Contents Gazette LawSociety · resume with a joint January/ February issue, due out in early February. New officer team in place 16. Gerard Doherty 1,073 17. Thomas Martyn 1,068 18

Contents

Law Society GazetteDecember 2003

1

Regulars

News 2

Viewpoint 6

Letters 9

Book reviews 33

Briefing 39

Committee reports 39

Practice notes 39

Legislation update 42

Solicitors Disciplinary Tribunal 44

Annual report of Solicitors Disciplinary Tribunal 46

Personal injuryjudgment 50

FirstLaw update 51

Eurlegal 57

People and places 60

Obituary 61

Apprentices’ page 62

Parchment ceremonies 2003 63

Professional information 70

Driving ambitionsIt’s been 100 years since the first serious attempt to put the brakes onthe development of the motor car in the Motor Act 1903. Robert Pierselooks back on this seminal piece of legislation

10

The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, andany views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility forloss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by theauthors, contributors, Editor or publishers. The Editor reserves the right to make publishing decisions on any advertisement or editorial articlesubmitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professionallegal 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.E-mail: [email protected] Law Society website: www.lawsociety.ie

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

Volume 97, number 10Subscriptions: �57.15

Cover Story

GazetteLawSociety

Discovery channelsThe master of the High Court has delivered a number of recentdecisions that clarify the practice and procedure for seeking discoveryof documents. His judgments are reproduced here

18

Death and taxesAnne Stephenson discusses thecapital acquisitions and residentialproperty tax consequences of deedsof family arrangements and thesolicitor’s role in protecting thepersonal representative

26

30

Fast on your feetYou may never have to argue a casein court, but you certainly need toknow how to do it. Kathy Burkespeaks to a husband-and-wife teamwho took the Law Society’s advocacycourse for solicitors

23

An offer you can’t refuseThe solicitors’ profession is underattack like never before. New LawSociety president Gerard F Griffin talksto Conal O’Boyle about his career andwhy he plans to come out fighting

14

COVER PHOTO: THE NEWMERCEDES SLR MCLAREN

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legal planner 2004

Executive classThe Irish Institute of Legal Executives has had a busy year. Itscontinuing professional development programme was launched inOctober, while the first batch of graduates from its new diplomaprogramme will be conferred this month. Naomi Murphy explains

ONE TO WATCH: NEW LEGISLATION

News


2

Civil registration: section 16 ofthe Social Welfare (MiscellaneousProvisions) Act, 2002 and theCivil Registration Bill, 2003Section 16 of the Social Welfare(Miscellaneous Provisions) Act,2002 is more far-reaching than itwould seem from its modest sevenlines. It lists ten pieces oflegislation which are to beamended in accordance with theact’s schedule. Six of these arestatutes grounding the civilregistration system, whichcomprises the public registration ofbirths, deaths and marriages.

An inter-departmental committeehas been working to reorganise thecivil registration system and

computerise the records. Itpublished a public consultationdocument in May 2001, andconsiderable investment has takenplace to design a computerdatabase and user interface, andalso to enter existing (historical)records since 1844 and 1864. Theamendments in section 16 wererequired to enable interim work toproceed pending the enactment ofthe Civil Registration Bill, 2003,which was presented to the Dáil on17 July.

Many of the amendmentseffected by section 16 aretechnical, but some of themcaused disquiet in the communityof genealogical researchers

because they did not go far enoughin collecting information which isnecessary to link records to thesame person. In so far as solicitorsuse their services for the tracing ofrelatives for purposes ofinheritance and ownership ofproperty, or have clients whoundertake that task themselves,they are of concern to members ofthis society also.

As of 1 July, an Ard-Chláraitheoiris authorised to keep and maintainregisters of births and deaths inany form (including on computer)subject to their being capable ofbeing converted into a legible form and being used to make alegible copy or reproduction of

any entry in the registers. A pilotrun has been running in Cork since8 September, and the new,additional details for registration ofbirths and deaths are beingrecorded in the Cork District sincethat date. The main additionalinformation is: (a) in relation tobirths, the recording of bothparents’ personal public servicenumbers (PPSNs), their dates ofbirth, the father’s surname atbirth, and (b) in relation to deaths, the deceased’s PPSN,occupation of the deceased’sspouse and occupations of thedeceased’s parents or guardians.With one reservation set out below,the additional information in

EUGENE F COLLINS: ACORRECTIONAn item in the October issue ofthe Gazette incorrectly statedthat Eugene F Collins, followingits merger with GD Fottrell &Sons in May, has ‘acomplement of 30 solicitorsand three consultants’. In fact,the firm has doubled in sizesince the merger and now has53 lawyers and 15 partners, a total of 68 fee-earners.

PRIZE BOND WINNERS 2003The winners of the LawSociety’s prize bond draw were:Conal J Clancy, Dublin; DonalO’Hagan, Dundalk; DenisMcDowell, Dublin; Denis JBarror, Dublin; Brian A Gartlan,Dublin; John Rochford, Dublin;Patrick J Moran, Castlebar;Richard Whelehan, Mullingar.

EU PRESIDENCY TRANSLATIONPROJECTClare-based e-working companyE-Training International haswon the contract to providepublication and translationservices during the forthcomingIrish presidency of the EU. Itwill translate up to 80documents a day and publishthem on the Irish presidencywebsite. As many as 60 peoplewill be employed on the projectover a ten-month period.

RETIREMENT TRUST SCHEME

The Law Society has a newCouncil and a new officer

team, with Gerard F Griffintaking over as president for thenext year. Griffin was deemedelected to the post after servingas senior vice-president lastyear, while Owen Binchy waselected senior vice-president for2003/04, with John D Shaw asjunior vice-president.

The following memberswere elected to the Law SocietyCouncil in the recent ballot,with the number of votesreceived appearing after theirnames:1. Brian J Sheridan 1,5332. Geraldine Clarke 1,5273. Owen Binchy 1,4864. John O’Connor 1,4735. John D Shaw 1,4596. Kevin O’Higgins 1,3637. Michele O’Boyle 1,3348. Stuart Gilhooly 1,2979. James Cahill 1,28910. Moya Quinlan 1,23311. Patrick Dorgan 1,22612. John Dillon-Leetch 1,21013. John Costello 1,20314. Thomas Murran 1,16315. Jarlath McInerney 1,139

The following candidates werenot elected and the number ofvotes received by them appearsafter their names:

Gazette ChristmaspublicationAs usual, the Gazette will betaking a break over the Christmasperiod, so there will be no issuein January. Normal publication willresume with a joint January/February issue, due out in earlyFebruary.

New officer team in place

16. Gerard Doherty 1,07317. Thomas Martyn 1,06818. Richard O’Hanrahan 72519. TC Gerard O’Mahony 386

As there was only onecandidate nominated forConnaught, there was noelection and Rosemarie Loftuswas returned unopposed. InMunster, Eamon O’Brien waselected with 389 votes, beatingRichard O’Hanrahan, whopolled 150 votes.

Council members areelected for a two-year term.The sitting Council memberswho were elected last year are:Gerard Griffin, Anne Colley,

Patrick O’Connor, MichaelQuinlan, Donald Binchy, JohnP Shaw, Michael Irvine, PhilipJoyce, Simon Murphy, JamesMacGuill, John Fish, JamesMcCourt, Peter Allen, HelenSheehy, Orla Coyne, and MarieQuirke.

Law Society president Gerard F Griffin with senior vice-president Owen Binchy and junior vice-president John D Shaw

News


3

relation to births and deaths iswelcome and, as time goes on, itwill assist family tracing, evenwithout public access to thePPSNs, which will be withheld.

In relation to deaths, certainuseful information is not beingcollected, including any previoussurname of the deceased(important for tracing marriedwomen) and the deceased’s placeof birth, if known. The omission ofany previous surname is remediedby part 5 of the first schedule tothe Civil Registration Bill, 2003,but the deceased’s place of birth,if known, continues to be omittedin the bill. With the difficulties intracing people with common

names, where a place of birth canbe a vital clue to identity, it isdifficult to know why thisinformation is not being collected.

The collection of additionalinformation on the parents ofchildren may have an unexpectedside effect: the reluctance of non-marital fathers to be registered. Itis anticipated by social workersand others that some fathers mayfeel they must refuse to beregistered because of the futureimplications this may have forsocial security benefits andearnings. Apparently, the ChildSupport Agency in England andWales used information on birthcertificates to oblige registered

fathers to contribute to theirchildren’s upkeep. While on theface of it, this is unexceptional,there is an expectation that thisdevelopment will result in a newkind of illegitimacy, being childrenwith no registered fathers. Ascurrently drafted, the CivilRegistration Bill, 2003 does notput non-marital fathers under anobligation to register (section 22),and any such obligation would belargely unenforceable.

Other issues arise with the bill,which will be raised by thesociety’s Law Reform Committeeas the bill is debated in theOireachtas: restrictions planned inthe manner of searching which are

dictated by the design of the userinterface to the new databasesoftware, other shortcomings inthe user interface, and the pro-posed marriage procedure thatrequires a marriage to be register-ed by the parties and not thecelebrant, as is presently the case.

The secondary legislationbringing the amendments referredto in section 16 of the SocialWelfare (Miscellaneous Provisions)Act, 2002 into effect are statutoryinstruments 132/02, 412/02,481/02, 269/03 and 395/03.

Alma Clissmann is the LawSociety’s parliamentary and lawreform executive.

G

Unit prices: 1 November 2003Managed fund: 415.279cAll-equity fund: 96.762c Cash fund: 252.676c

A ROSE BY ANY OTHER NAMELaois solicitors have changedthe name of their associationfrom the Laois Bar Associationto the Laois Solicitors’Association because it is moreconsumer-friendly, according tothe association’s PRO CharlesFlanagan.

CAN’T KEEP A GOOD MANDOWNAt its recent annual ball, theClare Bar Association made apresentation to solicitor SeanCasey, who, after 62 years,continues to work full-time in hisfirm John O’Casey & Co. Eight ofCasey’s nine children trained tobe solicitors, and four of his sonswork in his firm.

CLARE PROBATION SERVICEThe absence of a full probationservice is causing problems inCounty Clare. The local barassociation says ‘it is a cause ofgrave concern’ as judges don’thave the benefit of full probationreports. Also, since the death ofthe highly-regarded countyregistrar Enda Brogin in 2002,no-one has been appointed to fillthe position.

New president GerardGriffin has pledged to set

up a task force ‘to examine howthe society can co-ordinate anddevelop existing and newsupport services for memberswhose personal problems areaffecting their professional livesand those of their clients’.

Speaking to the Law SocietyCouncil after his election on 7November, Griffin said: ‘Stress,depression, substance abuse andthe like are problems which,regrettably, the society comesacross from time to time in itsmembers. We need to be betterat helping such unfortunatecolleagues to find the expert

GOLDEN PAGESADVERTISINGThe Golden Pages will becontacting solicitors over thenext few months about listingsin the 2004 phone books.Solicitors are reminded to takeaccount of the Solicitorsadvertising regulations beforedeciding on the format of theiradvertisements.

President promises review of member support services

The draft terms of referencefor the Support Services TaskForce are: • To review the support

services currently providedby the Law Society andothers for solicitors andtrainee solicitors

• To assess best practice inother relevant organisationsand to identify furthersupport services that mightbe provided to solicitors andtrainee solicitors

• To make recommendationsregarding the most effectivemeans of delivering supportservices to solicitors andtrainee solicitors.

assistance they need. I ampleased to be able to tell youthat Olive Braiden has agreedto chair this task force which isto report in 2004’.

The work of Irish solicitorMichael Twomey was used

extensively by the English LawCommission in preparing itsrecent report on partnership lawreform. Twomey, a member ofthe Law Society’s Business LawCommittee, acted as aconsultant to the commission,which describes him as a

Brits praise Business Law Committee member

‘distinguished and influentialcommentator’ in the area, andhis book Partnership law as aleading text. If implemented inIreland, the report’srecommendations would make asolicitor’s firm a separate legalentity – the firm, rather than thepartners, would own propertyand enter into contracts.

Olive Braiden: heading up new task force

State Guaranteed and Tax Free Returns.Investments may be made through An Post, Banks and Stockbrokers.

There are no fees, charges or transaction costs of any kind.

N a t i o n a l T r e a s u r y M a n a g e m e n t A g e n c y

U n i q u e I n v e s t m e n t O p p o r t u n i t i e s

f r o m t h e

S a v i n g s C e r t i f i c a t e s

S a v i n g s B o n d s

P r i z e B o n d s

Issued by the National Treasury Management Agency

News


5

Munster solicitors are upin arms over a change

in policy at the Stamps Officein Cork. Until late Octoberthis year, solicitors could callto the office and havedocuments such as deeds oftransfer stamped while theywaited.

According to SouthernLaw Association PRO Patrick Dorgan, this servicehas been curtailed withoutany consultation withsolicitors, although they are

Cork loses its old stamping groundthe primary, if not the only,customers. ‘We are at a loss asto why this action isnecessary’, he says.

The previous facility meantthat there was direct interfacebetween the Revenue officialand the solicitor. Queriescould be dealt withimmediately, and stamp dutydischarged and deeds stampedwithout any delay. The effectof the policy change is thatcorrespondence betweensolicitors and the Revenue

will increase, at an added costto both. ‘Instead of expandingthe service, they are goingbackwards’, Dorgan reckons.

And he adds: ‘There is avery great problem withsecurity of deeds. As there isno way of tracking them, thepossibility of them being lostor overlooked is greatlyincreased’.

The Stamps Office saysthat the change in policy is a‘matter of security’, that theservice is the same, and that

in exceptional circumstancesit will process documentsimmediately. ‘Other peoplepost their documents’, arepresentative told theGazette, pointing out thatthose who called to the officein person and had documentsstamped immediately were ‘ina sense, skipping the queue’.

The Southern LawAssociation has called for anurgent meeting with theRevenue Commissioners onthe matter.

‘Silly and almost petty’was how Labour senator

Derek McDowell describedtánaiste Mary Harney’sstatement that solicitors wouldbe copied with correspondenceby PIAB but that under nocircumstances would PIABcommunicate directly with asolicitor seeking to represent avictim.

He was speaking at thecommittee stage debate in theSeanad on the PIAB Bill. Thebill has now been passed by theSeanad, but at the time ofgoing to press it had not yetbegun its passage through theDáil.

The PIAB Bill commands all-party support, so its enactmentis not in doubt. But politiciansin both the Dáil and Seanadhave publicly acknowledgedthat an intensive and veryeffective lobbying campaign byboth the Law Society andsolicitors representing local barassociations has made theimbalance and unfairness ofPIAB proposed procedures theprimary issue for debate in bothhouses of the Oireachtas.

The Fine Gael contributionin the Seanad was led bysenator Paul Coghlan. On theissue of legal representation, hesaid: ‘Having access to legaladvice is meaningless where

PIAB ‘designed to disadvantage victims’someone is effectively deniedlegal representation at theirown request and their ownexpenses. The tánaiste’s refusalto give on this point will, I fear,be a petard for PIAB. It willgive people the opportunity toclaim that the forum and theprocess are imbalanced andthat the procedures aredesigned to minimise the rightsof ordinary claimants’.

The independent senatorand former Northern Irelandombudsman Maurice Hayessaid he was concerned at theabsence of lawyers and lack ofbalance in PIAB, remarking:‘Neither IBEC nor the IIF hasever struck me as a shiningapostle for human rights andthe rights of the individual’.But not all independentsenators favoured a right oflegal representation for victims.Senator Joe O’Toole wasvehemently opposed to this.

A number of Fianna Fáilsenators also expressed supportfor opposition amendments ona right of representation forvictims. These includedsenator Terry Leydon andsenator Eamon Scanlon, whosaid: ‘Insurance companies willhave the best and mostexpensive legal advice availableto them and claimants, if theyso wish, should be able to use a

solicitor to deal with PIAB.That would be a fair way ofdoing business’.

But despite pressure from allsides, the tánaiste refused toaccept opposition amendmentson this issue.

Expressing the views of theLaw Society in an Irish Timesarticle on the subject, director

general Ken Murphy said thatpeople seeking compensationfor personal injuries will beforced into a system ‘whichseems designed to disadvantagethem. Indeed, the new systemwill benefit the very peoplewhose negligence caused theinjury’.

He expressed regret that thetánaiste had rejected thesociety’s views on the inherentbias of PIAB when societyrepresentatives had met her inGovernment Buildings on 12November.

‘Instead of the level playingfield of the courts of justice –guaranteed by the impartialityof the judiciary – PIAB hasbeen designed so that victimsinvariably play away fromhome, without a manager toorganise and advise them,under rules devised by theopposition and with a refereewhose match fee is being paidby the other team’, he said.

Murphy: ‘PIAB has been designedso that victims invariably play

away from home’

LAST CHANCE FOR GAZETTEYEARBOOK AND DIARY 2004The 2004 Law Society Gazette Yearbook and Diary is now available(please see order form on page 28). Last year the Solicitors’Benevolent Association benefited to the tune of �20,000 as a resultof proceeds from the Gazette Yearbook and Diary, and your continuedsupport is very much appreciated.

Viewpoint


6

Everybody hates solicitors.The only comfort we can

take is that everyone probablyhates barristers more, and theodd survey has shown thatclients’ trust in, and regard for,their own solicitor isexceptionally high. Theproblem is the perception oflawyers as a whole. Despite theHerculean efforts of the LawSociety on the public relationsfront, it is unlikely that thingsare going to change.

One result of our negativeimage is that successivegovernments have felt thatwhenever investigation into anyoccupation or undertaking isnecessary, lawyers generally –and solicitors in particular – arealways first on the list. Noaccount is taken of the fact thatwe generally come out of suchscrutiny very well, and whenoutside overseers of the LawSociety, such as the independentadjudicator, issue a report that isfavourable to the society, it iscompletely ignored by themedia.

This is an introduction to thefollowing comments on a topicthat is subject to much debateboth inside and outside theprofession – whether theprofession should regulate itself.A significant number ofsolicitors feel that the LawSociety’s remit should berepresentative only, and that

Shouldering the burden of selfNo-one likes to be told what to do, but for solicitors this is one of the burdens that come withmembership of a self-regulating profession. Patrick Dorgan explains the Law Society’s newregulatory powers under the Solicitors (Amendment) Act, 2002 and why it needs them

regulation and discipline shouldbe dealt with by an entirelyseparate body. Having beeninvolved for a few years with theRegistrar’s Committee (which is,in effect, the District Court ofthe regulatory and complaintsfunction of the Law Society), Iam firmly convinced of the needfor the society to retain controlof its regulatory and disciplinaryfunctions. Not only for thebenefit of the profession, butalso for the benefit of thepublic.

A policeman’s lotThe society expends significantresources in the discharge of its

The Solicitors (Amendment)Act, 2002 was brought inprimarily to curb solicitoradvertising – a reversal ofprevious government policy,which had been to encouragesuch advertising. The LawSociety took the opportunity toseek amendments to existinglegislation to strengthen andextend its powers of regulation.The vast majority of solicitorshave never advertised, and withthe possible exception ofreviewing their websites, neednever have reference to theextensive restrictions inrelation to advertisingcontained in the act.

This article proposes to dealsolely with the extension of thesociety’s regulatory powers.Solicitors who anticipate issueswith their advertising would bewell advised to consult the actdirectly, while noting that theLaw Society is under intensescrutiny to ensure that theadvertising rules are enforced.

On the beatThe extra powers obtained bythe society are as follows. It isimmediately clear that thesepowers will allow the society toact in situations where it washelpless in the past.

Section 2 amends earlierlegislation by extending thegrounds on which the societymay impose conditions on a

disciplinary role. Considerablesatisfaction with itsperformance has been, andcontinues to be, expressed notonly by the lay observers onthe Registrar’s Committee butalso by the independentadjudicator. It is significantthat in the latest investigationof the profession – the Indeconreport commissioned by theCompetition Authority – therewas no recommendation forthe removal of such a functionfrom the society. In summary,we are much better off if wepolice ourselves, policeourselves effectively, and areseen to do so.

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Viewpoint


7

VOXPOP

Do you think it would beappropriate to include areference to God in theEuropean constitution,and why?

I believe that thereference to agod should beused. A personcan affirm if hedoesn’t believein God.

Owen Beechinor, CIE solicitor

No. TheEuropean Unionshouldaccommodateall beliefs and Ithink it’s wrongto include a

reference to God. It should bebased on secular ideals.Gerard Clarke SC

I think the vastmajority of thepopulus wouldcome from theChristian, Judaicor Muslimtraditions, all of

which, as far as I understand it,worship the same god. I think itwould be appropriate that Godbe mentioned in that context.Michael Hanna SC

For those whobelieve in God,God is in allthings.Therefore, it isnot necessarythat he/she be

mentioned. For those who don’t,God is a non-entity, so whywould the reference to a non-entity be in any way prejudicial?Ultimately, it probably doesn’tmatter, and if there were to bea reference to God, it would bemore for cultural and historicalreasons than religious or legal’. Fergal Doyle BL

No. I don’t. I feelthat it’s not alegal issue andnot somethingthat should be inthe constitutionas such.

Donough Cleary, Cleary & Co

f-regulationsolicitor’s practising certificate.Conditions can now beimposed on a practisingcertificate where the society hasconcerns about the number andnature of complaints against asolicitor, where there is aconcern about the financialstate of the practice, or wherethere is a need to protect orsecure the interests of thesolicitor’s clients. Thisprovision will enable thesociety to deal with the happilyrare situations where a solicitoris clearly incapable of managinghis practice, or is unwell, orunder some disability –situations which usuallymanifest themselves in multiplecomplaints to the society. Italso means that in appropriatecases, such as ill health orbereavement, the society canprotect clients’ interestswithout having to resort todisciplinary measures.

Under section 3, the societyis obliged to inform a solicitorof the purpose of theirattendance at the solicitor’splace of business – exceptwhere the society considers thatto do so could prejudice theexercise of any of its functions.This should strengthen thesociety’s hand in dealing withcases of, for instance, suspectedfraud, where the disclosure ofthat purpose could allow asolicitor to cover his tracks.

The definition ofmisconduct is extended bysection 7 to include having anyassociation with an unqualifiedperson acting or pretending tobe a solicitor, or with anunqualified person who carriesout functions that are reservedto solicitors, such asconveyancing or acceptinginstructions to provide legalservices to a third party.

Lugs BranniganSections 8 to 11 relate to theSolicitors DisciplinaryTribunal, which, practitioners

will be aware, operatesentirely independently of theLaw Society. Hopefully, thesesections will be of no interestto the majority of theprofession. Section 12 permitsthe registrar of solicitors, ofhis own volition, to makecomplaints alleging a breachof any provision of theSolicitors Acts or subsequentregulations.

Section 13 is a new anduseful provision which enablesthe society to combat thedefinite problem caused bysolicitors who do not respondto the society’s enquiriesfollowing receipt ofcomplaints, or who fail toattend meetings of regulatorycommittees. This had becomea major problem for theregulatory committees, andwas commented onunfavourably by all of the laymembers and the independentadjudicator and got significantunfavourable coverage in themedia.

The society can now applyimmediately to the HighCourt for an order compellingthe solicitor to attendmeetings or to respond tocorrespondence. The courtalso has the power to censurea solicitor or impose a

financial sanction. Thesociety’s powers in this regardare further strengthened bysection 14, which allows thesociety to require a paymentof a contribution towards itscosts only because the solicitorhas not responded to acomplaint, whether or notany finding of fault is made.The contribution is capped at�3,000, which is payable tothe society rather than thecompensation fund. Thesociety can also issue awritten reprimand in respectof complaints that are notserious enough to refer to theDisciplinary Tribunal, orwhere the solicitor has failedto respond to a complaint.

Long arm of the lawOther sections allow thesociety to publish findings ofthe Disciplinary Tribunal ornotice of the making of itsorders, and their effect, and asummary of the tribunal’sreport. The act alsostrengthens the society’spowers where a solicitor orany other person contravenesor is likely to contravene anyprovision of the Solicitor’s Acts.The society can nowinvestigate alleged misconductby an apprentice. Theamounts of variouscontributions payable havebeen increased and convertedto euro.

I hope that this gives somebackground to the provisionsof the 2002 act and thereasons why the societysought its extra powers. It issincerely to be hoped that anypractitioner who has beendiligent enough to read tothis point will be of acharacter to ensure that noneof the provisions will everapply to him.

Patrick Dorgan is a member ofthe Law Society’s CompensationFund Committee.

G

Dorgan: ‘Clients’ trust in andrespect for their own solicitor

is exceptionally high’

Letters


9

From: Michael O’Malley, Dublin

The media recently reportedan academic survey about

women’s lack of progress in thelegal profession (see last issue,page 4). From the news reports,they see sex discrimination asthe main reason for their failureto advance.

I read about the survey justafter I voted in the election forthe Council of the Law Society.Last year, only 22% of theCouncil were women, althoughthey comprise about 45% of ourprofession. An academic mightthink solicitors discriminateagainst women, and that a glassceiling blocks them from thehigher levels of the Law Society.

The figures hide a simplertruth: women solicitors won’tparticipate in elections. Thisyear, 19 candidates stood for 15seats on the Council – but onlythree were women. With only

three women candidates, atmost 20% of the 15 seats couldpossibly be filled by women.The gender imbalance on theCouncil will continue in 2003,not because we discriminateagainst women but becausewomen chose to opt out.

The 2003 Council electionsgive us hard data about how agender imbalance is beingperpetuated. Discriminationdoes not stop women standingin the elections; they only haveto post in a form. Yet 2003 wasnot exceptional; every year theyopt out.

Talking of discriminationalone obscures the real issueswhich limit women’s fullparticipation. We have to digfar deeper, and ask how manywomen are making choiceswhich will limit their ownadvancement – and why theychoose to do this.

Discrimination or choice?Letters

From: James Coady & Sons,Carlow

Iknow that the Dumb anddumber column had run its

course and was discontinued, but the enclosed letter from theRevenue Commissioners mightcome in useful if you introducethe column again.

The situation arises out of the red tape usually encounteredwhen having a substitute deed ofconveyance stamped, as asubstitute deed was lost bearingthe original stamps. Clearly thenecessity to stamp a substitutedeed would not arise at all if wecould possibly comply with theRevenue Commissionersrequirements in the first place.Anyone who has to use theprocedure might find this lettermildly amusing or, alternatively,very infuriating.

Copy letter from theRevenue Commissioners:Dear sir/madam,Please forward the originalstamped deed, as this mustbe cancelled before the sub-stitute deed can be stamped.Yours faithfully,Stamp Duty Unit

A note from the Editor:The Dumb and dumbercolumn wasn’t cancelled; theprofession just ran out ofstories, apparently! There isstill a bottle of cheap cham-pagne waiting for the personwho submits the best entry –in this case, Mr Coady. Sendthem in and we will publish.Contributions should be sentto the Gazette, BlackhallPlace, Dublin 7, e-mail:[email protected].

Dumb and dumberer

APPOINTMENT OF ORDINARY JUDGES OF THE:SUPREME COURT

HIGH COURTCIRCUIT COURT DISTRICT COURT

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

Notice is hereby given that applications are invited from

practising barristers and solicitors who are eligible for

appointment to the Office of Ordinary Judge of the Supreme

Court, the High Court, the Circuit Court and the District Court.

Those eligible for appointment and who wish to be consid-

ered for appointment should apply in writing to the Secretary,

Judicial Appointments Advisory Board, Phoenix House, 15/24

Phoenix Street North, Smithfield, Dublin 7, for a copy of the rel-

evant application form.

It should be noted that this advertisement for appointment to

Judicial Office applies to vacancies that may arise in the Office

of Ordinary Judge of the Supreme Court, the High Court, the

Circuit Court and the District Court during the period from the

1st January to the 31st December 2004. Applications received

will be considered by the Board during this period unless and

until the applicant signifies in writing to the Board that the appli-

cation should be withdrawn.

Applicants may, at the discretion of the Board, be required to

attend for interview.

Canvassing is prohibited.

Dated the 4th December 2003

BRENDAN RYAN B.L.

SECRETARY

JUDICIAL APPOINTMENTS ADVISORY BOARD

Cover story


10

This year is an important anniversary forroad traffic law and motor cars in threerespects. One hundred years ago, an actwas passed authorising races with ‘lightlocomotives’ in Ireland. That same year,

the famous Gordon Bennett race was held in Athy,and a second act was passed to amend the Locomotive

on Highways Act 1896, which became known as theMotor Car Act. This changed the name of thesevehicles from light locomotives to motor cars.

A day at the racesOn 27 March 1903, ‘enacted by the King’s MostExcellent Majesty, by and with the advice and consent of

DRIVING AThe popularity of the motor car was soaring at the start of the 20th century,

but the development of such vehicles had completely outpaced attempts to

regulate them. The Motor Car Act 1903 was the first serious attempt to put

the brakes on. Robert Pierse looks back on this seminal piece of legislation

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Act 1903• Do the

locomotion• Gordon

Bennett race

Cover story


11

AMBITIONSthe Lords Spiritual and Temporal, and commons, inParliament assembled and by the authority of same’,the Light Locomotives (Ireland) Act (better known asthe Races Act) was passed, authorising races with lightlocomotives in Ireland.

It was a short act of four sections. Section 1provided that a county council could ‘on application byany person or club, by order declare any public roadswithin the county may be used for races with lightlocomotives during the whole part of any days specified inthe order not exceeding three days in the year’. Theorder had to contain such provisions as wererequired by the Local Government Board for Irelandfor the ‘temporary suspension and regulation of other

traffic, for the safety of the public, for the restriction ofspeed in populous areas and for other purposes incident tothe proper conduct of such races’. Public notice had tobe given of the making of the order. When in force,the order meant that no provisions of any act, bye-law or regulation ‘restricting the speed oflocomotives or imposing any penalty for furiousdriving’ would apply to any light locomotive or itsdriver engaged in a race.

Section 2 dealt with the expenses of the countycouncil, which had to be defrayed by the applicants.

According to section 3, the term light locomotiveswould ‘have the same meaning as in the Locomotiveson Highways Act 1896’ – in other words,

Cover story


12

While Irish newspapers gave a great deal ofcoverage to the Gordon Bennett Race, that racewas in fact only the first event over a two-weekperiod which was officially known as‘Automobile fortnight in Ireland’.

