JANUARY/FEBRUARY 1999 CONTENTS - Law Society of Ireland · JANUARY/FEBRUARY 1999JANUARY/FEBRUARY 1999 The Law Society of Ireland can accept no responsibility for the accuracy of contributed

Cover StoryLast call for the sound of silence?

The proposal to remove a suspect’s right to silence marks anotherstep in the continuing erosion of the fundamental principles of criminal law. Richard English argues that the legal profession mustdemand a quid pro quo if the proposal becomes law

Expert evidence: the new rules explained

The procedures for using expert evidence in personal injury litigation have been radically overhauled. The Law Society’s

Litigation Committee sets out the main changes introduced by the new superior court rules and explains their implications for practitioners

Litigation and theYear 2000What recourse do you have in law if your computer system is one of thoseaffected by the so-called MillenniumBug? Can you sue for compensation and,if so, whom do you sue? Denis Kelleherdiscusses the legal options arising out ofthis extraordinary problem

Time for a rethinkon small business?

Small companies will be the focus of legislation which is due to be published over the coming weeks. Pat Igoe

reports on what the Companies (Amendment) Bill, 1999 is likely to contain – and what it probably won’t

What can we do for you?

The Law Society provides a wide range of services for solicitors above and beyond itsfamiliar regulatory and representative roles. In the first of a series of articles, Member

Services Executive Claire O’Sullivan explainswhat these services are and how they can help

your practice

JANUARY/FEBRUARY 1999 LAW SOCIETY GAZETTE 1

CONTENTSCONTENTS

REGULARS

President’s message 3

Viewpoint 4

Letters 11

News 12

Briefing 27

Council reports 27

Committee reports 30

Practice notes 32

Legislation update 33

Personal injuryjudgments 35

ILT digest 36

Eurlegal 42

People and places 46

Book reviews 51

Professional information 54

14

JANUARY/FEBRUARY 1999JANUARY/FEBRUARY 1999

The Law Society of Ireland can accept no responsibility for the accuracy of contributedarticles or statements appearing in this magazine, and any views or opinionsexpressed are not necessarily those of the Law Society’s Council, save where other-wise indicated. No responsibility for loss or distress occasioned to any person actingor refraining from acting as a result of the material in this publication can be accept-ed by the authors, contributors, editor or publishers. Professional legaladvice should always be sought in relation to any specific matter.

Editorial Board: Dr Eamonn Hall (Chairman), Conal O’Boyle(Secretary), Mary Keane, Ken Murphy, Michael V O’Mahony

Editor: Conal O’Boyle MA

Reporter: Barry O’Halloran

Designer: Nuala Redmond

Editorial Secretaries: Andrea MacDermott, Catherine Kearney

Advertising: Seán Ó hOisín, tel/fax: 837 5018, mobile: 086 8117116, E-mail: [email protected]. 10 Arran Road, Dublin 9

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Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4801.E-mail: [email protected]

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PRESIDENT’S MESSAGEPRESIDENT’S MESSAGE

O ne of my priorities for my year asPresident is that the Law Societyshould continue to enhance the many

services it provides to the solicitors’ profession(for more on this, see pages 26-27). Possiblyone of the most important initiatives in thisregard will be the launch of the Society’s website this month. This is an exciting develop-ment for the profession and will enable theSociety to add significantly to the informationthat the profession requires in an ever-devel-oping and vibrant economy. You will learnmore about this over the next few weeks, butfor a sneak preview turn to page 13.

Grasping the euro opportunityAs we move into 1999, change is inevitably in the air. We have alreadyseen one of the most fundamental changes with the launch of the newEuropean currency, the euro, on 1 January. Ireland and the other ten par-ticipating countries are irrevocably fixed as to their currency conversionrates. Under the EU principle of ‘no compulsion, no prohibition’, solici-tors like other businesses are free to conduct business in euros. The pub-lic sector has already indicated its willingness to accept payments in thenew currency. Irish banks will convert your punt accounts into eurodenomination, if you wish.

It is important that the solicitors’ profession remains at the driving edgeof Irish business. During this year, you should familiarise yourself with thenew euro currency.

In January 2002, and it will quickly arrive, all Irish notes and coins willbe withdrawn and the new euro notes and coins introduced. All business-es that will not have already done so must convert to the new currency andhave it adopted in its accounting operations. The Law Society will not bebehind in this regard. The Solicitors’ Accounts Regulations will bechanged to reflect the euro era.

As society develops, there are ever-increasing regulations, directives,statutes and rules to comply with. You will have received your applicationfor a practising certificate for 1999. It is a long document that takes care-ful completion and consideration. There are good reasons for this.

Contrary to what some members of the profession might think, the LawSociety was not the author of the Investor Compensation, Act, 1998 whichhas imposed additional requirements on all solicitors. The EU directivesrelating to the provision of investment services apply to solicitors as theydo to others, hence the necessity of including an additional section in theapplication form this year.

The European experience has been good for Ireland and for the solici-tors’ profession. We live in exciting times: grasp the opportunity and makethe most of it.

Alternative dispute resolutionThis country has enacted the Arbitration Act. Facilities for arbitration,conciliation, mediation and alternative dispute resolution are readily avail-able in Ireland. The solicitors’ profession has sometimes been slow tounderstand and realise the value of arbitration both in domestic and inter-national disputes. With the rising cost of litigation and the difficulties that

can, and are, encountered in that traditionalform of dispute resolution, I believe that agreater emphasis, use and promotion of arbi-tration as a vehicle of dispute resolution shouldbe embraced.

The Law Society will develop and addarbitration modules to the new professionalcourse for apprentices, and we hope to havethe first of these in place by October 2000 inthe new education centre.

The Litigation and Arbitration Committeeof the Society has exciting plans for develop-ing this area of practice for solicitors.

Changes at the Law Society CouncilAt the end of last year, the Council of the

Society appointed the chairmen and members of the committees of theCouncil to November 1999. A complete listing will appear in the new Lawdirectory, which will be with members of the Society shortly.

