their medical advisers as diseases, the appeal should be ing regard to the definition of rently being prescribed and being very remote. He added a allowed. He stated it would be injury in the Civil Liability Acts. used. If and when negative data final observation. The court was unreasonable to impose a duty The Supreme Court allowed is discovered and made public, not in this case concerned with of care on employers, whether the appeal of the OPW and set Baxter J stated that unless mean- the question as to whether an they be state or non-state (there aside the judgment of O’Neill J ingful restrictions were placed employer should be held liable, being no known justification for in the High Court. G on this potential plaintiff class, where it was reasonably foresee- making any distinction), insured the threat of numerous large able that an employee might or uninsured, to take precau- This judgment was summarised by monetary awards coupled with suffer a nervous breakdown tions not merely that their solicitor Dr Eamonn Hall.

FOR BOOKINGS CONTACT MARY BISSETT OR PADDY CAULFIELD TEL: 668 1806 OR EMAIL [email protected] FAX: 873 5615 Meet at the Four Courts LAW SOCIETY ROOMS Courtat the Four Courts

45 Law Society Gazette April 2003 Briefing Update

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

ADMINISTRATIVE could be permitted on the struc- and fair system of allocating risk of an unfair trial. ture, but any application for accommodation to people who Furthermore it was contended Planning and development planning permission must take had been included in the assess- that the offences with which he Judicial review – certiorari – into account the status of the ment of needs under section 9 had been charged had been planning and environmental law – structure. of the act by the housing abolished by section 28 of the administrative law – protected Begley v An Bord Pleanála, authority. As such, the appli- Non-Fatal Offences Against the structures – whether grounds High Court, Mr Justice Ó cants were entitled to priority Person Act, 1997, and the rele- adduced by applicant substantial – Caoimh, 14/1/2003 [FL6829] to the provision of a caravan site vant provisions of the whether respondent failed to have within the respondent’s admin- Interpretation Act, 1937 and the regard to county development plan Housing, traveller issues istrative area. Section 13 of the Interpretation (Amendment) Act, – Local Government (Planning Judicial review – local authority – 1998 act provides that the 1997 did not act as a saver. and Development) Act, 1963 – housing issues – obligation of hous- respondent’s obligations to pro- Murphy J refused the order Local Government (Planning ing authority to provide suitable vide for housing needs extends sought. There was no doubt and Development) Act, 1999 traveller accommodation – to the provision not of dwelling that there had been extensive The applicants brought judicial Housing Act, 1988, section 13 – houses but of caravan sites in delay. On the balance of proba- review proceedings in respect of Housing (Traveller Accom- respect of travellers and section bilities, the delay by the com- a decision issued by An Bord modation) Act, 1998, sections 13, 23 of the act intended to make plainant in reporting the inci- Pleanála refusing planning per- 16, 23 clear that the respondent was dents was accepted by the court. mission for the development of The applicants, who were trav- not inhibited from providing The question of the motives a number of apartments. The ellers, sought various reliefs traveller accommodation by the and the credibility of the com- applicants first sought leave to after they had been told by the fact that it had not yet adopted plainant were a matter for the bring judicial proceedings and respondent housing authority an accommodation programme. trial. A previous Supreme were obliged to show that the that no halting site accommoda- O’Donoghue v City of Court judgment in Corbett v grounds adduced were substan- tion was available within its Limerick, High Court, Mr DPP had upheld the saver pro- tial in accordance with section administrative area other than Justice Herbert, 6/2/2003 visions with regard to the pros- 82(3B) of the Local Government that at the Cooperage, [FL6943] ecution of certain offences (Planning and Development) Act, Limerick, but that standard G(M) v DPP, High Court, Mr 1963, as amended. The appli- local housing would be avail- Justice Murphy, 17/12/2003 cants contended that the able. The applicants claimed CONSTITUTIONAL [FL6961] respondent had wrongfully that the site at the Cooperage decided that the lands in ques- was unsuitable and did not fulfil Delay, fair procedures tion were within the curtilage of the duty imposed on the Judicial review – criminal law – CONTRACT a protected structure (which was respondents by section 13 of the constitutional law – right to fair situated on the lands) and were act of 1988 to provide proper trial – delay – sexual offences – Land law themselves part of the protected caravan sites for travellers and prohibition – fair procedures – Rescission – time expressed to be of structure. In addition, the appli- that they were entitled to be prejudice – whether order of prohi- essence – forfeiture of deposit – cants contended that the provided with suitable halting bition restraining trial should issue whether vendor entitled to forfeit respondent had wrongfully site accommodation notwith- – whether real risk of unfair trial deposit – reason for rescission – interpreted the development standing the fact that a trav- – whether offences known to law at whether sale subject to vacant pos- plan with regard to protected ellers’ accommodation pro- time of arrest – Non-Fatal session – conduct of purchaser – structures. gramme had not yet been Offences Against the Person whether purchaser permitted to Ó Caoimh J refused leave to implemented by the respon- Act, 1997 – Interpretation Act, take advantage of error made by seek judicial review, holding that dents. 1937 – Interpretation vendor’s solicitor in replies to req- the applicants had failed to Herbert J declared that the (Amendment) Act, 1997 uisitions – whether purchaser prej- advance substantial grounds that respondent failed to discharge The applicant sought an order udiced by erroneous reply thereto the respondent had erred in law. its statutory obligations to pro- of prohibition to restrain his The plaintiff issued a vendor The protection afforded to a vide a site for the applicants’ trial on the grounds of delay. and purchaser summons for the ‘protected structure’ as set out caravan, holding that the func- He claimed that the delay in return of a deposit paid to the in the Local Government tions of a housing authority bringing the criminal prosecu- defendants on a property sub- (Planning and Development) Act, under section 13 of the 1988 act tion was inordinate and his ject to a tenancy after the con- 1999 included land lying within must be performed in a reason- defence had been hampered tract for sale had been rescind- the curtilage of the structure. able manner and must involve and prejudiced. It was claimed ed. The plaintiffs claimed that This did not mean that no work the application of a coherent that there was a real and serious the rescission was due to the

46 Law Society Gazette April 2003 Briefing fact that the defendants did not 1996, section 2(1) the prosecution had not served their agreement and without provide the property with The respondent was charged the book of evidence by then. notice to them as it was con- vacant possession as they had with an offence stated as being Later that day, the district judge trary to the principles of natural allegedly agreed to. The defen- contrary to section 2 of the re-entered the charge sheet at justice. The situation of the first dants claimed that vacant pos- Sexual Offences (Jurisdiction) Act, the request of the first respon- respondent differed, as it would session had never been a term of 1996 as set out in the statement dent but without the knowledge be contrary to justice that he the contract and that the rescis- of charges. The respondent of the second and third respon- not be bound by the recogni- sion arose from the delay caused asserted that the statement of dents and remanded the first sance he had given in connec- by the plaintiffs. The defendants charges disclosed no offence respondent on continuing bail. tion with the original charges as further alleged that the only rea- known to the law, in that sec- Subsequently, the District he had sought to bring about son the plaintiffs made vacant tion 2 of the act did not itself Court made an order estreating the events in question. possession an issue was that create an offence. The High the recognisances and forfeiting In answering the first two there had been a genuine error Court granted an order of cer- the monies lodged in court for questions posed in the affirma- in the written replies to requisi- tiorari, quashing an order made non-performance by the first tive and the third question in tions to the effect that vacant by the district judge returning respondent of his conditions of the negative, Geoghegan J held possession of the property the respondent for trial in the bail. That order was appealed that it was implicit in the joint would be furnished, which had Circuit Court in respect of that to the Circuit Court. The request of the first respondent never been an issue between the charge. The appellant appealed Circuit Court posed the follow- to the state solicitor to re-enter parties up to that point. that decision. ing questions for the opinion of the original charges that he Smyth J ordered the defen- Geoghegan J dismissed the the Supreme Court: ‘Did the would be treating himself as dants to return the plaintiffs’ appeal, holding that section recognisance entered into by continuing to be bound by the deposit, holding that the defen- 2(1) of the 1996 act was unam- the respondents expire on 18 recognisance. As the District dants were intent on rescinding biguous and did not create a November 1998 when the orig- Court struck out the original the contract if the sale did not new offence but rather extend- inal charge sheet was struck out charges on substantial grounds, close by the due date and the ed the jurisdiction to try certain by the District Court? Did the the second and third respon- plaintiffs were entitled to treat existing offences. Accordingly, said recognisance revive as dents were entitled to believe the announcement from which the return for trial was invalid against the first respondent that their obligations were at an the defendants never resiled as a as the statement of charges did upon the granting of the appli- end. repudiation of the contract. not specify which scheduled cation made on his behalf to Fennelly J held that the first However, as the defendants had offence was being referred to. have the said charge sheet re- two questions should be been inhibited from disposing of As the statement of charges had entered? Was the said recogni- answered in the affirmative and the property for over a year due been carried over into the sance revived as against the sec- in regard to the third question to the plaintiffs’ conduct in rais- return for trial, it followed that ond and third respondents agreed with McGuinness J. ing no serious objection if the return was invalid and the when the said charge sheet was Superintendent Kennelly v vacant possession were not respondent was not properly re-entered, notwithstanding the Cronin, Supreme Court, available on the conclusion of before the Circuit Court. fact that they had no notice of 18/12/2002 [FL6919] the sale until it became clear BH v DPP, Supreme Court, the application to re-enter the that they could not proceed with 6/2/2003 [FL6873] said charge sheet and were not Delay, fair procedures the purchase due to their own present in the District Court at Impending prosecution for indecent financing difficulties and as they Bail, case stated the time?’ assault – right to expeditious trial had not been prejudiced by the Estreatment of bail – accused McGuinness J answered the – fair procedures – whether appli- erroneous replies to requisi- remanded on bail – recognisances first two questions posed in the cant must prove prejudice caused by tions, no interest would be entered into by respondents – affirmative and the third ques- delay – whether delay excessive – awarded on the said sum and the charges struck out and re-entered tion in the negative, holding whether applicant’s constitutional defendant was entitled to two on return date – grounds for strik- that there was a clear gap rights infringed – cause of delay – thirds of the costs of the action ing-out of charges – accused between the strike-out order whether applicant prejudiced in as against the plaintiff. remanded on continuing bail upon and the re-entry order. As a defence by reason of delay – prohi- Hade and Others v Meehan, re-entry of charges – bailspersons consequence, the first respon- bition – whether psychological evi- High Court, Mr Justice not on notice of re-entry of charges dent’s recognisance and those of dence adduced reliable – whether Smyth, 21/1/2002 [FL6862] – bail subsequently estreated – his bailspersons were dis- evidence of dominion established whether bailspersons bound by charged. An alteration by the The applicant was charged in CRIMINAL recognisances in respect of re- judge, even on the same day, 2000 with alleged indecent entered charges – Courts of could not retrospectively undo assaults on the complainant in Justice Act, 1947, section 16 those facts. The re-entry of the 1989, but the complaint had not Appeal, certiorari The first respondent was charge was a fresh step by the been made to the gardaí until Sexual offences – appeal – judicial charged with various offences court which brought about a 1998. He sought the prohibi- review – certiorari – fair proce- set out in charge sheet 334/98 new situation which affected tion of the continuance of the dures – charge – charge not known and was released on bail, the the position of all three respon- prosecution on the grounds to criminal law – whether charge a three respondents having dents. It was not open to the that the delay in the institution nullity – whether applicant proper- entered recognisances. On the District Court to re-impose and prosecution of the proceed- ly returned for trial – Sexual remand date, the District Court recognisances on the second ings had been excessive and vio- Offences (Jurisdiction) Act, struck out the charge sheet as and third respondents without lated his right to trial with rea-