The Gordon Bennett race was held on acourse based around Athy on 2 July 1903. Thenext day, the famous Phoenix Park Speed Trialswere held. These ran from Mountjoy Corner tothe Gough monument, a distance of over amile. A world land-speed record of the time wasreached at these – 85.9mph, achieved by oneBaron De Forest.

The fortnight ended with a tour from Cork toKillarney on 13 July, and the hill climb outside Killorglin on the old Killarney/TraleeRoad. This hill climb is still commemorated by a monument at the site. CharlesStewart Rolls, of Rolls-Royce fame, took part. The events were basically organisedby Claude Johnson, secretary of the Automobile Club of Great Britain and Ireland,who was to introduce Rolls to Fredrick Henry Royce the following year.

The races were brought to Ireland because was there was such officialantagonism towards motors and motoring in England. They were held, of course,under orders made by the various county councils under the Light Locomotives(Ireland) Act 1903. One member of the House of Lords, Earl Spencer, commentedthat the debate on this piece of legislation was the first occasion on which allmembers of both houses had been in harmony on anything to do with Ireland.

For the Gordon Bennett race, the British entries were painted green, to mark thefact that the race was being held in Ireland, and the shade chosen became knownas British racing green.

These events were a matter of huge importance for the development of themotor car and were a great boost to the fledging tourist industry in Ireland at thetime.

THE GORDON BENNETT RACE mechanically-propelled vehicles weighing underthree tons. They also had to be designed so that ‘nosmoke or visible vapour is admitted therefrom except forany temporary or accidental cause’. The Races Actapplied only to this country and remained in forceonly until 31 December 1903.

Keep the red flag flyingThe Motor Car Act 1903 amended the Locomotives onHighways Act 1896, which itself was amendinglegislation to the Locomotives Acts 1861 and following.For example, the 1865 act introduced the infamous‘man with a red flag’ provision. Walking 60 yardsahead of each vehicle, a man with a red flag orlantern forced vehicles to travel at a walking pace,and warned horse riders and horse-drawn traffic ofthe approach of a self-propelled machine. TheLocomotive (Amendment) Act 1878 made the red flagoptional under local regulations, and reduced thedistance of the warning to a more manageable 20yards.

The 1896 act raised the speed limit from 4mph to14mph in the countryside and made lights onvehicles compulsory, as well as ‘an instrumentcapable of giving audible and sufficient warning’,usually a bell or a horn. Conviction for speedingcarried a fine of up to £10 and a nominal excise dutyof up to three guineas was charged on motor cars.

The 1903 act forms the basis for the dangerousdriving section currently in use in Ireland, so itmight be useful to reproduce the whole section infull. It reads as follows: ‘1) If any person drives a motor car on a public

highway recklessly or negligently, or at a speed orin a manner which is dangerous to the public,having regard to all the circumstances of the case,including the nature, condition and use of thehighway, and to the amount of traffic whichactually is at the time, or which might reasonablybe expected to be, on the highway, that personshall be guilty of an offence under this act

2) Any police constable may apprehend withoutwarrant the driver of any car who commits anoffence under this section within his view, if herefuses to give his name and address or producehis licence on demand, or if the motor car doesnot bear the mark or marks of registration

3) If the driver of any car who commits an offenceunder this section refuses to give his name andaddress, or gives a false name or address, he shallbe guilty of an offence under this act, and it shallbe the duty of the owner of the car, if required, togive any information which it is within his power

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Camille Jenatzy starting his Mercedes at Ballyshannon. Jenatzy went on to win the race

Breton driver Fernand Gabrielin his Mors racing car

De Dion Bouton 1903 Georges Richard 1903Fiat 1903

Cover story


13

1861: Locomotive Act 1861 restricts weight of steam engines to 12tons and imposes a speed limit of 12mph1865: Locomotive Act (’red flag act’) imposes a speed limit of 2mphin cities, towns and villages, and 4mph elsewhere. A pedestrian hasto walk 60 yards in front of the vehicle carrying a red flag. The vehicleis required to have three drivers aboard1878: Locomotive Amendment Act 1878 makes the red flag optionaland reduces the warning distance to 20 yards1888: Pneumatic tyres introduced 1899: The first motor car accident involving the death of the driveroccurs in London on 25 February1896: First speeding ticket is issued on 28 January. Walter Arnold is

fined one shilling for travelling at 8mph in a 2mph area. Lights arenow required, along with some form of ‘audible warning’1897: Automobile Club formed1901: A Lloyd’s underwriter issues the first motor insurance policy1903: Motor Car Act 1903 requires that all vehicles have to beregistered and display number plates in a prominent position. The firstnumber plates consist of one letter and one number, and the first (A1)is issued by London County Council. Driving licences are introduced.First use of windscreens. These were made of ordinary glass andinflicted terrible injuries in accidents. Speed limit raised to 20mph,with heavy fines for speeding and reckless driving. Henry Ford formshis company to manufacture automobiles.

MOTORING: THE EARLY YEARS

to give, and which may lead to the identificationand apprehension of the driver, and if the ownerfails to do so he also shall be guilty of an offenceunder this act’.

Now she’s sucking dieselBy 1903, the number of motor cars in Britain andIreland had risen to over 17,000 and it was becomingincreasingly difficult to identify offenders who hadbreached the few regulations that actually existed.The registration of motor vehicles and thecompulsory display of number plates wereintroduced by section 2 of the 1903 act, and alldrivers had to be licensed annually by their localcouncil. The driving license cost five shillings, whilethe vehicle registration fee was 20 shillings.

Other sections in the act dealt with suspending a

licence and disqualification from driving (section 4)and the duty to stop if you have had an accident(section 6). The act also raised the speed limit to20mph, a change that undoubtedly pleased Dr JohnColohan (the owner of the first car in Ireland), whohad been pressing for this for quite some time.However, the Local Government Board retained theright to limit speeds to 10mph in certain places forreasons of public safety (section 9).

This same section introduced a notice of intentionto prosecute for speeding offences. It can be notedwith some regret that this ‘notice of intention toprosecute’ position was developed through the 1933and 1961 acts but has now been totally repealed inthe 2002 Road Traffic Act. The 1903 act provided fora penalty of £10 on a first conviction, £20 for asecond offence and £50 for any subsequent offence.But it also said that a person would not be convictedof speeding if there was only one witness to theoffence.

Road signs, including speed limit signs, were alsointroduced under this act and local authorities werecharged with erecting such sign posts ‘denotingdangerous corners, cross roads and precipitousplaces, where such sign posts appear to them to benecessary’.

The last section provided that the act wouldcontinue in force until 31 December 1906 and nolonger, ‘unless Parliament shall otherwisedetermine’. In fact, it remained in force until the1933 Road Traffic Act was introduced by our ownFree State government.

Robert Pierse is a solicitor in Listowel, Co Kerry, andauthor of Road traffic law in Ireland (third edition,2003).

G

Hispano Suiza 1912 Panhard Levassor 1903 Renault 1906

This year’s model:the 2003 MercedesBenz SLR McLaren

News analysis


14

AN OFFER YOU The solicitors’

profession is

under attack like

never before. The

Law Society’s

new president,

Gerard F Griffin,

talks to Conal

O’Boyle about his

career to date

and why he plans

to come out

fighting

News analysis


15

Don’t ask, because he won’t tell. But thosewho knew him in the early years say thatthe young Gerry Griffin was a bit of atearaway. Now, as president of thecountry’s 8,500 solicitors’ profession, the

capo di tutti capi is holding his annual conference inSicily next year.

Coming as he does from an impeccable legalpedigree – his father was a senior counsel andSupreme Court judge and his mother was a solicitor,both of whom are still alive – it’s not surprising thatGriffin eventually followed in their footsteps. But itwasn’t his first choice; originally, he wanted to be avet. However, like a young Michael Corleone, hefound himself sucked into the family business. Youmight say that he fought the law and the law won.

In 1972, Griffin joined L Branigan O’Donnell &O’Brien, where he was apprenticed to LarryBranigan. Branigan was the conveyancing partner,which turned out to be bad luck for Griffin.

‘I never had a huge interest in conveyancing – andstill don’t to this day’, he admits. ‘My principalpractices would be in litigation, particularly defencelitigation, and also intellectual property law. FrankO’Donnell, who is now a Circuit Court judge, wasthe litigation partner there and I tended to have agreater interest in what he did than in conveyancingmatters’.

Some like it hotIn 1977, when one of the young assistants in thefirm, Patrick Ferry, set up on his own, Griffin left tojoin him. Then, in 1981, ‘having had the cornersknocked off me’, as he says himself, he opened hisown practice.

‘I basically did everything that came in the doorwhether I had expertise in it or not, but I soonpicked it up’, he recalls. ‘I had a huge fascinationwith criminal law and indeed for about ten years Ispent virtually every day in the Bridewell or runningtrials in the Circuit Court. I feel the experience hasstood to me in dealing with clients over the years,because all human life was there. There was also thejoy of seeing true professionals such as Pat McCartanand Garrett Sheehan operate’.

Now, as managing partner in the Dublin law firmKelly and Griffin, which employs three solicitors andfive support staff, he specialises in civil litigation,having already proven that crime does indeed pay.

CAN’T REFUSEBut he is quick to discount the notion that moneyshould be the driving force in a solicitor’s life.

‘There are ups and downs in every profession’, hesays, ‘but I’ve found that the most satisfying thing iswhen you do something for the small man, usuallywhen you are not getting paid for it, and you make adifference in their lives. Money isn’t everything,money isn’t the goal. As Geraldine Clarke often saidat parchment ceremonies over the last year, “billablehours should not be your ambition in life”, and Ithoroughly endorse that’.

By way of example, he cites a case from the early1980s of a female client who was separated from herhusband and who had a child out of wedlock, as itwas quaintly known in those days, with her newpartner. When she went to register the child’s birth,she was told she could either leave the father’s nameblank on the birth certificate or name her husband asthe father.

‘We took this case on and brought it all the way tothe High Court and we made a change in the law’,says Griffin. ‘That was one where I felt that weactually changed somebody’s life. We didn’t getterribly well paid for it, but that didn’t really matter.Whatever money you might have made then is longsince spent, but the memory of the satisfaction ofgetting the result will last a lifetime. You can’t bankit, but you can tell your grandchildren about it’.

GoodfellasGriffin feels strongly that pro bono work is one of thehallmarks of the legal profession, even though itrarely merits a mention in the media feeding frenzy

Occupation: Solicitor (admitted to roll of solicitors in 1978). Managing partnerin the Dublin law firm Kelly and Griffin, which employs three solicitors and fivesupport staff. Specialises in civil litigation.Education: Belvedere College, Dublin; third level: University College Dublin. Law Society career: First nominated to Law Society Council in 1982 asrepresentative of the Dublin Solicitors’ Bar Association. Elected to Council in hisown right in 1987. Junior vice-president 1998, senior vice-president 2002,president of the Law Society for year 2003/2004. Has chaired many of thesociety’s committees during his 21-year tenure on Council, including finance,registrar’s, compensation fund, litigation, and conference committees.

FACT FILEGERARD F GRIFFIN

News analysis


17

that occurs whenever lawyers are discussed. But heis concerned that the profession’s ability to supportsuch non-paying work could be sacrificed on thealtar of the great god Competition.

‘Back in the early 90s’, he recalls, ‘we ran a surveyand found that of the nine most common areas ofwork, only three were profitable and those wereeffectively subsidising the other types of work suchas landlord and tenant and social welfare. Convey-ancing, litigation and probate were the mainearners.

‘If the Competition Authority were to say that itwas opening up conveyancing or probate to anyonewho wanted to do it, that would have a huge effecton the income of the profession, which, as a follow-on, would then have a huge effect on our ability todo this pro bono work. I have absolutely no doubtthat from the top firms down to the smallest firm inthe country, there is an element of pro bono workwithin every practice.

‘It is effectively the Irish solution to the Irishproblem, because there is no functioning legal aidsystem in this country.

‘Our whole ethos is access to justice, and if wedon’t do it then nobody else will. That’s an area thathas never been acknowledged by government, anygovernment, because it raises the whole spectre ofour totally inadequate legal aid system’.

The GodfatherNot surprisingly, this is one of the areas that Griffinwill be training his guns on during his presidency.His involvement with the Law Society began, likehis two immediate predecessors and close friendsElma Lynch and Geraldine Clarke, through theDublin Solicitors’ Bar Association. He was recruitedas a foot-soldier by DSBA kingmaker Colm Price in1982 and entered the inner circle of the society’sCouncil in 1982 as a DSBA nominee.

He became a made man when he was elected toCouncil in his own right in 1987, and every yearsince. While always garnering a respectable numberof votes, he was never a poll-topper until last year’sattempt by another Council member to prevent hisre-election.

That was a reassuring vote of confidence for thefight ahead – and make no mistake, the Law Societyunder Gerry Griffin will be going to the mattresses.The gang war with the vested interests in theinsurance and business lobbies is not over yet.

Griffin acknowledges that there is now no way tostop the Personal Injuries Assessment Board frombeing established, but he is quite prepared to shootholes in the woolly thinking that underpins it.

‘I think it’s badly thought out and I don’t think it’sgoing to work’, he says. ‘It’s just going to addanother layer of bureaucracy where we don’t need it.The difficulty about this whole debate is thatnobody spoke on behalf of the victims. Indeed,during the very successful media campaign waged byDorothea Dowling, logic was turned on its head.The victim became the person who collided with

you or rear-ended you in traffic when they weredrunk; the victim was the employer who took theguard off the machine that chopped your arm off.The legal profession has been the only one thateffectively represented the victims.

‘So far, no-one has explained how they are goingto pay for the PIAB. I certainly don’t think theinsurers will pay for it out of their ample reserves.It seems to me that any costs will be passed on tothe policy holders – and that’s you and me andeverybody else. What maybe seemed like a goodidea on paper could potentially end up increasingpremiums’.

White heatGriffin takes over at what might politely be called achallenging time for the profession. Apart from theestablishment of the PIAB, there has been therecent introduction of money-launderingregulations, the aforementioned CompetitionAuthority study of the professions, questions aboutthe profession’s monopoly on conveyancing andprobate work, and increasing talk of an end to self-regulation. Despite the concerted threats, the newpresident believes that the Law Society has enoughfirepower to see off the wiseguys.

‘I think the future is bright enough’, he says.‘Attacks on this profession seem to be cyclical, butwe always survive, because at the end of the day theordinary member of the public is more and moreconscious of the need for legal advice. There was atime when the public would only go to a solicitorwhen they had a problem which had alreadymanifested itself; now they tend to be moreproactive’.

He points to the recent farce in Scotland, whereconveyancing was opened up to a new breed oflicensed conveyancers, only to see the systemcollapse, leaving the Scottish Law Society to pickup the pieces. Any similar move here is likely toend up the same way, he believes.

‘When the Competition Authority or mediacommentators ask why solicitors have a monopolyon conveyancing or probate practice, there is onesimple answer’, he declares. ‘We are professionalsand we know what we are doing. Would theysuggest the same thing of the medical profession?Should people be able to write their ownprescriptions or perform their own brain surgery?

‘There is so much paperwork involved in aconveyance, so much form-filling and so muchcompliance with legislative and other requirementsbefore a matter can be closed that I just don’t thinkany member of the public could do it. But I can seea situation where if they did try that, we would endup having to repair it.

‘It’s up to us to show that leaving this sort ofwork with a solicitor is in the public interest. That’smy view and that’s what I will be fighting for’.

And if any of those Competition Authoritygoombahs think differently, you can be sure thatGerry Griffin will make them an offer they can’trefuse. G

Litigation


18

Under the Rules of the Superior Courts(No 2) (Discovery) 1999 (SI 233 of1999), applicants for discovery arerequired to first serve the respondentwith a letter specifying ‘the precise

categories of documents required and … thereasons why each category of document isrequired’.

In order to successfully obtain discovery of aparticular category of document, applicants willhave to show, first, that the documents soughtrelate to issues of fact upon which the applicantmust succeed if the case against the respondents isto be won and, second, that the case will not beprovable unless discovery of the documents isordered.

DISCOVERYThe Master of the High Court, Edmond Honohan, has delivered a number

of recent written decisions that may help practitioners clarify practice and

procedure in seeking the discovery of documents. His decisions are

reproduced here

These new rules have forced practitioners toask themselves whether they really need to makean application for discovery. In addition, theMaster of the High Court, Edmond Honohan,has struck down many applications and made anorder for costs against the relevant applicant onthe grounds that the letter seeking discoveryfailed to sufficiently identify the documentssought and the reason why their discovery wasneeded.

The proper way to make a successful discoveryapplication was discussed in a Gazette articleearlier this year (April issue, page 14), but themaster has asked that the following decisions bepublished in full in the magazine to further clarifythe requirements for practitioners.

The plaintiff commenced proceedings just short of three years after anaccident at her place of work, which she alleges caused her serious

injury, injury such that she was ‘forced to discontinue her employment’(particulars 26) and is claiming loss of earnings ‘from the date of theaccident’ (particulars 24).

This is an application by the defendant for discovery of the plaintiff’smedical records. Two categories are sought, pre- and post-accident,roughly speaking. The plaintiff has refused voluntary discovery, and thereis an exchange of affidavits.

Strictly speaking, it is not necessary either for the applicant to put onoath a summary of the plaintiff’s case or the existence of issues as anend product of the exchange of pleadings. The pleadings themselves willbe read and the factual allegations therein will (however fanciful orfarfetched) be taken as those which the alleging party wishes to prove ifhe can. The facts do not need to be proved now (by affidavit) but at thetrial. Contrariwise, it is not necessary at this stage to swear the untruthof such allegations.

Nor should solicitors set out their legal submissions in the solemnform of an affidavit. Affidavits are to be used sparingly, to assert, asfact, circumstances which are the basis of a ‘necessity’ prompting theapplication for discovery or (in reply thereto) of a factual circumstancewhich may diminish the validity of the applicant’s such assertion.

If a plaintiff alleges that he had suffered an injury to his or herperson, his state of health immediately prior to the accident will beinquired into by the court. If a plaintiff alleges that he has suffered an

injury to his or her person, his state of health after the accident will ofcourse also be a central issue. The plaintiff will be highlighting the latter,while the defendant will be emphasising the former, if it is to hisadvantage to do so.

The plaintiff was (in December 1997) descending the stairs, lost herfooting (falling backwards?), and ending six or seven steps furtherdown, having bruised her buttocks and lower back. She carried on,‘battling with severe pain in her back’, until her GP prescribedanalgesia and rest. She was disabled by reduced and painful spinalmovement with reduced straight-leg raising on the left side, throughFebruary and March 1998. She is ‘still’ (August 2001) unable to work,physiotherapy notwithstanding, and is under the care of a painspecialist.

Presenting herself to the defendant’s doctor in June 1999, theplaintiff’s complaints were of low-back pain radiating down the left leg.She also complained of pain in the back of the neck with occipitalheadaches. The doctor’s view is that ‘her current symptoms are nowdirectly related to chronic osteoarthritis … the accident of December1997 is unlikely to have significantly altered the progression of herchronic osteoarthritis over the years’.

The defendant’s solicitor draws the attention of the court to hisdoctor’s report to him that the plaintiff’s consultant orthopaedicsurgeon advised him that in September 1998 the plaintiff gave ahistory of low-back pain ‘which started a few weeks ago’, and gave ‘nohistory of a trauma or fall’. The plaintiff’s solicitor says that this is

Eileen McCord (plaintiff) and Dunnes Stores (Tralee) Limited 16 OCTOBER 2003

MAI

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INTS • Recent

judgments ofthe master ofthe High Court

• Rules of theSuperior Courts

• Requirementsfor a discoveryorder

Litigation


19

CHANNELS

(defendant) [2000/1409P]

hearsay, and so it is, but it is still enough to prompt a request fordiscovery.

The request also encompasses records of an assessment of theplaintiff in August 1998, in which the consultant apparently saw a notethat the plaintiff complained of ‘chronic back pain for many years’.

The plaintiff’s solicitor is incorrect in her view (para 12 of her affidavit)that ‘no burden is placed on the defendant to disprove’ the plaintiff’sinjuries. She has perhaps overlooked the defendant’s specific plea thatthe injuries are derived from a pre-existing condition. But she is correctto state (para 13) that this is not a matter that can be ‘resolved’ by theproduction of medical notes and records, but only on oral evidence. Quiteso, and to allow the defendant’s expert witness to offer such evidence,he will have to be afforded access to the documents.

In general, pre-accident records will be discoverable only on a limitedbasis, particularly in terms of time frame. It is a snapshot of theplaintiff’s health as at the date of the accident, which is being puttogether by the defendant. Early history, resolved conditions, childhoodailments and the like are usually immaterial. Asymptomatic conditions orpredispositions may be candidates for discovery, but only when theirmateriality can be demonstrated, or stands to reason. If a 12 or 18-month search produces no written records of ailment, earlier history will(in the absence of expert evidence to the contrary) be unhelpful in thedepiction of the plaintiff’s immediate pre-accident state of health. In thiscase, I have clear evidence to the effect that earlier history is significant.

In answer to the request for post-accident records, the plaintiff’s

solicitor asserts privilege. While I am not concerned with privilege (it isnot a factor inhibiting discoverability as such), it may be useful tocomment here that this contention only applies in respect of documentsprepared in contemplation of litigation. Many post-accident records are ofa more mundane character and will be discoverable. In particular,admission records and treatment notes will have been prepared forstandard hospital files and in-house communications. Even where aprofessional has been consulted with a view to his assessing theplaintiff’s condition and ultimately offering evidence, it seems ratherpointless to claim privilege when that professional’s report will ultimatelyhave to be furnished pre-trial. Some of the content of thecorrespondence between the solicitor and the professional may beprivileged, but the records forming the basis of the professional’s reportshould be available to both sides: how else is the value of the report tobe challenged?

Practitioners (and the court) must now give effect to the dicta of theSupreme Court in last July’s decision in McGrory v ESB. In the course ofthis judgment, the chief justice confirmed that: ‘The court must be ableto ensure that the defendant has access to any relevant medical recordsand to obtain from the treating doctors any information they may haverelevant to the plaintiff’s medical condition … There is no room today inproperly conducted litigation for an approach which denies one sideaccess to relevant material which in any event will be available at a laterstage of the proceedings’.

I will make the discovery order sought by the defendant.

Litigation


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Accident at work, 20 February 1998. Statement of claim, May 1999.Particulars requested and supplied. Defence filed January 2000.

Contributory negligence alleged – ‘using a forklift truck in contraventionof specific instructions’. Time passes … then, August 2002, a letter:‘please note that my client will be contending the hearing of the casethat he has worked with forklifts in the past and in the presence of hisboss and with the knowledge of his superiors’. Finally, March 2003, arequest for discovery of documents.

Three categories of document are sought as follows:a) Training and instruction for the use of the forklift, including specific

instructions not to useb) The forklift – use and control of; safety and instruction manuals;

maintenance and modification, especially the switchingc) Safety statements, risk assessment, supervision and staff records.

It is quite apparent from this, and many, many other such letters inother cases, that practitioners have been in the habit of responding tothe requirements of specificity in relation to discovery requests by firstidentifying categories of documents which would have come their wayin the old days of general discovery, and having listed them, then turntheir minds to figuring out some stateable ‘reason’ as to why they‘need’ them. This is putting the cart before the horse. Practitionersought to first ask themselves: what evidence am I missing which iscrucial to the client’s claim? Then: can I get this evidence without

accessing the defendant’s files? And, if not: what category of thedefendant’s documents may yield up evidence of the missing pieces ofthe jigsaw?

In this case, the letter requesting voluntary discovery, and thegrounding affidavit, specify as reasons for the request variousallegations by the plaintiff, using the formula (under the heading‘reason’): ‘the plaintiff alleges … the plaintiff also alleges … andthese documents are relevant for that reason … (or) … accordingly thiscategory is necessary’.

Clearly, this is not enough. Discovery will, of course, only be orderedof documents which contain (or may lead to) evidence concerning(material and) relevant facts which are in issue, but relevance is nolonger the only key to discovery. There is a second matter in respect ofwhich the court must also be satisfied on affidavit. It is that, in theparticular circumstances deposed to, discovery is necessary to enablethe requesting party to prove a disputed material fact. Put another way,that the requesting party is critically hampered in the presentation ofhis case unless he is given access to the requested documents. Puteven more simply, that in the particular circumstances deposed to, heneeds access to the defendant’s documents as his only source ofproof of a disputed material/casual fact.

There are no such circumstances deposed to here or indeedcircumstances of any description. Consequently, the respondent isunable to controvert such evidence, and the court is unable to judge

This is an application by the plaintiff for discovery of five (categoriesof) documents. In brief, these are:

a) The accident report formb) The safety statement c) Records of training and instruction of the plaintiff d) The size, weight and medical condition of a named in-patiente) As to ‘the decision to retire the plaintiff early on medical grounds’.

The plaintiff was employed in an old folks’ home as a care attendant.Both the incidents to which she ascribes her injuries involved thesame elderly resident and occurred, one week apart, in December1997, just before Christmas. In the first incident, the resident wasbeing helped to get up off a chair and stand, but ‘leaned on theplaintiff’s right arm and transferred her weight onto the plaintiff’. Inthe second, the resident, upright and supported by a zimmerframe,‘staggered and let go of the frame’ and the plaintiff ‘by linking with herright arm … had to take the full weight of the resident’ to prevent afall.

The plaintiff says the defendant could – and should in the dueexercise of reasonable care – have prevented both these accidents byemploying at least two male employees to assist the plaintiff in herwork. I don’t think the court will be overly impressed with thissuggestion. The plaintiff also alleges that she was required to lift apatient (surely inconsistent with the accident as earlier described?)

and that patients should have been required to wear a ‘stout belt’which could be grasped and held by the plaintiff to prevent a fall.

In the particulars of personal injury, the plaintiff’s complaints are ofa painful right arm, especially the elbow. X-rayed in Tallaght inSeptember 2000 (three years post-accident), minor osteoarthriticchanges were noted in this elbow. Pain had become worse over time,extending to the right wrist and shoulder, limiting extension at theelbow joint and causing difficulties with housework and a forcedretirement from work.

The plaintiff’s particulars of carelessness on the part of thedefendant recite (a), (b), (c), (d) and (j) allegations of a non-specificvariety which could not possibly be the starting point for a discoveryapplication: for example, ‘exposing the plaintiff to a risk (unspecified)of damage or injury of which they knew or ought to have known’, or‘being in breach of section 67 of the Factories Act, 1955 asamended’. The pointless listing of general complaints is concludedwith reference (k) to all the Safety, Health and Welfare (GeneralApplication) Regulations 1993 and in particular six of them, includingmanual handling of loads and sudden movement of the load.

Whether any of this has any bearing on the plaintiff’s case isdifficult to tell. The plaintiff may have had to unexpectedly ‘take’ thefull weight of the ‘load’, but she was not knocked down and indeedthere is no description of any linkage between ‘taking the weight’ andthe injury to the elbow joint.

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

Rose Ann Hardiman (plaintiff) and Eastern Regional Health Authority17 OCTOBER 2003

Litigation


21

/833P]

And so we come to the only issue which I have to decide, which iswhether or not the plaintiff needs to know the weight of the residentwho fell against her. It is correct, I think, to say that where the residenthad her feet on the ground, the actual weight applied sidewardsagainst the plaintiff would be significantly less than the resident’s fullweight, and the closer to each other the two were standing, the lesswas the weight applied sidewards. One must presume that the plaintiffcarer, in the due performance of her duties, stood quite close to theresident. It follows that the actual full weight of the resident is of littlepractical assistance to the court or to the plaintiff, particularly wherethe plaintiff can offer her own evidence of whether the resident wassignificantly above or below average weight for elderly persons. That islikely to be as accurate a guess as to sidewards force as will beavailable to the court.

Note, in that regard, that the plaintiff feels she could haverestrained the resident by holding only the ‘stout belt’ she hasrecommended in her particulars of negligence, so the resident couldn’thave been that heavy!

As for categories 1, 2, 3 and 5, the defendant is consenting to anorder with slight modifications to 2 and 3. I’m going to delete thereference in category 5 to the ‘decision to retire the plaintiff early onmedical grounds’, since no such decision on the part of the defendantis alleged – in point of fact, the plaintiff records that she herself retiredearly from the job.

A final comment: in cases where ‘necessity’ is not self-evident, thecourt would not have to inform itself as to the ‘necessity’ for discoveryif the applicant deposed to the factual basis of such a contention.Deposing to ‘necessity’ arising merely out of the existence of an issueis of no use – the court can read the pleadings for itself and deducewhat allegations are in issue. The solicitor’s opinion as to necessity (oreven the much-favoured hearsay ‘opinion of senior counsel’saverment), even on affidavit, does not itself establish necessity andcan, and often is, easily demonstrated to be incorrect – the courtusually prefers its own opinion! The only solid evidence of the necessityto have access to certain documents is the testimony of the expertwitness who deposes to being unable to form a considered view on thedispute without whatever data the documents may reveal. In turn, thatexpert’s averment (or exhibited report) may prompt a replying affidavitfrom an equally qualified witness disputing its conclusion. (Of course,the court may not be satisfied as to the materiality of the disputed factand may feel inclined to refuse discovery on that basis alone.)

In cases where the ‘necessity’ to prove a fact is incontrovertibly self-evident (and the fact is obviously material) and it is also clear that theevidence cannot be sourced other than by discovery, the court will notwaste costs by insisting on formal averments of the logical basis ofsuch self-evident necessity. In such circumstances, however, the partyseeking discovery is unlikely to be awarded the costs of theapplication.

(defendant) [2003/8911P]

the matter, except by guesswork purely on the basis of the accidentdescription found in the pleadings. If I guess wrong, a fresh applicationcan be brought. If I am right, then perhaps I may have saved a set ofcosts.