The majority of the solicitors’ profession is under the age of 40.Endeavouring to give a geographical and gender balance to the member-ship of the committees, and at the same time seeking to encourage newmembers to become actively involved, the Council, on my recommenda-tion, amalgamated and merged the functions of a number of committeesand sub-committees.

Some of the committees in the past did not have any Council membersitting on them. That was not desirable in my view. It has been rectified forthis year.

Seeking to avoid possible conflicts of interest and endeavouring toensure that the representatives of the Society have a nexus and directconnection with the democratically elected Council of the Society, Iproposed a number of changes. The representative of the Society to theInternational Bar Association (IBA) is Laurence K Shields (last year’sPresident) who will serve for a period of four years in succession toMaurice Curran, a former President, who was the Society’s representa-tive for ten years; Geraldine Clarke, a former Junior Vice-President,will represent the Society for the next three years at the CCBE; JamesMcCourt (Dublin) and Donald Binchy (Clonmel) will represent theSociety on the Arbitration Committee of the International Chamber ofCommerce in succession to Maurice Curran and Walter Beatty (Snr)who ably served the profession for many years thereon.

I have also established a ‘Council Development Review Group’ underthe chairmanship of the Senior Vice-President, Anthony Ensor, to seek toexplore ways of encouraging more active participation by the ever-grow-ing number of members of the profession at Council and on its commit-tees.

President John F Kennedy said: ‘Change is the law of life, and those wholook only to the past or present are certain to miss the future’. I believe thatthe solicitors’ profession in general does embrace and accept the need forchange.

Go m’beimidh beo ar on am seo arís!

Patrick O’ConnorPresident

Ringing the changes

PIC: RO

SLYN

BYRN

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4 LAW SOCIETY GAZETTE JANUARY/FEBRUARY 1999

VIEWPOINTVIEWPOINT

Much has been written inrecent months regarding

taxation and EuropeanCommunity law, giving theimpression that we are embarkingon a journey through a legal andpolitical minefield which canonly result in the Irish tax systembeing blown to pieces by theEuropean Commission.

As is so often the case whenpoliticians and journalists try totackle legal subjects, much of thecomment has been grossly inac-curate. The Germans are not in aposition to dictate the upwardmovement of Irish corporationtax rates, the Commission cannotabolish Ireland’s favourable taxregime, the internal market doesnot require the adoption of taxrules by qualified majority voting, and monetary union doesnot inevitably require total taxharmonisation. Nevertheless,European law does have anincreasingly important role toplay.

Relaxed attitudeIn so far as tax rules constitutestate aid, they are subject tosupervisory control by theEuropean Commission in accor-dance with articles 92 and 93 ofthe EC treaty. Favourable taxrules which operate to reduce thetax burden on specific sectors orpersons constitute state aid,although a general low level oftax applicable to all taxpayerswithout distinction does not. Stateaid is incompatible with the com-mon market and is prohibitedunless it has been approved by theCommission in advance.Hitherto, the Commission hastaken at times a relatively relaxedattitude to state aid and initiallyapproved the special Irish zero-rate corporation tax regime forexports and, subsequently, the10% rate for the manufacturingindustry.

It is in this context that the taxbreaks for tenants in theInternational Financial Services

Centre must be seen. Double rentrelief (that is, the ability to deductrental payments twice in order toarrive at taxable income) gives atidy subsidy for those subject to10% corporation tax. For thoselawyers and accountants paying46% income tax on partnershipincome, it is a much more gener-ous aid.

From the point of view of thecommon market, state aid shouldonly be regarded as a problem inso far as it has a distorting effecton competitive investment asbetween Member States. So thegranting of aid to law firms in theIFSC is not likely to worry theGermans. But the granting of aidto internationally-mobile opera-tors, such as investment banks, isa different matter. TheCommission is therefore likely totake a tougher attitude to stateaids in the future.

With the dawning of the newage of monetary union, there arelegitimate concerns throughoutthe Community that, with interestrates and exchange rates nolonger tools of national economicmanagement, differential tax sys-tems will be used to distort com-petition. What, then, under thepresent provisions of the ECtreaty can the Commission andthe Council do?

Little direct impactFirstly, the rules of the internalmarket are of only marginal inter-est. Apart from requiring nationaltax rules to be applied in a non-discriminatory manner to goods,persons, services and capital fromother Member States, the internalmarket provisions of the treatyhave little direct impact on taxlegislation, and certainly do notprovide for the adoption of

Community directives by quali-fied majority.

Second, under article 100 of theEC treaty, tax legislation can nor-mally only be adopted by theCouncil acting unanimously. TheGerman government is currentlypresident of the Council and hasstated that one of its priorities forthe next six months is the adoptionof at least some new legislation onthis basis. In the long term, it mustmake sense for corporation tax tobe based on similar conceptsthroughout the European Union.That, however, does not lead inex-orably to the conclusion that all taxrates must be harmonised. Indeed,that is probably not even a desir-able outcome from a competitionpoint of view.

If the requirement of unanimityis to be altered, then there willhave to be an amendment to thetreaty, which itself requires theunanimous agreement of theMember States. The real questionto be asked is whether it is desir-able that tax legislation be adopt-ed by a majority vote. The presentGerman government obviouslythinks it is. Others have differentviews. In any event, this is a polit-ical, not a legal, question.

Finally, however, there is thefallback provision of article 101of the EC treaty which providesthat a directive may be adopted bya qualified majority of the Councilwhere national law distorts theconditions of competition in thecommon market and there is aneed to eliminate that distortion.So it is not inconceivable thatsome Member States could arguethat Ireland’s unusually low rateof corporation tax, even if not astate aid, could distort investmentcompetition and needs to be elim-inated. Politically, this is highlyunlikely.

Conor Quigley is a barristerpractising at Brick CourtChambers, London and Brussels,and specialising in EuropeanUnion law.