47 Law Society Gazette April 2003 Briefing sonable expedition and that the tive, holding that the defen- was unlawful could not become land as ‘safety area’ without com- delay prejudiced his chances of dant’s detention at the time the lawful on the basis of what was pensation deprivation of constitu- obtaining a fair trial in that it request was made was not law- heard during it. The evidence tional property rights – whether hindered the preparation of his ful. Where authorities were of the phonecall was therefore applicant entitled to compensation defence. entitled to perform a particular admitted in error and the con- – whether respondents should be McKechnie J granted the procedure on arrest, they were viction must be quashed. compelled to compulsorily acquire relief sought, holding that an entitled to a reasonable period DPP v Dillon, Court of applicant’s lands – Air accused has a right to have a trial of time in which to do it. Criminal Appeal, 20/12/2002 Navigation and Transport Act, with reasonable expedition However, in this case, no reason [FL6920] 1950, section 14 – Local which, constitutionally based, is whatever was given for the Government (Planning and independent of any other right interval. In another case there Guilty plea, sexual offences Development) Regulations which might attach to a trial of might be evidence that would Appeal – rape offence – guilty plea 1994, regulation 32(1)(h), third such a person on a criminal clearly demonstrate the reason- – whether custodial sentence schedule, paragraph 8 – charge so that delay itself, even ableness of the 20-minute inter- mandatory – Criminal Law Bunreacht na hÉireann, articles, where no prejudice exists, can val between arrival at the garda (Rape) Act, 1991 – Sex 40.1, 40.3 and 43.2 be sufficient to prohibit the station and the administration Offenders Act, 2001 The applicant sought various prosecution of a trial. As the of the test. The applicant sought leave to reliefs following a refusal by An accused did not exercise domin- DPP v Finn, Supreme Court, appeal against the severity of a Bord Pleanála to grant plan- ion over the complainant after 19/2/2003 [FL6904] sentence. The applicant had ning permission for houses the incidents complained of, no pleaded guilty to two offences within an aviation ‘safety area’ excuse could be made for the Evidence, privacy, of rape and had received a term next to Shannon airport. The complainant’s delay in making telecommunications of three years’ imprisonment. respondents had lodged objec- her complaint. Accordingly, the Constitutional law – evidence – On behalf of the applicant, it tions to the original grant of accused was entitled to the relief telecommunications – privacy – was contended that a sentence permission by Clare County sought on the ground of delay contract law – statutory interpreta- of imprisonment was not Council on the grounds that alone. He was not entitled to tion – interception of mobile tele- mandatory in all such cases. It development within that area relief on the ground of any phone call – whether interception of was submitted that the appli- would pose a threat to the alleged prejudice as a result of phonecall amounted to invasion of cant was a person of excellent proper functioning of aviation delay. rights – whether evidence of prior character and that a custo- around the airport. Schedule 8 BJ v DPP,High Court, Mr phonecall inadmissible – Postal dial sentence had not been war- of the 1994 regulations pro- Justice McKechnie, 12/2/ and Telecommunications Ser- ranted. vides that no compensation is 2002 [FL6812] vices Act, 1983 The Court of Criminal payable where permission is The applicant had been con- Appeal (Fennelly J delivering refused on the grounds that the Detention, road traffic victed on foot of evidence judgment, Lavan J and Abbott J development would interfere Lawful detention – case stated – obtained by An Garda Síochána agreeing) allowed the applica- with air traffic. Section 14 of road traffic offence – whether from a telephone conversation tion in part. The trial judge had the Air Navigation and Transport defendant in lawful detention at on a mobile phone. The gardaí erred in not leaving open the Act, 1950 also allows the time request for sample made – had obtained a mobile phone possibility of a non-custodial respondents to prevent devel- Road Traffic Acts, 1961–1994 from a suspect and had received sentence. The provisions of the opment within an area sur- The defendant was arrested information from a telephone Sex Offenders Act, 2001 that rounding an aerodrome and under the Road Traffic Acts and call made to the mobile phone. applied to the applicant consti- provides for compensation to taken to a garda station. He was The applicant appealed the con- tuted a real and substantive landowners so affected. The detained in the station for viction on the basis that the evi- punitive element. It was an applicant claimed that the des- roughly 20 minutes and then dence in question had been exceptional case and the court ignation of such safety areas asked to provide a breath speci- improperly obtained as the would suspend the balance of was ultra vires the powers of the men. The garda indicated in interception was in breach of the remaining sentence. respondents and that it denied court that the garda ‘guidelines’ the Postal and Telecommunications DPP v Y(N), Court of him the right to compensation stated that a garda should Services Act, 1983. It was sub- Criminal Appeal, 19/12/2002 which would be available under observe an arrested person for mitted that the interception was [FL6838] section 14 of the 1950 act, 20 minutes prior to the taking of in violation of the applicant’s which was an unjust attack on a sample or requiring that a constitutional rights. his constitutional property sample be given. The defendant The Court of Criminal ENVIRONMENTAL rights. refused to comply with the Appeal (Hardiman J delivering Finnegan P refused the garda’s direction to give a breath judgment, Ó Caoimh J and Judicial review, planning and reliefs sought, holding that the specimen. The Circuit Court Finnegan J agreeing) allowed development law respondents had a legitimate stated a case to the Supreme the appeal and quashed the con- Permission – aviation law – interest in proper planning and Court, seeking an opinion on viction. There had been no refusal of planning permission – development of the area sur- whether the defendant was in agreement by the applicant to fair procedures – whether designa- rounding Shannon airport and lawful detention at the time the the listening by the gardaí of the tion of applicant’s land as aviation if the respondents’ objectives request for a sample was made. telephone conversation and this ‘safety area’ ultra vires respon- could be achieved within the The Supreme Court answered had amounted to an ‘intercep- dents’ powers – compensation – planning process, there was no the first question in the nega- tion’. An interception which whether designation of applicant’s basis in law upon which they

48 Law Society Gazette April 2003 Briefing could be compelled to adopt In making provision for the done so by encroachment. The plaintiff and the amount of statutory procedures available to applicant, O’Neill J held that in plot in question had been damages awarded were in error. them. As the planning code is of complying with section 20(3) of enclosed by the plaintiffs and The Supreme Court (Denham J universal application, there was the Family Law (Divorce) Act, had clearly been incorporated and Hardiman J delivering no unjust discrimination con- 1996, the court, being required into their garden. The amount judgment, McGuinness J agree- trary to article 40.1 of the con- to ‘have regard’ to the terms of a of damages to be awarded for ing) allowed the appeal and stitution. Preventing develop- separation agreement, must trespass would be decided at a reduced the damages. Denham ment which might interfere examine the agreement to later date. J held it was clear that the plain- with air traffic around an aero- ensure that, at the time of the Battelle v Pinemeadow Ltd, tiff had suffered a significant drome is a valid objective based application, the agreement, in High Court, Mr Justice injury. However, the plaintiff on the common good and is light of the circumstances of the Finnegan, 9/5/2002 [FL6825] had deliberately exaggerated therefore an appropriate matter party, either at that time made a her symptoms and had lost to be balanced pursuant to arti- ‘proper provision’ or that it con- credibility as a consequence. cle 43.2 of the constitution tained obligations which would LITIGATION The damages awarded would be against the constitutional rights ensure that such provision reduced to £90,000 and con- in relation to private property would be made. Abuse of process, personal tributory negligence assessed at found in article 40.3. K(M) v K(JP), Supreme injuries 50%, resulting in an award of Liddy v Minister for Public Court, 24/1/2003 [FL6866] To rt – litigation – loss of earnings – £45,000. Hardiman J held that Enterprise, Irish Aviation damages – contributory negligence the plaintiff’s manifest false- Authority, Aer Rianta and – video evidence – abuse of process – hoods and the overall impres- Ireland, High Court, Mr LAND LAW whether plaintiff unfit for work – sion of the video evidence had Justice Finnegan, 4/2/2003 whether evidence tendered by given rise to a considerable dif- [FL6927] Adverse possession, trespass plaintiff credible ficulty. The original award of Encroachment – adverse possession The plaintiff had been involved the High Court would be set – trespass – whether title of disput- in an accident while on a bus aside and a decree in the sum of FAMILY ed land had vested in plaintiffs and, as a result, had sustained £45,000 awarded. The plaintiffs had purchased a injuries. As part of her proceed- Shelly-Morris v Bus Átha Divorce property and over time had ings subsequently brought, the Cliath, Supreme Court, Ancillary financial orders – Family incorporated an area at the back plaintiff submitted a claim for 22/1/2003 [FL6849] Law (Divorce) Act, 1996 – of the house into their garden. loss of earnings. At the trial in Bunreacht na hÉireann, article The defendant subsequently the High Court, it emerged by Damages, negligence, 41.3.2 acquired an interest in the lands way of video evidence that the personal injuries The parties were granted a in question and sought to enforce plaintiff’s injuries were not as To rt – personal injuries – litigation decree of divorce. The respon- its title and entered onto the dis- serious as originally thought – negligence – damages – quan- dent appealed against the ancil- puted area of land. The plaintiffs and had in fact been exaggerat- tum – whether damages should be lary financial orders and eventu- issued proceedings seeking a dec- ed. O’Higgins J in the High awarded for loss of earnings ally the matter was returned to laration that title of the disputed Court awarded £172,500 in The plaintiff had been involved the High Court so that the area was vested in them. damages, with a reduction made in an accident while driving. question of proper provision for The president of the High for contributory negligence. The plaintiff initiated proceed- the parties could be considered Court held that title was vested The defendants appealed to the ings seeking compensation for in light of the mandatory provi- in the plaintiffs. The plaintiffs Supreme Court, arguing that the injuries suffered. Although sions of the Family Law (Divorce) had not entered onto the disput- the finding of only 25% con- liability was conceded by the Act, 1996. ed area by permission but had tributory negligence against the defendants, there was a dispute