This apprentice plumber got up onto a ‘live’ forklift truck and set itin motion. It reversed (’perhaps’) and ran into or alongside theguillotine machine nearby, trapping the plaintiff’s leg against themachine’s depth gauge and causing serious damage to the plaintiff’sleft lower leg bones and adjacent muscles. Initially in and out ofconsciousness, the plaintiff had a pin inserted and remained as an in-patient for eight days. The pin had to be replaced on a later occasion.He may be left with damaged toes and a risk of arthritis.

The defendant says the apprentice was specifically instructed not toattempt to drive the forklift. The plaintiff, on the other hand, blamesthe accident on the fact that the forklift was ‘live’ (instead of beingswitched off) and that he was not trained as to its use, and so on andso forth.

We may take it, I think, from the defendant’s stance outlined above,that indeed the plaintiff was not trained in the use of the forklift. Theircase is that he was warned off it altogether. So the first category isnot necessary: the defendant will not be making the case that theplaintiff was trained. Whether the specific instruction alleged by thedefendant was or was not recorded in writing will not dilute theplaintiff’s evidence that he had de facto authorisation.

Then there is the second category. Actually, more like a number ofclearly distinguishable categories, but with a common subject matter:the forklift. But the plaintiff’s evidential problem apparently (quotingfrom the ‘reason’ offered) relates to the employer’s failure to switchoff the forklift, leaving it harmless to persons not authorised (and key-equipped) to use it. This case is, of course, completely at variance withthe plaintiff’s assertion that he had de facto authorisation, but aplaintiff is, of course, entitled to plead in the alternative. That said,however, it is clearly self-evident that the forklift was ‘live’: the accidentcould not have occurred otherwise. Discovery of none of thedocuments sought is necessary.

Finally, an old favourite – safety statements and risk assessment.The reason offered is not the usual one, viz, to prove the defendant’sstate of knowledge (not itself a material fact which the plaintiff mustprove to succeed) but to prove the employer’s failure to provide asafety statement or to have a risk assessment when so providing.These specific circumstances are non-causal – they are facts which,though alleged and denied, are surplus to the issues the court willdetermine. General non-specific breaches of the acts, insufficient staffand supervision are also cited – these are not specific enough fordiscovery purposes. Discovery in respect of non-specific pleas is theclassic instance of ‘fishing’ – plead in general terms, then hopesomething turns up on discovery!

The application for discovery is dismissed with costs.

Litigation


22

The plaintiff’s solicitor’s affidavit contains the following description ofthe accident which occurred in January 2001: ‘the plaintiff was

descending a ladder which was secured to a machine when the saidladder became detached on one side from the said machine and swungout pivoting on pinned fixings on the other side in consequence whereofthe plaintiff fell’.

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

In both the letter requesting discovery and in the affidavit grounding theapplication, the reasons advanced for this discovery consist only of theobvious, namely, because the plaintiff is making an allegation which isdenied.

Why has the solicitor not deposed to any difficulty in proving adisputed fact? Perhaps on due consideration of her client’s instructions,her engineer’s report and the advices of counsel, it was not possible forher to depose to any particular gap in the evidence available or to any‘need’ to access the defendant’s files.

The case is actually about a ladder which was defective in aparticular sense – that is to say, not a design defect, but rather that(because of an earlier accident and a makeshift repair) it was unsafe.

There may be an issue as to whether the plaintiff’s loss of footingwas as a result of the ladder becoming detached on one side andswinging or whether the foot slipped because of inappropriate footwear,but I am not concerned with the latter proposition.

To make sense of the plaintiff’s request for discovery in relation to‘damage’, ‘defects’ and ‘repair’, I have to trawl through the particularsfor specifics.

At (1), we find the following: ‘allowed or permitted the said ladder tobe repaired in a makeshift fashion’, and this points to the real allegedcause of the accident, and presumably prompted the request fordiscovery of categories (a) and (b). There is no other fact alleged withsufficient particularity which could serve as the basis for such discoveryrequests.

I cannot, however, ignore the fact that the plaintiff was in a positionto furnish his own engineer with a full description of the accident and ofthe condition of the ladder. He ‘outlined the condition of the ladder atthe time’ to the engineer on 5 July 2001, and the engineer has beenable to complete his analysis and form his conclusions accordingly.(Although he states that the safety statement and any risk assessment‘should be obtained’, this has not prevented him from forming an expertopinion; in any event, the contents of such documents merely serve toestablish an undeniable state of knowledge on the part of thedefendant, but such knowledge is not a material fact in the case –ignorance of the risk is no answer to the plaintiff’s claim.)

My general conclusions in regard to the foregoing are borne out bythe opinion of Ronnie Robins, senior counsel for the plaintiff, whichended up in front of me. (I won’t here disclose anything of interest tothe defence.) What is of interest to me is that he directed that discoveryof documents be sought in two categories only, namely as to:1) How and when the ladder was damaged2) As and when repairs were carried out and the nature of the same and

who they were carried out by.

Nor can I ignore Mr Robins’ observation that ‘the cause of this accidentwas the defective ladder, and while querist will undoubtedly be criticisedfor effecting the makeshift repair, the obligation was not on him but onhis employer to repair it’, from which I cannot but deduce that theplaintiff’s instructions confirmed that some time before the accident hehimself made the temporary repair of the ladder described in theengineer’s report. It follows that the plaintiff is particularly well placedto describe the condition of the damaged ladder before and after thetemporary repair.

This plaintiff has no need to discover the defendant’s records forthree years pre-accident of the repair, maintenance, damage and/ordefects in the ladder. Obviously, the plaintiff’s solicitor was correct innot deposing to the contrary.

As for the accident report, access to same is being sought (althoughsenior counsel did not consider it necessary) just to see what’s in it. Aswith requests for safety statements, the ubiquity of requests for same isthe product of the practice of agreeing to discover same because (a)they are compact and identifiable, and (b) because it’s less bothersometo agree to discovery than to embark on a dispute about relevance.Failure to dispute relevance, however, leads to an expectation (indeed,often an ‘entitlement’) on the part of the party requesting discovery.Unless a party is able to depose to an evidential lacuna which may beovercome via discovery of these documents (or part thereof), discoverywill not be ordered. Even if there is a lacuna, it is necessary to satisfythe court as to the nature of the evidence which discovery may lead to,and as to the materiality, or even causality, of the fact of which theevidence may be probative. For example, the fact that there is noreference in the safety statement to the risk of which the plaintiff fellfoul is not itself evidence of causal negligence – nor indeed is the factthat there is no safety statement at all! G

John Flaherty (plaintiff) and Cannon Concrete ProductsLimited (defendant) [2002/2477P]9 OCTOBER 2003

Advocacy


23

Imagine that you are in court with your clientand your case has been called, but your barristerhasn’t arrived and his mobile phone is turnedoff. You know your case inside out. So how doyou feel about standing up and arguing it

yourself? This is the situation that Jennifer O’Riada found

herself in, and the experience prompted her toundertake the Advanced advocacy for solicitors course.The course is run by the American NationalInstitute for Trial Advocacy (NITA) and is organisedin Ireland by the Law Society’s continuingprofessional development section.

NITA is a not-for-profit organisation, set up in1970 to improve the quality of courtroom advocacy.Its mission statement acknowledges that ‘all peopleare entitled to quality legal representation by skilledand ethical lawyers’ and commits itself to makingeducation and training materials available to alllawyers, regardless of their ability to pay.

Faston your feetYou may never need to argue a case in court but, as a lawyer, you should

certainly be able to. That’s the rationale behind the Law Society’s advanced

advocacy training for solicitors. Kathy Burke talks to a husband-and-wife

team about their experiences on the course

O’Riada is a partner in the Dublin law firmO’Riada Solicitors and specialises in litigation andpersonal injury. She saw the advanced advocacycourse advertised in the Gazette at an opportunetime, soon after that barrister’s no-show. It seemedto suit her expertise, and she was one of 25successful applicants on the first course in 2002.

‘I never had any problem making applications inany court, but running a case is different’, she says.‘If you are not up-to-date with the rules of evidence,and have not honed and refined the techniquesinvolved in examining and cross-examining a client,summing up and arguing points of law before ajudge, you are at a distinct disadvantage when youropponent does it on a daily basis’.

The actor in everyoneThe advanced advocacy course has two parts. Beforethe five-day practical part, barrister Paul AnthonyMcDermott gives seminars on the rules of evidence.

MAI

N PO

INTS • Evidence

lectures• Dealing with

expertwitnesses

• Advancedadvocacycourse 2004

Advocacy


24

In the first year, there were seven weekly two-hourlectures. This year, to facilitate colleagues who hadto travel further to attend, the series was organisedinto four three-hour lectures. According to O’Riada,these lectures are perfect for a solicitor who has notstudied the law of evidence for some time. Ironically,she adds, McDermott gave the students specific caselaw from the English Appellate Courts that, had sheknown it just weeks earlier, would have allowed ajudge to rule in her favour on the admission of videoevidence in the High Court.

The practical part of the course involves caseanalysis, followed by moot trials. The NITA tutorshelp participants to analyse the particular case ontwo levels: first for points of law, and then from theperspective of how to present these in the tightframework of the court. They analyse the other side’sstrong points and anticipate the weaknesses in theirown case, which, O’Riada stresses, is very important.The course covers direct and cross-examination,opening statements and summing up, and othertechniques such as the manner and order in whichwitnesses are presented.

NITA’s courses are based on ‘learning-by-doing’.Tutors give instructions based around a complexfictional case file. Participants put theory intopractice in video-recorded mock trials in a simulatedcourtroom environment, which features trainee ornewly-qualified solicitors and accountants playingthe roles of witnesses and expert witnesses. NITAtutors, supported by Irish tutors, assess the individualparticipant’s performance. The final ‘trial’ takes placein the Four Courts in front of real High Court andCircuit Court judges.

Jennifer admits that she was apprehensive beforethe practical part – most of all, of making a fool ofherself in front of her peers and then having towatch it on video. ‘I realised that I was not alone’,she says, ‘the beauty of the course is that youmeasure yourself against yourself; you see realimprovement, and as you get better, you get moreconfident’.

Off-stage actionBeing left in the lurch by counsel is rare, and not theonly reason for a solicitor to study the skills ofadvocacy. Jennifer O’Riada points out that

understanding the advocate’s skill has allowed her toknow if the barrister she is instructing is doing agood job. ‘It can be hard to tell if they have gotacross to the judge one of the points you need themto get across. This is a skill you get from the course’,she says.

Impressed by the first course, she took part in thefollow-up weekend course in Cavan in March, andthen trained to be a tutor for the 2003 group inSeptember. Her husband Philip O’Riada, also apartner at the firm, was in the 2003 group. ‘I heardvery positive reports’, he said, ‘and saw people that Iknew to be busy, competent colleagues ready to goback, giving freely of their time to act as tutors.That impressed me, as everyone is so pressurisedthese days’.

Philip specialises in conveyancing and probate,mainly for small-to-medium enterprises, which doesnot involve much time on his feet in the courtroom.Nonetheless, he saw a value in doing the course.‘What we learnt helps in case conferencing, wherewe analyse the case with clients’, he says. ‘They areimpressed by our structured approach’.

Furthermore, he points out, in the growingnumber of quasi-judicial forums, such as theEmployment Appeals Tribunal and the proposedPersonal Injuries Assessment Board, clients expecttheir solicitors to be able to represent them, becauseclients can’t always afford to instruct a barrister aswell.

Communication skills were a new addition to the2003 course and will be continued in the future. Acommunications expert, who is not a lawyer but whounderstands courtroom technique, came fromAmerica to instruct the group. Participants aretaught to use body language appropriately. Jennifergives an example of where some lawyers don’t: ‘Irishlawyers are notorious for not looking at the witnessduring cross-examination. Even senior counsel doit’. Softly-spoken people are taught to speak out sothat they can be heard, while more volubleparticipants are encouraged to key down so as not toappear aggressive. ‘They make it very clear to youthat there are both intellectual and emotionalagendas to be achieved’, says Philip O’Riada. ‘About70% of all communication is non-verbal. This cancome as a shock to lawyers!’

Bonfire of the vanitiesToday, employers routinely send staff oncommunication courses. This means that advocateshave to deal with increasingly sophisticated witnesseswho, in some cases, can project themselves moreeffectively than the lawyers. In addition, says Philip,‘younger solicitors are getting more structuredtraining and becoming more formidable competitorsthan would have traditionally been the case’.

Dealing with expert witnesses was anotherenhanced element in the 2003 course. Lawyers witha literary rather than a mathematical bent can haveproblems examining expert witnesses who givereports and evidence in technical language.

The September 2003 group will be invited to apply for a place on the weekendcourse from 11 to 14 March 2004 in Newcastle, Co Down. This course will beattended by members of the law societies of Ireland, Northern Ireland and theScottish Society of Solicitor Advocates.

A brochure with details and an application form for the 2004 advanced advocacycourse be sent to all solicitors with the January CPD brochure. The evidencelectures will take place on Wednesday 21 and 28 April and 5 and 12 May 2004.The five-day advocacy component begins on Monday 13 September 2004. Theclosing date for applications is Wednesday 11 February 2004.

ADVANCED ADVOCACY FOR SOLICITORS 2004

’Irish lawyers

are notorious

for not

looking at

the witness

during cross-

examination’

Advocacy


25

Participants were taught how to approach thissituation and it was emphasised that expert witnesseswere there to clarify issues for the court, not to addto confusion.

Some participants have commented on the factthat NITA was originally designed for the US legalsystem, which has distinct differences to our own.For example, there are fewer jury trials in Ireland.We also have a different style of opening statement,if any, and the traditional division of the roles ofsolicitors and barristers does not exist in the UnitedStates. But according to Jennifer O’Riada, this doesnot matter. ‘The minutiae of the course are notimportant; you are learning the fundamentaltechniques’, she says. And Philip adds: ‘Our legalsystem looks for the best legal solutions available.Whether they are found in Canada, New Zealand,the US or another common-law jurisdiction, theycould be here tomorrow. This course will improvethe quality of law practised in this jurisdiction, forthe benefit of all concerned’.

Solicitors have a right of audience in all Irishcourts. According to Jennifer, outside the Pale fewsolicitors will instruct a barrister at District orCircuit Court level, but in Dublin the practice iswidespread. She feels strongly that this situationneeds to change. ‘It’s not about doing the work thatbarristers do’, she explains. ‘It’s about beingcompetent to represent your client if you need to’.

Both of the O’Riadas have a piece of advice forthe participants on next year’s course. The five-daypractical course requires you to take a full week awayfrom your office, which can be difficult. If possible,get someone to cover for you. A huge amount ofpreparatory work must be done each evening for thenext day, and they emphasise that there is noquestion of winging it. ‘I had visions of slipping outat breaks to ring the office’, Philip recalls, ‘but youcannot do both’.

‘It is exhausting’, Jennifer concludes, ‘but I havenever felt so intellectually stimulated by anything todo with the law since I qualified’. G

Participants and tutorsfrom the 2003 group(Philip O’Riada, secondrow, far right)

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Probate


26

The capital acquisitions tax (CAT)implications of deeds of familyarrangement must be thought throughcarefully. Where the consideration insuch a document or deed is that of

natural love and affection, be particularly carefulabout the value at which the property is transferredfor the purposes of the family arrangement.Remember that you will have filed a value in theschedule of assets as at the date of death.

In a deed of family arrangement, two possiblecharges to CAT arise: • Inheritance tax: payable on the inheritance from

the deceased to the beneficiary• Gift tax: payable if the family member receiving

the property has not paid full consideration to thebeneficiary.

Certificates of discharge in respect of bothdispositions will be required. It is our job assolicitors to ensure that the personal representative isfully protected. We must keep in mind that while thedonee is primarily liable for the payment of this tax,the personal representative and the disponer aresecondarily liable.

Section 8 of the 2003 Capital Acquisitions TaxConsolidation Act would not apply to a familyarrangement because the initial disposition was not agift, but could arise later (see below).

Death becomes herThe disponer – one of the children in the examplegiven in last month’s issue – is secondarily liable forpayment of CAT by the donees. On a futuredisposition by the donees, they will have to producecertificates of discharge from CAT both in respect ofthe gift and the voluntary disposition. And they willalso have to prove that the disponer survived theexecution of the deed by more than two years. Inthis regard, section 8 of the Capital Acquisitions TaxConsolidation Act, 2003 says:‘Where a donee takes a gift under a disposition made by adisponer (in this section referred to as the originaldisponer) and, within the period commencing three yearsbefore and ending three years after the date of that gift,

In her third and final article on post-death planning,

Anne Stephenson discusses the capital acquisitions and

residential property tax consequences of deeds of family

arrangements and the solicitor’s role in protecting the

personal representative

DEA

MAI

N PO

INTS • CAT and

residentialproperty tax

• Secondaryliability

• Protecting thepersonalrepresentative

DEA

Probate


27

ATH

POST-DEATH PLANNING

AND

TAXESATH

the donee makes a disposition under which a second doneetakes a gift and whether or not the second donee makes adisposition within the same period under which a thirddonee takes a gift, and so on, each donee is deemed to takea gift from the original disponer (and not from theimmediate disponer under whose disposition the gift wastaken) and a gift so deemed to be taken is deemed to be aninheritance (and not a gift) taken by the donee, assuccessor, from the original disponer if:a) The original disponer dies within two years after the

date of the disposition made by that original disponer,and

b) The date of the disposition was on or after 1 April1975’.

In other words, if a sale takes place within two yearsfrom the date of the deed, the purchaser will requirean indemnity in the form of an insurance bondagainst the eventuality of inheritance tax becomingpayable by reason of the death of the disponerwithin a two-year period.

You need to advise your client of the taximplications of the proposed voluntary dispositionfrom the perspective both of the disponer and thatof the donee. However, you can only act for one

party, because if you act for all parties involved thereis an inherent conflict of interest. While the doneeof the gift is the person primarily accountable forgift tax payable in connection with the gift of thedisponer, as already mentioned, the donor issecondarily accountable for payment of such gift tax.

Therefore, it is in the interest of the disponer toensure that any gift tax payable is discharged by thedonee, and it is your responsibility to inform thedisponer of this. Should the property be sold ormortgaged within 12 years of the date of the gift orthe date of the inheritance, the purchaser ormortgagee will insist on an absolute certificate ofdischarge from CAT.

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Electronic filing of Gift/Inheritance Tax Returns

Probate


29

When the voluntary disposition has been completedand the deed stamped and adjudicated, you shouldensure that the donee applies for a certificate ofdischarge from gift tax. If the disponer dies within twoyears of the taking the gift, that is, the date of theconveyance, the donee is deemed to take ‘on her death’.

Section 3(1) of the 2003 act says:‘1) In this act, “on a death” in relation to a person becoming

beneficially entitled in possession, means:a) On the death of a person or at a time ascertainableonly by reference to the death of a personb) Under a disposition where the date of the disposition isthe date of the death of the disponerc) Under a disposition where the date of the disposition ison or after 1 April 1975, and within two years prior tothe death of the disponer, ord) On the happening, after the cesser of an interveninglife interest, of any such event as is referred to in sub-section (2).

2) The events referred to in sub-section 1(d) are any of thefollowing:a) The determination or failure of any charge, estate,interest or trustb) The exercise of a special power of appointmentc) In the case where a benefit was given under adisposition in such terms that the amount or value of thebenefit could only be ascertained from time to time by theactual payment or application of property for the purposeof giving effect to the benefit, the making of any payment

or the application of the property, or d) Any other event which, under a disposition, affects theright to property, or to the enjoyment of that property’.

This means that a person is also deemed to take ‘on adeath’ where a disponer dies within two years ofmaking the gift.

Buried in paperDepending upon the individual circumstances, aclearance certificate in respect of residential propertytax (RPT) may also be necessary. RPT was an annualtax payable by a person who owned and occupiedrelevant residential property in Ireland up to 5 Aprilof each year. A return of all relevant residentialproperty on a form RP1 had to be submitted eachyear between 5 April 1983 and 5 April 1996.

Although RPT has been abolished with effect from5 April 1997, a clearance certificate procedure remainsin place in relation to the sale of certain residentialproperties in order to help the RevenueCommissioners to collect outstanding tax.

The value threshold relating to the residentialproperty tax certificate of clearance has been increasedto �1 million in accordance with the indexationprovisions in the legislation. Where the saleconsideration for residential property exceeds�1,000,000, the vendor must provide the purchaserwith a certificate from the Revenue Commissionersindicating that all residential property tax due foryears for which the tax was in operation has been paid(see the Conveyancing Committee’s practice note inthe May 2002 issue of the Gazette, page 33).

However, if the property was acquired after 5 April1996, no RPT clearance certificate is required,irrespective of the amount of the consideration.Section 135 of the Finance Act, 2000 provides thatwhere a sale of an estate or interest in residentialproperty is completed after 10 February 2000, therequirement to obtain a clearance certificate will notapply where such estate or interest had previouslybeen acquired after the 5 April 1996 by a bona fidepurchaser for value.

Always remember who you are acting for. If it isthe legal personal representative, are you adequatelyprotecting him? If you are acting for the legalpersonal representative, you cannot also act for thebeneficiaries. If you act for the beneficiaries,remember that you cannot act for all of thebeneficiaries simultaneously as there is a clearconflict of interest. There are a few other situationsthat can arise in an administration of an estate, withthe possible exception of disclaimers or a section 117action, which can cause you to forget who you areacting for or, at best, end up advising various partieswith different interests.

Mary Laffoy’s Irish conveyancing precedents gives anexcellent precedent for a deed of family arrangementat precedent J24.

Anne Stephenson is the principal of the Dublin law firmFallon and Stephenson.

G

The role of a personal representative is daunting and – considering hisresponsibility and the liability to the estate, the beneficiaries and the RevenueCommissioners – it is a wonder that any personal representative accepts the role inthe first place. Very often, the implications of his role are not properly pointed outto him. He quite rightly depends on the solicitor to protect him in executing thatfunction.

One of the most common reasons for a personal representative getting intotrouble is forgetting what he was originally appointed and empowered to do underthe will or under the Succession Act, 1965. His role is to protect and administer theestate, and ultimately to vest the estate in the persons entitled. In the absence ofany legislation governing the variation of wills in this jurisdiction, it is not thefunction of the personal representative to vary or alter the circumstances on deathor to go further than he is obliged to do.

Straightforward administrations can be brought to a standstill, or indeed a standoff, by disputes between the personal representative and the beneficiaries overfamily arrangements. In many cases where a personal representative is underpressure to go along with the ‘better plan’, the central function of the personalrepresentative is overlooked. He is then bound up in the personal affairs of thebeneficiaries which, at the very least, can result in a conflict of interest.

One has to ask, in relation to deeds of family arrangements in particular, wouldthe personal representative have been better off vesting (and, in the process,obtaining receipts and indemnities) and letting the beneficiaries get on withwhatever they wished to do from that point onwards? I believe there is a real needfor us as practitioners to advise the personal representative on how his role shouldbe discharged, not to encourage variations of the will that expose him toconsiderable additional, and sometimes unnecessary, liability.

In family situations, the tendency is for the personal representative to help. I amof the view that in assisting without due care, an unnecessary layer is added to therole of the personal representative, and we take on an unnecessary liability.

ADVISING THEPERSONAL REPRESENTATIVE

Legal executives


30

Alegal executive is a professional personwho is a member of the Irish Instituteof Legal Executives (ILEX) and assistsin the operation of general andspecialist legal matters with solicitors,

barristers, in the Irish courts and in other areas ofcommercial and legal practice. Legal executives must

EXEC

The Irish

Institute of

Legal

Executives has

had a busy year.

Its continuing

professional

development

programme was

launched in

October, while

the first batch

of graduates

from its new

diploma

programme will

be conferred

this month.

Naomi Murphy

explains

perform their duties in accordance with the higheststandards of integrity and conduct, as required by thelegal profession and the institute’s code of rules.

ILEX is recognised throughout Ireland andmembership almost doubled in 2003. It now stands at350 members.

This year, the institute has focused a lot of its

The Legal executive professional legal studiesprogramme includes the following modules:Stage one• The Irish legal system• Introduction to the law of tort• Introduction to contract law• Civil litigation, procedure and case

management• Criminal law, the constitution and judicial

review.

On completion of stage one, students willattempt a two-hour examination in eachmodule.

Stage two• Legal research, writing and

communication skills• The law of real property, conveyancing

and succession• Business law• Elements of family law and procedure

(elective)• Criminal procedure and litigation

(elective).

On completion of stage two, students willattempt one three-hour examination in eachmodule.

Further informationLegal executives interested in becomingmembers of the institute or in learning moreabout ILEX’s certificate and diplomaprogrammes should see the flyer enclosed inthis issue of the Gazette or contact the IrishInstitute of Legal Executives, 22/24 LowerMount St, Dublin 2 (DX no 17). Alternatively,you can contact Philip Burke, head of theprofessional law school at Griffith CollegeDublin, South Circular Road, Dublin 8, tel: 01416 3341, e-mail: [email protected], orPamela Morton, course administrator, tel: 01415 0442, e-mail: [email protected].

LEGAL EXECUTIVE COURSE CONTENT

Legal executives


31

UTIVE CLASSundergraduate programmes and who are presentlyattending an approved second-level institution.

Distance learning More than a third of the students who have registeredon the professional legal studies programme haveelected to take the distance-learning option. This yearsees the opening of a second examination centre inCork for Munster-based ILEX students.

Distance-learners will be supported in their studyby the provision of comprehensive course manuals, e-mail and telephone support. Homework is prescribedfor completion at the end of each module. Distance-learning students are allocated their own distance-learning tutor for the duration of their study.

Court visits will be organised as part of the civillitigation, procedure and case management module instage one. During stage two, students will visit Mount-joy prison as part of their criminal procedure module.

Now in its third year, the course has so far attractedover 300 students.

Naomi Murphy is education officer at the Irish Institute ofLegal Executives.

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energy on organising continuing professionaldevelopment courses for its members, non-membersand students. The launch of its CPD courses tookplace on Thursday 16 and Thursday 23 October.

The first CPD course included a lecture on the lawof torts, consisting of recent developmentsconcerning the Statute of Limitations and also asbestoslitigation. Also included was a lecture on companylaw, which covered the impact of the Corporate LawEnforcement Act, 2001 together with the Section 150list: practice and procedure. Relevant recent case law wasdiscussed in both areas. The speakers on the nightwere Vincent Nolan BL and Andrew Fitzpatrick BL.

The second course was in conveyancing and thespeaker was Cathleen Noctor BL. Among the issuesconsidered were common causes of action andremedies, including adverse possession, enforcing acontract for the sale of land and section 117applications. Recent case law on specific performance,the statute of frauds, recission, and landlord andtenant was also discussed in this lecture.

The Law Society has confirmed that solicitors whoattend the institute’s CPD lectures will have theirtime credited by the Law Society if the subject is bothbeneficial and relevant in their area of law. ILEXwould like to thank the Law Society’s EducationCommittee for its assistance and for allowing the

the week ending Friday 4 June. The course entailsfour hours of lectures per evening, for one evening aweek. Lectures for stage one will take place onTuesday evenings from 6pm to 10pm. Lectures forstage two will be held on Wednesday evenings from6pm to 10pm.

The student who attains the highest marks oncompletion of stage two will be awarded the FrankCrummey Perpetual Trophy. This award is named inhonour of Frank Crummey, one of the foundingmembers of the institute and an active councilmember who has tirelessly given his time to theinstitute down through the years. Griffith College hasagreed to waive the stage-two course fee for thestudent who is awarded the highest grade-pointaverage in stage one of the programme.

Full-time studentsGriffith College will enrol all full-time students onthis programme as student members of the institute.Those intending to take the course on a full-timebasis should be aware that Griffith College runs ascholarship scheme for deserving students who havethe talent and ability to enter a programme of studyat the college but are unable to do so due toeconomic or social circumstances. The scheme isopen to all students applying for full-time

MAI

N PO

INTS • Irish Institute

of LegalExecutives

• Launch of CPDprogramme

• ILEX coursecontent

institute to host its CPD courses in Blackhall Place.Any readers interested in attending courses in

particular areas are invited to contact the institutewith suggestions. Hopefully, we can arrange to coversuch topics.

Professional legal studiesThe role of the legal executive in professional legallife continues to grow. The first batch of legalexecutive students will be conferred this month at aceremony in the Royal Hospital Kilmainham, wherethey will receive their diplomas in professional legalstudies from Griffith College Dublin and ILEX. Thecourse was established in 2001 and is run over a two-year period. Students receive a certificate inprofessional legal studies on successful completion ofstage one.

Since the course’s inception, the course committeehas been guided by detailed feedback from students inan effort to keep the programme contemporary andhighly relevant to the needs of today’s legal executive(see panel).

The first stage of the programme begins in theweek of Monday 19 January 2004 and concludes in

Books


33

In the past, economicliberalisation and

competitiveness were seen asmilitating against Irish. Whatuse is it? Wouldn’t students bebetter off learning one of thecontinental languages? Whobothers with acts in Irishanyway? Even today, it is thesoi-disant cosmopolitans who,ignorant of the meaning of theword, are most strident inshouting down any place forIrish in public life. These books

simply and devastatinglydemonstrate just how parochialand out-dated such thinking is.They are proof, if proof wereneeded, that a familiarity withthe jurisprudence surroundingIrish and an awareness of theIrish text of Bunreacht nahÉireann can enrich and enliventhe study of law as well as beingthe difference between winningand losing a case.

This point is timely. In hiscelebrated judgment in Ó

Beoláin v Fahy (2IR 279 [2001]),Mr JusticeHardimanpointed out thatbilingualism (not to saymultilingualism) is a feature ofmost modern states andwarned, in the context of aprosecution under the RoadTraffic Acts, that failure topublish legislative materialsimultaneously in both Englishand Irish would imperil

prosecutionsby the state.

Nor is theissue confined

to proceedingsinvolving the state. It is surelyonly a matter of time beforecivil proceedings brought by anindividual or company arechallenged on the grounds thatthere has been a failure, for

Book reviews

Gaeilge agus bunreachtSéamus Ó Tuathail. Coisceim/Institúid na hÉireann (2002). Price: �5.

Bunreacht na hÉireann: two texts or two constitutions? Micheál Ó Cearúil. Insitiúid na hÉireann (2003). Price: �5.