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European challenges to Ireland’s tax regime

Ireland’s International Financial Services Centre: recipient of a ‘tidy subsidiary’


VIEWPOINTVIEWPOINT

Rape, in the definition of MrJustice Finlay, the former

Chief Justice, ‘is a gross attackupon the human dignity and thebodily integrity of a woman and aviolation of her human and con-stitutional rights’. A trial for rape,in the experience of many of thevictims, is something not verydifferent: a second ordeal, repli-cating and often intensifying thetrauma of the original abuse. Thevery small percentage of rapesreported to the authorities isdirectly attributable to the fear onthe part of women of a legalprocess that they perceive to beconfrontational, humiliating andultimately unjust.

These fears derive directlyfrom the inadequacies of a systemwhich continues to deny a rapevictim separate legal representa-tion, to treat her simply as chiefwitness in the case the State isbringing against the accused. It ispossible that she will not havemet the barrister representing theprosecution, nor will she haveaccess to the Book of Evidence.She has no right to request thecalling of particular witnesses. Itis the role of the defence counselto try to ‘win’ the case by show-ing up the witness – who is not ontrial – in the worst possible light.His task (and the defence barristeris almost invariably male) is touse every means available to dis-credit the complainant. The vic-tim must relive her rape, in everyintimate detail, before a court-room of strangers and in the faceof the defence lawyer whose taskis to prove she is a liar. It is nowonder that rape victims have fre-quently described the experienceof such cross-examination asaggressive, offensive and degrad-ing.

The reality of the present sys-tem is that the processing of rapeand sexual assault cases throughthe criminal justice system exac-erbates rather than alleviates thedevastating effects of the crimeon the victim and by intensifying

The case for separate legal representation for rape victims

the distress creates an experienceof re-victimisation. Many victimshave not only felt disempoweredand humiliated as a result of theirtreatment; they have expressedanger and betrayal at theappalling attrition and convictionrates in these cases. Victims ofrape and sexual assault suffergreater and more persistent psy-chological and social effects thanany other group of victims of vio-lence.

The Dublin Rape CrisisCentre has been consistently andstrongly critical of the demon-strable inadequacies of a systemwhich can produce such feelingsof isolation, vulnerability andeven guilt on the part of the rapevictim; and it is convinced thatthis is rooted in the injustice ofdenying the victim separate legalrepresentation. Such representa-tion has been introduced in otherjurisdictions with conspicuoussuccess. In Denmark, for exam-ple, research has shown that it

has done more to improve thesystem of dealing with sexualassault than any alteration in thesubstantive criminal law or rulesof evidence. In Norway, the sys-tem is also working well, despiteinitial opposition from theAssociation of NorwegianLawyers.

Separate legal representationsuccessfully provides support forthe complainant, while the merepresence in court of a lawyer act-ing on her behalf has been suffi-cient to ensure that she is fairlytreated. Lengthy cross-examina-tions are no longer the norm, andvictims are becoming more will-ing to testify in court. Thesedevelopments have also con-

tributed significantly to encourag-ing prosecutions which otherwisemight not have been brought.

While we must treat with duecaution the assumption that whatis working well elsewhere wouldbe equally efficacious in thisjurisdiction, given the culturaland legal differences, the DublinRape Crisis Centre, after very

careful study and consideration,remains totally convinced thatseparate legal representation forcomplainants in rape and sexualassault cases would providemuch-needed support. This wouldalso render the trial process con-siderably less traumatic, andwould encourage women toreport rapes without the fear ofthe legal process intensifyingtheir distress.

Last year, the Dublin RapeCrisis Centre initiated a researchproject (with the support of theEU Grotius Programme) carriedout by the School of Law atTrinity College, Dublin. The aimof the project was a comparativeanalysis of the laws and legal pro-

cedures relating to rape, and theirimpact upon victims of rape, inthe 15 Member States of the EU.

This is a summary of the expe-riences of Irish participants whencompared with the experiences ofparticipants from the other fourselected Member States,Belgium, France, Denmark andGermany. The study found thatIrish participants:1. Rated the attitude of the chief

police interviewer significantlymore positively

2. Reported feeling significantlyless confident when testifying

3. Reported feeling less articulatewhen testifying

4. Rated the defence lawyer asmore hostile

5. Rated the trial judge as havinga more positive attitudetowards them

6. Reported that involvement inthe legal process had a signifi-cantly more negative effect ontheir family life when com-pared with the reported effecton the family life of partici-pants from the other fourselected Member States

7. Perceived the legal process assignificantly less fair

8. Reported feeling significantlymore negative about havingbeen involved in the legalprocess, and finally

9. Reported being significantlyless satisfied overall with thelegal process.

The Minister for Justice, JohnO’Donoghue, is of the view thatcomplainants in rape trials shouldbe entitled to separate legal repre-sentation when being cross-exam-ined on their previous sexual his-tory because the court is dealingwith an issue which may affectcertain constitutional rights.

The Dublin Rape Crisis Centrewelcomes this first step towardsfull legal representation for rapevictims, male and female.

Olive Braiden is Director of theDublin Rape Crisis Centre.

G

Olive Braiden: ‘separate legal representation would provide

much-needed support’

‘The processing of rape and sexual

assault cases through the criminal

justice system exacerbates rather than

alleviates the devastating effects of

the crime on the victim’


‘I n response to the Ministerfor Justice, this group ismaking an historic recom-

mendation. It is proposing adevelopment of Government tocomplete a process commenced inthe 1920s. It is a radical docu-ment suggesting changes whichwill make justice more accessibleto the people.’ – Extract fromforeword to First Report ofWorking Group on a CourtsCommission.

Designing a courts syste

Following the final meeting of the Working Group on the Courts Commission recently, a dinner was held for all who had served as members for some or allof the three-year period of the working group together with those who had at various times acted as research assistants to the group.