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49 Law Society Gazette April 2003 Briefing as to the extent of the injuries drawn from primary facts – of the High Court, holding that emotional trauma as a result of suffered by the plaintiff. There whether credible evidence of pri- there was credible evidence to the operation. was also uncertainty as to the mary facts to support trial judge’s support a finding by the trial Johnson J awarded the plain- extent of the plaintiff’s loss of secondary findings of fact judge that, on the balance of tiff €250,000 general damages, earnings which were attributa- The plaintiff, who suffers from probabilities, the damage to the including €150,000 for the ten ble to the accident. cerebral palsy, sued for dam- plaintiff was not caused during years to date and €100,000 into O’Donovan J awarded over ages for his condition, which, the 20 minutes immediately the future, with special damages €97,000 in damages. He held he alleged, was caused by the preceding his birth and so was of €23,223.27. He held that the that the plaintiff had a tendency negligence of the defendants not due to the negligence of the defendant was negligent in that to ‘gild the lily’ in relation to arising out of his birth at defendants. no obstetrician of his qualifica- aspects of her claim. In the short Holles Street hospital in 1978. Purdy v Lenihan and Others, tions should have done what he term, after the accident the The claim of negligence was Supreme Court, 5/2/2003 did and, on the balance of prob- plaintiff was unable to work. based on the failure of the [FL6940] abilities, the haemorrhaging of The plaintiff was now fit for fourth and seventh defendants the plaintiff could have been work and damages for loss of to carry out a caesarean section Professional negligence, tort, arrested by more conservative earnings would only be awarded on the plaintiff’s mother and liability treatment and the operation up to a certain date and approxi- the failure of the hospital to To rt – medical negligence – profes- would have been unnecessary. mately €16,700 would be prepare adequately for a possi- sional negligence – personal Gough v Neary and Cronin, awarded for loss of earnings in ble blood transfusion to his injuries – liability – causation – High Court, Mr Justice total. A sum of €50,000 would mother some hours before his evidence – findings of fact – Johnson, 15/11/2002 be awarded for general damages. birth. The High Court whether appropriate medical pro- [FL6895] G Wall v Raleigh,High Court, (Johnson J) dismissed the pro- cedures and practices followed – Mr Justice O’Donovan, ceedings on the ground that whether failure to use more conser- The information contained here 16/1/2003 [FL6826] the plaintiff failed to establish vative medical treatment negligent is taken from FirstLaw’s Legal that his condition was caused The plaintiff sued for damages Current Awareness Service, pub- by the negligence of the defen- for personal injuries caused by a lished every day on the Internet at MEDICAL NEGLIGENCE dants in failing to have a blood hysterectomy performed by the www.firstlaw.ie. For more infor- transfusion ready. The plaintiff first defendant to stop haemor- mation, contact bartdaly@first- Evidence, liability appealed that decision to the rhaging, which, she alleged, law.ie or FirstLaw, Merchants Professional negligence – appeal – Supreme Court. could have been arrested by Court, Merchants Quay, Dublin 8, liability – causation – evidence – Keane CJ dismissed the more conservative treatment. tel: 01 679 0370, fax: 01 679 findings of fact – inferences to be appeal and affirmed the order She claimed to have suffered 0057. Safe storage of Land Certificates Instead of having a new paper land certificate issued or an existing land certificate re-issued, you can now have the land certificate stored in the Land Registry and held to your order. No fee is payable for this service (other than the standard fee payable if a new land certificate is being requisitioned for the first time). To avail of this service you must instruct us at the time of making your application. For full details please refer to notices issued to all practitioners by the Land Registry or see our website www.landregistry.ie COMPLETE YOUR FORM 17 ON-LINE Electronic Access Service customers of the ments and fees in the usual manner processes within the Land Registry are no Land Registry can now make an application • Fees are calculated automatically as you longer necessary it is possible for us to for registration on-line via our website. complete the form on-line process electronic applications faster if Among the benefits are: •Alevel of interactivity is built into the sys- the documents are correctly lodged •Dealing number is provided on-line when tem whereby information is provided We strongly encourage customers to avail making the application. On completion of automatically and certain fields in the of this and the other electronic services the form on-line, simply print two copies, application form are populated for you already available through our website sign one, and send it to us with the docu- • Speed of service. Because certain www.landregistry.ie.

If you wish to discuss any aspect of this Land Registry service, please contact Peter McHugh at 01-8048167 or Registry of Deeds [email protected]

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

New merger control regime

he new merger control act, a merger or acquisition the 2002 act) to be notified to requested, provide informal Tregime contained in part 3 which meets the following the Competition Authority irre- pre-merger guidance and will of the Competition Act, 2002 thresholds in the most recent spective of the turnover of meet the parties provided that a came into force on 1 January financial year must be notified to the undertakings involved short letter outlining the trans- 2003. Part 3 of the 2002 act has the Competition Authority pro- (Competition Act, 2002 (Section action is received by the introduced significant changes vided that the test for carrying on 18[5]) Order 2002). The finan- Competition Authority at least to the Irish system of merger business in the island of Ireland cial thresholds set out in the two days before the meeting. control and has replaced the summarised below is met: 1978 act were also disapplied for No similar facility existed in Mergers, Takeovers and • The worldwide turnover of media mergers, although the practice in the application of the Monopolies (Control) Act, 1978 (as each of at least two of the definition of media mergers was 1978 act. amended). Some of the princi- undertakings involved must different. ple changes introduced by the not be less than €40 million Application of sections 4 and 2002 act may be summarised as and Carrying on business in 5 to sub-threshold mergers follows: • The turnover in the state of Ireland A merger or acquisition which at least one of the undertak- The 2002 act requires that each does not meet the thresholds Substantive test ings involved must be not of at least two of the undertak- summarised above is still subject The substantive test for vetting less than €40 million. On ings involved in the merger or to sections 4(1) and 5(1) of the mergers is whether or not the 10 December 2002, the acquisition carry on business ‘in 2002 act. Section 4(1) of the result of the merger will be to Competition Authority issued any part of the island of Ireland’, 2002 act prohibits all agree- ‘substantially lessen competi- Notice in respect of certain terms which clearly includes Northern ments between undertakings, tion in markets for goods and used in section 18(1) of the Ireland. The 1978 act required decisions of associations of services in the state’. This test Competition Act, 2002 (as that at least one of the enterpris- undertakings and concerted replaced the test in the 1978 act, amended on 18 February es involved in the proposal carry practices which have as their which was whether or not the 2003) in which turnover has on business in the state with no object or effect the prevention, proposed merger or takeover been interpreted by the mention of Northern Ireland. restriction or distortion of com- was likely to operate against the Competition Authority to petition in trade for any goods common good. The new sub- comprise sales made or serv- Assets or services in the state or in any stantial lessening of competition ices supplied to customers There is no asset-based test part of the state. Section 5(1) of test, which is modelled on that within the state. under the 2002 act as existed the 2002 act prohibits any abuse applied in the United States, has under the 1978 act. by one or more undertakings of been chosen as opposed to the Under the 1978 act, a merger or a dominant position in trade for EU test, which is whether or takeover was notifiable if, in the Publication of notification any goods or services in the state not the merger will create or most recent financial year, each Under the 2002 act, the or in any part of the state. strengthen a dominant position of at least two of the enterprises Competition Authority is as a result of which competition involved in the proposal had a obliged to publish a notice of Voluntary notification will be significantly impeded in turnover of not less than receipt of the notification within A sub-threshold merger or the common market or a sub- €25,394,761 (formerly IR£20 seven days of receiving it. The acquisition may be notified to stantial part of the common million) or gross assets not less Competition Authority has a the Competition Authority on a market. The Competition than €12,697,380 (formerly section on its website to publish voluntary basis. A transaction Authority has adopted the Notice IR£10 million). notified mergers. Interested voluntarily notified and in respect of guidelines for merger The 2002 act contains a pro- third parties will have ten days approved is not subject to the analysis, dated 16 December vision which specifies that a within which to submit com- prohibitions in sections 4(1) and 2002, which gives the merger or acquisition is notifi- ments on the merger or acquisi- 5(1) of the 2002 act. Competition Authority’s view of able if it falls within a class of tion. There was no requirement the application of the 2002 act merger or acquisition specified to publish the receipt of a notifi- Fee increase to mergers and acquisitions. by the minister for enterprise, cation under the 1978 act. The fee for notifying a merger trade and employment. To date, or acquisition under the 2002 Increase in thresholds for the minister has issued one Informal pre-merger guidance act is €8,000 as opposed to compulsory notification such order which requires all The mergers division of the €5,078.95 (formerly IR£4,000) Under section 18(1) of the 2002 ‘media mergers’ (as defined in Competition Authority will, if under the 1978 act.

51 Law Society Gazette April 2003 Briefing

Forms for notification involved in the merger or Authority may well in practice corporate group are not notifi- There are two forms for notify- acquisition by virtue only of its not issue approval until the end able provided that the requisite ing mergers and acquisitions being the vendor of any securi- of the one-month period even level of control is found to under the 2002 act, a long form ties or other property involved in the most straightforward of exist. and a short form. The short in the merger or acquisition (in cases. Under the 1978 act, the form is to be used for certain other words, it is only the minister for enterprise, trade Transitional regime specified transactions (such as turnover derived from the tar- and employment was obliged to The 2002 act contains certain joint ventures with a turnover of get as opposed to the vendor’s respond in cases not being transitional provisions in regard less than €10 million in the retained business that is count- referred to the Competition to mergers or takeovers notified island of Ireland and mergers ed on the vendor’s side). This is Authority ‘as soon as practica- under the 1978 act. The 2002 where combined market share is a limited exemption as it ble’, which often meant a peri- act specifies that if a merger or less than 15% for mergers appears from the wording that od of between one and two takeover has been notified to between competitors). if the vendor remains involved weeks in practice. the minister for enterprise, in the business post-comple- trade and employment in accor- One month to notify tion, the exemption may not Joint ventures dance with section 5 of the 1978 The merger or acquisition must apply. The 1978 act contained The 2002 act defines mergers act before the merger provisions be notified to the Competition no specific exclusion for the and acquisitions as including of the 2002 act came into force, Authority within one month turnover of the vendor. joint ventures that perform on a the merger or takeover so noti- after the conclusion of the agree- lasting basis all the functions of fied is to continue to be dealt ment or the making of a public Response time an autonomous economic enti- with under the 1978 act even bid in a public offer situation. It The Competition Authority has ty. This parallels the EU model though the merger provisions of appears that in situations not one month in the first-phase under the EU Merger regula- the new act have come into involving a public bid, the examination to decide whether tion. force. Competition Authority will not or not to approve the merger or accept a notification until a to carry out a full investigation Corporate group exemption Media mergers definitive agreement has been into the merger in a second- widened As noted above, the minister has signed. According to this view, it phase examination. The latter Under the 1978 act, an exemp- adopted a statutory instrument will be necessary to have a split must be completed within a tion was provided for corpo- which specifies that ‘media signing and completion for period of four months from the rate group situations but was mergers’ are to be notified to the mergers that are to be notified date of receipt of the notifica- very limited in that it applied Competition Authority irrespec- under the 2002 act. The 1978 act tion or the receipt of supple- only to transactions between tive of the turnover of the under- required that a notification be mentary information if supple- two or more bodies corporate takings involved. Furthermore, made within one month of an mentary information is request- each of which was a wholly- the 2002 act contains specific offer capable of acceptance hav- ed. This broadly reflects the owned subsidiary of the same procedures and criteria for the ing been made which was inter- procedure under the EU Merger body corporate. The 2002 act vetting of media mergers, preted as allowing for the lodg- control regulation. A practical specifically excludes from the including provisions, which ing of a notification well before a downside for the notifying par- definition of merger or acqui- empower the minister effectively definitive agreement was signed. ties is that the Competition sition transactions where all to override a decision of the Authority will have one month the undertakings involved are Competition Authority. G Vendor’s turnover may be within which to make a decision under the control, directly or excluded and, given that interested third indirectly, of the same under- Marco Hickey heads the EU and The act provides that the ven- parties will be invited to com- taking. As a result, transactions competition law unit of the Dublin dor is not deemed to be ment, the Competition between companies within a law firm LK Shields Solicitors.