At a time when solicitors arerequired to be increasingly

conscious of health and safetylaw, this book provides anexcellent point of reference. Itcovers a wide variety ofrelevant and inter-related areas,including common-law dutiesowed by employers toemployees, occupier’s liability,and the European Communities(Hygiene of Foodstuffs)Regulations 2000, as well as thearea of health and safety lawitself.

The main piece of legislationin the area, the Safety, Healthand Welfare at Work Act, 1989,is dealt with in detail. Theregulations that solicitors ingeneral practice may need torefer to most often are covered,including the MaternityProtection Act, 1994, the Safety,

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

Health and Welfare at Work(Night Work and Shift Work)Regulations 2000, the Safety,Health and Welfare at Work(Children and Young Persons)Regulations 1998 and the Safety,Health and Welfare at Work(Construction) Regulations 2001,which Shannon discusses indetail.

It is certainly a usefuldiscussion of the main dutiesand obligations imposed bythose regulations, as they veryoften form the basis of Healthand Safety Authority (HSA)prosecutions. Shannonconsiders in some detail theSafety, Health and Welfare atWork (General Application)Regulations. As part of thisdiscussion, he considers someareas of more recentdevelopment, such as bullying,

harassment and stress in theworkplace.

The second half of the bookusefully provides full texts ofthe principal pieces oflegislation in the area andapproved codes of practice andguidance material (mainly

issued by the HSA), which arealso important reference pointsfor practitioners. Another areawhich is of benefit to solicitors,in their capacity as employersor self-employed personsthemselves, and also for theservice that they provide toclients, is the section whichprovides guidelines for draftinga safety statement.

All in all, the book providesa fantastic introduction to thearea of health and safety lawand will no doubt quicklybecome the first point ofreference for manypractitioners when confrontedby a client who seeks advice inthe area.

Barrett Chapman is a solicitorwith the Dublin law firmMcCann FitzGerald.

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34

Books

example, to comply with order120, rule 2 of the Rules of theSuperior Courts 1986.

Ina theannta seo, is ábhar imnídon stát é easpa aistriúcháin, lefiche bliain anuas, d’ionstraimíreachtúla. I gCeanada, sa chúisAttorney General of Québec vBlaikie ([1979] 2 SCR 1016),pléigh Cúirt UachtarachCheanada an dualgas reachtúilchun dlíthe a chur amach asBéarla agus as Fraincís ar aonagus cé nach luaitear insanreachtaíocht sin ach achtanna,ghlac an chúirt leis gur gáionstraimí reachtúla a aistriúchomh maith (lch 1027): ‘It isapparent that it would truncate(the statutory duty) if accountwere not taken of the growthof delegated legislation. This isa case where the greater mustinclude the lesser’. Ó thaobh nahÉireann de, níl amhras ach gurbé seo brí airteagail 25(4)4 anbhunreachta freisin.

Meeting the languagerequirements of both Irish- and English-speakers need notincur any additional cost. Allthat is needed is a timelyconsideration of the issue,together with proper planningand co-ordination. However,neglecting timely provision forlanguage choice or leaving it tothe last minute leaves one opento costly litigation to correctthe error – and a costly processof remedying the neglect, asthe registrar for companiesfound out in Ó Murchú v AnCláraitheoir na gCuideachtaí([1998] TETS 42), and as thestate was reminded in ÓBeoláin. Failing to plan isplanning to fail.

In Gaeilge agus bunreacht,Séamus Ó Tuathail SC gives alively and comprehensiveoverview of the cases dealingwith the issue of languagerights in general and theconstitutional status of Irish inparticular. It is made all themore valuable coming fromsomeone who has beencentrally involved in themapping of language rights inIreland. This involvement isreflected in the sureness of

touch found throughout thebook. In a mere two pages, forexample, Ó Tuathail correctsthe erroneous reading given toAttorney General v Coyne andWallace ([1967] 101 ILTR 17)over recent decades by some ofthe brightest stars in the legalfirmament.

Bunreacht na hÉireann: twotexts or two constitutions? is adevelopment of theintroductory essay contained inÓ Cearúil’s masterly Bunreachtna hÉireann: a study of the Irishtext (all-party OireachtasCommittee on the Constitu-tion, 1999). Together with thepaper Bunreacht na hÉireann:neamréireachtaí agus easpaleanúnachais? (An Aimsir Óg,2003), Ó Cearúil is fastcreating a one-man corpus ofconstitutional studies. As withSéamus Ó Tuathail, a lifetimeof experience is brought to bearon his analysis of thedevelopment of an Irish text ofBunreacht na hÉireann,although, in Ó Cearúil’s case,this experience was in anRannóg Aistriucháin of thehouses of the Oireachtas.

Legal historians andpractising lawyers alike willdelight in the righting of agreat wrong by Ó Cearúil. TheIrish text of Bunreacht nahÉireann is not, as Cosgraveasserted in 1937 and Mr JusticeMcCarthy repeated in AttorneyGeneral v X ([1990] IR 1), ’a mere translation of theEnglish’. It is in fact a textwhich was developed side-by-

side with the English text asthe thinking underpinningaspects of the constitution wasteased out.

De Valera’s deliberateintention appears to have beento frame an Irish text thatwould stand on its own meritslinguistically, for which task hechose Micheál Ó Gríobhtha, aman of acknowledged literaryskill, rather than to frame atranslation, for which the staffof an rannóg aistriúcháinwould have been more thanequal. Unlike the English textof an bunreacht, Ó Gríobhthadid not follow the words usedin the Irish translation of the1922 constitution, even in those provisions which werecarried over in their entiretyfrom the earlier document.This led Ó Cearúil to opinethat: ‘de Valera’s aim ofbringing an end to the 1922constitution – a constitutionwhose contents had beendictated by London and whichhad ... institutionalised themost repugnant provisions ofthe treaty between GreatBritain and Ireland – wastherefore more clearly realisedin the Irish text than in theEnglish text’.

Sa comhthéacs seo, bhí ciall leisan gcinneadh chun forlámhas antéacs i nGaeilge a aithint inairteagal 25 an bhunreachta.Glacadh leis sna cúirteanna fadónár musclaítear aon deacrachtaímar thoradh ar an gcinneadh seo.Mar a dúirt Budd Bmh sa chúisÓ Donovan v Attorney

General ([1961] IR 114):‘It is not to be thought that

those who framed or enactedthe constitution wouldknowingly do anything soabsurd as to frame or enacttexts with different meaning inparts. It could only happen byinadvertence. It would seem tofollow as a matter ofcommonsense that one shouldnot approach the elucidation ofthe meaning of either text witha view to seeking a conflict, butrather with a view to seeing ifthey can properly bereconciled. I say “properly”advisedly, because if in fact thewords used are not in a formreally found to correspond, theIrish text must prevail’.

Leis an gcaint bhearrthafágtha as, níl aon cúis iontais saráiteas seo. Tá taithí le fada anlá san Eoraip ar comhreiteachtéacsanna i teangacha eagsúlaagus de gnáth bíonn na téacsannaseo (an Ghaeilge ina measc)comhudarásach. Claoíonn anfhoirmle seo leis an coinbhinsiúnVienna a bhforáilitear (in alt33.1): ‘(w)here a treaty hasbeen authenticated in two ormore languages, the text isequally authoritative in eachlanguage, unless the treatyprovides or the parties agreethat, in case of divergence, aparticular text shall prevail’.Gan forlámhas thugtha d’aontéacs Eorpach, comhréitíonnCúirt na hEorpaneamhréireachtaí nó easpaleanúnachais idir na leaganachaeagsúla ar bon laethiúil tríanailís na gcuspóir níos mó náanailís ghramadach. Ní donchéad uair, tá ceachtanna lefoghlaim ó na hEorpaigh!

Readable and informative inequal measure, these twomonographs form a treasuretrove of information madeavailable to the lawyer andgeneral reader alike, withalmost reckless abandon. Theyare required reading for anyonewith an interest in law, whetherprofessional or intellectual.

Benedict O Floinn is a practisingbarrister.

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Drunken driving and the lawMark de BlacamThomson Round Hall (2003)43 Fitzwilliam Place, Dublin 2ISBN: 1-85800-287-7Price: �89

Criminal justice historyIan O’Donnell and FinbarMcAuleyFour Courts Press (2003)7 Malpas Street, Dublin 8ISBN: 1-85182-768-4Price: �45

The Succession Act, 1965 andrelated legislationBrian E Sperin with Paula FallonLexis Nexis Butterworths (2003)26 Ormond Quay Upper, Dublin 7ISBN: 1-85475-2944Price: �140

Civil procedureAdrian ZuckermanLexis Nexis Butterworths (2003)26 Ormond Quay Upper, Dublin 7ISBN: 0-406-94898-4Price: �188.45

BOOKS PUBLISHED

Solicitors’ Mutual Defence Fund Limited

Jardine Lloyd Thompson IrelandLimited

L A W S O C I E T Y O F I R E L A N D A N N U A L C O N F E R E N C E

1 4 – 1 8 A p r i l , 2 0 0 4

S P O N S O R S :

Sicily2004

SPEAKERS WILL INCLUDE:

PATRICK R HOWETT

Patrick R Howett, graduated from UCD with aBachelor of Commerce in 1975 and a Master of

Business Studies degree in 1976. He joined PriceWaterhouseCoopers in 1976 and

completed his traineeship and became anAssociate of the Institute of Chartered Accountants

in 1979. He is a past chairman of the Dublin Chartered AccountantsStudents Society and was elected as a council member of the InsuranceBrokers Association for three years, when he chaired the Strategic ReviewGroup and Technology Committees

He joined Jardine Lloyd Thompson Ireland Limited in 1983 asaccountant. Having served in different capacities he was appointed to hiscurrent position as managing director in 1995.

He has extensive experience in the area of professional indemnityinsurance and in particular solicitors’ professional indemnity insuranceand is currently appointed as the manager of the Assigned Risks Pool and,in this capacity, he serves on the Professional Indemnity InsuranceCommittee of the Law Society of Ireland.

BARRY GALVIN

PADDY AGNEW

PROFESSOR MARIO CENTORRINO

Full professor of Political Economy at the Universityof Messina (Faculty of Political Sciences).

External consultant for the Italian Interior Ministryfrom September 1996 to September 1997concerning the connection between the economyand criminality. Consultant for the presidency ofConfcommercio (1996 – 1997) on the issue of

economic criminality. From September 1997 to June 1999, he served asexternal consultant of the Italian Parliamentary Enquiry Committeeconcerning the Mafia. He was economic consultant to the president of Sicilyfrom December 1998 to September 1999; member of the socio-economicobservatory concerning organised crime at the CNEL (1999 – 2001).

He has been director of the study centre for the documentation of Mafiacrime at the University of Messina (1997 – 1998); member of the scientificcommittee of the international centre of documentation on Mafias and anti-mafia movement in Corleone (2000 – 2002).

He teaches and conducts research at Formez and the School of LocalPublic Administration, paying attention to local development and territorialmarketing.

Message from the PresidentDear Colleague,

Ihave pleasure in inviting you to join me at the society’sAnnual Conference in Sicily on 14 – 18 April 2004.The island of Sicily, influenced by such notable civilisations

as the Greeks, Romans, Arabs and Normans, awaits you. Ilook forward to meeting you there, for what I hope will be astimulating conference in a truly magnificent location.

This year the theme of the conference will be ‘Renderunto Caesar: money laundering and the law’, and youcannot fail to be impressed by the panel of distinguishedspeakers who will address you on this topic.

We are most grateful to our sponsors – Bank of Ireland,Jardine Lloyd Thompson Ireland Limited, Solicitors’ MutualDefence Fund and Osborne Recruitment – for theircontinued support of the Law Society’s Conference and Iwould ask you to give them your favourable consideration inreturn.

I thank all of you who have made advance bookings andI hope those who have not yet booked will now do so andlook forward to a memorable conference, which we hopewill be enjoyed by all.

Gerard F Griffin, President

Render untoCaesar: money laundering and the lawBUSINESS SESSION:

Paddy Agnew, Rome correspondent of the IrishTimes, has been a journalist for the last 24

years. He started in journalism at Magill magazinein Dublin before moving to the Sunday Independentand then to the Sunday Tribune. In December 1985,he moved to Rome, where he and his family havelived ever since. As well as covering the basic Italian

news and current affairs beat, he is also a member of Vatican Press Corpsas well as being a specialised soccer writer and TV commentator.

A regular contributor to the BBC World Service, RTÉ, Today FM, TheGuardian and ESPN international, Agnew is also the senior English languageTV commentator for Raitrade, an affiliate of Italian state broadcaster, RAI.For the Irish Times, Agnew covers the broadest spectrum of Italian life, fromSerie A controversy to Mafia killings and from Vatican concistories to Rometraffic jams.

Born in Kilrea, Co Derry in March 1952, Agnew is married to DympnaHayes and has one daughter, Roisin, aged 15. He and his family live in theNorthern Lazio village of Trevignano Romano, approximately 50 kilometresnorth of Rome.

– PROFESSIONAL INDEMNITY INSURANCE

Barry Galvin was born in Cork, Ireland on 1November 1943. In 1965 he graduated from

University College Dublin with a Degree of Bachelorof Civil Law.

In 1966, he was admitted to practice as abarrister at law having attended lectures at KingsInns Dublin.

In 1969, he was admitted to the roll of solicitors and began to practiceas a solicitor. From 1969 to date, he has practised in the family lawpractice in Cork. In 1983, he was appointed by the then Attorney Generalto be State Solicitor for Cork City.

Between 1989 and 1995, he was an elected member of the Council ofthe Law Society of Ireland. He served on various committees, mainly onthe regulatory side.

At various times. he has served as vice-chairman of the CompensationFund Committee and chairman of the Professional Purposes Committee,the Registrar’s Committee and the Anti-Moneylaundering Committee.

Between 1996 and 2003, he held the statutory position of BureauLegal Officer of the Criminal Assets Bureau.

PACKAGE ABASED ON CHARTER FLIGHTCost: �1,150.00 per person sharing

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

CHARTER FLIGHTS• 14 April, 2004: departure from Dublin to Sicily – morning flight – times

to be confirmed• 18 April, 2004: departure from Sicily to Dublin – afternoon flight –

times to be confirmed

(Times are subject to air traffic control restrictions. However, we areendeavouring to secure morning departure and afternoon return flighttimes so that we may facilitate those wishing to travel from Cork,Shannon, etc. Exact times will be detailed in your booking confirmations.The charter flight will be allocated strictly in order of bookings received.)Those delegates not allocated to the charter flight will be accommodatedon scheduled flights which will incur a supplemental charge and transfercharges.

Note: Connecting flights from Cork, Shannon etc can be arranged bySadlier Travel. Please complete relevant section on the reservations form.

PACKAGE BBASED ON SCHEDULED FLIGHT

Delegates travelling on scheduled flights will travel via various Europeancities and will have the option of extending their stay subject to airline andhotel availability.

Price will be based on the charter package but will not include airporttransfers and may incur airline and hotel surcharges.

Delegates intending to travel on scheduled flights should return acompleted reservations form as soon as possible with details of theirpreferred travel arrangements.

REGISTRATION FEE

Payable by delegates only and not accompanying persons –�100

BOOKING ARRANGEMENTS

The closing date for receipt of bookings is 20 February 2004. Please complete the reservations form and return with deposit of �400 per person travelling.

CONTACT DETAILS

If you would like any further information, please contact any member ofthe organising team:• Sarah Ellins, Law Society, tel: (01) 672 4823

E-mail: [email protected] • James McCourt (Chairman), tel: (01) 660 6543• Simon Murphy, tel: (021) 427 3305• Mary Keane, tel: (01) 672 4800

For information on extending your stay, please contact the conferencetravel agent:Alan Benson/Angela O’BrienSadlier TravelFleet Chambers8-9 Westmoreland StreetDublin 2.Tel: (01) 670 4880Fax: (01) 670 4883E-mail: [email protected]

BOOKING/CANCELLATIONTERMS AND CONDITIONS

1. Notification of all cancellations must be sent in writing to Sarah Ellins,Law Society of Ireland, Blackhall Place, Dublin 7. DX79.

2. Balance payments must be received by 20th February 2004.Thereafter, 100% cancellation fees apply.

3. Substitute participation will be accepted. 4. Travel insurance will be automatically invoiced at approximately �26

per person unless delegates indicate on the reservations form thatthey have their own insurance and provide the name of the companywith whom they are insured.

5. No contract shall arise until a full deposit has been received and abooking form (which will be sent with written confirmation ofacceptance of the reservation) has been signed and returned.

6. Travel agent reserves the right to allocate all bookings on flights.

All delegates will be accommodated in the Grande Albergo Capotaormina****. The hotel offers a choice of restaurants, bars and lounges, room service, TV, air-conditioning, beauty centre, fully equipped gym, private beach and outdoor swimming pool.

Social programme● The conference will open on Wednesday evening with a welcome

reception for all participants. ● On Thursday optional tours to Mount Etna:

a) Full-day tour to the top of Mount Etna (certainly not for the faint-hearted!) with a stop-over for lunch(not included) at leisure.

b) Half-day tour to Mount Etna but up to 1900 meters.● On Friday afternoon a half-day optional historical walking tour of

Taormina.● The conference banquet will be held on Friday night.

Dress – smart informal.● On Saturday a full-day optional tour to Syracuse with a

stop-over for shopping and lunch (not included) at leisure.

ProgrammeWEDNESDAY, 14TH APRIL 2004

Afternoon Arrival at Catania Airport. Transfer to hotel forcheck-in and conference registration

Evening Welcome Reception for all participants –sponsored by Osborne RecruitmentVenue: Grande Albergo Capotaormina Hotel

THURSDAY, 15TH APRIL 2004

Morning Half-day tour to Mount Etna (10.00am – 1.00pm)

All day Full-day tour to Mount Etna (10.00am – 4.00pm)

Evening At leisure

FRIDAY, 16TH APRIL 2004

Morning Conference Business Session – Render untoCaesar: money laundering and the law, togetherwith developments on professional indemnity insurance – sponsored by Jardine Lloyd ThompsonIreland Limited and Solicitors’ Mutual Defence FundLimitedVenue: Grande Albergo Capotaormina Hotel

Afternoon Half-day historical walking tour of Taormina (2.30pm – 5.30pm)

Evening Reception – sponsored by Bank of Ireland. Conference banquet and dancing – sponsored by Bank of IrelandVenue: Grande Albergo Capotaormina Hotel(Dress: smart informal)

SATURDAY, 17TH APRIL 2004

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

SUNDAY, 18TH APRIL 2004

Afternoon Departure

AccommodationGrande Albergo Capotaormina Hotel, Via Nazionale, 105 - 98039, Taormina (ME), Sicily

Tel: +39 0942 572111. Fax: +39 0942 625467

Briefing


39

BUSINESS LAW

Competition Authority noticein respect of non-notifiablemergers and acquisitionsThe Competition Authority haspublished a notice relating tothe review of non-notifiablemergers and acquisitions (deci-sion no N/03.001, 30September 2003). It relates tomergers in respect of which theturnover thresholds specified insection 18(1) of the CompetitionAct, 2002 are not met, butwhich, nonetheless, may raisecompetition issues.

The notice urges parties andtheir advisers to avail of thevoluntary notification proce-dure provided by section 18(3)of the act as regards transac-tions which raise competitionconcerns and warns that if, fol-lowing contact by the authori-ty, the parties do not indicatean intention to notify, theauthority will carry out a pre-liminary inquiry to ascertainwhether a section 4 or section 5investigation is warranted and,if so warranted, the investiga-tion itself.

The notice states that theparties may at any stage beasked for an undertaking not toimplement the merger for a cer-tain period and contains a clear

Committee reportsstatement of the authority’sintention, where it considersnecessary, to prevent, by meansof injunction, the implementa-tion of any un-notified mergerthat would substantially lessencompetition in the relevantmarket or markets. It warnsthat, where such a merger hasalready been implemented, theauthority may seek to have itreversed.

A copy of the notice is avail-able on the authority’s websiteat www.tca.ie/notices.html.

Business Law Committee

CRIMINAL

The Criminal Law Committeehas received the following letterfrom an Garda Síochána, whichhas requested that it be drawnto the attention of practitioners: ‘Dear Mr McGonagle,

I am aware that solicitors con-sider it necessary on occasions towrite to the gardaí regarding exe-cution of outstanding warrants (forexample, bench warrants) inrespect of their clients. On verymany occasions, these letters areaddressed to the prosecuting gardaor one of a number of prosecutinggardaí.

The appropriate addressee inrespect of such matters is the super-

intendent of the local garda stationof their client. It is the local gardastation of any individual that isprimarily charged by the gardaauthorities with the execution ofsuch warrants. In addition, lettersaddressed to individual gardaí maynot be opened in their absence forany reason (for example, shiftwork, holidays, illness, transfer,retirement and so forth), withresulting delays. Where a letter isaddressed to the superintendent of agarda station, it will receive atten-tion on receipt.

I would request that the LawSociety arrange to disseminate thisinformation to all solicitors practis-ing in the area of criminal law.However, if the committee has anyother suggestions as to how thisshould be communicated to the rel-evant solicitors, I would be glad tofacilitate same.Yours sincerely, NC Smith, assistant commissioner’.

Criminal Law Committee

GUIDANCE AND ETHICS

Practice management discussion groupsThe Guidance and EthicsCommittee is promoting prac-tice management discussiongroups to facilitate firms which

wish to exchange managementinformation, on a confidentialbasis, with a view to improvingmanagement systems in theirown firms. Only managing part-ners or principals of firms willbe eligible to attend meetings.

The committee will organisepractices with similar profilesinto small groups and will facil-itate the first meeting of eachgroup. Practices situated closerthan 30 miles to each other willnot be put together.

Topics for discussion wouldinclude the following:• General management• Practice development• Risk management• Profitability• Drawings• Fees• Overheads• Information technology.

Interested firms should com-plete and return registrationforms before 1 February 2004.Forms are available from thecommittee secretary at the LawSociety, by e-mail [email protected] or can beprinted from the Guidance andEthics Committee web page onthe Law Society website(www.lawsociety.ie).

Guidance and Ethics Committee

Apractitioner brought to theattention of the Conveyancing

Committee a situation where aclient was the sole owner of anapartment, title to which was reg-istered in the Land Registry. Theclient was married and lived in theapartment with her spouse. Theapartment, therefore, was the fam-ily home of the couple.

The client’s spouse entered anotice of marriage under section12 of the Family Home ProtectionAct, 1976 on part 2 of the folio.The client subsequently enteredinto a separation agreement and

her spouse executed a deed ofwaiver consenting to the sale ofthe said apartment.

The question put to the commit-tee was whether it thought a noticeof marriage must be removed fromthe folio before closing.

The view expressed by the com-mittee was that, from a legal pointof view, there are probably no con-veyancing consequences of thecontinuation of the notice of mar-riage as a notice in part 2 of thefolio. However, the committee sug-gested that it would be good prac-tice to have the notice removed if

the opportunity to do so presenteditself.

The committee wrote to theLand Registry to inquire if therewas any specific Land Registry pro-cedure for having such a noticeremoved from the folio. The replyfrom the Land Registry indicatedthat rule 7 of the Land RegistrationRules 1972 allows for the removalof a notice that no longer affects orrelates to a particular property, theownership of which is registered ona folio. The Land Registry went onto say that an application could bemade when the property ceases to

be a family home or at or followingthe registration of the spouse assole owner. The application can bemade by adapting Land Registryform 71A and lodging it along withall supporting documentation inthe Land Registry.

Practitioners should note thata notice of marriage pursuant tosection 12 of the Family HomeProtection Act, 1976 registered inrespect of property title which isregistered in the registry of deedscannot be removed from the register.

Conveyancing Committee

REMOVAL OF NOTICE OF MARRIAGE FROM FOLIO

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40

Apractising certificate mustbe applied for before 1

February each practice year inorder to be dated 1 January ofthat year and thereby operate asa qualification to practise fromthe commencement of the prac-tice year.

It is misconduct for a solicitorto practise without a practisingcertificate. Any solicitor found tobe practising without a practisingcertificate is liable to be referredto the Disciplinary Tribunal.

Assistant solicitors shouldnote that it is the statutory obli-gation of every solicitor toensure that he or she has a prac-tising certificate in force from thecommencement of the practice

year. Assistant solicitors cannotabsolve themselves from thisresponsibility by relying on theiremployers to procure their prac-tising certificates. However, it isthe society’s recommendationthat all employers should pay fortheir assistants’ practising cer-tificates.

Practitioners should also notethat practising for any period oftime without a practising certifi-cate could jeopardise their profes-sional indemnity insurance situa-tion. Furthermore, a break in con-tinuity of practising certificatesmay disqualify a solicitor fromapplying for judicial appointment.

PJ Connolly, registrar of solicitors

Queries have arisen as towhether independent evi-

dence, in addition to an archi-tect’s opinion on compliance inthe usual form, is required tovouch compliance with a condi-tion in a planning permissionimposing a social/affordablehousing requirement pursuant topar t V of the Planning andDevelopment Act, 2000 (asamended).

Where the architect is pre-pared to furnish an architect’sopinion on compliance in theusual form, being either theform recommended for use bythe Conveyancing Committee orthe approved form as used bymembers of the RIAI (whichforms address conditions

attaching to the relevant plan-ning permissions), then there isno necessity to require produc-tion of independent evidencewith such a condition. There isno basis for distinguishing sucha condition from the other condi-tions attaching to the planningpermission.

However, if the architect isnot prepared to certify compli-ance with the social/affordablehousing condition, and qualifieshis opinion or certificate of com-pliance to exclude that condi-tion, then the purchaser’s solic-itor will require independent evi-dence of compliance, preferablyby way of a letter from the plan-ning authority.


When closing sales of apart-ments or other property in

complexes or estates in which thecommon areas are to be ultimate-ly vested in a management com-pany, the current practice is totake an undertaking from the ven-dor to furnish a copy of the vestingdeed to the purchaser’s solicitor indue course. This entails the pur-chaser’s solicitor keeping the pur-chase file open for a considerabletime, sometimes for years, pend-ing the furnishing of the copy vest-ing deed in accordance with theundertaking given. It becomes amatter of urgency when the prop-erty is being re-sold. If, at thattime, the deed is not availablebecause it has not yet been exe-cuted or for any other reason, thesale, of necessity, proceeds withan undertaking by the second ven-

dor’s solicitor to the solicitor forthe second purchaser to furnishthe vesting deed as soon asreceived from the original vendor.In such circumstances, two solici-tors now have files open, awaitinga copy vesting deed which may notcome to hand for a considerabletime.

It is recommended by theConveyancing Committee that insuch transactions involving man-agement companies, the contractshould provide that the initial saleof the property will be closed onfoot of:a) An undertaking by the vendor to

the purchaser to furnish thevesting deed to the manage-ment company, and

b) An undertaking by the manage-ment company to the purchaserto furnish a certified copy of the

vesting deed to the purchaseron request by or on behalf ofthe purchaser or his successorin title.

The undertaking at (a) will merelyreflect what is required in any casein the contract for sale of the com-mon areas between the vendorand the management company,but it will be an acknowledgmentthat the purchaser has an interestin the deed being furnished.Ideally, the contract between thedeveloper and the managementcompany should stipulate who isresponsible for stamping and reg-istering the deed.

The undertaking at (b) may beconsidered unnecessary, havingregard to the fact that the pur-chasers themselves will controlthe management company and will

be in a position to obtain a certi-fied copy of the vesting deed inany case. The undertaking by themanagement company will, howev-er, cover any period between thecompletion of the developmentand the furnishing of the vestingdeed to the management companyand will, in any case, provide thepurchaser with a clear basis forrequesting the certified copy vest-ing deed regardless of when this isdone. In practice, it is envisagedthat the question of taking up thecopy vesting deed will arise usual-ly when the property is being re-sold. At that time, assuming thedevelopment has been completed,it should be readily available fromthe management company. In themeantime, the purchaser’s solici-tor can close the file.


Solicitors who wish to use theRevenue Online Service to

file CAT returns should note thatRevenue’s current arrangementsfor electronic payment conflictwith certain provisions of theSolicitors’ accounts regulations2001.

Until further notice, solicitorsmay proceed with filing the CAT

return through ROS, but mustmake alternative paymentarrangements.

This matter is the subject of on-going discussions between thesociety and the Revenue. A furtherpractice note will issue when thedifficulties have been resolved.

Probate, Administration andTaxation Committee

Practitioners should notechanges in the dates for pay-

ment of capital gains tax intro-duced by s42 of the Finance Act,2003 (amending part 41 of theprincipal act).

Under the new provisions, taxdue on gains made on disposals

between 1 January and 30September must be paid by 31October. Tax due on gains madeon disposals between 1 Octoberand 31 December must be paidby the following 31 January.

Probate, Administration andTaxation Committee

CAT RETURNS: ELECTRONIC FILINGTHROUGH REVENUE ONLINE SERVICE

CGT PAYMENT DATES

PRACTISING CERTIFICATES

EVIDENCE OF COMPLIANCE WITHPLANNING CONDITIONS RE:

SOCIAL/AFFORDABLE HOUSING

DEEDS VESTING COMMON AREAS IN MANAGEMENT COMPANIES

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41

It has come to the attention ofthe Conveyancing Committee,

both from practitioners and fromrecent articles in the Gazette, thatthe precedent disclaimer on intes-tacy which appears at page 13.66of the Conveyancing handbookmay not be adequate for a situa-tion in which a number of benefi-ciaries have agreed to execute adisclaimer, on condition that all ofthem do so, for the purpose ofbenefiting a particular person. Ifall of them disclaim except one,for example, the desired result willnot be achieved and the one whohas not signed may become enti-tled to the property.

It is considered best practice to have one disclaimer signed by all of them, where this is reasonably practicable, and toprovide that it will take effect only when it is signed by all ofthem and from the date on whichit is signed by the last person to sign.

A precedent taking account ofthe above is printed with this prac-tice note. It should be used wherepossible to avoid having to dealwith the consequences of a bro-ken agreement which might haveto be resolved by the court. It maybe helpful to note that a dis-claimer, once made, can be

retracted, but only if it has notbeen acted on and no other partyhas changed their position inreliance on it and if no considera-tion has been given for the dis-claimer.