Pictured here are (front row, from left): Laura Rattigan BL, research assistant; Mr Justice Ronan Keane, Supreme Court; Mr Justice Robert Barr, High Court; Mrs Justice Susan Denham, Supreme Court, chairperson of the working group; Mr Justice Anthony J Hederman, former Supreme Court judge and chairman

of the Law Reform Commission; Ken Wright, management consultant; Roísín McDermott, chairwoman of Women’s Aid.Second row (from left): Mr Justice Esmond Smyth, President of the Circuit Court; Cormac Cronin, Department of Finance; Ken Murphy, Director General

of the Law Society; Mrs Justice Catherine McGuinness, High Court.Third row (from left): Noel Synnott, Department of Justice; Kevin Duffy, Deputy Chairman of the Labour Court; Caitlín Ní Fhlaitheartaigh, Office of

the Attorney General; Mr Justice Kevin O’Higgins, High Court.Fourth row (from left): Garret Simmons BL, research assistant; John Rogers SC.

Back row (from left): Eanna Hickey BL, research assistant; Marie Ryan, Department of Justice; Caoihmín O’hUiginn, Department of Justice; David Herlihy,research assistant; Sinead Ryan BL, research assistant; Colm Breslin, Department of Finance

‘The courts in Ireland have anair of the 19th Century about them.Our task is to design a courts sys-tem appropriate to the 21stCentury.’ This was the challengeput three years ago to the newly-formed Working Group on aCourts Commission by its chair-person, Mrs Justice SusanDenham of the Supreme Court.

I had the honour to be nominat-ed by the Law Society as a mem-ber of the working group. It was

the most important and satisfyingcommittee work in which I haveever been engaged. I believe thatthe above challenge was met.

The sixth and final report of theworking group was presented tothe Minister for Justice, Equalityand Law Reform, JohnO’Donoghue, by Judge Denhamon 25 November 1998. Thisreport, which has yet to be pub-lished by the Minister, deals withfour separate issues, namely:

information and access to courtdocuments; family law; court sit-tings and vacations; and judicialconduct and ethics.

In the three years since the thenMinister for Justice, Nora Owen,addressed the first meeting of theworking group on 2 November1995, many well-researched andargued ‘radical documents’ wereproduced by the working group.That these documents have alsoproved ‘historic’ is because both

How the blueprint was written for historic changes in the courts


VIEWPOINTVIEWPOINT

em for the 21st centuryMinister Owen and her successorMinister O’Donoghue were notprepared to let the reports gatherdust and be forgotten. The reports’recommendations were acceptedand acted on at Government level,with legislation introduced wherenecessary to give effect to them.

The most radical and far-reach-ing of these changes will become areality later this year when the for-mal transfer of power over themanagement of the entire courtssystem takes place. TheDepartment of Justice, where thispower has largely resided since thefoundation of the State, will hand itover to the new independentagency of the State known as theCourts Service. From that dateonwards, policy and primaryresponsibility for management ofthe courts will reside not with anyGovernment Minister but with the17-member board of the CourtsService chaired by the ChiefJustice.

User-friendly courtsThe result, provided the project isproperly financed, will be the cre-ation of a coherent managementstructure together with a modern,professional managerial approachto matters such as financial control,human resources, information tech-nology and other standard featuresof a well-run and successful organ-isation in today’s world.

Over time this should produce amuch more efficient, effective anduser-friendly courts system, deliv-ering an enormously improvedlevel of service to the Irish people.The elimination of delays must be aprimary objective, proper court-house facilities another. Suchdevelopments can represent noth-ing but good news for all users ofthe courts system.

The focus of this article, howev-er, is not on the working group’svarious reports and policy recom-mendations but on the group itself,which devised the blueprint forthese changes.

The idea of transferring themanagement of the courts to anindependent agency was not a newone. The courts agency model isnow followed in most common-law countries around the world.Indeed, the Courts Service ofNorthern Ireland was set up as farback as 1979. In 1993, what broad-ly speaking has now come to passhere was called for in a documentprepared jointly by the LawSociety and the Bar Council.

A strong political impulse insupport of such a policy arose fromevents touching on the courtswhich contributed to the fall of thethen Government in November1994 and the formation the follow-ing month of the RainbowCoalition. The new administrationincluded in its Agreement forGovernment the objective of‘establishing a commission on themanagement of the courts as anindependent and permanent bodywith financial and managementautonomy’.

Minister Owen proceeded toestablish a working group compris-ing representatives of the majorgroups involved with the courts.The Law Society was unhappy thatthe solicitors’ profession, by far thelargest body of direct users of thecourts system, was offered onlyone nomination to a working groupwhich would be dominated bymembers of the judiciary.However, I was given the honourof nomination by the Council torepresent the solicitors’ profession.

The principles which wouldguide the work of the group wereput in place from the beginning byJudge Denham. It was quicklyestablished that collectively andindividually we were expected towork hard and at a considerablepace. It was decided that meetingswould take place not once a monthor even once a fortnight but once aweek. Accordingly, for the nextthree years, a meeting took placeevery Monday morning during thelaw terms. Meetings were held in

the Judges’ Library in the FourCourts.

Characteristic of our approachwas in-depth research whichinvolved reviewing in detail rele-vant experiences in many othercountries with a particular focus onthe United States, Canada,Australia and the United Kingdom.Working group members wouldfrequently spend hours on aSunday evening reading the latestbatch of papers in advance of the

Monday morning meeting.Another feature of the working

group’s approach was to consultand listen to everyone concerned.Submissions were invited fromanyone likely to have even theleast insight or ideas to offer usbased on relevant experience. Allthose likely to be affected by rec-ommendations which the workinggroup might make were invariablyasked to make written submissionsfollowed, more often than not, byopportunities to meet, present toand answer questions from theworking group. Representatives ofsome particularly-affected interestgroups met the working group on anumber of occasions to expresstheir views or concerns.