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52 Law Society Gazette April 2003 Briefing Tetra Laval judgment: CFI outlines approach to conglomerate mergers

n 25 October 2002, the have succeeded in driving com- packaging to gain a dominant address the competition con- OCourt of First Instance petitors out of the market, the position on the market for PET cerns raised by the transaction overturned the decision of the merged firm will have the abili- packaging. In addition, the com- and were therefore excluded European Commission to pro- ty to raise prices above the com- mission concluded that the from its analysis. hibit the merger between Tetra petitive level. merged entity’s dominant posi- Laval BV, the well-known man- Consistent with its practice in tion on the markets for carton The court’s view ufacturer of liquid food carton relation to other types of merg- packaging would be strength- The court found that the com- packaging, and Sidel SA, a ers, the commission does not ened. mission’s decision did not estab- French company involved in the consider behavioural remedies The commission concluded lish to the requisite legal stan- design and production of pack- as appropriate to address con- that the market structure result- dard that the merger would give aging equipment and systems glomerate concerns. Its prefer- ing from the merger would be rise to significant anti-competi- used in the production of ‘PET’ ence for structural remedies as particularly conducive to lever- tive conglomerate effects and plastic bottles (case T-5/02 Tetra part of an ex-ante merger con- aging effects. It considered that concluded that the commission Laval BV v Commission of the trol policy is also combined with leveraging could take place by committed a manifest error of European Communities, 25 a belief that ex-post control two types of measures. First, assessment in prohibiting the October 2002). based on article 82 (which pro- through pressure leading to tied merger on the basis of the evi- The case is significant as the hibits the abuse of a dominant sales or sales which bundle dence it relied on relating to the court considered in detail the position) is not capable of elim- equipment and consumables for foreseen conglomerate effect. approach to be taken when con- inating the creation or the carton packaging jointly with The court stated that ‘as the sidering conglomerate mergers strengthening of a dominant PET packaging equipment. effects of a conglomerate-type and the various elements that position resulting from con- Second, measures could be merger are generally considered must be proven in order to pro- glomerate mergers. adopted to offer incentives, such to be neutral, or even beneficial, hibit such a merger. as predatory pricing and loyalty for competition on the markets Background to the Tetra case rebates. concerned, the proof of anti- The commission’s approach The commission prohibited the In an attempt to address these competitive conglomerate When assessing conglomerate merger between Tetra Laval and concerns, the merged entity had effects of such a merger calls for mergers, the commission con- Sidel on the basis that the offered behavioural commit- a precise examination, supported siders various factors. First, the merged entity would be able to ments to the commission, but by convincing evidence, of the merged firm must have market leverage Tetra’s dominant posi- the commission considered that circumstances which allegedly power in one of the markets in tion on the market for carton these were not sufficient to produce those effects’ – namely, which it operates. Second, the the future conduct of the merged firm must have both the ability entity (para 155 of the judg- and the economic incentive to ment). engage in the leveraging strate- Issues raised by conglomerate mergers However, the court stressed gy. Third, the commission Conglomerate mergers are mergers between firms that do not have a that the commission cannot assesses whether leveraging has pre-existing competitive relationship, either as direct competitors or assume that following the merg- the consequence of reducing as suppliers and customers. Therefore, mergers of this type do not er the merged entity would competition in the markets in give rise to true horizontal overlaps between the activities of the par- engage in conduct that would question as a result of the fore- ties to the merger or to a vertical relationship between the parties in constitute a breach of article 82 closure, marginalisation or the strict sense of the term. of the EC treaty and that there- elimination of competing firms. While there is no presumption that conglomerate mergers produce fore, in the absence of evidence The commission is wary of anti-competitive effects, competition concerns may arise in certain to the contrary, the considera- arguments equating practices of cases. In particular, where the merging firms produce complement- tion of leveraging strategies like- a conglomerate firm with effi- ary products and the merged entity would enjoy market power in one ly to be engaged in must be lim- ciencies. As regards price incen- or more of the complementary products, it may attempt to leverage ited to legal activity such as tied tives, for example, it is of the this market power into one or more of the other products that consti- or bundled sales that are not view that short-term strategic tute the combined product range. forced, loyalty rebates that are price reductions cannot be con- The extent of the competitive harm of conglomerate mergers objectively justified, and offers of sidered as efficiencies in the depends on the industry concerned. Conglomerate mergers in indus- reduced prices that are not sense that they do not corre- tries which display imperfect competition (for example, with high sunk predatory. spond to a sustainable reduction costs or high barriers to entry) are considered more likely to lead to Further, both the likelihood of in the cost of production of the the permanent exclusion of competitors and the subsequent monop- detection of any illegal behaviour merged firm likely to be passed olisation of the market by the merged firm. Conversely, conglomerate engaged in by the merged entity on permanently to customers mergers may not lead to competitive harm when the merging firms under article 82 and commit- and consumers. On the con- lack sufficient market power or where there is significant countervail- ments regarding future conduct trary, the commission considers ing buyer power. offered by the merging parties that once such price reductions must also be taken into account

53 Law Society Gazette April 2003 Briefing in assessing whether it is likely Tetra’s customers on the cartons tors would be foreclosed from illegally given the likelihood of that the merged entity would act market, therefore the merged the market. detection and punishment under in a manner which could result entity’s dominant position on the However, the court has placed article 82 and similar national in the creation of a dominant cartons markets would not nec- the burden of economic and fac- laws. This would appear to sug- position on one or more of the essarily be strengthened either. tual proof firmly on the commis- gest that the commission should relevant PET equipment mar- sion’s shoulders. In particular, consider ex-post remedies to com- kets. Points of note in the court’s the commission must in future petition concerns arising out of As a result, the court found judgment rely on economic evidence to conglomerate mergers. that it would be possible for the Although the court overturned prove that a firm has the incen- In addition, the commission merged entity to engage in lever- the commission’s decision to tive, as well as the ability, to will in the future be obliged aging although its possible prohibit the merger between leverage its monopoly power in depart from its practice of prefer- means of leveraging would be Tetra Laval and Sidel, it did so one market to an adjacent mar- ring structural remedies to con- much more limited than the on the basis of the quality of the ket. It is clear that there is cer- glomerate issues, as the court commission had alleged. evidence relied upon by the tainly no presumption that firms, made it clear that behavioural The court then examined commission. It confirmed that if able, will always find it com- commitments must be considered whether the merged firm would conglomerate mergers, in cer- mercially attractive to pursue a as a means of resolving these. have an incentive to leverage by tain circumstances, can have leverage policy and the commis- Although the commission has assessing the foreseeable conse- anti-competitive effects and sion must show that the circum- appealed the court’s findings to quences of leveraging by it. The should be prohibited. stances for profitable leveraging the European Court of Justice, it court concluded that the evi- In this regard, EU practice are actually to be found in the has since cleared the merger dence relied on by the commis- differs from that in the USA, market under review. between Tetra Laval and Sidel. sion was not sufficient to show where the dominant view is that As regards the consideration Whether the Court of Justice that, if leveraging were to take anti-trust authorities should of leveraging strategies that a agrees with the Court of First place, the foreseeable conse- rarely, if ever, interfere with a firm may engage in, it is clear Instance remains to be seen. quence would be to enable the conglomerate merger. The US that the commission may not What is clear, however, is that the merged entity to achieve a dom- view is based on the belief that assume that a firm will engage in commission must re-visit its inant position on the PET mar- conglomerate mergers produce conduct that would breach arti- examination of conglomerate kets. In addition, as the merged short-term welfare benefits and cle 82 of the EC treaty. When mergers in the future. G entity would not be able to mar- that anti-trust authorities are not assessing likely future conduct of ginalise Sidel’s competitors able to predict future activity parties to a conglomerate merg- David Geary is a Brussels-based through leveraging, they would with sufficient certainty to be er, the commission must also solicitor with the UK law firm be still able to promote PET to able to conclude that competi- consider any disincentive to act Wragge & Co.