Disclaimer on intestacy for execution by a number of beneficiaries‘Disclaimer of AB, CD and EF on death intestate of XY Obit ......... day of ......... 20 .........This deed of disclaimer is madethis ………. day of ………. 20…by AB (occupation) of ……… inthe county of ………, CD (occupa-tion) of ……… in the county of……… and DE (occupation) of……… in the county of ………Whereas:1) XY late of ……… (hereinafter

called ‘the deceased’) died onthe ……… day of ……… 20...,having died intestate as to theinterests hereby disclaimed

2) The deceased was (marital sta-tus) and (occupation) and wassurvived by (state if survivedby, for example, a spouse andtwo children or as the case maybe)

3) We are all children of thedeceased (or as the case maybe) and, as such, we are eachentitled to a one-twelfth (that

is, one quarter of a third) shareof the deceased’s estate (or ofthat part of the deceased’sestate as to which he diedintestate) (hereinafter called‘the said share’ and collective-ly as ‘the said shares’) underthe rules for distribution onintestacy set out in theSuccession Act, 1965. (Varythe shares in proportion to thenumber of beneficiaries andtheir entitlement)

4) None of us has accepted thesaid share from the personalrepresentative of the deceasedor otherwise nor have any of usexercised any degree of benefi-cial ownership, control or pos-session in respect of the saidshare.

Now it is hereby witnessed thateach of us hereby irrevocably dis-claims absolutely all our respec-tive rights to the said shares andwe hereby acknowledge that onthe execution by each of us of thisdisclaimer we will each lose anyright we may respectively have (byvirtue of our respective entitle-ment to the said shares) toextract a grant of administrationto the estate of the deceased.

And it is hereby further wit-nessed that this deed shall:

1) Not become effective (asagainst all or any of the partieshereto) until it is executed byall parties hereto, and

2) Be deemed to operate witheffect from the date uponwhich it is executed by the lastof the parties hereto to executeit.

(Insert the following paragraphunless a grant has already issuedto one or more persons disclaim-ing or the parties have alreadysigned a renunciation.)

And we hereby acknowledgethat on the execution by us of thisdisclaimer, we will each lose anyright we may have (by virtue of ourrespective entitlements to thesaid share) to extract a grant ofadministration to the estate of thedeceased.

In witness whereof the partieshereto have hereunto set theirrespective hands and affixed theirrespective seals the day and yearfirst above written.

Signed, sealed and delivered byAB in the presence of:Signed, sealed and delivered bythe said CD in the presence of:Signed, sealed and delivered bythe said EF in the presence of:’


For year commencing 1December 2003: CriminalJustice (Legal Aid) (TaxClearance Certificate)Regulations 1999The Department of Justice,Equality and Law Reform hasadvised that a solicitor who wishesto have his or her name retainedon a legal aid panel is required tofurnish a tax clearance certificateto the relevant county registrars.

Current tax clearance certificate expires on or before 30 November 2003Solicitors who are on a panel andwhose tax clearance certificateexpires on or before 30 November2003 will be required to furnish atax clearance certificate, which

has an expir y date after 30November 2003, to the relevantcounty registrar by 30 November2003 in order to retain their nameon the panel.

Applications for a tax clearancecertificate should be made to theCollector-General’s Office in goodtime. It is important to note, inthis regard, that the regulationsprovide that an application sub-mitted to the collector-general by15 October 2003 guarantees theexisting member’s retention onthe panel where:a) Revenue has not made a deci-

sion on the application by 30November 2003, or

b) The application has beenrefused and an appeal hasbeen made as provided for in

the regulations, which has notbeen determined or withdrawnon 30 November 2003.

Current tax clearance certificateexpires after 30 November 2003Solicitors who wish to have theirname retained on the panelbeyond 30 November 2003 andwhose current certificate expiresafter that date need not apply fora new certificate. However, theymust furnish their certificate tothe relevant county registrar to beretained on the panel(s).

Multiple panelsSolicitors who wish to maintaintheir name on more than onepanel should request theCollector-General’s Office to issue

the certificate and as many offi-cial copies thereof as theyrequire. Solicitors must then fur-nish the certificate or official copyto each county registrar to remainon that county registrar’s panel.

Issue of application form for taxclearance certificateThose practitioners who are cur-rently on the legal aid panels willhave been issued with an applica-tion form directly from theDepartment of Justice, Equalityand Law Reform before 1 October2003. Panel members who didnot receive a form at that timeshould make enquiries to thecour ts policy division of thedepartment (tel: 01 602 8202).

Criminal Law Committee

DISCLAIMERS ON INTESTACY

CRIMINAL LEGAL AID SCHEME: RETENTION OF NAME ON CRIMINAL LEGAL AID PANEL

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LEGISLATION UPDATE: 21 OCTOBER – 18 NOVEMBER 2003Details of all bills, acts andstatutory instruments since1997 are on the Law Society’slibrary catalogue at www.lawso-ciety.ie (members’ area) withupdated information on the cur-rent stage a bill has reached andthe commencement date(s) ofeach act.

ACTS PASSEDCriminal Justice (TemporaryRelease of Prisoners) Act, 2003Number: 34/2003Contents note: Amends theCriminal Justice Act, 1960 toprovide for the temporar yrelease of persons serving sen-tences of imprisonment or ofdetention in St Patrick’sInstitution, or persons beingdetained in a place providedunder section 2 of the PrisonsAct, 1970Date enacted: 29/10/2003Commencement date: Com-mencement order to be made (persection 2(2) of the act)

Oil Pollution of the Sea (CivilLiability and Compensation)(Amendment) Act, 2003Number: 33/2003Contents note: Amends the OilPollution of the Sea (CivilLiability and Compensation)Acts, 1988 to 1998 to giveeffect to amendments to the lim-itation amounts in the protocolof 1992 amending theInternational convention on civilliability for oil pollution damage1969 (the Liability convention),and in the protocol of 1992amending the International con-vention on the establishment ofan international fund for com-pensation for oil pollution dam-age 1971 (the Fund convention).This will increase the limits ofcompensation payable to victimsof pollution resulting from oilspills from ships carrying oil inbulk as cargoDate enacted: 29/10/2003Commencement date: 1/11/2003 (per section 5(2) of the act)

SELECTED STATUTORY INSTRUMENTSChildren Act, 2001 (Part 11)(Commencement) Order 2003Number: SI 527/2003Contents note: Appoints7/11/2003 as the commence-ment date for part 11 of the act,which establishes the SpecialResidential Services Board on astatutory basis

District Court (Appeals to theCircuit Court) Rules 2003Number: SI 484/2003Contents note: Amend order 101, rules 1, 3 and 5, of theDistrict Court Rules 1997 (SI93/1997) in order to clarify theposition regarding the fixing ofrecognisances in situationswhere there are appeals to theCircuit Court

European Communities(Electronic CommunicationsNetworks and Services) DataProtection and Privacy)Regulations 2003Number: SI 535/2003Contents note: Give effect todirective 2002/58/EC concerningthe processing of personal dataand the protection of privacy inthe electronic communicationssector. Revoke EuropeanCommunities (Data Protectionand Privacy in Telecommunica-tions) Regulations 2002 (SI192/2002)Commencement date: 6/11/2003

European Communities(Undertakings for CollectiveInvestment in TransferableSecurities) (Amendment No 2)Regulations 2003Number: SI 497/2003Contents note: Implement direc-tive 2001/107/EC (Managementdirective) which amends directive85/611/EEC as amended bydirective 88/220/EEC, directive95/26/EC, and directive2001/108/EC on the co-ordina-tion of laws, regulations andadministrative provisions relating

to under takings for collectiveinvestment in transferable securi-ties (UCITS). Amend SI211/2003 as amended by SI212/2003 to give effect to theManagement directive, whichbroadens the range of activitiesthat management companies canbe authorised to undertake; alsoallow management companies toavail of the passport mechanismintroduced by the Managementdirective

European Convention on HumanRights Act, 2003(Commencement) Order 2003Number: SI 483/2003Contents note: Appoints 31/12/2003 as the commencementdate for the act

Finance Act, 1983(Commencement of Section107A) Order 2003Number: SI 513/2003Contents note: Appoints 31/10/2003 and 1/11/2003 as thecommencement dates for differ-ent provisions of section 107(A)of the Finance Act, 1983 (repay-ments of residential property tax)

Finance Act, 2001(Commencement of Section105A) Order 2003Number: SI 509/2003Contents note: Appoints 1/1/2005 as the commencementdate for section 105A of theFinance Act, 2001. Section 105Aprovides that action by theRevenue Commissioners to initi-ate recovery of underpayments ofexcise duty is limited to a periodof not more than four years afterthe act or event giving rise to theliability, except in the event offraud or negligence

Finance Act, 2001(Commencement of Section105C) Order 2003Number: SI 510/2003Contents note: Appoints 31/10/2003 as the commencementdate for section 105(C) of theFinance Act, 2001. Section

105(C) provides for a four-yeartime limit for making a claim tothe Revenue Commissioners for arepayment of excise duty, but ifthe claim relates to an act orevent before 1/5/2003, the four-year time limit will not apply until1/1/2005

Finance Act, 2001(Commencement of Section105D) Order 2003Number: SI 511/2003Contents note: Appoints 1/11/2003 as the commencementdate for section 105(D ) of theFinance Act, 2001. Section105(D) provides for the paymentof simple interest by the RevenueCommissioners in certain circum-stances on repayments of exciseduty

Finance Act, 2003(Commencement of Section 17)Order 2003Number: SI 508/2003Contents: Appoints various com-mencement dates for section 17of the Finance Act, 2003. Section17 provides for a new scheme ofinterest on repayment of tax, timelimits on claims to repayment oftax and on raising of assess-ments to tax by the RevenueCommissioners, in so far asincome tax, corporation tax andcapital gains tax are concerned

Finance Act, 2003(Commencement of Sections124, 125, 129 and 130(b))Order 2003Number: SI 512/2003Contents note: Appoints 1/11/2003 as the commencementdate for sections 124, 125, 129and 130(b) of the Finance Act,2003 (VAT refunds)

Finance Act, 2003(Commencement of Section142) Order 2003Number: SI 514/2003Contents note: Appoints31/10/2003 and 1/11/2003 asthe commencement dates for dif-ferent provisions of section

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142(1) of the Finance Act, 2003(repayment of stamp duties)

Finance Act, 2003(Commencement of Section145) Order 2003Number: SI 515/2003Contents note: Appoints 1/11/2003 as the commencement datefor paragraphs (a) and (d) of sec-tion 145(1) of the Finance Act,2003 in so far as it relates to sec-tion 57 (other than sub-sections 2to 5) of the Capital Acquisitions TaxConsolidation Act, 2003. Appoints1/1/2005 as the commencementdate for paragraphs (b) and (c) ofsection 145(1). Appoints 31/10/2003 as the commencement datefor section 145(1)(d) in so far as itrelates to sub-sections 2 to 5 ofsection 57 of the CapitalAcquisitions Tax Consolidation Act,2003 (CAT repayments)

Medicinal Products (Prescriptionand Control of Supply)Regulations 2003Number: SI 540/2003Contents note: Consolidate andupdate the controls applicable tothe prescription and supply ofmedicinal products to the public inaccordance with the requirementsof EU directive 2001/83/EC.Certain exemptions are provided inrespect of certain low-strengthhomeopathic medicinal productsthat will be available to the publicwithout prescription. Impose res-trictions on the sale of medicinalproducts containing paracetamol.Set out the restrictions relating tothe dispensing of prescriptions, the

requirements for the labelling ofdispensed medicinal products andfor pharmacy records.Commencement date: 11/11/2003

Motor Vehicle (Duties andLicences) Act, 2003(Commencement) Order 2003Number: SI 485/2003Contents note: Appoints 21/10/2003 as the commencement datefor section 8 of the Motor Vehicle(Duties and Licences) Act, 2003

Official Languages Act, 2003(Commencement) Order 2003Number: SI 518/2003Contents note: Appoints 30/10/2003 as the commencement datefor sections 2, 3, 4 and part 5 ofthe act (place names)

Opticians (Amendment) Act,2003 (Section 12) (Commence-ment) Order 2003Number: SI 538/2003Contents note: Appoints 11/11/2003 as the commencement datefor section 12 of the act. (All othersections of the act were broughtinto operation on 31/7/2003 bySI 350/2003.) Section 12 isbeing brought into operation inconjunction with the MedicinalProducts (Prescription and Controlof Supply) Regulations 2003 (SI540/2003). These regulationsprovide an exemption wherebyoptometrists may administer, inthe course of their professionalpractice, certain listed medicinalproducts that are not intended forintravenous administration

Protection of the EnvironmentAct, 2003 (Commencement) (No 3) Order 2003Number: SI 498/2003Contents note: Appoints 22/10/2003 as the commencement datefor the following provisions of theact: sections 1(2), 10, 11, 12,13, 14, 20(1)(a), 22, 23, 24, 25,29, 34, 46, 47, 48, 49 and 50

Public Health (Tobacco) Act,2002 (Commencement) Order2003Number: SI 480/2003Contents note: Appoints 15/10/2003 as the commencement datefor sections 2, 3, 4, 5(1), 5(2) (inso far as it applies to section 47),5(5), 5(6), 6, 7, and 47 of thePublic Health (Tobacco) Act, 2002

Road Vehicles (Registration andLicensing) (Amendment)Regulations 2003Number: SI 486/2003Contents note: Facilitate theapplication for a driving licence on-line at www.motortax.ie

Social Welfare (MiscellaneousProvisions) Act, 2002 (Section16) (No 4) (Commencement)Order 2003Number: SI 501/2003Contents note: Appoints 28/10/2003 as the commencement datefor s16 of the Social Welfare(Miscellaneous Provisions) Act,2002 in so far as it relates toitems in the schedule to the actrelating to amendments to theRegistration of Births and Deaths(Ireland) Acts and the Marriages

(Ireland) Acts and the electronicregistration of births and deathsin the civil registration offices inKillarney, Tralee and Castle-gregory

Taxi Regulation Act, 2003 (Part4) (Appointed Day) Order 2003Number: SI 517/2003Contents note: Appoints 4/11/2003 as the appointed day for thepurposes of part 4 of the act(establishment of the advisorycouncil to the Commission for TaxiRegulation)

Tobacco Smoking (Prohibition)Regulations 2003Number: SI 481/2003Contents note: Prohibit the smoking of tobacco products in aplace or premises (other than adwelling) as specified in theschedule to the regulations. Theplaces or premises so specifiedare: 1) a place of work; 2) an air-craft, train, ship or other vessel, apublic service vehicle or othervehicle used for the carriage ofmembers of the public for reward,insofar as it is a place of work; 3)a place or premises to which para-graph (b), (c), (d) or (e) of section47(1) of the Public Health(Tobacco) Act, 2002 applies, inso-far as it is a place of work; 4) alicensed premises, insofar as it isa place of work; 5) a registeredclub, insofar as it is a place ofworkCommencement date: 26/1/2004.

Prepared by the Law Society Library

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VERBATIM TRANSCRIPTS

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SOLICITORS DISCIPLINARY Before the president of theHigh Court: in the matter ofMichael Owens, solicitor, for-merly carrying on practiceunder the style and title ofMichael Owens & Co at 5Lower Main Street, Dundrum,Dublin 14, and in the matter ofthe Solicitors Acts, 1954 to 2002[2003 no 26 SA]Law Society of Ireland (applicant)Michael Owens (respondentsolicitor)

On 6 October 2003, the presi-dent of the High Court ordered:1) That the name of the respon-

dent solicitor Michael Owensbe struck off the Roll ofSolicitors

2) That the said Michael Owensmake restitution to the LawSociety of Ireland in theamount of �414,596.21

3) That the said Michael Owenspay the costs of the applica-tion to the High Court andalso the costs of the proceed-ings before the DisciplinaryTribunal, to be taxed indefault of agreement.

The president had before himthe report of the DisciplinaryTribunal to the High Court,which recorded that the follow-ing matters had been admitted bythe respondent solicitor, that he:a) Caused a substantial deficit in

clients’ monies resulting in atotal of £489,371.01 beingpaid by the society out of itscompensation fund as of 3January 2001

b) Utilised clients’ monies tofund the day-to-day runningof his practice and for his per-sonal expenditure, includingthe discharge of his Revenueliabilities

c) Systematically falsified thebooks of account by means ofteeming and lading of clients’monies

d) Placed or caused to be placedon client files bills of costswhich were not furnished to

the relevant clients but whichostensibly supported bona fideentries which in fact disguisedthe withdrawal of clients’funds for office and personalexpenditure

e) Concealed debit balances onthe clients’ account by makingor causing false journal entriesto be made in the books ofaccount

f) Did not record some clientfinancial transactions in thebooks of account at all

g) Failed to maintain properbooks of account for eachclient to show all transactionson the client account inbreach of regulations 10 and19 of the Solicitors’ accountsregulations no 2 of 1984

h) Transferred round sums ofmoney from the clientaccount to the office accountto cover withdrawals inbreach of regulation 8.2 of theSolicitors’ accounts regulations no2 of 1984

i) Caused the said deficit to beconcealed from both hisreporting accountant and theLaw Society’s investigatingaccountant by falsifying hisbooks of account over a num-ber of years

j) Allowed his reportingaccountant to submit to thesociety certificates certifyingcompliance with the Solicitors’accounts regulations no 2 of1984, knowing that such cer-tificates were incorrect andfurther knowing that theywould be relied upon by thesociety

k) Drew monies from clients’accounts in excess of fundsheld for the time being insuch accounts in breach ofregulation 7 of the Solicitors’accounts regulations no 2 of1984, causing the clients’bank account to be overdrawnin or about February, July andOctober of 1995 and July1996

l) Drew monies for costs with-out furnishing to the client a

bill of costs or other writtendocumentation in breach ofregulation 7(iv) of theSolicitors’ accounts regulations no2 of 1984

m)Transferred monies betweenledger accounts in breach ofregulation 9 of the Solicitors’accounts regulations no 2 of1984

n) Received £1,500 from a clientfor the purposes of stampingtwo deeds of assignment,failed to stamp the said deedsand failed to account to hisclient for the monies, necessi-tating a payment out of thesociety’s compensation fundof £1,500 to his said client

o) Received monies on behalf ofa client out of which he wasinstructed to discharge abuilding society mortgage infavour of the IrishNationwide Building Societyon behalf of his client, failedto discharge the said mort-gage and failed to account tohis client for the monies con-cerned, necessitating a pay-ment out of the society’s com-pensation fund of £71,053.64plus a further £4,922.17 to thesaid client

p) Received £6,300, being adeposit on the sale of proper-ty for clients, the executors ofan estate, failed to account tohis clients for the deposit,necessitating a payment out ofthe society’s compensationfund of £5,800 to the saidclients

q) Received monies from clients,which included the sum of£2,780 in respect of stampduty and Land Registry fees,failed to complete the transac-tion, necessitating the pay-ment of the sum of £3,495 outof the society’s compensationfund to the clients in compro-mise of the claim

r) Received the sum of £280from a client for the purposesof purchasing a ground rent,failed to purchase the saidground rent and failed to

account to his client for thesaid monies, necessitating thepayment by the society out ofits compensation fund of £280to the said client

s) Received a deposit of £4,500in respect of the sale of apremises on behalf of a client,failed to complete the transac-tion and failed to account tohis client for the deposit,necessitating the payment outof the society’s compensationfund to the client of £4,184

t) Received the sum of £9,000from a client in respect ofstamp duty on a purchasedeed, failed to stamp the rele-vant deeds and failed toaccount to his client for thesum of £9,000, necessitatingthe payment out of the soci-ety’s compensation fund of thesum of £9,000 to the saidclient

u) Received the sums of £65,950and £250 on behalf of a clientcompany, being the proceedsof a sale and a service charge,failed to account to his clientfor that part of the proceedsdue to it, necessitating thepayment out of the society’scompensation fund of £47,445to the said client

v) Received the sum of £5,775,being a deposit on the sale ofpremises on behalf of a client,but failed to account to hisclient for the said monies,necessitating the payment outof the society’s compensationfund of £5,387.50 to the saidclient

w)Received the sum of £16,200on behalf of a client in respectof stamp duty on the purchaseof property, failed to stampthe relevant documents andfailed to account to his clientfor the sum of £16,200, neces-sitating the payment out ofthe society’s compensationfund of £15,700 to the saidclient

x) Received and held monies onbehalf of a client, which, as ofOctober 1996, totalled

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TRIBUNAL£115,073.97, failed to accountto his client for these monies,necessitating the payment tothe client out of the society’scompensation fund of£124,661.97 plus an ex gratiapayment of £4,537.50

y) Misappropriated monies of aclient, necessitating the pay-ment out of the society’s com-pensation fund of £110,000plus an ex gratia payment of£15,000

z) Received a sum of £21,000 onbehalf of clients for the pur-poses of stamping a deed,failed to stamp the said deedand failed to account to hisclients for the sum of £21,000,necessitating a payment out ofthe society’s compensationfund of £21,000 to the saidclients

aa) Received a sum of £50,000, aportion of which was toredeem a mortgage, failed toredeem the said mortgage orto account to his client for thesaid money advanced toredeem the mortgage, neces-sitating a payment out of thesociety’s compensation fundof £22,269.99 plus additionallegal fees of £901

bb) Received a sum of £3,900from his clients for the pur-poses of stamping a deed andfailed to stamp the said deedand further failed to accountto his clients for the sum of£3,900, necessitating a pay-ment out of the society’s com-pensation fund of £3,900 tothe said clients

cc) Received a sum of £2,750plus the sum of £26 fromclients for the purposes ofstamping a purchase deed andfailed to stamp the said deedand further failed to accountto his clients for the sum of£2,776, necessitating a pay-ment out of the society’s com-pensation fund of £2,776 tothe said clients

dd) Received a sum of £7,425from clients for the purposesof stamping and registering amortgage deed, failed tostamp the said deed and failedto account to his clients forthe sum of £7,425, necessitat-ing a payment out of the soci-ety’s compensation fund of£7,425 to the said clients

ee) Received a sum of £524 froma client for the purposes ofstamping and registering apurchase deed, failed to stampthe said deed and failed toaccount to his client for thesum of £524, necessitating apayment out of the society’scompensation fund of £524 tothe said client

ff) Retained a sum of £8,503 onbehalf of clients for the pur-poses of stamping and regis-tering a purchase deed, mort-gage and assignment of a lifepolicy and commissioner’sfees, failed to stamp the saiddeeds and failed to account tohis clients for the sum of£8,503, necessitating a pay-ment out of the society’s com-pensation fund of £8,503 tothe said clients

gg) Misappropriated the sum of£6,213.17 out of an estate,necessitating the payment bythe society of the sum of£7,713.17 out of its compen-sation fund

hh) Received monies from aclient which included the sumof £4,650 for the purposes ofpaying stamp duty and LandRegistry fees in respect of aconveyancing transaction,failed to stamp and registerthe documents and failed toaccount to his client for thesum of £4,650, necessitatingthe payment by the societyout of its compensation fundof the sum of £4,650

ii)Received the sum of £5,011 onbehalf of a client, beingmonies lodged in court, butfailed to account to his clientfor the sum of £5,011, neces-sitating the payment by thesociety out of its compensa-tion fund of £5121.69

jj) Received the sum of £7,222.94from a client to dischargecounsel’s fees, failed to dis-charge the said fees, necessi-tating the payment by thesociety out of its compensa-tion fund of £7,222.94

kk) Received a sum of £3,819 onbehalf of a client for the pur-poses of stamping and regis-tering a purchase deed, failedto stamp the said deed andfailed to account to his clientfor the sum of £3,819, neces-sitating a payment out of thesociety’s compensation fundof £3,819 to the said client

ll) Received a sum of £323 onbehalf of clients for the pur-poses of stamping and regis-tering documents, failed tostamp the said documents andfailed to account to his clientsfor the sum of £323, necessi-tating a payment out of thesociety’s compensation fundof £323 to the said clients

mm) Drew a cheque in favour oftwo clients in the sum of£8,373.61 when there wasonly £1,688.03 in the clientaccount to meet it, misrepre-sented to the clients when thecheque was returned unpaidthat he had in error stoppedthe cheque

nn) Breached a solicitor’s under-taking to ACC Bank to dis-charge a mortgage for hisclient

oo) Failed to conclude a con-veyancing transaction onbehalf of the client referred toat (nn) above, thereby severe-ly prejudicing his client in thata judgment was obtainedagainst the client as a result

pp) Received monies from aclient for the purposes ofstamping an original andcounterpart lease on behalf ofthe client but failed to stampthe original and counterpartlease

qq) Failed to account to the clientreferred to at (pp) above forthe monies received, necessi-tating the payment by thesociety out of its compensationfund of the sum of £211, beingthe stamp duty. G

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Briefing


46

DISCIPLINARY TRIBU

DISCIPLINARY TRIBUNAL

Solicitor membersThomas D Shaw (chairperson)Ernest CantillonMichael CarriganNiall CaseyClare ConnellanJean CullenFrank DalyJoe DeanePaula DuffyCarol FawsittIsabel FoleyBerchmans GannonMaeve HayesMichael HoganDonal KelliherBrian McMahonCaroline O’ConnorGeraine O’LoughlinMichael O’MahonyIan Scott

Lay membersMary ConlonTed ConlonDenis MurphyPauline KingstonKristin Quinn

Tribunal registrarMary Lynch

The Friary, Bow Street, Smithfield, Dublin 7Tel: 01 869 0767 E-mail: [email protected]

Continued on page 48 ➜

The last year has seen the tri-bunal engage in a major

move from its administrativeoffices in Manor Street to TheFriary, Bow Street, Smithfield,Dublin. Our new premises allowthe tribunal to hold its inquiriesin comfortable and well-appointed accommodation.They are also centrally locatedand reflect the standing andindependent nature of theSolicitors Disciplinary Tribunal,whose members are appointedby the president of the HighCourt. Notwithstanding themove, the tribunal continued toconduct its business despite theinevitable frustrations and pres-sures of changing premises.

Year ending 21 May 2003The tribunal also engaged in

a comprehensive review of itsrules to ensure compliance withthe new Solicitors (Amendment)Act, 2002, which came intooperation on 1 January 2003.On behalf of the tribunal, Iwould like to thank MichaelO’Mahony for the many hourshe worked on this project.

The inclusion of the regulato-ry function of the tribunal in theLaw School’s module Professionalpractice conduct and managementin the professional practicecourse for trainee solicitors iswelcomed by the tribunal. Thetribunal recognises that not allsolicitors are aware of its exis-tence or its work and hopefullythe contribution of the tribunalregistrar to the module will helpto improve this situation.

It will be observed from thetable below that in 2002 therewas an increase in the number ofsitting days of the tribunal andnew applications compared with2001. As a consequence, theworkload of the 15 members ofthe tribunal also expanded.Thankfully, ten new solicitormembers were appointed inDecember 2002, and this haslightened the burden on theircolleagues who have generouslygiven of their time without anyrecompense. It is anticipatedthat a further five lay memberswill be appointed in the nearfuture, and this should improvethe position for our present laymembers. I would like to takethis opportunity to acknowledgethe dedication and hard work ofall members who willingly givetheir services to the tribunal.

The function of the tribunal isbest described as quasi-judicial.Its authority is derived from theSolicitors Acts, 1954 to 2002 andthe Solicitors Disciplinary TribunalRules 2003. Any inquiry under-taken by the tribunal must com-ply with the requirements of nat-ural and constitutional justice.Procedural safeguards in placeinclude giving a respondent solic-itor sufficient notice and detailsof the application and the oppor-tunity to respond. Because theconsequences of disciplinary pro-ceedings can have such a detri-mental effect on the livelihood ofa solicitor, the tribunal endeav-ours to ensure that the conduct ofproceedings is scrupulously fair.

Apart from its jurisdiction inrelation to misconduct, the tribu-nal may also make an order forthe removal of a solicitor’s namefrom the Roll of Solicitors, athis/her own request, where, forexample, a solicitor is applying tobecome a member of the bar.

ConstitutionThe Solicitors DisciplinaryTribunal is an independent statu-tory tribunal appointed by thepresident of the High Court toconsider allegations of miscon-duct against solicitors.

The tribunal consists of 20solicitor members and five laymembers. These latter membersare nominated by the minister forjustice, equality and law reform torepresent the interests of the gen-eral public, while solicitor mem-bers are appointed by the presi-dent of the High Court after con-sultation with the Law Society.

Members are appointed for aperiod not exceeding five years asthe president of the High Courtmay determine and may be re-appointed for one further period.Further, at least 40% of the solic-itor members and of the lay mem-bers of the tribunal shall be menand at least 40% shall be women.

ApplicationsThe number of applicationscoming before the tribunal forthe year ending 21 May 2002increased by approximately 42%and fell by 7% the following year.

While the majority of applica-tions to the tribunal emanatefrom the Law Society of Ireland,members of the public may alsomake a direct application to thetribunal. The tribunal recognisesthat lay applicants, where aninquiry has been directed, mayhave a difficulty for one reason oranother instructing a solicitor torepresent them. Consequently,the tribunal allows lay applicantsto be accompanied by a‘McKenzie friend’, who mayassist them but not take an activepart in the proceedings.

The rules of the tribunal pro-vide for certain time limits: forexample, a respondent solicitorhas 28 days (excluding Saturdaysand Sundays) to forward to thetribunal an affidavit in responseto the complaints made. The tri-bunal subsequently sends a copyof the respondent solicitor’sresponse (if any) to the applicant,who may in turn file a further(second) affidavit responding tothe matters raised by the respon-dent solicitor within 28 days(excluding Saturdays andSundays). If appropriate, the tri-bunal may extend the time limitto allow either party to respondto the affidavit of the other partyby a further 21 days (excludingSaturdays and Sundays). Further,in exceptional cases, the tribunalmay permit a further exchange ofaffidavits between the parties andwill fix the time allowed for thisexchange. As a consequence ofthese time limits, a number ofmonths may elapse from thelodgement of an application andthe date the tribunal makes adecision in relation to whether ornot there is a prima facie case forinquiry.