Literally hundreds of submis-sions were received during thethree-year period. Every submis-sion was copied to all membersand specifically considered at ameeting of the working group.

Debate within the workinggroup was invariably well

Mrs Justice Susan Denham,

Judge of the Supreme Court

Mr Justice Ronan Keane,

Judge of the High Court

Judge Kevin O’Higgins,

Judge of the Circuit Court

Judge Catherine McGuinness,

Judge of the Circuit Court

Judge Peter Smithwick,

President of the District Court

Mr Justice Anthony J Hederman,

Chairman of the Law Reform

Commission

Ken Murphy, Director General

of the Law Society

James Nugent, Senior Counsel,

Chairman of the Bar Council

Ken Wright, management

consultant

John Rogers, Senior Counsel

Róisín McDermott, Chairwoman

of Women’s Aid

Kevin Duffy, Assistant General

Secretary, Irish Congress of

Trade Unions

Departmental representativesCaoimhín Ó hUiginn,

Department of Justice

Colm Breslin, Department of

Finance

Richard Barrett, Attorney

General’s Office

SecretariatNoel Synnott, Department

of Justice

ORIGINAL MEMBERSHIP OF THEWORKING GROUP ON A COURTS

COMMISSION (as appointed in November 1995)

Mrs Justice Susan Denham chaired the working group


VIEWPOINTVIEWPOINT

WORKINGGROUP PUBLICATIONS

First reportManagement and financing

of the courts, April 1996

Second reportCase management and court

management, July 1996

Third reportTowards the courts service,

November 1996

Fourth ReportThe chief executive of the

Courts Service, March 1997

A Working PaperConference on case manage-

ment, May 1997

A Working PaperA working paper on informa-

tion and the courts,

November 1997

Fifth reportDrug courts, February 1998

Sixth report● Information and access to

court documents● Family law● Court sittings and vaca-

tions● Judicial conduct and ethics

November 1998 – not yet pub-

lished

informed, serious and vigorous.The chairperson always sought toachieve consensus. She skilfullydefused anything potentially con-tentious, listened carefully andcourteously to every point of view,and summed-up with subtlety andbalance. She then undertook theenormous burden of producingfirst drafts to the group’s verydetailed reports. Such was the trustand respect she enjoyed frommembers of the working groupthat where she expressed a firmview on a particular topic theworking group usually followed it.The achievements of the workinggroup are due more than anythingelse to Judge Denham’s vision,energy and determination.

By far the most satisfyingaspect of involvement with thisworking group was seeing our rec-ommendations consistentlyaccepted by Government, and notonly accepted but acted upon.

Things happenedThings happened, whether it was(a) the establishment of the CourtsService with the implementinglegislation precisely following thedesign recommended by the work-ing group, or (b) the recommenda-tion that appointment to the presi-dency of benches be for sevenyears (in place of appointmentsuntil retirement which had beenthe case up to this), which recom-mendation became law in theCourts (No 2) Act, 1997, or (c) theestablishment of a Drug CourtPlanning Committee to prepareplans for a drug court pilot projectin the District Court due to com-mence within the next few monthsor, at the simplest level, (d) the

working group was engaged in thevarious tasks which were set for itby the successive Ministers. Manynew judges were appointed, whichcontributed directly to a substantialreduction in the level of delays inthe courts. Much more money thanpreviously – although still not

enough – was invested in improv-ing courthouses around the country.However, the working group didnot allow those improvements todeflect it from pressing for funda-mental changes such as were at lastachieved with the passage into lawof the Courts Service Act, 1998.

There were changes within theworking group also, often causedby the elevation to higher courts ofsome of the judges. Mr JusticeRonan Keane went from the HighCourt to the Supreme Court, bothMr Justice Kevin O’Higgins andMrs Justice Catherine McGuinnessrose from the Circuit Court to theHigh Court, and His Honour JudgeEsmond Smyth was appointedPresident of the Circuit Court.

Two of the most active membersof the working group were non-lawyers. One was Kevin Duffy, theAssistant General Secretary of theIrish Congress of Trade Unions,whose advice was invaluable onthe many matters raised with us bytrade unions representing variousgrades of staff within the courtsservice. The management consul-tant Ken Wright devoted so muchof his time and professional exper-tise to the working group that hewas retained on a consultancy basisto guide the massive exercise inchange management in which thecourts are currently engaged.

The final meeting of the work-ing group took place on 27November 1998. It has now com-pleted its work. Its legacy is theblueprint for a courts system appro-priate to at least the beginning ofthe 21st Century.

Ken Murphy is Director Generalof the Law Society of Ireland.

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introduction of an information deskin the Four Courts building as afirst step towards a new culture ofcommunication and service orien-tation within the courts.

In the latter respect, we look for-ward to such hitherto undreamt ofdevelopments as annual reports onthe courts and a courts informationofficer to deal with the media.

Even though most members ofthe working group thought them-selves to be already familiar withthe courts system, we were fre-quently shocked by how bad condi-tions really were. Our reports spokebluntly of there being no clear man-agement or reporting structures, afragmentation of the administrationsystem between each of the courts,little or no training and develop-ment of staff or application of mod-ern information technology, crisismanagement in many offices and alack of financial information or sta-tistics.

The working group knew thepower of an example and highlight-ed the situation in the Accountant’sOffice where a staff of ten managedinvestments in excess of £300moperating a manual accounting sys-tem with letters typed on a type-writer which was missing twokeys!

The working group was alsovery genuinely and deeplyimpressed by the courts staff at alllevels who made remarkableefforts to deliver a worthwhileservice despite the totally inade-quate resources which had beenmade available to the courts sys-tem since the foundation of theState.

