Contents GazetteLawSociety Regulars Cover Story Another brick in the wall? President’s message 3 14 For a long time the Irish state behaved as if handicapped children needed no education, but the recent High Court ruling in the News 5 Sinnott case left no doubt about every individual’s constitutional rights in this area. And a proposed appeals system for parents who Letters 8 object to school board decisions could see families turning up at Viewpoint 11 hearings with legal representation in tow. Barry O’Halloran reports Tech trends 30 Briefing 42 Much ado about nothing Council reports 42 18 When does an individual’s day in court con- stitute abuse of the litigation process? And Committee what should lawyers do to defend against reports 44 – and avoid complicity in – such abuse? Practice notes 47 Dessie Shiels highlights one of the haz- Personal injury ards of our litigious society judgments 49 FirstLaw update 52 Live and let die Eurlegal 57 26 Doctors face tough ethical questions when mak- People and ing ‘end-of-life’ decisions for terminally-ill patients. places 63 The legal aspects of this dilemma are also thorny but, as Kieran Doran argues, American precedents for durable powers of attorney Apprentices’ page 66 and living wills could help clarify the position in Ireland and the UK Professional information 67 Historic day for the solicitors’ profession Cross-examination 72 33 Three years and £5 million pounds later, the Law Society’s new Education Centre is now open for business. In this special feature, we focus on last month’s official opening by President Mary COVER PHOTO BY [email protected]. OUR THANKS TO THE IRISH McAleese WHEELCHAIR ASSOCIATION FOR THE USE OF THE CHAIR Editor: Conal O’Boyle MA. Assistant Editor: Maria Behan. Designer: Nuala Redmond. Editorial Secretaries: Catherine Kearney, Louise Rose. Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel/fax: 837 5018, mobile: 086 8117116, e-mail: [email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial Board: Dr Eamonn Hall (Chairman), Conal O’Boyle (Secretary), Mary Keane, Pat Igoe, Ken Murphy, Michael V O’Mahony, Vincent Power The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, Editor or publishers. The Editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter. Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4801. Volume 94, number 9 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: £45 1 Law Society Gazette November 2000 rrr The Ideal Christmas Gift Leading Cases of the Twentieth Century Leading Cases of the Twentieth Century is a unique It is the ideal present for anyone with an interest in collection of cases that takes you on a journey the law. though the past 100 years. The selected cases are analysed by experts in the relevant fields. Included Leading Cases of the Twentieth Century: are the old and the new, those from home and • Features significant contribution by distinguished abroad, together with the familiar and the unexpect- authors ed. •Offers a unique insight into the most influential cases Leading Cases of the Twentieth Century is the ideal of the 20th century gift this Christmas. Hand-tooled by a master crafts- man this exquisitely bound book is a beautiful addi- • Shows how these influential cases have impact- tion to the library of a friend or colleague this ed on law Christmas. and how the impact will continue into the new mil- lennium As the new century progresses why not take this •Is a fascinating and stimulating collection of opportunity to commemorate the 20th for some one cases special by presenting them with this elegant gift - certain to endure and be appreciated for many Price: £98.00 years to come. ISBN: 1-85800-208-7 43 Fitzwilliam Place, Dublin 2, Ireland Tel: (01) 662 5301 Fax: (01) 662 5302 DX: 109032 Fitzwilliam Email: [email protected] Web: www.roundhall.ie President’s message The final whistle he best things come in pairs, they say, and wisdom and experience so it was the case last month. First we had with us: attorney general the official opening of our new Education Michael McDowell, Centre by President Mary McAleese (and Gerard Hogan SC, T you’ll find a photo-record of that event solicitor Michael Farrell, elsewhere in these pages). Then we ran a most suc- Justices Adrian cessful conference on incorporating the European con- Hardiman, John vention on human rights into Irish law. This was the Hedigan and Donal Barrington, Lord Hope of first such conference in this jurisdiction on an issue Craighead, Anna Austin, Professor Bruce Dickson, that is going to impinge on every area of law and Professor Alan Miller and John Bowman. practice. We will, of course, be running other conferences Needless to say, we are the last of the 41 member on this important subject in the months ahead and ‘The states of the Council of Europe to incorporate the I would urge as many of you as possible to attend. convention European convention into domestic law and it is almost The convention really is one of the biggest things impossible to overstate the potential impact that it to hit the practice of Irish law for many years, and really is one of will have here. Criminal law, of course, will be as a profession we have to be ready for it. It’s the the biggest affected, but so too will civil procedures, the right to very least our clients can expect from us. a fair trial, family law, housing, planning, the As this is my final president’s message before I things to hit environment, licensing – you name it, the convention pass the ball to my successor, Ward McEllin, which the practice of touches on it. The right to fair procedures will affect I hope will not be a hospital pass, I’d like to thank public authorities, courts and tribunals, of course, both him and my Junior Vice-President, Owen Irish law for but also disputes on contract, commercial and Binchy, for all their help and support during the many years, insurance matters. year. They certainly helped to lighten my load considerably. and as a A promising start A particular word of thanks must also go to profession we One of the most interesting aspects of the conference director general Ken Murphy and to deputy was hearing how other countries, such as Scotland director general Mary Keane – and to the rest of have to be (which incorporated the convention in May of last the staff in Blackhall Place. For the last year, I have ready for it’ year), have dealt with the issues raised by worked closely with the secretariat there and I can incorporation. We will have to wait to see how our honestly say that the profession is very well served own legislators and judiciary handle the thorny issues by having such a team of committed and talented that are bound to arise, but this was a promising start people working on its behalf. I would also like to to the debate. And I am proud that the Law Society thank Bernard Magee for ensuring that there was should have been first out of the blocks in airing the no golf club in Ireland that he couldn’t find in problems and opportunities that incorporation brings double-quick time. with it. In that regard, I would particularly like to And so that’s it. I have enjoyed my year as thank the society’s Mary Clare Walsh and solicitor president enormously. It has been an honour to James MacGuill for the tremendous energy and serve, and I hope I have represented the profession commitment they put into organising this event and as you would have wished. for making the day such a success. I would also like to take the opportunity to thank Anthony Ensor, all the speakers who came to share their collective President 3 Law Society Gazette November 2000 Annual Conference 2001 MONACO 26-29 April, 2001 If you are thinking of attending the confer - ADVANCE BOOKING FORM ence, avoid disappointment and book now. Advance bookings can be made by forwarding Name: a booking fee of £300 per person travelling Firm: to Mary Kinsella, Law Society, Address: Blackhall Place, Dublin 7. (Tel: (01) 672 4823. Fax: (01) 672 Tel: Fax: 4833 Email: D X : Year of admission to the Roll: Travel options will be available to delegates Names of persons travelling: who would like to travel to Monaco in advance I enclose cheque in the sum of £ of the conference or stay on afterwards. representing booking fee for persons. Note: THE CONFERENCE WILL BE HELD TWO WEEKS AFTER EASTER (EASTER SUNDAY 2001 IS ON 15 APRIL) News ORDNANCE SURVEY ‘Danger in extending concept COPYING LICENCE The Law Society’s Conveyancing Committee of human rights’, warns AG would like to hear from any solicitors currently using the he attorney general, Michael licence to copy ordnance TMcDowell, has warned survey maps. The committee against discarding the notion of has been invited to a popular sovereignty and preliminary meeting to discuss constitutional autonomy ‘in possible changes in the fees pursuit of a higher order of and arrangements for these human rights’.