Year No of No of ending new app- sitting 21 May lications days

2001 48 27 2002 67 34 2003 63 32

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NAL ANNUAL REPORTANALYSIS OF APPLICATIONS AND DECISIONS

New applications, year ending New applications, year ending Applications carried forward from previous21 May 2002: 68 21 May 2003: 63 years (including y/e 21/5/2002): 104

Law Society applications 57 43 76

Orders made by the Disciplinary Tribunal pursuantto section 7(9) of the Solicitors (Amendment) Act,1960 as substituted by section 17 of the Solicitors(Amendment) Act, 1994 and amended by section 9of the Solicitors (Amendment) Act, 2002:

Orders made by the tribunal Number in respect of the applications of ordersset out at table

Censure, fine and costs: 38

Censure, restitution and costs: 3

Fined and costs: 2

Censure and costs: 2

Advised, admonished,

fined and costs: 2

Advised, admonished and costs: 1

Censure: 1

Reprimanded: 1

Fines ranged from �500 to �6,340.

Reports of the Disciplinary Tribunal under section 7(3)(b)(ii) of the Solicitors (Amendment)Act, 1960 as substituted by section 17 of the Solicitors (Amendment) Act, 1994 andamended by section 9 of the Solicitors (Amendment) Act, 2002:

The respondent solicitor not be permitted to practise as a sole practitioner, thatthe respondent solicitor be permitted only to practise as an assistant solicitorunder the direct control and supervision of another solicitor of at least ten years’standing to be approved in advance by the Law Society of Ireland

The name of the respondent solicitor be struck off the Roll of Solicitors and thatthe respondent solicitor make recompense, if possible, to the compensation fundof the Law Society

The respondent solicitor be allowed continue to practise as an assistant solicitorunder the supervision of a solicitor of at least ten years’ standing to be approvedof by the Law Society of Ireland. The respondent solicitor is not to be allowed tohandle clients’ funds and will have no cheque-signing authority. The respondentsolicitor be censured and pay the whole of the costs of the Law Society, to betaxed in default of agreement

The name of the respondent solicitor be struck off the Roll of Solicitors and paythe whole of the costs of the Law Society, to be taxed in default of agreement

The respondent solicitor be suspended from practice

* These relate to the same solicitor.

4*

2

1

2

1

Prima facie cases found: 35No prima facie case found: 2Awaiting prima facie decision: 20

Prima facie cases found: 30Awaiting prima facie decision: 10Prima facie decision deferred 3

No prima facie case: 6Awaiting prima facie decision: 1

At hearingMisconduct: 2No misconduct: 27Adjourned: 1Awaiting inquiry: 5

At hearingMisconduct: 5No misconduct: 1Adjourned: 10Awaiting inquiry: 14

At hearingMisconduct: 47No misconduct: 7Leave granted to withdraw application: 3Adjourned: 10Awaiting inquiry: 2

Lay applications 11 Prima facie case found: 3No prima facie case found: 4Awaiting prima facie decision: 4

18Prima facie case found: 3No prima facie case found: 8Awaiting prima facie case decision: 6Prima facie decision deferred: 1

28No prima facie case: 13Withdrawn 1Awaiting prima facie decision: 2

At hearingMisconduct: 1Adjourned: 1Awaiting inquiry: 1

At hearingNo misconduct: 1Awaiting inquiry: 2

At hearingMisconduct: 2No misconduct 5Leave granted to withdraw application: 1Struck out: 1Adjourned: 3

RECOMMENDATIONS

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Observations on complaints before the tribunalThe tribunal has considered avariety of complaints againstsolicitors. The most frequentgrounds of complaint continueto be under the headings of delayand lack of information. This isof concern to the tribunal, asthere are a considerable numberof occasions where solicitorsaccepted instructions to attend tocertain matters and subsequentlyfailed to bring the particularbusiness to a conclusion.

A number of complaints inrelation to conveyancing mattersreflect considerable slackness inattending to established con-veyancing procedures, and incertain cases these failures have

had very serious consequences.To be in breach of the

Solicitors’ accounts regulations is adisciplinary matter. Every prac-tising solicitor has a duty to filewith the Law Society of Irelandan accountant’s certificate for theend of his/her financial year.The absence of book-keepers ora proper system of book-keepingin solicitors’ offices has resultedin a number of solicitors appear-ing before the tribunal and hav-ing serious fines, in addition tocosts, being imposed on them.The importance of keeping up-to-date books cannot be over-emphasised, for not only do theyenable a solicitor’s own account-ant and the Law Society’s inves-tigating accountant to verify the

position, but they also enable asolicitor to establish compliancewith the regulations.

During the period underreview, the tribunal has taken avery strong stance in regard tothe failure of solicitors to adhereto the provisions of section 68 ofthe Solicitors (Amendment) Act,1994. In one such case, the tri-bunal found a solicitor guilty ofmisconduct in regard to a failureto comply with the statutoryobligation to furnish a bill in theformat prescribed by section68(6) of the Solicitors (Amend-ment) Act, 1994 and imposed afine of �2,000 in regard thereto.The tribunal also ordered therespondent solicitor to pay�5,078.95 as restitution to the

client. By way of highlighting itsattitude in regard to breaches ofsection 68, the tribunal asked theLaw Society to publish the fol-lowing notice in its Gazette:

‘The tribunal is concerned that itshould go out from here that ifthere is any practice in relation tosettlements in road-traffic accidentsas between solicitors and theirclients relating to fees, in so far asthe tribunal is concerned they wishit to be stated very clearly that theprovisions of section 68 of theSolicitors (Amendment) Act,1994 is the law which is applicableto this area of practice. As far as thetribunal is concerned, that is thelaw that will be applied and noother practice will in any sense bedeemed to take over that law.

Administration of estates• Delaying in extracting a grant of

administration to the estate• Failing to apply for a grant of pro-

bate in a timely manner or at alland failing to account to theestate for assets and interestthereon and allowing a deficit inthe estate

• Untruthfully stating in a letter tobeneficiaries that the solicitorwas awaiting a certified copy ofthe Inland Revenue affidavitfrom the Revenue Commission-ers when the same had not beensworn or lodged with theRevenue Commissioners

• Untruthfully stating in four lettersto beneficiaries that the admin-istration was nearing completionwhen in fact the Inland Revenueaffidavit was not sworn and thesolicitor had not applied for thenecessary administration bondand did not subsequently sendpapers for lodgement in theProbate Office.

Civil actions• Delaying in prosecuting the per-

sonal injuries action of a clientover a period of some 18 years

• Seriously prejudicing a clientthrough gross neglect of theircase

• Lying to a client about the pro-gress of a non-existent ‘appeal’

• Misleading clients in relation tothe progress of their case andfailing to tell them that any rem-edy in their favour could bestatute-barred

• Putting a client in a very difficultsituation with a financial institu-tion by misleading the client

• Deducting fees from a settle-ment without a client’s knowl-edge or consent

• Failing to advise a client of thecorrect amount of a settlement

• Failing to take the necessarysteps to protect a client’s inter-ests

• Failing in duty of disclosure to aclient in concealing from himand/or a colleague that theclaim had been allowed tobecome statute-barred.

Communication with clients/colleagues• Failing to comply with a client’s

instructions to hand over a file toa new firm of solicitors, despitethe fact that the solicitor hadeffectively stopped doing any fur-ther work to progress the caseon behalf of the client

• Failing to respond to correspon-dence and telephone calls ofenquiry from a client about theclient’s case

• Failing to comply with a commit-ment to a colleague to furnish

title documents in a timely man-ner or at all

• Failing to reply to his colleagues’correspondence.

Conveyancing• Failing to conclude a conveyanc-

ing transaction on behalf of aclient, thereby severely prejudic-ing the client in that a judgmentwas obtained against the clientas a result

• Misleading clients by informingthem that a sale had closed andby paying out monies on foot ofthis purported closing when thiswas not the true position

• Failing to discharge a mortgageand failing to account to a clientfor the monies concerned,necessitating a payment out ofthe society’s compensation fund

• Allowing a conflict of interestinsofar as the solicitor never dis-closed that his partner was pur-chasing the property

• Allowing a conflict of interestinsofar as the solicitor neveradvised the clients to obtainseparate legal advice.

Professional indemnity insurance• Failing to hold professional

indemnity insurance cover inbreach of the Professionalindemnity insurance regulations(SI no 312 of 1995 as amended)

Solicitors’ accounts regulations• Causing or allowing clients’

monies to be misappropriatedand misapplied for personal andoffice purposes

• Causing a deficit to be con-cealed from both solicitor’sreporting accountant and theLaw Society’s investigatingaccountant by falsifying books ofaccount over a number of years

• Lodging clients’ monies into anaccount held at a building socie-ty in the name of a secretary, inbreach of regulation 3 of theSolicitors’ accounts regulations

• Lodging a portion of the pro-ceeds of an estate to the solici-tor’s personal account, therebybeing in breach of regulation 3 ofthe Solicitors’ accounts regula-tions

• Breaching regulation 7(a)(iv) ofthe Solicitors’ accounts regula-tions no 2 of 1984 in retainingmonies in respect of fees andoutlay from monies held onbehalf of a client without fur-nishing the client with a bill ofcosts or other written intimationof the amount of the costs

• Breaching regulation 8(1) and(2) of the Solicitors’ accountsregulations no 2 of 1984 bydrawing monies from the clientaccount in the form of chequespayable to clients but negotiated

PRINCIPAL GROUNDS ON WHICH PRO

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49

‘The tribunal wishes it to beknown that a solicitor who has beenpaid in full by the insurance compa-ny for the work done is not entitledto any extra fee from his client forthat same work.

‘We feel that it is very importantfor the future of the profession andthe future of the clients of the pro-fession that everybody knows whatthe law is and the fullest possiblepromulgation of the terms of section68 should be made available to theprofession, as has happened, but alsoto the general public.’

Another frequent cause ofcomplaint is simply the solici-tor’s failure to reply to the corre-spondence of clients and theLaw Society. Failure to keepclients adequately informed of

the progress of their businessmeans that clients naturallyassume that nothing is happen-ing and consequently blametheir solicitors. Ideally, com-plaints of this nature shouldnever reach the tribunal, butnevertheless such a failure mayinstigate a complaint to the LawSociety and ultimately end witha referral to the tribunal.

The privacy of family law pro-ceedings is protected by legisla-tion which places an embargo onthe production to any third partyof information which derivesfrom family law proceedings. Inthe decision of Murphy J in RMv DM, the primacy of the in cam-era rule was endorsed. It was alsoemphasised that the disclosure of

any such material or informationto a third party (and this wouldinclude the Solicitors Disciplin-ary Tribunal), even with the con-sent of the parties to the pro-ceedings, could amount to con-tempt of court. In the circum-stances, the tribunal, at the pres-ent time, is unable to prosecuteapplications alleging misconductagainst solicitors arising out offamily law matters. I understandthe Law Society of Ireland andthe independent adjudicator ofthe Law Society, Mr EamonnCondon, have made submissionsto the minister for justice, equal-ity and law reform seekingamendments to the in cameralegislation which would allowconsideration of complaints

relating to family law matters. The last year has seen the

expansion and enhancement ofthe tribunal’s jurisdiction andpowers under the Solicitors(Amendment) Act, 2002. As previ-ously indicated, sometime duringthe coming months five addition-al lay numbers are due to beappointed. This will obviouslyplace an extra burden on the staffand resources of the tribunal. Thetribunal, however, is committedto ensuring that whatever staffand/or resources are required willbe forthcoming, to ensure thatthe tribunal is enabled to carryout its function and to maintainits independence.

Thomas D Shaw, chairperson.

G

by the solicitors for their ownbenefit and further without theauthorisation by the Council ofthe society prescribed by regula-tion 8(2)

• Breaching regulation 9(1) of theSolicitors’ accounts regulationsin failing to keep a record oflodgements received in connec-tion with the solicitor’s practice.Further, minimum books ofaccount were not maintained inconnection with a building socie-ty account

• Failing to keep proper books ofaccount to show dealings withclients’ monies by withdrawingfrom the client account all fundsheld on behalf of a client by wayof a cheque made payable tocash, thereby concealing that asolicitor/client fee had beencharged and therefore breachingregulation 10(1) of theSolicitors’ accounts regulations

• Breaching regulation 21(1) ofthe Solicitors’ accounts regula-tions no 2 of 1984 in failing todeliver to the Law Society anaccountant’s report

• Failing to reimburse clients themonies they advanced as a con-tribution to professional feesand costs incurred on doctors,engineers, actuaries and otherwitnesses, notwithstanding thattheir costs were subsequently

received by the solicitor by wayof party/party costs and solici-tor/client fees

• Allowing or causing the books ofaccount to be falsified by meansof systematic teeming and lad-ing, where funds which werereceived subsequently fromother clients were placed to thecredit of the client whose remit-tance was originally misappropri-ated to conceal the deficit aris-ing on the client account.

Section 68• Failing to comply with section

68(1) of the Solicitors(Amendment) Act, 1994

• Deducting or appropriatingmonies in respect of their char-ges from the monies payable toclients arising out of contentiousbusiness carried out on behalf ofthe clients in breach of section68(3), (4) and (5) of the Solici-tors (Amendment) Act, 1994

• Failing to furnish clients withbills of costs in breach of section68(6) of the Solicitors(Amendment) Act, 1994.

Supervision• Failing to exercise any or ade-

quate supervision over non-qual-ified employees in the office

• Was aware that a law clerk/book-keeper signed the solici-

tor’s name on cheques and fail-ing to instruct him to desist

• Failing to exercise any or ade-quate supervision over anunqualified employee who repre-sented a client in the prosecu-tion of a case in the respondentsolicitor’s office.

Undertakings• Breaching a solicitor’s undertak-

ing with a bank to discharge asum of money to the bank oncompletion of a conveyancingtransaction

• Failing to comply with an under-taking given to a client to dealwith all Land Registry queries inconnection with the registrationof title.

Regulatory body: Law Society of Ireland• Lying to the registrar of solicitors

when the respondent solicitorstated regarding a delay in filingan accountant’s report that thebalances had been checked‘and everything was in order’,whereas there was a deficit inclient account

• Failing to respond to the soci-ety’s correspondence in a timelymanner or at all

• Failing to comply with undertak-ings given to the Registrar’sCommittee

• Failing to comply in a timely man-ner with the directions of theRegistrar’s/Compensation FundCommittees

• Misleading the Registrar’sCommittee and CompensationFund Committees

• Failing to comply with a noticepursuant to section 10 of theSolicitors (Amendment) Act,1994 requiring the delivery tothe society of the complainant’sfile and papers to investigate thecomplaint of the complainant.

Cases presented to the High Court

* Four referrals to the president ofthe High Court were made inrespect of the same solicitor.

Other orders made by the tribunalFor the period ending 21 May2003, the tribunal made sevenorders removing the names of thesolicitors, at their own request,from the Roll of Solicitors. This wasan increase on the previous period,when four such orders were made.

FESSIONAL MISCONDUCT WAS FOUND

Struck off the Roll of SolicitorsPractising certificate be limitedto the effect that the solicitoris limited to practise as anassistant to a solicitor of notless than ten years’ standingAdjournedAwaiting presentation to theHigh Court

2

2*4

2*

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50

Personal injury judgment

Deirdre O’Brien Vaughan v Josephine Little, High Court, judgment of De Valera J, delivered on 11 August 2003.

Road traffic accident – post-traumatic stress disorder – general damages – damages for future loss of opportunity

THE FACTS

CASE

Deirdre O’Brien Vaughanwas driving her motor car

on 6 August 1999 atColmoney, Co Clare. Her carcollided with a car driven byMs Little. Ms O’BrienVaughan is a music teacher and

suffered injuries, including ini-tial shock and distress, neckpain (both left and right side),left-arm pain, lower-back pain,initial left-chest and breastbruising, back problems result-ing in discectomy and

osteophectomy, pain in herankle, nausea, diarrhoea andvomiting, and psychologicaltrauma resulting in post-trau-matic stress syndrome. Sheclaimed that her continuingpain and suffering interfered

with her lifestyle and capacityto teach music and perform asa musician.

Liability was admitted. TheHigh Court action proceededonly in relation to the amountof damages.

De Valera J, in his judgmentdelivered on 11 August 2003

noted that Ms O’Brien Vaughanwas a musician and a teacher whowas obviously held in consider-able regard and esteem by herpeers and admirers in traditionalmusic. The judge noted thatClare music and musicians hadan enviable reputation; heaccepted completely that MsO’Brien Vaughan was a promi-nent exponent and teacher of tra-ditional music, as had beendescribed in court.

The judge also accepted thather injuries, in addition to caus-ing her continuing pain and suf-fering, had interfered with hermusic endeavours (both teachingand performing) to a consider-able extent.

Counsel in court had specifi-cally asked the judge to considerthe issue of loss of Ms O’BrienVaughan’s plans to set up and runan Irish traditional music insti-tute as a loss to be considered ingeneral damages.

In considering the appropriateamounts to be awarded for gen-eral damages, De Valera J madereference to the so-called ‘cap’ onamounts considered by theSupreme Court in Allen vO’Suilleabhain and Mid WesternHealth Board, Supreme Court,unreported judgment of 11March 1997, Kealy v The Minister

JUDGMENT OF THE HIGH COURTfor Health ([1999] 2 IR 456) andFitzgerald v Treacy ([2001] 4 IR405).

De Valera J considered that inthe instant case the injuries,although severe, could not becategorised as catastrophicinjuries. The judge noted thatthe plaintiff had suffered seriouspain and associated inconven-ience. He accepted that thesehad the effect, among otherthings, of preventing her per-forming and enjoying her musicup to January 2003 and into thefuture. He noted that her diffi-culties in regard to her musicwere a combination of physicaland psychological problems. Heaccepted, however, that theplaintiff would, on the balance ofprobabilities, continue to suffersome ill effects into the future.However, he also found that, onthe evidence before the court,there was a reasonable probabil-ity that Ms O’Brien Vaughan

would improve over the years. The judge stated he had con-

siderable difficulty in acceptingfully the psychiatric evidenceadduced on behalf of MsO’Brien Vaughan. However, hedid accept that many of the psy-chiatric difficulties, such as theywere, were associated with herphysical limitations, and whenthe physical limitations wouldimprove, so would her mentalstate. The judge accepted thatbecause of her particular talents,there was a reference to her hav-ing ‘lost her muse’ and this was aspecial and significant loss forher. He did accept that she alsohad lost the opportunity of con-tinuing with her plans for anIrish traditional music institute,but more so on the basis of a lossof a treasured cultural ambitionrather than a financial loss.

Loss of earningsDe Valera J stated that there was

an absence of any satisfactoryfinancial records. Accordingly, adecision under this heading wasdifficult. The judge noted that asMs O’Brien Vaughan’s mentaland physical condition improves,her musical talents and teachingcapacity would allow for at leasta supervisory role in teachingmusic in the future. Takingeverything into consideration,including the inadequacies ofevidence as to financial records,he considered a fair basis to cal-culate the plaintiff’s loss of earn-ings to the date of the trial wouldbe £250 a week for 40 weeks ofthe year (pre-tax) amounting to£8,160 a year (net).

The judge accepted that theplaintiff would gradually recoverand he believed that, as sheimproved, her talents and her‘muse’ would allow her to gradu-ally get back to teaching and per-forming (perhaps not at the samelevel as before, but to someextent) and for this reason hecould not measure accuratelyher loss on a specifically actuar-ialised basis. It would be moreappropriate to measure it in alump-sum basis for future lossof opportunity. Accordingly, theloss of earnings in the futurewas measured at �40,000.

This judgment was summarised bysolicitor Dr Eamonn Hall.

G

THE HIGH COURT AWARDDe Valera J awarded damages as follows:• General damages to the date of the trial – �100,000• General damages into the future – �80,000• Special damages – �9,095• Loss of earnings to date of trial – �41,444• Loss of earnings into the future – �40,000• Future medical expenses – �7,750.

Total: �278,289

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51

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CHILDREN AND YOUNGPERSONS

Family law, practice and procedure Child abduction – Hague con-vention – practice and proce-dure – preliminary issue – par-ties to proceedings – centralauthority – whether minister ascentral authority obliged to ini-tiate or join in judicial proceed-ings for return of child wrong-fully removed from jurisdiction– Child Abduction andEnforcement of CustodyOrders Act, 1991, section 9 –Hague convention, article 7 –Rules of the Superior Courts1986, order 15Article 7 of the Hague conven-tion obliges central authoritiesto co-operate with each otherto secure the prompt return ofchildren and to achieve theobjects of the convention. Inparticular, it obliges the cen-tral authorities to take allappropriate measures to do anumber of things which areset out at paragraphs (a) to (i) of article 7, including: ‘a) to discover the where-abouts of the child who wasbeing wrongfully removed orretained … (c) to secure thevoluntary return of the childor to bring about an amicableresolution of the issues … (f)to initiate or facilitate theinstitution of judicial oradministrative proceedingswith a view to obtaining thereturn of the child and, in aproper case, to make arrange-ments for organising or secur-ing the effect of exercise ofrights of access; (g) where thecircumstances so require, toprovide or facilitate the provi-sion of legal aid and advice,including the participation ofcounsel and advisors’.

The first applicant made arequest to the minister forjustice, as the central author-ity for Ireland under theHague convention, for thereturn of the minors namedin the title. Thereafter, theminister for justice directedthe Finglas Public Legal AidLaw Centre to take instruc-tions from the first applicantand proceed on his behalfwith an application to theHigh Court for the return ofhis two children to the juris-diction of their habitual resi-dence. By order of the HighCourt (Abbot J), it wasdirected that the minister bejoined in the proceedings.The minister then appliedpursuant to order 15 of theRules of the Superior Courts1986, to be removed as aparty to the proceedings,being, essentially, functus offi-cio at that stage.

In directing that the min-ister for justice be removedas a party to the proceedings,Finlay Geoghegan J held thatsection 9 of the ChildAbduction and Enforcement ofCustody Orders Act, 1991required that where the cen-tral authority received anapplication to which theHague convention applied, ‘itshall take action or causeaction to be taken under thatconvention to secure thereturn of the child’. The factthat the central authority wasobliged to take action orcause action to be taken didnot require the centralauthority to be an applicantin any court proceedingswhich were taken, as the‘action’ referred to in section9 of the 1991 act had to beconstrued in accordance withthe provisions of article 7 of

the Hague convention. On thefacts of this case, the centralauthority did take action ofthe type envisaged at para-graphs (f) and (g) of article 7. DGH and Minister forJustice, Equality and LawReform v TCH, HighCourt, Miss Justice FinlayGeoghegan, 24/6/2003[FL8084]

COMPANY

Directors’ duties, liquidation Application to restrict companydirectors – official liquidator –obligation of liquidator to bringapplication for restriction ofdirectors – persons in respect ofwhom obligation exists – statu-tory interpretation – principlesof construction – whether liq-uidator obliged to bring applica-tion in respect of persons whowere directors within 12 monthsprior to commencement of liqui-dation – Companies Act,1990, section 150 – CompanyLaw Enforcement Act, 2001,section 56USIT World plc was woundup by order of the HighCourt on 15 May 2002. Theliquidator issued a motionpursuant to section 150 ofthe Companies Act, 1990,seeking declarations ofrestrictions in respect of per-sons who it was alleged weredirectors of the companywithin one year of the com-mencement of the winding-up. Included among suchpersons was a Mr Connolly,who had been appointed adirector on 18 January 2001and ceased to be a directoron 2 July 2001. The liquida-tor took the view that he wasobliged to do so, as he had

UpdateNews from Ireland’s on-line legal awareness serviceCompiled by Karen Holmes for FirstLaw

REQUEST FOR EXPRESSIONS OF INTEREST FROMPROVIDERS OF LEGAL AND ACCOUNTING SERVICES

The Director of Corporate Enforcement has a requirement from time to time to obtain external legal andaccountancy services from suitably qualified firms and persons. In retaining such services, he is anxious togive consideration not only to those providers who are already known to his Office but also to othersuitably qualified experts. In that context, the Director proposes to establish panels of professional expertswho wish to be considered for outsourced work during 2004. This work is likely to comprise specificassignments and to be time-sensitive.

LEGAL EXPERTS: The Director seeks expressions of interest from Senior and Junior Counsel and fromSolicitors with relevant expertise and experience particularly in the areas of Company Law, CommercialLaw, Criminal Prosecution and Judicial Review.

ACCOUNTING EXPERTS: The Director seeks expressions of interest from Accounting Firms andProfessionals who possess relevant expertise and experience in forensic accounting, auditing, insolvencyand corporate rescue.

LEGAL COSTS ACCOUNTANTS: The Director seeks expressions of interest from Legal Costs AccountingFirms and Professionals with relevant expertise and experience in legal accountancy services.

Firms and persons who believe that they possess the requisite expertise and experience in any of the aboveareas are invited to register their interest by supplying the following information:

I name, business address and contact details;

I details of qualifications of principals;

I details of qualifications of key staff (in the case of a firm);

I details of relevant experience;

I indication of the range and extent of skills and resources available (in the case of a firm);

I indication of general availability, where possible, and

I details of the geographical area within which the service provider predominantly operates.

I proof of Financial and Economic Standing, including;

• appropriate statements from banks or evidence of relevant professional risk indemnity insurance;

• balance sheets or extracts therefrom;

• statements of the undertaking’s overall turnover and the turnover in respect of similar servicescarried out in the last three years;

• statement under Article 29 of EU Council Directive 92/50/EEC of 18/6/92, as amended by EUDirective 97/52;

• Proof of Tax Compliance (e.g. Tax Clearance Certificate);

The Director does not guarantee to retain firms or persons applying for inclusion on the panels but will,where practicable, accord due recognition to firms and individuals who respond to this request. TheDirector reserves full discretion to consult and engage firms and persons who are not on the panel,whenever he considers it advisable to do so.

Information on the work of the Director’s Office may be obtained from its website at www.odce.ie.

Expressions of interest should be sent for consideration before 31 December 2003 for inclusion in evaluation for the first tranche, via post, fax or e-mail to;

Ms Phil FloodCorporate Services UnitOffice of the Director of Corporate Enforcement16 Parnell SquareDublin 1

Fax: (01) 8585 801Email: [email protected]

Later expressions of interest will also be considered.

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not been relieved of suchobligation by the director ofcorporate enforcement pur-suant to section 56 of theCompany Law EnforcementAct, 2001. Mr Connolly con-tended, as a preliminaryissue, that the official liquida-tor was not obliged undersection 56 of the 2001 act tobring a section 150 applica-tion in respect of him.

Finlay Geoghegan J foundthat the liquidator was underan obligation to bring a sec-tion 150 application inrespect of Mr Connolly,holding that while the legis-lature, in imposing an obliga-tion under section 56 of the2001 act in respect of ‘each ofthe directors of the compa-ny’, did not expressly specifythe point in time at which aperson must be or have beena director of the company inorder to come within the sec-tion – if a literal approachwere applied to the construc-tion of that section, it wouldmean that the section onlyreferred to persons who weredirectors of the company atthe date the obligation arose,which would lead to anabsurd result. Likewise, therewas nothing in the section,either when construed on itsown or in conjunction withthe other relevant sections ofthe 2001 act, which suggest-ed that the Oireachtasintended that the obligationbe confined to persons whowere directors at the date ofthe commencement of thewinding-up. Accordingly,section 56(2) had to be con-strued in conjunction withsection 150 of the 1990 actand, when so construed, itappeared that the intentionof the legislature was that, ata minimum, the obligation ofthe liquidator under section56(2) of the 2001 act was tobring an application pursuantto section 150 of the 1990 actin respect of persons whowere directors of the compa-ny at the date of the com-mencement of the winding-

up or within 12 months priorto that date.USIT Ireland Ltd (in liqui-dation), High Court, MissJustice Finlay Geoghegan,30/7/2003 [FL8079]

Equity and trusts, solicitors Land law – equity and trusts –partnership – property – solici-tors – practice and procedure –furnishing of documents of com-pany – whether company enti-tled to return of documentsProceedings were issued onbehalf of the plaintiff againstits former solicitors (thedefendants). The plaintiffhad sought the return of alldocuments relating to itsbusiness, along with its cor-porate seal. The plaintiff’sposition was that it neededsight of the documents inorder to assess more fullytransactions which had beenentered into in its name. Amember of the defendant’sfirm (O’Brien) had also beeninvolved in the plaintiff’sbusiness and was a director ofthe company. Mr O’Brienasserted that, together withthe other directors of theplaintiff, they had in factestablished an undisclosedtrust and that, when prepar-ing contracts, he was doingso on behalf of the partner-ship and not on behalf of theplaintiff.

Mr Justice Smyth found infavour of the plaintiff. Thefact that persons in a partner-ship set up business underthe aegis of a company doesnot mean that the companydoes not have its own legalpersonality with its ownrights and duties, togetherwith the rights and duties ofshareholders. On the basis ofthe evidence adduced, theplaintiff was a client of thedefendant and was entitled tothe documents that it sought,no matter what the views ofthe persons in the partner-ship were. An order wasmade to this effect, alongwith an order restricting the

pledging of certain title doc-uments. Bayworld Investments vMcMahon and Others, HighCourt, Mr Justice Smyth,19/6/2003 [FL8051]

CRIMINAL

Appeal, evidence Accomplice evidence – admissi-bility – whether witnesses couldconsider their evidence to havebeen bought – whether that evi-dence so suspect that it could notbe relied upon – corroboration –whether corroboration requiredof accomplice evidence – whethercircumstantial evidence canamount to corroboration ofaccomplice evidence in relationto drugs offences – whetherapplicant afforded trial in duecourse of law – whether appli-cant lawfully convictedThe applicant had been con-victed by the SpecialCriminal Court of importingcontrolled drugs into thestate and of possessing suchdrugs with the intent to sup-ply, contrary to section 15 ofthe Misuse of Drugs Act, 1977.On a charge of murdering ajournalist, the SpecialCriminal Court held that,while the facts admitted inevidence during the trial gaverise to a suspicion that theapplicant had some part inthe murder, it was no morethan a suspicion and that wasnot a basis upon which a per-son could be convicted.Evidence used to supportthose convictions camelargely from the testimony ofaccomplices of the applicant.Those witnesses had, amongother things, been givenimmunity against prosecu-tion of various offences andsubstantial sums of money inreturn for agreeing to testifyagainst the applicant.However, the court, in itsjudgment, recited variouspieces of circumstantial evi-dence which it relied upon ascorroboration of suchaccomplice evidence.