A number of things changedduring the three years in which the

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T H E G O L D E N P A T H T O P R O F I TT H E G O L D E N P A T H T O P R O F I T

Letters

From: Katherine Killalea,Castlebar, Co Mayo

In a commentary on the short-comings of the civil legal aid

scheme, Ann Fitzgerald (Gazette,November 1998, page 4) notedthat ‘the means test continues toallow only those on a very low“disposable” income to be recip-

From: David Williams, Ahern

Roberts Williams & Partners, Cork

The following was obtainedfrom the Internet. It claims

to be the actual replies of exec-utives and personnel managersin 100 major American corpora-tions who were surveyed forstories of unusual behaviour byjob applicants. The lowlightswere:● The applicant stretched out on

the floor to fill out the job appli-

cation● She wore a walkman and said

she could listen to me and the

music at the same time● The applicant asked to see the

interviewer’s résumé to see if

the personnel executive was

qualified to judge the candi-

date● When I asked him about his hob-

bies, he stood up and started

tap-dancing around my office● At the end of the interview,

while I stood there dumbstruck,

he went through my purse, took

out a brush, brushed his hair,

and left● The applicant pulled out a

Polaroid camera and snapped a

flash picture of me. He said he

collected photos of everyone

who interviewed him● The applicant said he wasn’t

interested because the position

paid too much

● While I was on a long-distance

call, the applicant took out a

copy of Penthouse and looked

through the photos, stopping

longest at the centrefold● During the interview an alarm

clock went off in the candidate’s

brief case. He took it out, shut it

off, apologised, and said he had

to leave for another interview● A telephone call came in for the

job applicant. It was from his

wife. His side of the conversa-

tion went like this: ‘Which com-

pany? When do I start? What’s

the salary?’ I said: ‘I presume

you’re not interested in conduct-

ing the interview any further’.

He promptly responded: ‘I am as

long as you’ll pay me more’. I

didn’t hire him, but later found

out there was no other job offer.

It was a scam to get a higher

offer● His briefcase opened when he

picked it up and the contents

spilled out, revealing ladies’

undergarments and assorted

make-up and perfume● The candidate said he really did-

n’t want to get a job, but the

employment office needed

proof that he was looking for

one● The candidate asked who the

lovely babe was and pointed to

the picture on my desk. When I

said it was my wife, he asked if

Dumb and dumbershe was home now and wanted

my phone number. I called secu-

rity● Pointing to a black case he car-

ried into my office, the candi-

date said that if he was not hired

the bomb would go off.

Disbelieving, I began to state

why he would never be hired

and that I was going to call the

police. He then reached down to

the case, flipped a switch and

ran. No-one was injured but I did

need to get a new desk.

From: Jim Brooks, Collins Brooks &

Associates, Cork

At two recent sittings of theDistrict Court in a Cork

District Court area, the follow-ing took place:Case 1The solicitor was applying for a spe-

cial exemption order and part of

the proofs was to provide evidence

that a substantial meal was being

offered to the patrons attending

the function. On presentation by

the applicant’s solicitor of the menu

confirming a meal of chicken curry,

the judge commented that in his

view what was on offer did not

comprise a substantial meal. The

solicitor replied: ‘With every

respect, judge, there are 100 million

Indians out there who would not

agree with you’. Needless to say,

the application was granted.

Case 2The solicitor was representing a

client who had seriously assaulted

his victim because the latter had

passed extremely derogatory

remarks about his girlfriend. The

judge intervened and commented:

‘It is all very well, Mr A, but would

you like it if someone passed such

comments about your wife or your

girlfriend?’ to which the solicitor

responded: ‘Or worse, judge –

both’.

From: Frank Taaffe, Francis B Taaffe

& Company, Kildare

The following is a line from a

draft civil bill received in the

post from an eminent barrister. The

young lady who suffered injuries in

the car accident was described in

the particulars of injuries as follows:

‘She was frantic when she realised

she was not dead’.

A bottle of the finest champagnewill go to the reader who sends inthe funniest contribution to Dumband dumber each month.

Send your examples of the wacky,weird and wonderful to the

Editor, Law SocietyGazette, Blackhall Place,

Dublin 7 or you can fax uson 01 672 4801.

Jim Brooks wins the bottle of champagnethis month

Civil legal aid and ‘disposable income’ients of legal aid or advice’.

It may interest your readers toknow that many of them wouldqualify for legal aid and that I per-sonally, as a solicitor qualified for17 years and on the top point ofthe salary scale for a Grade Asolicitor with the Legal AidBoard, would be eligible for legal

aid on a salary last year of£23,379. This eligibility would befor a family law matter where myspouse’s income or capital wouldnot be taken into account.

However, the calculation ofdisposable income is such thatsomebody on half my salarymight not be eligible for legal aid.

Your viewsYour letters make your magazine and may influenceyour Society. Send your letters to the Editor, Law Society Gazette, Blackhall Place, Dublin 7, or you can fax us on 01 672 4801.


VIEWPOINTVIEWPOINT


NEWSNEWS

The first chief executive of thenew Courts Service took

office last month. Former EasternHealth Board boss, PJ Fitzpatrick

(46), will steer through the mostfundamental reforms of the Irishcourts since the foundation of theState.

The Law Society expects tohave a good working relationshipwith Fitzpatrick, according toDirector General Ken Murphy.

‘We are delighted that PJFitzpatrick was a guest of the LawSociety for lunch on his third dayin office as chief executive of theCourts Service, and that he enthu-siastically recognised that thesolicitors’ profession is one of themost important users of thecourts’, said Murphy. ‘It was anexcellent start to our relationshipand we look forward to workingclosely with him’.

New Courts Service boss takes over

New Courts Service Chief ExecutivePJ Fitzpatrick

We carried an article inDecember 1997 on the

decision of Mr Justice Kinlen inthe proceedings brought byMichael E Hanahoe & Co fol-lowing a search on their officesby An Garda Síochána. The arti-cle was illustrated by a photo-graph of Detective LiamO’Connor and DetectiveSergeant Denis O’Sullivan leav-

Compensation Fund payoutsThe following claim amounts were admitted by the Compensation

Fund Committee and approved for payment by the Council at its

meeting in December 1998: Conor McGahon, 19 Jocelyn Street,

Dundalk, Co Louth – £1,639.30; John K Brennan, Mayfield,

Enniscorthy, Co Wexford – £9,000; Michael Owens, 5 Lower Main

Street, Dundrum, Dublin 14 – £323.