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54 Law Society Gazette April 2003 Briefing Recent developments in European law COMPANY LAW freedom of establishment or the 48 of the treaty and regulation therefore goes beyond what is freedom to provide services. The 1612/68. Her parents had con- necessary to attain the objective The commission has presented a ECJ indicated that EU legislation tinued to reside in Belgium while pursued – to ensure a real link proposal to modify the First com- does not appear to preclude she undertook her secondary between the applicant for the pany law directive (68/151/EEC) sending back non-nationals who education in France. On this allowance and the geographic to make company information do not have a visa or identity doc- basis, the ECJ held that she market concerned. more readily available to the pub- ument. However, EC legislation could not rely on article 48 or lic and to simplify the disclosure provides that member states are secondary legislation on the LITIGATION formalities required from compa- to accord to such persons every rights conferred on the families nies. The proposed amendments facility for obtaining the neces- of migrant workers. Her alterna- Brussels convention are also designed to take full sary visas. Visas are to be tive argument was based on her Case 96/00 Rudolf Gabriel, 11 advantage of modern technology. issued without delay and, as far citizenship of the EU. The ECJ July 2002. Schlank & Schick Companies would be able to file as possible, at the place of entry held that article 8 confers the GmbH is a German company that their documents either by elec- into national territory. It conclud- status of a citizen on each per- sells goods by mail order in tronic means or by paper. ed that a non-EU-national, mar- son holding the nationality of a Germany, Austria, France, Member states would be ried to an EU citizen, who is able member state. As the applicant Belgium and Switzerland. In required to make the filing of to prove his identity and conjugal is Belgian, she is an EU citizen. October 1999, Mr Gabriel company documents by electron- ties should not be sent back from EU citizens are to be given the received a number of letters from ic means possible from 1 a border as to do so is dispro- same treatment in member Schlank & Schick, which led him January 2005. portionate, provided that he does states in matters of EC law as is to believe that following a draw not represent a risk to the given to nationals of those he had won 49,700 Austrian FREE MOVEMENT OF requirements of public policy, states. It would be incompatible schillings and he would receive PERSONS public security or public health. with the rules on free movement that amount if he ordered goods The court went on to hold that if a citizen in a member state to the minimum value of 200 Case C-459/99 Mouvement con- such a person’s right of resi- receives treatment less schillings from an attached cata- tre le racisme, l’antisémitisme et dence is derived directly from favourable than he would enjoy if logue. In the small print there la xénophobie ASBL (MRAX) v rules of EC law irrespective of he had not availed himself of the were a number of statements État Belge, 25 July 2002. The the issue of a residence permit opportunities offered by the indicating that there was no firm Belgian government had issued a by a member state. On the same treaty in relation to freedom of promise to pay the prize. Mr circular requiring a visa for non- basis as its answer to the first movement. These opportunities Gabriel filled out the appropriate EU-nationals to marry in Belgium question, the court held that a would not be fully effective if he documents and ordered goods or for re-uniting a family on the decision refusing a residence is deterred from availing himself with a value in excess of the min- basis of a marriage outside permit, or ordering expulsion, of them by obstacles raised on imum value. The goods he Belgium. MRAX argued that the based exclusively on a failure to his return by legislation penalis- ordered were delivered to him circular was incompatible with EC comply with the legal formalities ing the fact he has used them. By but he never received any prize legislation on movement and res- relating to the control of foreign linking the grant of allowances to money. Under Austrian consumer idence within the EU. The Belgian nationals is a disproportionate the condition of having received a legislation he started legal pro- Council of State made a refer- measure. diploma in Belgium, national leg- ceedings for the prize money, ence to the ECJ. It asked whether Case C-224/98 Marie- islation disadvantages its nation- together with interest and costs. member states could send the Nathalie D’Hoop v Office national als who have exercised their free- The Austrian court made to a ref- spouse of an EU citizen who is a de l’emploi, 11 July 2002. Ms dom to move in order to pursue erence to the ECJ seeking guid- non-EU-national back at a nation- D’Hoop is a Belgian national who education in another member ance on whether such a claim fell al border where they seek to completed her secondary educa- state. This inequality of treat- under the consumer protection enter the state without a valid tion in France. Her diploma was ment is contrary to the principles rules in article 13, was contrac- identity document and a visa. It recognised in Belgium as equiva- that underpin the status of citi- tual under article 5(1) or related also asked whether the state lent to a Belgian secondary zen of the union. The condition to a tort and fell within article could refuse a residence permit school diploma. She studied in could only be justified if it was 5(3) of the convention. The ECJ to such persons where they university in Belgium until 1995. based on objective considera- was satisfied that Mr Gabriel entered the state unlawfully or In 1996, she claimed a state tions independent of the nation- ordered the goods for his person- they entered it lawfully but allowance. This was refused as ality of the people concerned and al use and thus as a consumer applied for issue of a residence she had undertaken her second- was proportionate to the legiti- within the terms of article 13. permit after expiry of their visa. ary schooling in another state. mate aim of the national provi- The dispute concerned a con- The ECJ confined the scope of its She challenged that decision sions. The ECJ held that a single sumer contract. His action was judgment to non-nationals mar- before the Belgian courts. A ref- condition concerning the place so closely linked to the consumer ried to EU citizens exercising erence was made to the ECJ to where completion of secondary contract that it was governed by their freedom of movement with- establish whether this refusal education occurred was too gen- the consumer protection rules in in the EU as workers or through could be consistent with article eral and exclusive in nature. It the convention. G

55 Law Society Gazette April 2003 People and places

Parched and proud Newly-qualified solicitors pictured at the presentation of parchments ceremony on 7 March, with Law Society president Geraldine Clarke and director general Ken Murphy. The Deirdre M Casey memorial prize for the highest mark in conveyancing on the PPCII went to Averil Field (middle row, third from right)

Moot point Stepping it up Pictured after the moot court final are (front row, from left): Catherine At the recent jointly-run Law Society/STEP conference on administration Dolan from sponsors Round Hall Sweet & Maxwell; High Court of estates were (from left): Michael O’Connor; Susan O’Connell; president Mr Justice Finnegan; the winners, Niall MacGoillabuí and Maureen Carolan, Bank of Ireland Trust Services; Janice Walsh; and Law Society director general Ken Murphy. (Back row, Declan O’Neill; Cyril O’Neill & Company; and John O’Connor, from left): TP Kennedy, director of education, Mr Justice Michael Peart chairman of the Law Society’s Probate, Administration and Taxation and Judge Patrick McCarten Committee, who is also chairman of STEP

EU did it Conferees and lecturers are pictured at the conferring ceremony for the Diploma in EU law. They include (starting third from left, front row): Wendy Hederman, chief regulatory officer with the E-Tel group; Geraldine Clarke, president of the Law Society; TP Kennedy, director of education; and Stuart Gilhooly, vice-chairman of the Education Committee

56 Law Society Gazette April 2003 People and places

Talk your way out of this Winning counsel The law school negotiations competition ran from January to March. Padraic Courtney (second from left) is pictured with the winners of the Pictured with Antoinette Moriarty (second from left) are winners Douglas law school client counselling competition, Edward Bradbury and Conor Sadlier and Gareth Murphy, and runners-up Aimee Madden (far left) and Brady, and the runners-up Jenny Dempsey (far left) and Helen Margaret Malone (far right). Gareth and Douglas will represent the Law Coughlan (far right) Society of Ireland at the international negotiations competition in Calgary, Canada in July

Take cover Sharing title Pictured at the continuing legal education seminar Recent developments A continuing legal education seminar on co-ownership agreements took in insurance law were (from left): barrister David Barnville, Mr Justice place in Cork on 31 January. In the photo are (from left): Patrick Dorgan, Adrian Hardiman and John Campbell Dr Michael Twomey, CLE’s Lindsay Bond and Alan Murphy

Finding the will Farm tips The continuing legal education seminar Recent developments in probate Discussing conveyancing and taxation issues on farm disposals in litigation was held in Sligo on 28 February. Pictured here are (from left): Thurles on 24 February were (from left): Owen Binchy, Donal Binchy, Michele O’Boyle, Vinog Faughan and Lindsay Bond Lindsay Bond and Brian Bohan

57 Law Society Gazette April 2003 People and places

Kingdom come The Kerry Law Society met in Tralee on 11 March 2003. In the photo are (front row, from left): Angela Condon, Louis O’Connell, Siobhán Foley, Joe Mannix, Law Society president Geraldine Clarke, Pat Mann, Angela O’Connor, director general Ken Murphy and Deirdre Quinn; (middle row, from left): Deirdre Walsh, Donal Kelliher, Mary Twomey, Blánaid Lynch, Noreen Broderick, Ursula Quinlan, Fionnuala Murphy, Katie McCarthy, Marie Ford, Margaret Sheehan, Carol Anne Coolican, Canice Walsh and Helen Fitzgerald; (back row, from left): Pat Sheehan, Pádraig Burke, Michael Kelly, Donal Browne, Michael O’Donnell, Michael Gleasure, John Baily, Matt Breslin, Larry Power and Peter Callery

Commerce diploma At the conferring ceremony for the Diploma in commercial law, the conferees and lecturers are pictured here with (starting third from left, front row): Law Society president Geraldine Clarke; Wendy Hederman, chief regulatory officer with the E-Tel Group; TP Kennedy, director of education; and Stuart Gilhooly, vice-chairman of the Education Committee

58 Law Society Gazette April 2003 Apprentices’ page SADSI

Solicitors Apprentices Debating Society of Ireland A brief history of (committee) time t is a black hole. It has to be. cosmological phenomena that once you do cross the threshold comments, the good-natured ITo explain: before I got into suggest a black hole, in – that ‘event horizon’ – there is insults – and you have absolutely this job, well, ‘things’ just Blackhall Place you could see absolutely no escape. This is no choice but to pretty much happened. The wages were very tangible results and you SADSI exactly. You see first join in and get on with it. adjusted, money appeared for could intellectually attribute hand the shocking amount of With PPC I finishing up evenings out and oratory prizes. them to a SADSI committee work that is put in by a bunch of their exams (best of luck to Debates, soccer and rugby beavering away at the centre of volunteers who already do fairly everybody) and PPC II lining games were organised, and our trainee galaxy, but you long hours when judged against up to take their place, this black funds appeared for those too. In didn’t directly observe all the other careers. You see the hole is going to be a busy place. striking similarity to the emitted work that was going on. barrage of e-mails that fly Des Barry, x-rays and gas plumes and other Once you’re ‘in’ it, of course, around every day; the ideas, the Auditor

In-office training NEW SADSI COMMITTEE Maiden speakers’ ur second, and more serious, debate Otask centres on the in-office nce PPC II arrives back on training of trainees. The present Othe Education Centre’s SADSI committee has been in doorstep, SADSI has two existence a couple of months immediate tasks. The first is the now and in-office training is the maiden speakers event which will second biggest area of concern be held in May (check SADSI being brought to our attention website for details). We are by our fellow trainees, after the aware that the formality of issue of trainees’ wages. Our typical debates can suck the fun indentures chart the course that out of participation. As such, it is our education should follow, but our intention to get complete it appears that quite a few of our novices in to speak on a variety trainees aren’t hitting all the of entertaining subjects and it waypoints. In the first few weeks will really be aimed at those of May, SADSI will be (Back row, left to right): Eamonn Kelly (treasurer), Des Barry trainees who have never spoken circulating a survey aimed at (auditor), Cormac O’Regan (southern rep), Sonya Heney (mid-western before. Every competitor will rep), (front row, left to right): Nessa Barry (PRO), Lorraine Rowland PPC II, where we will be asking (eastern rep), Sinead Lynch (secretary), Dawn Carney (western rep). receive a small award, and prizes direct questions concerning the Not pictured: Simon Hannigan (PPC I rep) will be on offer for the level of training that our best/funniest/most entertaining members are getting. I would speakers. A wine reception will encourage all trainees to take follow to reward the brave souls part in this endeavour. If your PPC II kicks off in style who show up and give it their all. SADSI committee lacks ollowing a couple of weeks II social calendar begins with a comprehensive information, it Fof frantic organisation, the party in the Odeon Bar at the cannot take action on your venue for the PPC II welcome top of Harcourt Street. Meet SADSI behalf or in aid of those that will back party has been organised. the folks you haven’t seen since WEEKEND AWAY follow. On Tuesday 29 April, the PPC May and catch up on all the Running into the middle of May, goss. SADSI has booked the there are plans for a SADSI Odeon’s first floor function weekend away. Sonya Heney, room with a DJ. We will also south western rep, and Dawn Southern regional event be providing ‘light Carney, western rep, have done SADSI has kindly agreed to fund a night out for all Southern refreshments’ for all, with not a the preliminary work on a trip trainees on Friday 11 April. Whether pre-PPC I or post-PPC II, all textbook in sight. The antics to the Aran Islands directly trainees are welcome. We will be delighted to see you. Hopefully, start at 8.30pm and will following the PPC II ethics pre-PPC I trainees should find it an opportunity to meet their continue into the early hours. exams, and we are hoping to colleagues before they attend the PPC I course. We hope to see all As this is the first night out for get 50 to 60 trainees for a trainees from the southern region and those from other regions are PPC II, we hope that as many weekend of blazing sunshine welcome also. Full details will be announced on the SADSI website. trainees as possible from all the and great craic. More details Cormac O’Regan, courses turn up. as they become available Southern rep Nessa Barry, (check website). PRO