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The applicant sought leaveto appeal his convictions onthe grounds, among others,that the evidence had beenobtained, at least to somedegree, by offering incentivesto the witnesses who had beenthe applicant’s accomplices.The applicant did not arguethat there could not be a wit-ness protection programme,but criticised the manner inwhich the programme hadbeen carried out. The appli-cant further complained thatwhile the court may have setits standards as to its examina-tion of the evidence of thesewitnesses at a high level,when it came to consider theactual evidence it accepted alower standard than it had setitself, and if it had adhered toits own standards, it wouldnot have accepted the evi-dence of the accomplices.

In upholding the appli-cant’s conviction in relation tothe importation charge andthe offence under section 15of the 1977 act, the Court ofCriminal Appeal held that ifthere was an agreementbetween a witness and thegardaí or the prosecutingauthorities that he would givecertain specific evidence andin return would be paid a spe-cific amount of money, thatevidence would be unlawfullyobtained and could be exclud-ed. The events in the case didnot approach that situation,however. In consideringaccomplice evidence, the fol-lowing questions should beasked: 1) Was it recognised by the

court that there were dan-gers in accepting the evi-dence without corrobora-tion?

2) Were those dangers identi-fied by the court?

3) In the light of the particu-lar facts relating to the evi-dence of each accomplice,were those dangers safe-guarded against?

4) With regard to the particu-lar circumstances of eachaccomplice, were the

measures taken and identi-fied to safeguard againstthe dangers properlyapplied?

5) If all these matters wereproperly addressed, couldthe evidence of the accom-plice be reasonably accept-ed?

In considering the evidence ofthe accomplices, the SpecialCriminal Court had beenaware of such dangers andkept them in mind when con-sidering their evidence. Thiswas not a case where corrob-oration was essential.However, the court requiredof itself significant corrobora-tion of evidence given by theaccomplices. What the Spec-ial Criminal Court appearedto mean by corroboration wascircumstantial evidence orindependent testimony whichmay lawfully amount to cor-roboration. There was cir-cumstantial evidence that car-tons imported by an accom-plice of the applicant con-tained drugs. The SpecialCriminal Court was entitledto find beyond reasonabledoubt on the evidence beforeit that the applicant had un-lawfully imported the drugsand had them in his posses-sion with intent to supply.DPP v Gilligan, Court ofCriminal Appeal, 8/8/2003[FL8123]

Extradition, detention Criminal law – constitutionallaw – extradition – detention –habeas corpus – delay – multi-plicity of actions practice and pro-cedure – Garda Síochána –whether applicant should beextradited – whether improperpressure brought to bear onapplicant – Extradition Acts,1965-2001 – Bunreacht nahÉireann 1937The extradition of the appli-cant to England had beensought on foot of chargesrelating to an alleged assault.Judicial review proceedingsand proceedings under sec-tion 50 of the Extradition Act

had been initiated in order tochallenge the extradition. Anissue arose as to whether itwas appropriate to have twoseparate sets of proceedingsin train in order to challengethe extradition. It was con-tended by the applicant that amember of an GardaSíochána had improperlyattempted to use the existenceof the extradition warrants inorder to force the applicant todisclose information relatingto other alleged criminalactivity committed in thisjurisdiction. It was alsoargued, by reason of delay aswell as alleged violation of theapplicant’s constitutionalrights, that an order of extra-dition should not be made.

McKechnie refused therelief sought and confirmedthe extradition order. Therewas nothing to preclude anapplicant, in challenging hisextradition, from issuing bothjudicial review proceedingsand proceedings under theExtradition Acts. However, inthe interests of convenienceand practicality, both sets ofproceedings should be heardby the same court at the sametime. There had been anattempt by an GardaSíochána to improperly usethe existence of the extradi-tion warrants in order to gainfurther information from theapplicant. Despite this con-duct, no information hadbeen elicited from the appli-cant and no constitutionalrights had been infringed. Allthe relevant statutory require-ments had been compliedwith and it had not beenestablished that the appli-cant’s right to an expeditioustrial had been breached.Lynch v Attorney Generaland Others, High Court, MrJustice McKechnie, 8/4/2003 [FL8104]

Licensing, liquor Licensing offence – case stated –District Court – summons –validity of summons – statute –interpretation – whether statute

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or part thereof repealed by newact – whether summons chargingliquor licence holder with offenceshould expressly state on its facethat licence holder required toproduce licence to trial court –Intoxicating Liquor Act,1927, section 32 – IntoxicatingLiquor Act, 1988, section 31 –Intoxicating Liquor Act,2000, sections 13 and 14Section 32(1) of theIntoxicating Liquor Act, 1927provides that where theowner of the licence ischarged with an offence towhich part III of that actapplies, the summons shallstate that such holder will berequired to produce suchlicence to the court at suchtrial. Section 14(1) of theIntoxicating Liquor Act, 2000deleted the provision previ-ously contained in section31(3) of the Intoxicating LiquorAct, 1988, which providedthat ‘the offence [under sec-tion 31 of the 1988 act] shallbe deemed to be an offence towhich part III of the act (of1927) applies’.

The accused was the hold-er of an off-licence who wascharged with an offenceunder section 31 of the 1988act of permitting alcohol to besold to a minor. The sum-mons charging him did notstate on its face or otherwisethat the accused was requiredto produce his licence to thecourt at the trial. The accusedcontended that the summonswas flawed because theoffence with which he hadbeen charged was an offenceto which part III of the 1927act applied and, accordingly,should have stated on its facethat he was required to pro-duce his licence to the trialcourt. The district judge stat-ed the following questions fordetermination by the HighCourt: 1) did section 14(1) ofthe 2000 act repeal section32(1) of the 1927 act?; 2) is anoffence under section 31(2) ofthe 1988 act an offence towhich part III of the 1927 actapplies?; and 3) did section

32(1) of the 1927 act apply inrespect of a summons charg-ing the accused with anoffence under section 31(2) ofthe 1988 act?

Quirke J held that thesummons was valid ab initioand was not flawed in themanner contended for bythe accused, and:1) Answering the first ques-

tion posed in the negative,held that the enactment ofsection 14(1) of the 2000act was intended for thepurpose of amending sec-tion 31 of the 1988 act,which deemed offencesunder the section to beoffences to which part IIIof the 1927 act applied,and its enactment had noeffect upon the provisionsof section 32(1) of the1927 act

2) Answering the second andthird questions posed inthe negative, held that sec-tion 14(1) of the 2000 actdeleted the mandatoryrequirement to endorse alicence in respect of prem-ises where an offenceoccurred under section 31of the 1988 act.Accordingly, on the datewhen the summons requir-ing the accused to come tocourt was issued, theoffence with which he hadbeen charged had not beendeemed to be an offence towhich part III of the 1927act applied and there wasaccordingly no require-ment for a statement of thetype referred to in section32(1) of the 1927 act to becontained in the summons.

Obiter dictum: the court,however, retained a discre-tionary power to order that aconviction for an offenceunder section 31 of the 1988act be recorded on thelicence held by the accused,but it was only upon theexercise of that discretionarypower that the offencewould be deemed to be anoffence to which part III of

the 1927 act of would apply. DPP v Joyce, High Court,Mr Justice Quirke, 20/5/2003 [FL8078]

PLANNING AND DEVELOPMENT

CertiorariJudicial review – planning andenvironmental law – Europeanlaw – certiorari – environmen-tal impact statement – whetherapplication should be certified forappeal to Supreme Court –whether delay bar to grant of cer-tificate – Local Government(Planning and Development)Act, 1963 – Local Govern-ment (Planning and Develop-ment) Act, 1992 – Planningand Development Act, 2000The applicant had brought anapplication seeking leave toseek judicial review in respectof a decision issued by anBord Pleanála to dismiss herappeal against the grant ofpermission for a development.The application for leave wasdismissed. The applicant nowsought to appeal to theSupreme Court on the basisthat the application involvedpoints of law of exceptionalpublic importance and soughtthe appropriate statutory cer-tificate. It was contended onbehalf of the applicant thatmatters were raised regardingthe applicable thresholds forthe furnishing of an environ-mental impact statement(EIS). The first-named noticeparty submitted that the earli-er court judgment had refusedleave to seek judicial review asno substantial grounds hadbeen established. According-ly, no point of law of impor-tance could be said to havearisen. It was not permissibleto allow an appeal to theSupreme Court on theoreticalpoints of law. It was also in thepublic interest that planningdecisions should be imple-mented as soon as possible.

Murphy J refused theapplication. The matter of thethreshold relating to EIS’s had

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been considered in the context ofthe decision of the court refusingleave. It was of some significancethat the present application wasnot made at the time when theapplication for leave to seek judi-cial review was made. Given theoverall import of the legislationand the clear indications of thecourts regarding time restrictions,parties should be aware of theimportance of acting promptly.The applicant was not entitled toapply for a certificate after theapplication had been determinedby the court. In addition, no issuesarose involving points of law ofexceptional public importance.Ní Ghruagáin v an BordPleanála and Others, HighCourt, Mr Justice Murphy,19/6/2003 [FL8033]

Construction, environment Planning permission – declaratoryrelief – true meaning of planningpermission – approach to constructionThe defendant granted the plain-tiff planning permission. This caseinvolved a dispute between the

parties as to the use to which thepremises could be put. The defen-dant’s real concern was that theplaintiff was attempting to use thepremises for a purpose for whichthey were never intended by ref-erence to the planning permis-sion. It believed that the plaintiffwas attempting to turn the centreinto a concert and entertainmentvenue. In essence, the court wasasked to grant a declaration as tothe true meaning of the planningpermission.

Kelly J in the High Court madea declaration that the plaintiff’scentre could be used for the typeof uses set out in the schedule ofactivities, including the service offood and drink ancillary to suchcultural activities. The plaintiffcould not use the centre for non-cultural activities and could notuse it to hold weddings or as anightclub.Grianan an Aileach Interpreta-tive Centre Company Ltd vDonegal County Council, HighCourt, Mr Justice Kelly,22/8/2003 [FL8100]

PRACTICE AND PROCEDURE

Interim relief Application for interim relief – stay onCircuit Court order – productionorder in respect of infant – whetherrelief should be granted – alternativeremedies – whether application pre-mature – whether applicant shouldpursue appeal before bringing applica-tionThe applicant sought an interimstay on orders of the CircuitCourt granting the respondentcustody of the infant MS, an orderfor the inclusion of the attorneygeneral as a party to the proceed-ings, an order for the productionof the infant MS to the HighCourt, an order for the surrenderof the passport of the said infantand an order prohibiting theremoval of the said infant fromthe state by anyone apart fromherself. She indicated her inten-tion to appeal the said CircuitCourt orders but had not yet filedthe appeal papers.

Gilligan J in refused the appli-

cation, holding that the courtwould have to be satisfied thatthere was something wrong in thedecision-making process in res-pect of the Circuit Court ordersbefore it would grant the reliefsought. The applicant could haveapplied for interim access to herchild pending a full hearing of theappeal of the Circuit Court orders,which she did not do, therefore noorder in respect of the productionof the infant or his passport wouldbe made. As the attorney generaldid not have any role to play in theproceedings, he would not bejoined as a party thereto. FS v MN, High Court, MrJustice Gilligan, 15/4/2003[FL8068]

The information contained here is taken from FirstLaw’s LegalCurrent Awareness Service, pub-lished every day on the Internet atwww.firstlaw.ie. For more informa-tion, contact [email protected] orFirstLaw, Merchants Court,Merchants Quay, Dublin 8, tel: 01679 0370, fax: 01 679 0057.

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EurlegalNews from the EU and International Affairs CommitteeEdited by TP Kennedy, director of education, Law Society of Ireland

Intellectual property licensing in Europe – proposed new EU competition rules

On 1 October 2003, theEuropean Commission

published for public consulta-tion a proposed EU regulationon the application of the EUcompetition rules to agreementsfor licensing of patent (andother types of) intellectualproperty (IP).

This note summarises whyreaders of the Gazette (and theiradvisers) should take account ofthese changes in developingtheir individual IP licensingstrategies and why, in responseto the consultation, they maywish to submit comments to thecommission.

Exemption from article 81 ofthe EC treatyThe proposed EU regulation(published with 60 pages ofdraft guidelines) sets out theconditions that IP licensingagreements must satisfy to beautomatically exempted fromthe application of article 81 ofthe EC treaty (the prohibitionon anti-competitive agree-ments). The proposal alsoexplains the circumstances inwhich that exemption will notbe available to, or could even bewithdrawn from, IP licensors/licensees.

EnforcementThe proposal will enter intoforce on 1 May 2004. There willbe a transition period (only until31 October 2005) for IP licen-

sors/licensees to review and, ifnecessary, amend their existingIP licensing agreements that donot meet the proposal’s condi-tions for exemption from theapplication of article 81 of theEC treaty.

Change of licensing culture• Market share thresholds – the

proposal will require licen-sors and licensees of intellec-tual property rights (IPR) toconstantly review that theirshares of the market affectedby the licensing agreementdo not exceed certain thresh-olds, thus avoiding the risk ofviolating article 81 of the ECtreaty and attracting possiblefines and/or legal challenges.Staying below these thresh-olds will be especially rele-vant for IP licensors/licensees in dynamic, innova-tion technology markets

• Prohibited restrictions – underthe proposal, including certainprohibited restrictions oncompetition (for example, cer-tain types of cross-licensingobligations between ‘competi-tors’) in their licensing agree-ments will prevent IP licen-sors/licensees enjoying thelegal and commercial benefitsof automatic exemption fromthe application of article 81

• Individual assessment – from 1May 2004, IP licensingagreements that do not meetthe proposal’s conditions for

automatic exemption fromarticle 81 may need to benotified for individual assess-ment by the EU memberstates’ national competitionauthorities (’national agen-cies’) and not the commis-sion. This is the result of aseparate reform of the EUcompetition rules (regulation1/2003, OJ L 1/1, 4 January2003). Having regard in partto other EU guidelines, IPlicensors/licensees will needto be confident that thesenational agencies will applythe proposal correctly andconsistently across theexpanded European Union,especially where an assess-ment of the possible anti-competitive effects of a par-ticular licensing agreementrequires a full understandingof the relevant industry

• Outside the scope of the new EUregulation – the proposal alsoexplains how the EuropeanCommission and nationalagencies should apply article81 to licensing agreementsthat are not covered by thenew regulation (for example,patent pool agreements andmultiparty licensing)

• What else is new? – the pro-posal also explains how thecommission will apply manyaspects of the law that are notcovered by the current EUcompetition rules (regulation240/96 of 31 January 1996,

OJ L 31/2), for example, IPlicensing of the results ofjointly-developed R&D toother companies

• Implications for global IP licens-ing – because of the key dif-ferences between the propos-al and the competition andIPR regimes in, for example,the US and Japan, IP licen-sors/licensees will probablywelcome more certaintyabout how their globallicensing strategies can bedeveloped in Europe withoutrisking violation of article 81.

Existing IP licensing agreementsAfter 31 October 2005, the pro-posal will apply to IP licensingagreements signed by IP licen-sors/licensees on or before 30April 2004. Therefore, beforethen, both licensors andlicensees should check that theproposal’s fundamental changesdo not undermine the legal valueof their existing IP licensingagreements drafted under thecurrent EU competition rules.

Next stepsThe proposal can be down-loaded from the EuropeanCommission’s website at http://europa.eu.int/eur-lex/pri/en/oj/dat/2003/c_235/c_23520031001en00100054.pdf.

Conor Maguire is a solicitor prac-tising in Brussels.

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Recent developments in European law

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COMPETITION

Case T-203/01 ManufactureFrançaise des PneumatiquesMichelin v Commission of theEuropean Communities, 30September 2003. Michelin has adominant position on the Frenchmarket for replacement tyres fortrucks and buses. In 2001, thecommission adopted a decisionfinding that Michelin had abusedits dominant position through asystem of discounts, refunds andfinancial advantages with its deal-ers. The system operated byMichelin tied dealers to the com-pany and undermined competi-tion. Michelin was fined �19.76million. Michelin brought an actionbefore the CFI for annulment ofthe decision. It argued that thediscounts and bonuses were notloyalty-inducing and challengedthe commission’s argument thatthe cumulative effect of the vari-ous systems of rebates amountedto a further abuse. The CFI upheldthe decision of the commission. Itheld that a company in a domi-nant position that operates a sys-tem of loyalty discounts andbonuses impedes normal price-based competition.

DATA PROTECTION

Case C-101/01 Bodil Lindqvist, 6November 2003. Ms Lindqvistwas involved in preparing peoplefor communion in a parish inSweden. In 1998, she set up awebsite to enable parishioners toobtain information they were likelyto need. These web pages includ-ed data on Ms Lindqvist and herparish colleagues. The names ofher colleagues were given, alongwith a description of their workand their hobbies. In severalcases, family information, tele-phone numbers and other infor-mation was given. She mentionedthat one of her colleagues wasworking par t-time on medicalgrounds, as she had injured herfoot. She was fined approximately

�450 for processing personaldata by automatic means withoutnotifying the Swedish supervisoryauthority in writing, for transferringdata to third states without autho-risation and for processing sensi-tive personal data (that relating tothe foot injury). A Swedish courtreferred the case to the ECJ, ask-ing whether the activities withwhich she was charged are con-trary to the provisions of the Dataprotection directive. The ECJ heldthat referring to people on a webpage and identifying them byname and giving other informationabout them constitutes ‘process-ing of personal data … by auto-matic means’. Reference to thestate of an employee’s healthamounts to processing of dataconcerning health. The court heldthat the directive does not restrictfreedom of expression or otherfundamental rights. It is fornational courts and authoritiesresponsible for applying thenational legislation implementingthe directive to ensure a fair bal-ance between the rights and inter-ests in question, including thosefundamental rights.

EMPLOYMENT

Case C-151/02 Landeshaupt-stadt Kiel v Norbert Jaeger, 9September 2003. Mr Jaeger is aGerman doctor who works at ahospital in Kiel. He performs on-call duty that requires him to bepresent in the hospital and avail-able to work when called on. Thisadditional duty is partly offset byadditional time off and partly byadditional pay. He is allocated aroom with a bed in the hospitalwhere he can sleep when his serv-ices are not required. Mr Jaegerargues that this on-call duty mustbe deemed to constitute workingtime. German law defines on-callservice as rest time except forthat part of it where professionaltasks are actually performed. TheWorking time directive definesworking time as ‘any period during

which the worker is working, at theemployer’s disposal and carryingout his … duties’. A German courtsought a ruling from the ECJ as towhether the German law was inconformity with the directive. TheECJ held that the totality of timespent on call is working time. Thedecisive factor is that the doctoris required to be present at aplace determined by the employerand to be available to providetheir services immediately in caseof need. Doctors are not free tochoose the place where they stayduring waiting periods. The courtheld that its interpretation wasnot altered by the fact that a restroom was made available to thedoctor. A doctor who is required tomake himself available at a placespecified by his employer is sub-ject to greater constraints than adoctor on stand-by, as he is apartfrom his family and social environ-ment and has less freedom tomanage the time during which hisprofessional services are notrequired. Under these conditions,a doctor required to be availableat the place determined by hisemployer cannot be regarded asbeing at rest during the periods ofhis on-call duty when he is notactually carrying on any profes-sional activity.

ESTABLISHMENT

Case C-168/01 Bosal Holding BVv Staatssecretaris van Financien,18 September 2003. Bosal is aDutch company involved in financ-ing and licensing transactions. Itis subject to corporation tax in theNetherlands. In 1993, it declaredcosts in excess of �1,800,000 inrelation to the financing of itsholdings in companies estab-lished in nine other memberstates. It claimed that these costsshould be deducted from its ownprofits. The Dutch tax officerefused to allow this deduction.The case was referred to the ECJ.It held that the Dutch rules werean obstacle to setting up sub-

sidiaries in other member states.This was an unjustified restrictionon freedom of establishment.

FREE MOVEMENT OFPERSONS

Case C-109/01 Secretary of Statefor the Home Department/HaceneAkrich, 23 September 2003. MrAkrich is a Moroccan citizen.Since 1989, he has made a num-ber of attempts to enter andreside in the United Kingdom. Hisapplications for leave to remainwere always refused. In 1996,while residing illegally in the UK,he married a UK citizen andapplied for leave to remain in hiscapacity as her spouse. Hisspouse was established in Irelandfrom June 1997 and he wasdepor ted to Dublin in August1997. His spouse was offered aposition in the UK commencing inAugust 1998. In early 1998, MrAkrich applied for permission toenter the UK as the spouse of aworker exercising her EC rights offree movement. The secretary ofstate refused his application. Therefusal was on the basis that themove to Ireland was no more thana temporary absence designed tomanufacture a right of residencefor Mr Akrich and to evade the pro-visions of the UK legislation. Heappealed against the refusal tothe Immigration Appeal Tribunal,which referred the matter to theECJ. The court observed that amember state is obliged to grantleave to enter and remain on itsterritory to the spouse of a nation-al of that state who has gone, withhis spouse, to another memberstate to work there as anemployed person and who returnsto settle in the state of which heis a national. Regulation 1612/68refers only to freedom of move-ment within the EC and is silentas to the rights of a national of anon-member state, who is thespouse of a citizen of the EU, inregard to access to the territory ofthe EC. In order to benefit from

Briefing


59

the right to move with the citizenof the EU, the spouse must belawfully resident in a memberstate when he moves to anotherin order to work there as anemployed person. The court heldthat the motives of an EU citizenintending to seek work in anothermember state are irrelevant inassessing the legal situation ofthe couple at the time of theirreturn to the member state of ori-gin. Where a marriage is genuineand a national of a member state,married to a national of a non-member state, returns to thisstate of origin, where the spousedoes not enjoy EC rights, not hav-ing resided lawfully on the territo-ry of another member state, theauthorities of that state mustnone the less take into accountthe right to respect for family lifeunder article 8 of the Europeanconvention on human rights.

FREE MOVEMENT OFSERVICES

Case C-6/01 Associaçno Nacionalde Operadores de MáquinasRecreativas (Anomar) and Othersv Portuguese State, 11September 2003. In Portugal,gambling can only take place incasinos holding a public licence.Anomar is an association ofPortuguese gaming machine oper-ators. Together with a number ofprivate companies, it brought anaction arguing that they were enti-tled to operate slot machines out-

side the areas set aside by law forgambling. The Portuguese courtmade a reference to the ECJ as tothe compatibility of the nationallaw on gambling with EC law. TheECJ found that the activity of oper-ating gaming machines is a serv-ice within the meaning of thetreaty. Ar ticle 59 applies tonational legislation where it isliable to prohibit or impede theactivities of a provider of servicesestablished in another memberstate where he legally providessuch services. This was the casehere, where national legislationrestricts gambling solely to casi-nos located with areas estab-lished under the law. Such restric-tions can be justified by overridingreasons relating to the publicinterest, provided that the restric-tions are proportionate. Portugaldefended its restrictions on theground that it was seeking tomaintain fairness in games ofchance and there was the possi-bility of deriving some benefit forthe public sector. The ECJ identi-fied these as objectives that pur-sue the protection of consumersand the maintenance of order insociety. These objectives can jus-tify interference with the freedomto provide services.

STATE LIABILITY

Case C-224/01 Gerhard Köbler vRepublic of Austria, 30September 2003. Mr Köbler hadbeen employed since 1 March

1986 as a university professor inAustria. In 1996, he applied for along-service increment for univer-sity professors. Austrian law con-fined the grant of that benefit toservice for 15 years solely inAustrian universities. The appli-cant had 15 years of service, butmuch of it had been spent in uni-versities in other member states.His request for the increment wasrefused and he challenged thisrefusal in the Austrian courts,arguing that it amounted to indi-rect discrimination. The Austrianadministrative cour t of lastinstance (the Verwaltungsgericht-shof) referred the matter to theECJ. Following a judgment of theECJ in a similar case, theAustrian cour t withdrew itsrequest for a ruling. On 24 June1998, the applicant’s action wasdismissed. The Austrian courtheld that the increment was a loy-alty bonus that justified a deroga-tion from the provisions on freemovement of workers. The appli-cant then brought an action fordamages against the Republic ofAustria, arguing that this judg-ment was contrary to EC law. Thecourt hearing this action referreda number of questions to the ECJ.The ECJ held that member statesare obliged to make good damagecaused to individuals by infringe-ments of EC law attributable tonational courts adjudicating atlast instance. There are threeconditions that are necessary tomake the state liable for infringe-

ments of EC law attributable to it:the rule of law infringed must beintended to confer rights on indi-viduals, the breach must be suffi-ciently serious, and there mustbe a direct causal link betweenthe breach of the obligationincumbent on the state and theloss or damage sustained. Indetermining whether the infringe-ment of a national court of lastinstance is sufficiently serious, anational court must determinewhether the court of last instancemanifestly infringed the applica-ble law. The ECJ also held thatthe Austrian legislation concern-ing the grant of the incrementwas incompatible with EC law andcould not be justified. Confiningthe increment to those who expe-rience was gained solely inAustrian universities is an obsta-cle to the free movement of work-ers. The ECJ held that the judg-ment of the Austrian court of lastinstance was based on an incor-rect reading of an ECJ judgmentand infringed EC law. However,the infringement cannot bedescribed as manifest. The ECJhad not had an opportunity of rul-ing whether a loyalty bonus couldbe justified under EC law. Thus,its reply in that regard was notobvious. The cour t of lastinstance should have maintainedits request for a preliminary rul-ing. It was owing to its incorrectreading of the previous ECJ judg-ment that it did not persist withits request. G

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People and places


60

Guests of honourGuest speakers at the SADSI careers day (from left): SADSI

treasurer Eamonn Kelly; Keith Walsh, Fawsitt Solicitors; Kevin Kinsella,Bank of Scotland (Ireland); Orla Fee, Thomson Round Hall; Mary

Reynolds, Chief State Solicitor’s Office; Mr Justice Michael Peart; andSADSI auditor Des Barry

Taking the FLACMrs Justice Catherine McGuinness speaking at the opening of thenew head office of the Free Legal Advice Centre, Dorset Street,

Dublin, in October

Put a Cork in itPictured at a meeting of the West Cork Bar Association are (back row, from left) Jim Brooks, Con Murphy, Sean Cahill, Jim Long, Anne MarieHourihane, Tony Greenway, Paul O’Sullivan and Richard Barrett; (middle row, from left) Ciaran O’Brien, PJ O’Driscoll, Diarmuid O’Shea, Maria

O’Sullivan, Fergus Applebe, Eamonn Fleming, Letty Baker, Veronica Neville, Maurice O’Connor, Flor McCarthy, Ted Hallissey and Malachy Boohig; and(front row, from left) Karen Crowley, Roni Collins, Colette McCarthy, Law Society immediate past-president Geraldine Clarke, director general Ken

Murphy, Ray Hennessy, Áine O’Donovan and Flor Murphy

Parlez-vous?Law Society director general Ken Murphy in the company of Alan

Dukes, director general of the Institute of European Affairs, FrançoisChambraud, director of Alliance Française, and Law Society director

of education TP Kennedy at the recent conferral of the Diploma in legal French

Great balls of fireSADSI committee members at the annual SADSI ball on 15 November,

(from left): Sonya Heney, Eamonn Kelly, Lorraine Rowland, Sinead Lynch,Cormac O’Regan, Nessa Barry

People and places


61

Gerard A Lee SC lectured on the lawof practice and procedure of the

courts to a generation of solicitors. Helectured in the 1960s and 1970s in therelatively early hours of the morning,often in a hired room, such as the halladjacent to St Andrew’s Church, StAndrew’s Street, Dublin. The location wasbarren of any atmosphere worthremembering – save that of the genial andgenerous lecturer.

Gerry Lee was born on 17 October1917 and died on 15 November 2003. Heis remembered with fondness by ageneration of solicitors, colleagues andfriends. Son of a medical doctor, he waseducated at St Munchin’s College,Limerick, and UCD, where he wasawarded first class honours in his BA (arts and law subjects). Hewas subsequently awarded a master’s degree.

He recalled how one afternoon in 1940, when he sat for theautumn degree examination in UCD, then located at EarlsfortTerrace, a great noise filled the room as a black Germanwarplane flew past the window, apparently with a Britishfighter plane in pursuit. The noise interrupted the quietnessof the intellectual endeavours of UCD’s finest as theycontemplated profound responses for the Roman lawexamination. Thankfully, ‘Roman law’ prevailed and therefollowed a life-long love affair between Gerry and mattersEuropean.

Awarded a gold medal for oratory and legal debate in King’sInns and the Law Society in UCD, Gerry Lee was called to thebar in 1942 and practised principally in the southwestern circuitand in Dublin. In 1952, he was awarded a Council of Europescholarship and studied at the University of Strasbourg and theAcademy of International Law in The Hague. He lectured inUCD, principally in constitutional law. He subsequentlylectured on practice and procedure for the Law Society duringthe 1960s and 1970s.

Gerry Lee was made a senior counsel in1979 and elected a bencher of King’s Inns.

Mr Justice Gerard Lardner, a formerjudge of the High Court, observed in hisforeword to Gerry Lee’s A memoir of thesouth-western circuit (1990) that the author’sbook revealed a person ‘apt for friendship, alover of books and landscape, a man ofcivilised tastes and interests, someone whohas been preserved from worldliness’. GerryLee was both of the world and yet sensiblyattuned to a ‘cosmos’ that he believedexisted outside our comprehension of ourmundane day-to-day existence.

In the foreword to Gerry Lee’s secondbook, Dublin as a European city, Mr JusticeDeclan Costello, a former president of theHigh Court, wrote that Gerry Lee had been

an enthusiast all of his life. As a young man, he travelled widelythroughout Europe. History and literature enthralled him; hisstories were legendary. He was a successful law reporter with theIncorporated Council of Law Reporting for Ireland and the Irishlaw times series of reports.