Liam O’Connor and Denis O’Sullivaning the Hanahoe’s premises.

We wish to make it clear thatthe photograph in question wasused for illustrative purposes onlyand that we did not intend to linkDetectives O’Connor andO’Sullivan to the subject matterof the article. We apologise toDetectives O’Connor andO’Sullivan for any distress orembarrassment caused.

NewEducationCentre on

course

The Taoiseach, Bertie Ahern,has agreed to formally lay the

foundation stone for the LawSociety’s new £5m EducationCentre later this year. This projectto construct a state-of-the-art cen-tre for the professional training ofsolicitors, both pre and post-qual-ification, was approved by 76%of voters in a postal poll of theentire solicitors’ profession lastOctober.

Since then, the project hasbeen proceeding with all possiblespeed. Demolition and site clear-ance will start next month, andthe construction work proper willbegin in June. The target date forcompletion is June 2000, with thefirst students starting the re-designed professional course inSeptember 2000.

The Society expects to be in aposition very shortly to announcespecial arrangements which arebeing put in place for the inter-vening period with a view toeliminating the current backlog ofstudents waiting to begin profes-sional courses.

The Minister for Justice,Equality and Law Reform,

John O’Donoghue, has confirmedthat he is in the course of applyingto Government for formal permis-sion to publish the Report of theWorking Group on Qualificationsfor Appointment as Judges of theHigh and Supreme Courts. Thereport, which was submitted to theMinister on 30 September 1998, istherefore likely to be publiclyavailable shortly.

The working group was estab-lished in December 1996 by thethen Minister for Justice NoraOwen to consider and make rec-ommendations on the whole issueof the qualifications required tobe eligible for appointment to theHigh and Supreme courts. Thishad arisen out of the controversyat the Dáil Committee stage ofthe Court and Court Officers Bill,1995 when the Law Society hadlobbied to have eligibility forappointment to the High andSupreme courts extended to allsolicitors and not merely tosenior barristers, as remains theposition.

Minister to publish report on judicial appointments

On the working group, the LawSociety was represented by theDirector General Ken Murphy andCouncil members GeraldineClarke and Ernest Cantillon. Thethree Bar Council representativeswere Garrett Cooney SC, MaryFinlay SC, and TurloughO’Donnell SC. The majority ofmembers of the working group,however, were non-lawyers andincluded such independent-mind-ed individuals as the Director ofConsumer Affairs, a member ofthe Competition Authority andacademics whose role was toexamine this issue in the publicinterest.

Commenting on the news thatthe report would be publishedshortly, Ken Murphy said: ‘Wewould like to see it publishedsoon, if only to put an end torumours about its contents. Untilpublished, it remains confidentialand we can make no comment onit other than to confirm that the report was signed by the Law Society representatives.Obviously, therefore, we werehappy with it’.

As opposition spokesman on justice in 1995, JohnO’Donoghue supported theamendment to the Bill put downby Alan Shatter TD, seeking tomake all solicitors eligible forappointment as judges of theHigh and Supreme courts.Minister Owen would not acceptthe amendment but agreed toestablish a working group to look into the matter.

Director General Ken Murphy:‘Publish and put an end to the

rumours’


NEWSNEWS

BRIEFLYLaw Society Annual ConferenceThe Law Society’s 1999 Annual

Conference will be held at

Ashford Castle, Cong, Co Mayo,

from 6-9 May. Enquiries in writ-

ing to the Law Society, Blackhall

Place, Dublin 7 (DX 79).

Software name change crops upRodine Software, developers of

legal management accounting

package Ro-Law, has changed

its company and product name.

The Waterford-based company

is now known as Harvest

Software and its package has

been re-christened Harvest Law.

O’Hagan appointed toSpecial Criminal CourtCircuit Court Judge John

O’Hagan has been appointed

to the Special Criminal Court.

O’Hagan was called to the Bar

in 1961 and was a member

of the Eastern Circuit for 26

years.

Solicitors go high techOver 27% of Irish solicitors have

access to e-mail in their prac-

tices according to a new survey

from Ivutech, the practice man-

agement software developer.

According to Ivutech’s Aidan

O’Neill, the vast majority of

users are using LawLink’s

SecureMail system (which has

been endorsed by the Law

Society as the industry stan-

dard), with the remainder

being split between Telecom

Éireann, Ireland On-line and

CompuServe.

Free AmEx membership!American Express is offering

free card membership and 500

bonus points in a loyalty pro-

gramme for Law Society mem-

bers this month. The cards have

no pre-set spending limit and

also offer benefits such as

£500,000 medical insurance and

purchase protection. To qualify,

just fill out the form included

with this month’s Gazette and

return it by Friday 5 March.

The Law Society’s new website will feature a multi-page

tour around its functions andactivities when it is re-launchedthis month. The site will replace amore basic model first put up onthe Web last year and has a widerremit than its predecessor.

Member Services ExecutiveClaire O’Sullivan said the newsite will have a dual focus, first toeducate and inform the generalpublic about the Society’s work,and second to act as the primarysource of communication withmembers regarding the Society’sactivities and functions.

The site will be structuredaround the Society’s committees,each of which will have its ownpage outlining its activities, pro-jects and publications. It will pro-file the Society, its building andpersonnel, as well as detailing itshistory. An outline of the Society’sregulatory and educational func-tions will also feature alongsideinformation on the library, detailsof member services and (ofcourse) on-line articles from thelatest issue of the Gazette.

A key feature will be the‘what’s new’ page, with updatesof professional information formembers, details of upcomingevents and activities, lists of futureseminars and courses, and up-to-the-minute recruitment vacancies.O’Sullivan says that this part ofthe site will be regularly updated.