59 Law Society Gazette April 2003 Recruitment

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60 Law Society Gazette April 2003 Professional information

LOST LAND Donegal; folio: 39446; lands: CERTIFICATES Magheraclogher in the barony of LawSociety Kilmacrenan, Co Donegal; Co Gazette Registration of Title Act, 1964 Donegal An application has been received from Regd owner: John Allen, Glenmaquin the registered owners mentioned in Lower, Knockbrack, Letterkenny, ADVERTISING RATES the schedule hereto for the issue of a Co Donegal; folio: 19994; lands: Advertising rates in the Professional information section are as follows: land certificate as stated to have been Glenmaquin Lower; area: 12.225; lost or inadvertently destroyed. A new Co Donegal • Lost land certificates – €46.50 (incl VAT at 21%) certificate will be issued unless notifi- Regd owner: Margaret McCormack; • Wills – €77.50 (incl VAT at 21%) cation is received in the registry within folio: DN19626; lands: a plot of • Lost title deeds – €77.50 (incl VAT at 21%) 28 days from the date of publication of ground known as 10 Broadmead- • Employment miscellaneous – €46.50 (incl VAT at 21%) this notice that the original certificate ows situate in the townland of is in existence and in the custody of Glebe and barony of Nethercross; HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – €30 EXTRA some person other than the registered Co Dublin All advertisements must be paid for prior to publication. Deadline for May owner. Any such notification should Regd owners: Paul Kelly and Dolores Gazette: 17 April 2003. For further information, contact Catherine Kearney or state the grounds on which the certifi- Kelly; folio: DN3946L; lands: Valerie Farrell on tel: 01 672 4828 (fax: 01 672 4877) cate is being held. property situate in the townland of (Register of Titles), Central Office, Commons and barony of Land Registry, Chancery Street, Dublin Uppercross; Co Dublin 15676F; lands: townland of (1) acres, (4) 30.175 acres; Co Louth (Published 4 April 2003) Regd owner: Bridget Neary; folio: Kiltormer East, (2) Kiltormer West Regd owner: James Vahey and DN11084F; lands: property situate and barony of Longford; area: (1) Ann Vahey, Rahard, Robeen, Regd owner: Sean Fennelly; folio: in the townland of Lusk and the 9.4460 hectares, (2) 2.5167 Holly-mount, Claremorris; folio: 8151F; lands: Kilcarry, Clonegal in barony of Balrothery East; Co hectares; Co Galway 4003F; lands: townland of Rahard the county of Carlow; Co Carlow Dublin Regd owner: Patrick Hynes, and barony of Kilmaine; area: (1) Regd owner: Mary Lynch of Feeard, Regd owner: Rita Cooke; folio: Mountpelier Athenry, Co Galway; 26 acres 3 roods 20 perches, (2) Cross, Co Clare; folio: 14424; lands: DN62701L; lands: property known folio: GY32574F; lands: townland 21 acres 1 rood 5 perches; Co Feeard and Kilttrellig and barony of as no 139 Ballygall Parade situate in (1) Carrowntober East and (2) Mayo Moyarta; Co Clare the parish of Finglas; Co Dublin Mountain North and barony of Regd owner: Peter Higgins; folio: Regd owner: Stephen McDevitt; folio: Regd owner: Breda Keane; folio: Athenry, (3) Knockbrack and (4) 20565F; lands: Rosdooaun and 87806F; lands: a plot of ground DN3718; lands: property situate Knockbrack and barony of Tiaquin, barony of Burrishoole; Co Mayo being part of the townland of in the townland of Killshane (5) Carrowntober East and (6) Regd owner: Walter McNicholas, Desert and barony of Carbery East and barony of Castleknock; Co Carrowntober East and barony of Carrowtleva, Shraheens, Castlebar; (East Division) in the county of Dublin Athenry; Co Galway folio: 41748; lands: townland of Cork; Co Cork Regd owner: Trustees of Willow Park Regd owner: Dundian Limited; folio: Carrowtleva and barony of Gallen; Regd owner: Gobnait Cronin Lawns Ltd; folio: 17272; lands: two 34180F; lands: townland of area: 13.1624 hectares and 3.374 (deceased); folio: 24598; lands: a plots of ground situate in the parish Rathangan Demesne and barony of hectares; Co Mayo plot of ground being part of the of Glasnevin and district of Offaly East; Co Kildare Regd owner: Patrick Foy; folio: 36397; townland of Ballymakeera situate in Glasnevin North; Co Dublin Regd owner: Patrick J Byrne; folio: lands: Carrowkeeran; Co Mayo the barony of Muskerry West in the Regd owners: William Murphy and 14762F; lands: Ennisnag, Stoney- Regd owner: John Carney; folio: County of Cork; Co Cork Delia Murphy; folio: DN79105F; ford in Co Kilkenny; Co Kilkenny 10555F; lands: Gorteen; Co Mayo Regd owner: Finbarr Murphy; folio: lands: property situate in the town- Regd owner: James Hartigan; folio: Regd owner: John Boland, Oldtown, 243L; lands: a plot of ground known land of Cornelscourt and barony of 27062; lands: townland of Strad- Navan, Co Meath; folio: 7770; as ‘St Anthony’s’ situate on the Rathdown; Co Dublin bally North and barony of lands: Oldtown; area: 9.8933 south side of Doyle Road in the Regd owners: Jarlath Heneghan, Anne Clanwilliam; Co Limerick hectares and 0.0404 hectares; Co parish of St. Nicholas in the County Burke Heneghan, Clooniff, Regd owner: James Hartigan; folio: Meath Borough of Cork; Co Cork Moycullen, folio: 31023F; lands: 16720; lands: townland of Coolreiry Regd owner: Seamus Morris; folio: Regd owners: Joseph James Roantree townland of Clooniff in the barony and barony of Clanwilliam; Co 3419; lands: townland of Emlagh (deceased) and Carmel Mary of Moycullen; area: 0.163 hectares; Limerick (Ed Castlereagh) and barony of Roantree (deceased); folio: 10338F; Co Galway Regd owner: John W Riordan; folio: Castlereagh; Co Roscommon lands: a plot of ground situate in the Regd owner: Michael Burke; folio: 15480; lands: townland of Regd owner: Patrick Mel Lane; folio: townland of Laharan West and GY10920F; lands: townland of Abbeyfeale West and barony of 13086; lands: townland of Tiratick barony of Bantry in the County of Dungory West and barony of Glenquin; Co Limerick and barony of Tirerrill; Co Sligo Cork; Co Cork Kiltartan; area: 0.4576 hectares; Co Regd owner: John Tobin; folio: Regd owner: Agnes Rogers, Regd owners: Graham and Edith Galway 22553F; lands: townland of Clooneigh, Gurteen; folio: 5097; Roberts; folio: 47061; lands: a plot Regd owner: John Dunne; folio: Newtown and barony of lands: townland of Clooneagh and of ground being part of the town- 32552; lands: townland of Clanwilliam; Co Limerick barony of Coolavin; area: 4.135 land of Kilmoney and barony of Carrowmore, (Ed) Aughrim and Regd owner: Thomas Faughnan, hectares; Co Sligo Kerrycurrihy in the County of Cooltymurraghy and barony of Briskill, Newtownforbes, Co Regd owner: Philip Ryan; folio: Cork; Co Cork Kilconnell; Co Galway Longford; folio: 188R; lands: 10231; lands: townland of Regd owners: Laurence Sexton & Regd owner: John Forde, Castletown, Ballagh area: 2.8 acres and 0.2375 Lisdonowley and barony of Johanna Sexton; folio: 29578; lands: Fort, Co Galway; folio: 48091; acres; Co Longford Eliogarty; Co Tipperary a plot of ground being part of the lands: townland of (1) Carrown- Regd owner: Patricia Gueno, Regd owner: Mary Fitzgerald; folio: townland of Ardacrow situate in the avohanaun (2) Coole Demesne (3) Newtown Cottages, Termonfeckin, 611F; lands: a plot of ground being barony of Carbery East (East Coole Demesne (4) Coole Drogheda, Co Louth; folio: 10682; part of the townland of Kilcullen Division) in the County of Cork; Demesne and barony of Kiltartan; lands: Newtown; Co Louth Upper situate in the barony of Co Cork area: (1) 16.5030 hectares, (2) Regd owner: Eugene Matthews, Ravel, Gaultiere in the county of Regd owners: Donal Turner and Mary 5.8780 hectares, (3) 61.8890 Dunleer, Co Louth; folio: 6218F; Waterford; Co Waterford Tu rner; folio: 52212F; Co Cork hectares, (4) 3.0350 hectares; Co land: (1) Mountaintown, (2) Ravel, Regd owner: Christopher Connery Regd owners: Joseph McFadden & Galway (3) Trean, (4) Drumcar; area: (1) 25 (deceased); folio: 9273; lands: a plot John McFadden, Bunbeg, Co Regd owner: Patrick Hardiman; folio: acres, (2) 63.232 acres, (3) 12.01 of ground being part of the land of