Author of numerous articles in national and internationalpublications, his writings on history (including legal history),constitutional law and literature will survive. Although he was adedicated romantic, he never married. His sense of romanticismmay be gleaned from the following words of one of his poems,bearing the appropriate title Utopia:

Find me a land where beauty never fades,Where love is not a promise for tomorrowOr yesterday’s regret, find me a landWhere truth is reigning yet.In ancient towns where art is bredMy soul was thrilled with joy,But sadness whispered in my heart‘This beauty too shall die’.

Dr Eamonn Hall.

G

Gerard A Lee: 1917-2003

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62

Apprentices’ page

SADSISolicitors Apprentices Debating

Society of Ireland Bigger and brassier

This year, the annual SADSIcareers day was held on

Thursday 30 October in thePresidents’ Hall at BlackhallPlace, and was followed by awine reception in the Blue Room.

Our guest speakers, drawnfrom across the legal field,highlighted the spectrum ofoptions available to trainees andsoon-to-be-qualified solicitors.Keith Walsh of Fawsitt Solicitorsgave much-appreciated adviceon career options for those ofus soon to face the job market.Mary Reynolds of the ChiefState Solicitor’s Office made usenvious of the career benefitsavailable to those who chooseto represent the state’s legalinterests. Orla Fee of ThomsonRound Hall described her careerin legal publishing, aninteresting alternative tobecoming a solicitor. Judge

Michael Peart spoke warmly ofhis career in litigation andadvised us to seek jobsatisfaction above all else in theworkplace. And, finally, KevinKinsella of Bank of Scotland(Ireland) talked about thechallenging and satisfyingexperience of working as an ‘in-house’ lawyer.

The committee would like tooffer our sincere thanks to theguest speakers, who put on agreat show for the largestaudience in years. We wouldalso like to thank our sponsors,the Law Society and UlsterBank, without whom the eventwould not have been possible.

Eamonn Kelly, treasurer

October and November sawtwo spectacularly successful

events: the trainee careerdevelopment day and the SADSIball. Both events were biggerand more flamboyant then everbefore, and recognition must begiven to those that made theevents possible. Careers daywould not have happenedwithout the invaluable work ofour treasurer Eamonn Kelly,

who worked tirelessly onscheduling and arrangementsfor the guest speakers whilekeeping his usual close eye onexpenditure. Lorraine Rowlandwas central to the organisationof the SADSI ball. Thecommittee was in awe of herdedication and efficiency. SineadLynch, Simon Hannigan, andPPC1 rep Michelle Geraghtywere involved in selling tickets

and collecting sponsorship. Theregional reps, CormacO’Regan, Dawn Carney andSonya Heney, ensured that theball was well attended bytrainees based outside Dublin.Finally, kudos to publicrelations officer Nessa Barry fororganising sponsorship andwine for both SADSI events.

As we hurtle towards theChristmas vacation, the SADSI

committee is hard at workpreparing for the upcomingelections and AGM. A mailshotdetailing the nomination andelection process will be sent outsoon. We would encourage allinterested trainees, particularlythose on the current PPC1course, to involve themselves inthe formation of next year’scommittee.

Des Barry, auditor

SADSI ball 2003 – yet another flaming successThe highlight of the trainee

social calendar was 15November in the salubrioussurrounds of the BerkeleyCourt Hotel. An unprecedentednumber of guests gathered for apre-dinner wine reception inthe main lobby sponsored byComans Wholesalers, beforeenjoying a five-course meal in

the main ballroom. Dinner wasfollowed by a bonanza ofenviable spot prizes, kindlysponsored by BrightWaterSelection, Kelly & PingRestaurant, HMV, the UnicornRestaurant, Sunway Holidaysand Arthur Cox Solicitors. Itwas then time for the band,Lightning Strikes, to take the

helm. Everyone present willagree that they provided thefinest of entertainment, andwere overshadowed only by arendition of Suspicious minds byPPC2 trainee Karl Sherlock,who took to the stage in theguise of Elvis, no less (seephoto, bottom left). The liveperformances were followed by

a disco DJ, before anentourage made their way toLeggs on Leeson Street,despite the crisp weatherconditions. All in all, it was agreat night, and I would like tothank everyone for comingalong.

The committee would liketo thank the sponsors whomade the 2003 SADSI ballpossible: BrightWaterSelection; Rochford BradyLaw Searchers; BCM HanbyWallace; Ivor Fitzpatrick &Company; Whitney Moore &Keller; McCann FitzGerald;LK Shields; Ellis & Ellis LawSearchers; Dillon Eustace;Frances E Barron & Co;Harrison O’Dowd; HolmesO’Malley Sexton; and Blakeand Kenny Solicitors.

Lorraine Rowland, eastern rep

Voice of experienceMr Justice Michael Peart addressing the 2003 SADSI careers day

in October

Trainee career development day

P A R C H M E N TC E R E M O N I E S

2 0 0 3

Parchment ceremonies


63



64

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65

Annette Barry, Deirdre Blackwell, Jaqueline Breen, Hilary Callanan, Antonia Canney, Colin Carroll, Shane P Connolly, Daragh Feeney, Rory Fitzgerald,Garrett Fitzpatrick, Hazel Flynn, Mary Flynn, Dorothea Gleeson, Elaine Guinan, Jennifer Haughton, Alan Heuston, Pauric Hyland, Deirdre Kennedy,

Siobhán Laighléis, Ian Lynam, Gearoid Lynch, Jennifer A McCarthy, Andrea McGill, Marc McLoughlin, Antonia Moore, Gerard O’Brien, Martin O’Carroll,Róisín Peart, Donnacha O’Connor, Violet Quigley, Louise Rouse, Jean P Scanlan, Marcella Sheehy, Brendan Slattery, Aislinn Walshe, James Wall

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

Newly-qualified solicitors at the presentation of their parchments on 12 March 2003

Newly-qualified solicitors at the presentation of their parchments on 4 September 2003



66

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67

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cGrady, Plunkett M

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cKenna, Anna M

cLaughlin, Leona McM

ahon, Orla M

cMullin, B

arry Moloney, Leo M

oore, Edel Murray, G

erardN

evin, Lynne Northridge, D

an O’C

onnor, Eibhlin O’D

onnell, Mary O

’Farrell, Brid O

’Flynn McS

winey, H

azel O’K

eeffe, Aileen O’Leary, N

iamh O

’Leary, Rosem

ary O’Loughlin, M

ichael Reilly, Thom

as Reynolds, K

eithR

obinson, Neasa R

yan, Sarah S

cally, Zoe Mary S

mith, M

airead Sw

eeney, Caitriona Tim

mins, Jennifer Tuite, C

laire Mary W

aterson, Elaine C W

hite

New

ly-qualified solicitors at the presentation of their parchm

ents on 29 M

ay 2003



68

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69

Marie Therese Allen, Etain B

oyce, Sinead B

oyle, Freda Rosem

ary Brennan, Eileen B

urke, Katherine B

utterly, Michael B

yrne, Robert C

annon, Hilary N

ora Casey, S

arah Cassidy, Eleanor C

leary, Emm

a Com

yn,S

ean Conlan, G

arry Connolly, Aisling C

ostello, Ann Coyle, O

rla Cullinan, Ann M

arie Dooley, W

endy Doyle, R

obert Duff, M

ary Catherine D

wyer, Anne Ellis, W

illiam Fogarty, Louise Forrest, N

oelle Galvan, Peter

Gleeson, M

ichael Kieran G

riffin, Dara H

arrington, Sinead H

ealy, Helen H

ennessy, Clodagh K

eating, Donal K

eenan, Shane K

elleher, Alma K

elly, Ludhaidh Kerin, Edw

ena Lynch, Catherine M

McD

arby, John Mark

McFeely, C

laire McG

rade, Anita Mary M

oran, Lynda Mullin, Enda N

evin, Sinead N

olan, Susan N

oone, Sharon O

akes, Heather M

aria O’B

yrne, Aidan O’C

onnell, Joanne Mary O

’Donnell, C

lare O’S

hea-O’N

eill,Fionnuala O

’Sullivan, Lillian O

’Sullivan, Alison Pow

er, Margarita Purtill, Alyson R

odi, Richard R

yan, Jonathan Sheehan, Andrew

Synnott, G

erald Thornton

New

ly-qualified solicitors at the presentationof their parchm

ents on 9 July 2

003

Professionalinformation


70

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All advertisements must be paid for prior to publication. Deadline forJanuary/February Gazette: 23 January 2004. For further information, contactCatherine Kearney or Valerie Farrell on tel: 01 672 4828 (fax: 01 672 4877)

• Lost land certificates – �46.50 (incl VAT at 21%)• Wills – �77.50 (incl VAT at 21%)• Lost title deeds – �77.50 (incl VAT at 21%)• Employment miscellaneous – �46.50 (incl VAT at 21%)

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GazetteLawSociety

LOST LANDCERTIFICATES

Registration of Title Act, 1964An application has been received fromthe registered owners mentioned in theschedule hereto for the issue of a landcertificate as stated to have been lost orinadvertently destroyed. A new certifi-cate will be issued unless notification isreceived in the registry within 28 daysfrom the date of publication of thisnotice that the original certificate is inexistence and in the custody of someperson other than the registered owner.Any such notification should state thegrounds on which the certificate isbeing held.(Register of Titles), Central Office, LandRegistry, Chancery Street, Dublin (Published 5 December 2003)

Regd owner: John F Baxter, Bellsgrove,Ballynarry, Co Cavan; folio: 894F;lands: Bellsgrove; area: 0.7334hectares; Co Cavan

Regd owner: Suzanne Crowe; folio:666; lands: townland of Doon andbarony of Bunratty Upper; area:64.5163 hectares; Co Clare

Regd owner: John Hanrahan and AnneHanrahan; folio: 8149F; lands: town-land of Doonaun and barony of TullaUpper; area: 0.422 acres; Co Clare

Regd owner: John Houlihan andKathleen Houlihan; folio: 3719F;lands: townland (1), (2), (4) Ross, (3)Carrowmore South and barony of(1), (2), (4) Moyarta, (3) Ibrickan;area: (1) 0.6660 hectares, (2) 32.8807hectares, (3) 0.1922 hectares, (4)8.8197 hectares; Co Clare

Regd owner: John Moylan; folio:4137L; lands: a plot of ground beingpart of the townland of Coolroe andbarony of Muskerry East in the coun-ty of Cork; Co Cork

Regd owner: the lord mayor, aldermenand burgesses of Cork; folio: 12900;lands: a plot of ground being part ofthe townland of Knocknaheeny andbarony of Cork in the county ofCork; Co Cork

Regd owner: Charles Doherty,Greencastle, Co Donegal; folio:308F; lands: Eleven Ballyboes; area:0.1821 hectares; Co Donegal

Regd owner: Donald Loughran, 30Meadow Hill, Kiltroy, Letterkenny,Co Donegal; folio: 43710F; lands:Ardrawer; Co Donegal

Regd owner: Alfred and StephenMcCroary, Drumbane, Castlefin, CoDonegal; folio: 2588; lands: Graffy;area: 6.8040 hectares; Co Donegal

Regd owner: Peter and Hugo Sweeney,Summerhill, Donegal; folio: 12274F;lands: Summerhill; area: 1.480hectares; Co Donegal

Regd owner: George White, Cully,Laghey, Co Donegal; folio: 4472R;

lands: Cuilly; area: 7.9242 hectares;Co Donegal

Regd owner: Andrew Brady; folio:DN18373; lands: property situate inthe townland of Crumlin and baronyof Uppercross; Co Dublin

Regd owner: John Collins; folio:DN8237; lands: property situate inthe townland of Kilcrea and baronyof Nethercross; Co Dublin

Regd owner: Shane Fearon and ValerieFearon; folio: DN21620F; lands:property known as 33 CraigmoreDrive, Tallaght, situate in the town-land of Oldbawn and barony ofUppercross, shown as plan 453K;Co Dublin

Regd owner: Cormac Hade; folio:23042L; lands: property situate inthe townland of Jobstown andbarony of Uppercross situate to thenorth side of the Tallaght toBlessington Road in the town ofTallaght; Co Dublin

Regd owner: Henry Haynes; folio:DN11308; lands: a plot of groundknown as 3 Shanliss Grove, in theparish of Santry and in the district ofSantry and in the county borough ofDublin; Co Dublin

Regd owner: Daniel Patrick O’Connor;folio: DN13151; lands: property sit-uate in the townland of Ballinteerand barony of Rathdown; part of theproperty situate on the north side ofBallinteer Avenue in the village ofBallinteer; Co Dublin

Regd owner: Laurence and DeirdreO’Toole; folio: DN6331L; lands:Shalamar, 11B Wellington Park,Whitehall Cross, Dublin 6W; CoDublin

Regd owner: Miriam Duffy andMichael Harris; folio: DN18673;lands: a plot of ground situate to thenorth of the Howth Road in theparish and district of Killester andcity of Dublin; Co Dublin

Regd owner: Kay Scanlon; folio:DN77210F; lands: property knownas 2 Mill Cottages, Dartry, situate inthe parish of St Peters and district ofRathmines; Co Dublin

Regd owner: Pierce White; folio:DN108523F; lands: property situatein the townland of Balgaddy andbarony of Uppercross; Co Dublin

Regd owner: Declan Wogan; folio:DN119012F; lands: property situatein the townland of Ballisk Commonin the barony of Nethercross, knownas site no 52 Hazelwood,Beaverstown Road, Donabate; CoDublin

Regd owner: Brendan Doran andJosephine Doran; folio: 49226F;lands: townland of Treanalaur andbarony of Dunkellin; area: 0.146hectares; Co Galway

Regd owner: Michael Feehan(deceased); folio: 2275F; lands:

townland of Keeraunbeg and baronyof Moycullen; area: 0.2930 hectares;Co Galway

Regd owner: John Gaffney and MaryJosephine Gaffney (deceased); folio:12036F; lands: townland of Tisaxonand barony of Tiaquinn; area: 0.500acres; Co Galway

Regd owner: Patrick Keane (deceased);folio: 20075; lands: townland ofCaheronaun and barony of Lough-rea; area: 27 acres, 2 roods, 8 perch-es; Co Galway

Regd owner: Gerard Kenny; folio:3881F; lands: Headford and baronyof Clare; Co Galway

Regd owner: William Murphy(deceased); folio: 26277; lands:townland of (1), (2) Caherawoneenand (3), (4) Northhampton andbarony of (1), (2), (3) and (4)Kiltartan; area: (1) 3.1540 hectares,(2) 4.7190 hectares, (3) 2.0040hectares, (4) 2.6700 hectares; CoGalway

Regd owner: Gerald Quinn; folio: (1)13449, (2) 14567; lands: townland of(1) and (2) Cloonlyon and barony of(1) and (2) Killisn; area: (1) 3.4904hectares and (2) 10.3650 hectares;Co Galway

Regd owner: Michael Breslin; folio:8951F; lands: townland of Liss andbarony of Dunkerron South; CoKerry

Regd owner: James and Maura Mortell;folio: 3511F; lands: townland ofToor and barony of DunkerronSouth; Co Kerry

Regd owner: Joseph Carr; folio: 795L;lands: townland of Morristownbillerand barony of Connell; Co Kildare

Regd owner: Robert Cusack; folio:14920R; lands: townland of Farnaneand Liscreagh and barony ofOwneybeg; Co Limerick

Regd owner: Dina Fitzgerald; folio:25929; lands: townland ofBallybrown and barony ofPubblebrien; Co Limerick

Regd owner: William and IreneLenihan; folio: 6473F; lands: town-

land of Abbeyfeale East and baronyof Glenquin; Co Limerick

Regd owner: John Moran: folio: 2062F;lands: townland of Cloonreask andbarony of Connello Lower; CoLimerick

Regd owner: David Jones, Dring,Granard, Co Longford; folio: 6797;lands: Ballinrooey; area: 34.9547hectares; Co Longford

Regd owner: James Shiels, Dungooley,Dundalk, Co Louth; folio: (1) 7108,(2) 8446; lands: Lurgankeel,Dungooley; area: 5.293 acres, 5.331acres; Co Louth

Regd owner: James Moran (junior);folio: 8577; lands: townland of (1)and (2) Carrowbrinoge and barony of(1) and (2) Carra; area: (1) 9.0421hectares and (2) an undivided moietyof 8.8575 hectares; Co Mayo

Regd owner: Kathleen and RobertO’Regan (deceased); folio: 26097F;lands: townland of (1), (2) and (3)Keel East and barony of (1), (2) and(3) Burrishoole; area: (1) 0.334hectares, (2) 0.627 hectares, (3) 0.185hectares; Co Mayo

Regd owner: Patrick Walsh (deceased)folio: 13170; lands: townland ofCavanquarter and barony ofKilmaine; area: 8.1490 hectares; CoMayo

Regd owner: Maura McGuinness,Oakley Park, Kells, Co Meath; folio:9942; lands: Oakleypark orLawreneetown; area: 11.1667; CoMeath

Regd owner: Cornelius Gleeson(deceased); folio: 12771; lands: town-land of Maudemount and barony ofKilnamanagh Lower; Co Tipperary

Regd owner: Michael J McGowan(deceased); folio: 13421; lands: town-land of Carrowhubbuck South andbarony of Tireragh; area: 28 perches;Co Sligo

Regd owner: Mary Keane,Ballinagrenia, Rosemount, Moate,Co Westmeath; folio: 5309; lands:Custorum; area: 15.4387 hectares;Co Westmeath



71

DUBLIN SOLICITORS’PRACTICE OFFERS

AGENCY WORK IN NORTHERN

IRELAND* All legal work undertaken

on an agency basis* All communications to clients

through instructing solicitors* Consultations in Dublin if required

Contact: Séamus ConnollyMoran & Ryan, Solicitors,

Arran House,35/36 Arran Quay, Dublin 7.

Tel: (01) 872 5622 Fax: (01) 872 5404

e-mail: [email protected] Bank Building, Hill Street

Newry, County Down.

Tel: (0801693) 65311Fax: (0801693) 62096E-mail: [email protected]

ABACUS BOOK KEEPING

SERVICES

SPECIALISING IN LEGAL ACCOUNTS,NORTH EASTERN

REGION

For further information,please contact

Fleur @042-9382157086-8147270

[email protected]

www.liquidations.ieFor information on insolvency, employees entitlements,defending a section 150 application, informal schemesof arrangement, dealing with the sheriff, services tosolicitors and free Insolvency Helpline Service.

Regd owner: Michael Kiernan, c/o MissKathleen Smith, Carrick, Castlejor-dan, Edenderry, Co Offaly; folio:4317; lands: Grange Beg; area:21.6506 hectares; Co Westmeath

WILLS

Brady, Margaret (deceased), late of 205Brookvale Lawn, Drogheda, Co Louth.Would any person having knowledge ofa will made by the above nameddeceased who died on 15 January 2003at Our Lady of Lourdes Hospital,Drogheda, Co Louth, please contactThornton Solicitors, 52 O’ConnellStreet, Limerick; tel: 061 315 543, fax:061 315 503, ref: BD/3894

Bukin, Betty (deceased), late of 45Forest Walk, Rivervalley, Swords, CoDublin. Would any person having anyknowledge of the whereabouts of a willmade by the above named deceasedplease contact O’Scanaill & Co,Solicitors, 41 Main Street, Swords, CoDublin; tel: 01 840 4371, e-mail:[email protected]

Donohoe, Eamonn (deceased), whodied on 6 August 2003 and late of 187Clonsilla Road, Blanchardstown, Dublin15, Crott, Moyne, Co Longford and 51Cannanbury, Enfield, Middlesex, EN13LW. Would any person having knowl-edge of a will made by the above nameddeceased please contact O’SullivanSteen and Co, Solicitors, Main Street,Castleknock, Dublin 15; tel: 01 820

9924/820 9925, fax: 01 820 9929, e-mail:[email protected]

Farrell, Kieran (deceased), late ofBeltichburn, Drogheda, Co Louth.Would any person having knowledge ofthe whereabouts of a will executed bythe above mentioned deceased who diedon 21 August 2003, please contactBranigan Berkery, Solicitors, 29Laurence Street, Drogheda, Co Louth;tel: 041 983 1238, fax: 041 983 1145

Gallagher, Marita (deceased), late of 66Herberton Road, Rialto, Dublin 12 andformerly of Bridge Street, DonegalTown. Would any person having knowl-edge of a will made by the above nameddeceased who died on 1 November 2003at Killiney Nursing Home, Co Dublin,please contact PC Carroll & Co,Solicitors, 115 Lower Baggot Street,Dublin 2; tel: 01 676 7676, fax: 01 6762344, e-mail: [email protected]

Glavin, Desmond Joseph (deceased),late of 43 Hardiman Road, Drumcondra,Dublin 7. Would any person havingknowledge of a will made by the abovenamed deceased who died on 12 August1980 at Jervis Street Hospital, pleasecontact Bryan F Fox and Co, Solicitors,46 North Circular Road, Dublin 7

Glavin, Ann (deceased), late of 43Hardiman Road, Drumcondra, Dublin7. Would any person having knowledgeof a will made by the above nameddeceased who died on 3 March 2002 atWexford General Hospital, please con-

tact Bryan F Fox and Co, Solicitors, 46North Circular Road, Dublin 7

Guidera, Timothy (deceased), late ofSringfield, Borris in Ossory, Co Laois.Would any person having knowledge ofa will made by the above nameddeceased who died on 24 October 2003,please contact Devitt DoorleyMacNamara, Solicitors, Roscrea, CoTipperary; tel: 0505 21176, fax: 050522113, e-mail: [email protected]

McGath, Patrick (or Pat) (deceased),late of 9 Whitehall Place, Galway.Would any person having knowledge ofa will made by the above nameddeceased who died on 5 Septmeber2003, please contact Elaine Brady,Hehir Mulryan, Solicitors, 17 FosterStreet, Galway; e-mail: [email protected]

O’Reilly, Mary Bridget, late of 32Glendoher Drive, Rathfarnham, Dublin14 and formerly of Ardamagh,Ballyhaise in the county of Cavan, born1 February 1921. Would any personhaving any knowledge of a will made bythe above named deceased who died on14 January 2003 at St James Hospital,Dublin 8, please contact Sarah Ryan,Mangan O’Beirne Solicitors, 31Morehampton Road, Dublin 4; tel: 01668 4333, fax: 01 668 4252, e-mail:[email protected]

Power, Deirdre (deceased), late of 38Sherlock Park, Skerries, Co Dublin.Would any person having knowledge ofa will made by the above nameddeceased who died on 5 June 2003,please contact Gerrard L McGowan,Solicitors, 29 Thomas Hand Street,Skerries, Co Dublin; tel: 01 849 2075,fax: 01 849 2098

Walsh, Meadbh Agnes (orse Meadh/Meadb/Meave) (deceased), retired shopassistant late of ‘Cascia’, San AntonioPark, Salthill, Galway. Would any person having knowledge of a will made by the above named deceased who died on 21 March 2002, pleasecontact L O’Connor and Co, Solicitors,196 Upper Salthill, Galway; tel: 091 525 346

Walsh, John Patrick (deceased), (doc-tor) late of ‘Cascia’, San Antonio Park,

Salthill, Co Galway and formerly SantaMaria, Knocknacarra, Salthill, Galway;‘Suncroft’, 61 Lower Salthill, Galway; 8Fr Griffin Road, Galway; and 90 FrGriffin Road, Galway. Would any per-son having knowledge of a will made bythe above named deceased who died on25 September 2001, please contact LO’Connor and Co, Solicitors, 196Upper Salthill, Galway; tel: 091 525 346

EMPLOYMENT

Apprentice solicitor available. Amature law graduate seeks position asapprentice solicitor urgently. Hardworking, bright and enthusiastic.Considerable employment experience.Computer literate. First Irish examina-tion passed. Available for immediatestart. Any area considered. Please replyto box no 100

Experienced solicitor available forlocum/part-time work in North Kerryarea. Please contact box no 101

Experienced solicitor available forlocum, part-time, contract work in pro-bate and conveyancing – Sligo, Leitrim,Roscommon, Longford. Reply to boxno 102

Locum solicitor required fromJanuary 2004 to June/July 2004 withexperience in conveyancing and pro-bate. Apply with CV to NiamhKavanagh, Keane Solicitors, HardimanHouse, Eyre Square, Galway; tel: 091566 767

Part-time locum solicitor requiredfor conveyancing and probate practice,to cover six months’ maternity leavecommencing 5 January 2004 to 1 July2004. Clonmel practice. Reply to boxno 103

TO LETSecond floor suite of offices at132 Lower Baggot Street,Dublin. Short or long-term leaseoffered. Will suit solicitors set-ting up practice. For details, con-tact Patrick J Madigan, solicitor;tel: 01 492 1111



72

NORTHERNIRELAND

SOLICITORSWe will engage in,

and advise on, all Northern Ireland-

related matters,particularly personal injury

litigation.

Consultations whereconvenient.

OLIVER M LOUGHRAN & COMPANY

9 HOLMVIEW TERRACE,OMAGH,

CO TYRONE

Phone (004428) 8224 1530Fax: (004428) 8224 9865

e-mail:[email protected]

LAW AGENCY SERVICESENG L A N D & W ALES

S O L I C I T O R SEstablished 1825

SPANISH LAWYERS

RAFAEL BERDAGUER ABOGADOS

Avda. Ricardo Soriano, 29,Edificio Azahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain

Tel: 00-34-952823085 Fax: 00-34-952824246e-mail: [email protected]

Web site: www.berdaguerabogados.com

PROFILE:

Spanish Lawyers Firm focusedon serving the need of the for-

eign investors, whether in compa-ny or property transactions and allattendant legalities such as ques-tions of inheritance, taxation,accounting and bookkeeping,planning, land use and litigation inall Courts.

FIELD OF PRACTICES:

General Practice, Administra-tive Law, Civil and Commercial

Law, Company Law, Banking andForeign Investments in Spain,Arbitration, Taxation, Family Law,International Law, Litigation in allCourts.

• Fearon & Co act for Irish residents in the fields ofprobate, property and litigation

• Each solicitor is available by direct line, fax or e-mail. Conferences can be easily arranged

• Fearon & Co is committed to the use of information technology to help improve both the quality and speed of service for the benefits of all clients both at home and abroad

• The firm’s offices are within half an hour of London W aterloo station and within a short travel from both Gatwick and Heathrow airports, with easy access fromthe London orbital M25 motorway

PHONE NOW FOR A BROCHUREWestminster House

12 The Broadway, Woking, Surrey GU21 5AU EnglandFax: +44 (0)1483 725807

Email: [email protected] www.fearonlaw.comPROPERTYJohn Phillips

Tel: +44 (0)1483 747250

LITIGATIONMartin Williams

Tel: +44 (0)1483 776539

PROBATEFrancesca Nash

Tel: +44 (0)1483 765634

Publication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland.

MISCELLANEOUS

Northern Ireland solicitors providingan efficient and comprehensive legalservice in all contentious/non-con-tentious matters. Dublin-based consul-tations and elsewhere. Fee apportion-ment. ML White, Solicitors, 43-45Monaghan Street, Newry, Co Down;tel: 080 1693 68144, fax: 080 169360966

Northern Ireland agents for all con-tentious and non-contentious matters.Consultation in Dublin if required. Feesharing envisaged. Offices in Belfast,Newry and Carrickfergus. ContactNorville Connolly, D&E Fisher,Solicitors, 8 Trevor Hill, Newry; tel:080 1693 61616, fax: 080 1693 67712

England and Wales solicitors willprovide comprehensive advice andundertake contentious matters. Officesin London, Birmingham, Cambridgeand Cardiff. Contact Levenes Solicitorsat Ashley House, 235-239 High Road,Wood Green, London 8H; tel: 00442088 17777, fax: 0044 2088 896395

Solicitor’s practice for sale. Dublincity-centre practice. Fees circa �225K.Replies to McCann Kane and Co,

Chartered Accountants, OrchardHouse, Beaumont Avenue, Church-town, Dublin 14

TITLE DEEDS

In the estate of Mary BridgetO’Reilly, late of 32 Glendoher Drive,Rathfarnham, Dublin 14, and formerlyof Ardamagh, Ballyhaise in the countyof Cavan. Anybody with any informa-tion regarding the whereabouts of thetitle deeds of 32 Glendoher Drive,Rathfarnham, Dublin 14, purchased on9 September 1975 from Mr EamonnMooney for the sum of £10,700, please contact Sarah Ryan, ManganO’Beirne, Solicitors, 31 MorehamptonRoad, Dublin 4; tel: 01 668 4333, fax: 01 668 4252, e-mail: [email protected]

In the matter of the Landlord andTenant Acts, 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act, 1978: an application by PetrogasEngineering LtdTake notice that any person having aninterest in the freehold estate of the fol-lowing property: land situate atConyngham Road, Kilmainham,Dublin 8, held under lease dated 9August 1842 and made betweenWilliam Worthington of the one partand Andrew O’Toole of the other partfor the term of 200 years from 1 July1842 at the yearly rent of £25.

Take notice that PetrogasEngineering Ltd, the applicant,intends to submit an application to thecounty registrar in the county of thecity of Dublin for the acquisition of thefreehold interest together with anyintermediate interest in the aforesaidproperty and any persons asserting thatthey hold a superior interest in theaforesaid premises are called upon tofurnish evidence of title to the afore-mentioned premises to the under-signed within 21 days from the date ofthis application.

In default of any such notice beingreceived by the undersigned solicitors,the said Petrogas Engineering Ltdintends to proceed with the applicationbefore the county registrar in the countyof the city of Dublin for directions asmay be appropriate on the basis that theperson or persons beneficially entitled tothe superior interest including the free-hold reversion to the aforesaid propertyare unknown and unascertained.Date: 26 November 2003Signed: McGarr Solicitors (solicitors forthe applicant), 34/35 Wicklow Street,Dublin 2

TWENTY YEARS ADVISING CLIENTS IN REAL ESTATE TRANSACTIONS IN SPAIN

Documents

Contents Gazette LawSociety · resume with a joint January/ February issue, due out in early February. New officer team in place 16. Gerard Doherty 1,073 17. Thomas Martyn 1,068 18