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Issue Apr 03 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.
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