61 Law Society Gazette April 2003 Professional information

Janeville situate in the barony of deceased, please contact Ms Rachel House, 91 Upper George’s Street, Dun Coshmore and Coshbride in the Stokes of Connolly Sellors Geraghty Laoghaire, Co Dublin, tel: 01 Solicitor required to work as county of Waterford; Co Fitt, Solicitors, 6-7 Glentworth Street, 2800261; fax: 01 2841588 family law specialist with some Waterford Limerick, tel: 061 414355, fax: 061 general litigation experience. Regd owners: S Bertram Allen, 414738, e-mail: [email protected] O’Connor, Kathleen (deceased) late Attractive salary and good Raymond Bowe, C Miriam Warren, mail.ie of 2 Park Villas, Victoria Road, Cork. prospects for advancement for the Maurice Lancelot Allen; folio: Would any person having knowledge right candidate. Apply with CV to 11674; lands: Ballinatray Lower and Gibson, Joseph Stafford (deceased) of a will executed by the above named The Office Manager, Augustus barony of Ballaghkeen North; Co late address unknown. Would any per- deceased, who died 9 October 1985, Cullen & Son, Solicitor, 7 Wexford son having knowledge of the where- please contact O’Donovan Murphy Wentworth Place, Wicklow abouts of the original or a copy of a and Partners, Solicitors, Wolfe Tone will dated 24 June 1916 made by the Square, Bantry, Co Cork; tel: 027 WILLS above named deceased who died on 3 50808; fax: 027 51554; e-mail: Locum solicitor required with expe- February 1919 and/or the where- [email protected] rience of general practice particularly Bell Chambers, Bridget (deceased) abouts/identity of any beneficiary of conveyancing, litigation and probate late of Maryfield Nursing Home, the aforesaid will please contact O’Sullivan, Kay (deceased) late of St for friendly medium sized firm in Chapelizod, Dublin 20 and formerly of O’Flynn Exhams & Partners, 58 South Colmcilles Hospital, Dun Laoghaire, Limerick city to start immediately. Camac House, Bluebell, Dublin 12. Mall, Cork, tel: 021 4277788, ref: and formerly of 24 Mangerton Road, Full/part-time option. Please apply in Would any person having any knowl- SEL/617/139 Drimnagh, Dublin 12. Would any per- confidence to the attention of ref: edge of the whereabouts of a will made son having knowledge of the where- DW/gmem Dennehy & Company, by the above named deceased, please MacInerney (or McInerney), David abouts of a will made by the above Accountants, 74 O’Connell Street, contact BCM Hanby Wallace (deceased) late of Flat 1, 17 named deceased, please contact BCM Limerick Solicitors, 1 High Street, Dublin 8, tel: Chelmsford Road, Ranelagh, Dublin Hanby Wallace Solicitors, 1 High 01 6056900; e-mail: info@bcmhanby- 6, and formerly of Kilkee, Co Clare. Street, Dublin 8; tel: 01 6056900; e- Experienced solicitor required with a wallace.com Date of death 24 October 2002. mail: [email protected] view to a partnership and subsequent Would any person having knowledge acquisition of firm. Reply to Box No Cantillon, Noel (otherwise Albert of the whereabouts of a will of the 34 Noel), late of ‘Patrice’ Rhodaville above named person please contact EMPLOYMENT Estate, Douglas Road, Cork. Would Maurice E Veale & Co; Solicitors, 6 Solicitor seeks full-time work in Mid any person having any knowledge of a Lower Baggot Street, Dublin 2, tel: 01 Semi-retired country solicitor will West, South East, or Midlands region will made by the above named 6764067 or fax: 01 6763436. undertake conveyancing and probate or in surrounding areas. Experienced in deceased who died on 24 January 1999, work from home; modern office facili- conveyancing, litigation and family law. please contact Barry M. O’Meara & Neary, Ann (deceased) late of Flat 4 ties; might suit firm unable or unwill- Reply to Box No 35 Son, Solicitors, 18 South Mall, Cork, Iveagh Trust Hostel, Rathmines, ing to employ full-time assistant; tel: 021 4273305 or fax: 021 4274693, Dublin 6 formerly of 4 Mount would consider limited attendance at Locum required – experienced solici- ref: MD/DMC/CA2146/2 Anthony, Ardee Road, Dublin 6. employer’s office. Box No 22 tor or legal executive/law clerk required Would any person having knowledge immediately for 3-6 months for West Coonan, Patrick (deceased) late of of a will made by the above named Experienced solicitor (5 years + Limerick practice to do general work. Cullina, Ballina, Killaloe, Co Clare. deceased who died on the 20 PQE) seeks full time position in Reply to Philip J Culhane & Co, Would any person having knowledge November 2002, please contact Galway city or county. Areas of experi- Solicitors, The Mall, Glin, Co of a will made by the above named Murphys Solicitors, Mount Clarence ence: litigation and conveyancing. Limerick, tel: 068 34444 Please reply to Box No 30 NORTHERN DUBLIN SOLICITORS’ Locum solicitor required from mid Are you a medium to large size August to end December. General firm? Do you have excess workload? IRELAND PRACTICE OFFERS practice experience required. Please Experienced practitioner, Dublin- SOLICITORS AGENCY WORK apply to Patricia Holohan & Co, based, is available for conveyancing, IN NORTHERN Solicitors, 57 Flower Hill, Navan, Co litigation, probate or commercial We will engage in, IRELAND Meath, e-mail: patriciaholohan@eir- work. Will work in your office or and advise on, com.net from his own office. Box No 26 all Northern Ireland- * All legal work undertaken Locum solicitor required for Hussey related matters, on an agency basis particularly personal * All communications to clients Fraser, Solicitors for period from June injury litigation. through instructing solicitors to October, experienced in the areas of BOOK-KEEPER Consultations where * Consultations in Dublin if required conveyancing/probate. Replies to AVAILABLE PART-TIME convenient. Hussey Fraser Solicitors, 17 North- Dublin & Midlands areas. Contact: Séamus Connolly umberland, Dublin 4. Re: SK. Computerised and Fee sharing Moran & Ryan, Solicitors, envisaged. manual accounts Arran House, Solicitor required with experience in Experienced in all areas of Law 35/36 Arran Quay, Dublin 7. conveyancing and probate for a busy Society regulations OLIVER M LOUGHRAN West Cork practice. Please apply with Confidentiality guaranteed – Tel: (01) 872 5622 CV to Box No 31 references available & COMPANY Fax: (01) 872 5404 Contact Maura on 086 6022731 Solicitor required for general practice or at [email protected] 9 HOLMVIEW TERRACE, e-mail: [email protected] in Thurles, Co Tipperary. Reply to OMAGH, CO TYRONE or Bank Building, Hill Street Box No 32 Phone (004428) 8224 1530 Newry, County Down. Fax: (004428) 8224 9865 Tel: (0801693) 65311 Experienced litigation/family solicitor MISCELLANEOUS e-mail: Fax: (0801693) 62096 available. For full/part-time or locum [email protected] E-mail: [email protected] position in Offaly/Laois/Westmeath Northern Ireland solicitors provid- areas. Reply to Box No 33 ing an efficient and comprehensive

62 Law Society Gazette April 2003 Professional information legal service in all contentious/non- Cardiff. Contact Levenes Solicitors at contentious matters. Dublin-based Ashley House, 235-239 High Road, consultations and elsewhere. Fee Wood Green, London 8H; tel: 0044 apportionment. ML White, Solicitors, 208817777, fax: 0044 2088896395 www.liquidations.ie 43-45 Monaghan Street, Newry, For information on insolvency, employees entitlements, County Down, tel: 080 1693 68144, fax: 080 1693 60966 TITLE DEEDS defending a section 150 application, informal schemes of arrangement, dealing with the sheriff, services to Northern Ireland agents for all con- Byrne, Anthony and Margaret of 24 solicitors and free Insolvency Helpline Service. tentious and non-contentious matters. Pinewood Avenue, Artane, Dublin 5. Consultation in Dublin if required. Would any person having knowledge Fee-sharing envisaged. Offices in of the whereabouts of the title docu- Belfast, Newry and Carrickfergus. ments of property held in the name of intends to submit an application to the registrar for the county of Wicklow for Contact Norville Connolly, D&E Anthony and Margaret Byrne known as county registrar for the city of Dublin directors as may be appropriate on the Fisher, Solicitors, 8 Trevor Hill, Trotters’ Restaurant, 9 and 9a Fairview for the acquisition of the freehold basis that the person or persons benefi- Newry, tel: 080 1693 61616, fax: 080 Strand, Dublin 3 in the parish of interest in the property known as 235 cially entitled to the superior interest 1693 67712 Clonturk, in the City of Dublin, please Richmond Road, Dublin 3 and any including the freehold reversion in contact Haughtons Solicitors, Ashton party asserting that they hold a superi- each of the aforesaid premises are London solicitors will advise on UK House, 6 Martello Terrace, Dun or interest in the aforesaid properties unknown or unascertained. matters and undertake agency work. All Laoghaire, Co Dublin, tel: 01 2841291 are called upon to furnish evidence of Date: 26 February 2003 areas. Corporate/private clients. Ellis & title to the aforementioned properties Lockhart & Company, (solicitors for the Fairbairn, 26 Old Brompton Road, O’Driscoll, Kathleen Mary, to the below named, solicitors within applicants), 99 Vernon Avenue, Clontarf, South Kensington, London SW7 3DL, (deceased). Would any person knowing 21 days from the date of this notice. Dublin 3 tel: 0044 171 589 0141, fax: 0044 171 the whereabouts of the title deeds of In default of any such notice being 225 3935 the deceased’s properties at ‘Brosna’, received the said Margaret O’Rourke In the matter of the Landlord & Kerrymount Avenue, Foxrock, Dublin intends to proceed with the application Tenants Acts, 1967 – 1994 and of the Northern Ireland solicitors will 18 and at 83 The Briary, Blainroe, Co before the county registrar at the end Landlord & Tenants (Ground Rents) advise and undertake NI-related mat- Wicklow, please contact Matheson of 21 days from the date of this notice, (No 2) Act, 1978: an application by ters. All areas corporate/private. Ormsby Prentice, Solicitors, 30 and will apply to the county registrar Sean Clifford and Cyril Smyth Agency or full referral of cases as pre- Herbert Street, Dublin 2, tel: 01 for the city of Dublin for directions as Trustees of Bray Runners Club ferred. Consultations in Dublin or else- 6199000, fax: 01 6199010 may be appropriate on the basis that Take notice Sean Clifford and Cyril where if required. Fee-sharing envis- the person or person beneficially enti- Smyth as Trustees of Bray Runners aged. Donnelly Neary & Donnelly, 1 tled to the superior interest including Club intend to submit an application to Downshire Road, Newry, Co Down, MISCELLANEOUS the freehold reversion in the aforesaid the county registrar for the County of tel: 080 1693 64611, fax: 080 1693 properties are unknown or unascer- Wicklow for the acquisition of the free- 67000. Contact K J Neary Indenture of Lease dated 11 August tained. hold interest in the following property: 1922 between Sir Samuel Chisholm Date: 4 April 2003 - All that and those the hereditaments Baronetlld, Sir Malcolm Cambell Signed: Sean O’Ceallaigh & Co Solicitors, and premises known as An Lar, Dargle Knight and Sir John Anthony Knight (solicitors for the applicant), Road, Bray in the County of Wicklow. EYE INJURIES AND of the first part, J & R Thompson Ltd, 363 North Circular Road, Dublin 7 And take notice that any person OPHTHALMOLOGICAL of the second part and James Ennis of having an interest in the freehold estate NEGLIGENCE the third part. In the matter of the Landlord & of the aforesaid property and any party Indenture of Assignment dated 24 Tenants Acts, 1967 – 1994 and in the asserting that they hold a superior Mr Louis Clearkin ChM, FRCS, September 1931 – James Ennis to matter of the Landlord & Tenants interest in the aforesaid property (or FRCOphth, DO, MAI, MEWI Patrick Hegarty. (Ground Rents) (No 2) Act, 1978: an any of them) are called upon to furnish Consultant Ophthalmic Surgeon Property: Piece or parcel of ground application by Chi Leung Ng and evidence of title to the aforementioned Experienced expert witness in on the North side of Waverley Avenue, Ctse Lun Eng premises to the below named within 21 ophthalmological personal part of the lands of Annadale Park, Take notice that Chi Leung Ng and days from the date of this notice. injury, medical negligence and parish of Clonturk and barony of Ctse Lun Eng intend to submit an In default of any such notice being civil litigation Coolock in the City of Dublin. application to the county registrar for received, Sean Clifford and Cyril Renuntiabo, 8 Rose Mount, L Trant, McCarthy, Solicitors, 4 the county of Wicklow for the acquisi- Smyth as Trustees of Bray Runners Oxton, Wirral, Merseyside, Chancery Place, Dublin were in pos- tion of the freehold interest in the fol- Club intend to proceed with the appli- L43 5SW session of the documents in 1931 or lowing property: All that and those the cation before the county registrar at the thereabouts, one or more of which may hereditaments and premises known as end of 21 days from the date of this secretary: +44 (0) 151 6047047 have been handed to T Leslie 85 Main Street, Bray in the county of notice and will apply to the county reg- fax: +44 (0) 151 6047152 Condron, Solicitor, 14 South Frederick Wicklow. istrar for the County of Wicklow for e-mail: [email protected] Street, Dublin in 1950. And take notice that any person directors as may be appropriate on the Would anybody having any knowl- having an interest in the freehold estate basis that the person or persons benefi- edge of the whereabouts of the above of the aforesaid property and any party cially entitled to the superior interest title documents, please contact the asserting that they hold a superior including the freehold reversion in Wanted Publican’s ordinary 7- undersigned solicitors: interest in the aforesaid property (or each of the aforesaid premises are day licence. Replies to Carmel Signed: Derivan Sexton & Co, Solicitors, any of them) are called upon to furnish unknown or unascertained. Sreenan, Sreenan & Company, New Street, Carrick-on-Suir, Co evidence of title to the aforementioned Date: 26 February 2003 Solicitors, Kenmare, Co Kerry; Tipperary premises to the below named within 21 Lockhart & Company, (solicitors for the tel: 064 42656; fax 064 42658 days from the date if this notice. applicants), 99 Vernon Avenue, Clontarf, In the matter of the Landlord and In default of any such notice being Dublin 3 Tenant Acts, 1967-1994 and in the received, Chi Leung Ng and Ctse Lun England & Wales solicitors will pro- matter of the Landlord and Tenant Eng intend to proceed with the appli- In the matter of the Landlord and vide comprehensive advice and under- (Ground Rents) (No 2) Acts, 1978: an cation before the county registrar at Tenant (Ground Rents) Act, 1967- take contentious matters. Offices in application by Margaret O’Rourke the end of the 21 days from the date of 1994 and in the matter of the London, Birmingham, Cambridge and Take notice that Margaret O’Rourke this notice and will apply to the county Landlord and Tenant (Ground Rents)

63 Law Society Gazette April 2003 Professional information

(No 2) Act, 1978: an application by Take notice that any person having before the county registrar at the end Take notice that O’Malley Laurence Woods and Sinead interest in the freehold estate in respect of 21 days from the date of this notice McCarthy Developments Ltd, the Moore. of property known as 2 Lower and will apply to the county registrar applicant intends to submit an applica- Take notice that any person having Kilmacud Road held under lease dated in the county of the city of Dublin for tion to the county registrar in the interest in the freehold estate of or 29 December 1954 and made between directions as may be appropriate on county of the city of Dublin for the superior interest in the following Michael Murray & Co Ltd, of the one the basis that the person or persons acquisition of the freehold interest property: all that and those the prem- part and Muriel Dee of the other part beneficially entitled to the superior together with any intermediate inter- ises known as 62 Rathgar Avenue, situ- for the term of 144 years from 25 interest including the freehold rever- est in the aforesaid property and any ate in the barony of Newcastle former- March 1954 at a yearly rent of £20. sion to the aforesaid property are persons asserting that they hold a ly in the county but now in the city of Take notice that Francis Harmon, unknown and unascertained. superior interest in the aforesaid Dublin held with other property under the applicant, intends to submit and Dated: 11 March 2003 premises are called upon to furnish an indenture of lease dated 6 application to the county registrar in Signed: Dixon Quinlan, (solicitors for the evidence of title to the aforemen- September 1843 and made between the county of the city of Dublin for the applicant), 8 Parnell Square, Dublin 1 tioned premises to the undersigned Allen Jackson of the one part and John acquisition of the freehold interest within 21 days from the date of this Conroy of the other part for a term of together with any intermediate inter- In the matter of the Landlord and application 999 years from the 29 September 1843 est; in the aforesaid property and any Tenant Acts, 1967-1989 (as amend- In default of any such notice not subject to the yearly rent of £7 thereby persons asserting that they hold a supe- ed): an application by Francis being received by the undersigned reserved (but indemnified against pay- rior interest in the aforesaid premises Harmon solicitors, the said O’Malley ment of the entirety thereof in the are called upon to furnish evidence of Take notice that any person having an McCarthy Developments Ltd, intend manner provided in an indenture of title to the aforementioned premises to interest in the freehold estate in to proceed with the application before lease dated 31 December 1944 and the undersigned within 21 days from respect of property known as 24 the county registrar at the end of 21 made between Elizabeth Cashin of the the date of this application. Lower Kilmacud Road held under days from the date of this notice and one part and Raymond Vincent Judd In default of any such notice not lease dated 27 August 1957, and made will apply to the county registrar in the of the other part) and the covenants on being received by the undersigned between Michael Murray & Co Ltd, county of the city of Dublin for direc- the part of the lessee and the condi- solicitors the said Francis Harmon of the one part and Patrick O’Leary of tions as may be appropriate on the tions in said lease contained insofar as intends to proceed with an application the other part for the term of 144 basis that the person or persons bene- same relate to or affect the said prem- before the county registrar at the end years from 25 March 1954, at a yearly ficially entitled to the superior interest ises. of 21 days from the date of this notice rent of £20. including the freehold reversion to the Take notice that Laurence Woods and will apply to the county registrar in Take notice that Francis Harmon, aforesaid property are unknown and and Sinead Moore intend to submit an the county of the city of Dublin for the applicant intends to submit an unascertained. application to the county registrar for directions as may be appropriate on the application to the county registrar in Date: 19 March 2003 the county of the city of Dublin for the basis that the person or persons benefi- the county of the city of Dublin for the Signed: Dixon Quinlan, (solicitors for the acquisition of the freehold interest and cially entitled to the superior interest acquisition of the freehold interest applicant), 8 Parnell Square, Dublin 1 any intermediate interests in the afore- including the freehold reversion to the together with any intermediate inter- said premises and any party asserting aforesaid property are unknown and est in the aforesaid property and any In the matter of the Landlord and that they hold a superior interest in the unascertained. persons asserting that they hold a Tenant Acts, 1967-1994, and in the aforesaid premises are called upon to Date: 11 March 2003 superior interest in the aforesaid matter of the Landlord and Tenant furnish evidence of title to the afore- Signed: Dixon Quinlan, (solicitors for premises are called upon to furnish (Ground Rents) (No 2) Act, 1978, an said premises to the below named the applicant), 8 Parnell Square, evidence of title to the aforemen- application by Breda Lyne within 21 days from the date of this Dublin 1 tioned remises to the undersigned Take notice that any person having an notice. within 21 days from the date of this interest in the freehold estate of the In default of any such notice being In the matter of the Landlord and application. following property 26 Brookfield received, the applicant intends to pro- Tenant Acts, 1967-1989 (as amend- In default of any such notice not Road, Kilmainham, Dublin 8 that ceed with the application before the ed): an application by Raffaele being received by the undersigned Breda Lyne intends to submit an county registrar for the county of the Vozza solicitors the said Francis Harmen application to the county registrar for city of Dublin for directions as may be Take notice that any person having an intends to proceed with the applica- the city of Dublin. appropriate on the basis that the per- interest in the freehold estate in respect tion before the county register in the For the acquisition of the freehold son or persons beneficially entitled to of property known as 4 Lower county of the city of Dublin for direc- interest in the aforesaid property and the superior interest including the Kilmacud Road held under lease dated tions as may be appropriate on the any party asserting that they hold a freehold reversion in the aforesaid 21 February 1955, and made between basis that the person or persons bene- superior interest in the aforesaid premises are unknown or unascer- Michael Murray & Co Ltd, of the one ficially entitled to the superior interest premises are called upon to furnish tained. part and Robert Reilly of the other part including the freehold reversion to the evidence of title to the aforementioned Date: 27 February 2003 for the term of 144 years from 25 aforesaid property are unknown and premises to the below named within Signed: Gerard O’Shea, (solicitors for the March 1954 at a yearly rent of £20. unascertained. 21 days from the date of this notice. applicants), Meridian House, 13 Take notice that Raffaele Vozza, the Dated: 19 March 2003 In default of any such notice being Warrington Place, Dublin 2 applicant, intends to submit an applica- Signed: Dixon Quinlan, (solicitors for the received Breda Lyne intends to pro- tion to the county registrar in the applicant), 8 Parnell Square, Dublin 1 ceed with the application before the In the matter of the Landlord & county of the city of Dublin for the county register at the end of 21 days Tenant Acts, 1967-1989 (as acquisition of the freehold interest In the matter of the Landlord and from the date of this notice and will amended): an application by Francis together with any intermediate interest Tenants Acts, 1967-1989 (as amend- apply to the county registrar for the Harmon in the aforesaid property and any per- ed): an application by O’Malley city of Dublin for directions as may be sons asserting that they hold a superior McCarthy Developments Ltd appropriate on the basis that the per- interest in the aforesaid premises are Take notice that any person having an son or persons beneficially entitled to Wanted responsible sober father called upon to furnish evidence of title interest in the freehold estate of prop- the superior interest including the for gorgeous twins. Must enjoy to the aforementioned premises to the erty situate at Emmet Road, freehold reversion in the aforesaid monkey knife fights and tortur- undersigned within 21 days from the Kilmainham, Dublin, held under lease premises are unknown or unascer- ing woodpeckers. Knowledge of date of this application. dated 1 May 1964, and made between tained. pool, comics and the Duke of Wellington’s best oratory a must. In default of any such notice not George A Campbell of the one part Dated: 5 March 2003 6ft malevolent hamsters need not being received by the undersigned and James Gray of the other part for Signed: Barror & Co, (solicitors for the apply. solicitors the said Raffaele Vozza the term of 860 years from 25 March applicant), 45 Lower Baggot Street, intends to proceed with the application 1963, at a yearly rent of £5 now €6.35. Dublin 2

64 Law Society Gazette April 2003