After its initial launch, the sitewill be further developed byadding a member-specific areawhich will allow members totrawl the library catalogue anddownload practice notes andprecedents. This will be accessedby members using their own PINcode.

Eventually the site will includeinteractive mailing facilities, e-commerce and an e-mail alert toadvise members of existing andproposed legislative and policychanges. The Society hopes toexpand links with other sites ofinterest to members and to encour-age other organisations to hookinto its site.

O’Sullivan predicts that the sitewill be used to boost communica-

Society’s new web site goes on-line

tion with the public and members.‘The Law Society is committed tothe promotion and developmentof the web site as a cost-effectiveand efficient method of communi-cating with the profession and thepublic at large, and we hope thatover time all members will beencouraged to regard the web site

as an indispensable source ofinformation and advice in the con-duct and management of theirpractices’, she says.

The web site address iswww.lawsociety.ie, and the webmaster will be delighted to receivemembers’ comments and feed-back at [email protected].

The fees paid to medical consultants for examinations, reports,consultations and court appearances have been revised. The fol-

lowing fees apply from 1 January 1999 to 31 July 2001:Examination and first report● Standard................................................................................£155● Psychiatrist’s ........................................................................£171Follow-up report● Standard................................................................................£137● Psychiatrist’s ........................................................................£149Attendance at court (to include consultation with counsel on dayof hearing if necessary)● Half day (am or pm) ............................................................£382● Full day ................................................................................£519Consultation with counsel other than on day of hearing● At consultant’s rooms ..........................................................£105● At court ................................................................................£155Consultation with another party’s medical adviser● By telephone ..........................................................................£32● By correspondence.................................................................£65● By attendance at examination ................................................£91Standby feesFor standby within 20 miles of consultant’s hospital: 25% of appro-priate attendance fee. For standby for a court more than 20 milesfrom consultant’s hospital: 50% of appropriate attendance fee.Court attendance cancellationCancellation within two working days will attract full court atten-dance or standby fee, as appropriate. Cancellations advised morethan two working days but less than five working days will attract50% of the court attendance or standby fee, as appropriate.

Medico-legal fees revised

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14 LAW SOCIETY GAZETTE

The treatment of Veronica Guerin murder suspect Paul Wardby members of An Garda Síochána in Lucan Garda Stationwas severely criticised by the Special Criminal Court. WhileWard was subsequently convicted of the journalist’s murder,the court’s criticism centred on the way the suspect was

interrogated. Meanwhile, the Minister for Justice wants to alter the pro-tection from self-incrimination that a detained person has while beingquestioned. Should we, as lawyers, be content to see the implementationof these changes in the current regime of legal representation for suspectsin custody?

When an accused person is put before a court, he or she is asked toplead guilty or not guilty. A plea of not guilty puts the burden of proof onthe State, for it is up to the State to prove beyond a reasonable doubt thatan accused is guilty – the defendant does not have to prove anything. Theonus of proof is on the State; the Golden Thread principle so often quot-ed by Rumpole of the Bailey.

It is easy to blame clever lawyers for ‘getting people off’, and one bul-wark against such slipperiness is the Minister for Justice’s proposal toextend restrictions on the right of suspects to remain silent in interview toso-called ‘ordinary’ crime.

To many lay people, and no doubt to at least some lawyers, there is asense that an accused person should make some comment when inter-viewed, and that if they remain silent during questioning they have some-thing to hide, and so must be guilty. One wonders how many juries formthis view notwithstanding the charge that they receive? Why would any-one remain silent if they had nothing to hide? Fear, embarrassment,uncertainty of the law – indeed, any number of things that fall short ofguilt of the offence for which they have been brought into custody.

It appears, however, that the argument is lost, and it looks as if changesare going to be made. If they are implemented in the present system therewill be miscarriages of justice because at present, while a detained personhas a right to speak to a solicitor, solicitors are not permitted to sit with adetained person while they are interviewed by the Gardaí. Solicitors haveno right of access to statements or to be told about the case before advis-ing a detained person. Indeed, very often the attitude of Gardaí is that asolicitor is a nuisance who will get in the way of the investigation: toler-ated, but only just. Moreover, there is no system of legal aid to covergarda station attendances, inevitably restricting the availability of evenlimited advice and assistance from solicitors.

Radical PACE of change in EnglandIn England and Wales, the detention and treatment of suspects is gov-erned by the Police and Criminal Evidence Act, usually referred to asPACE. Enacted in 1984, PACE radically altered the position of thedetained person. Solicitors sit in on interviews, which are tape-recorded,and they are paid to do so; there is a duty scheme where on a rota basisprivate practitioners will attend an unrepresented suspect. The provisionof legal advice in the police station is without charge to the detained per-son irrespective of their circumstances. The 1994 English and WelshCriminal Justice and Public Order Act foreshadowed many of thechanges now being suggested for Ireland. A suspect is given a cautionupon arrest and before interview:

‘You do not have to say anything but it may harm your defence if youdo not mention when questioned something which you later rely on in

The proposal to remove a suspect’s right to silence in the face of Garda interrogation marks another step in the continuing erosion of what were once

regarded as fundamental principles in criminal law. Richard English discusses how a similar regime operates in the UK and argues that the legal profession must

demand a quid pro quo if the proposal becomes law

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LAW SOCIETY GAZETTE 15

COVER STORY

court; anything you do say will be written down and may be used in evi-dence.’

As a result of a number of Court of Appeal decisions, the practice hasdeveloped whereby (usually) at least an outline of the case will be givento the solicitor by the interviewing officer (some forces train their officersin how to deal with being interviewed by solicitors). More often than not,the solicitor will be read or shown the statements of witnesses, shown anyphysical evidence, and told of any forensic evidence. The solicitor thenwill have a private consultation with his or her client and advise him orher as to the strength of the Crown’s case and advise him whether heshould remain silent or answer questions. The interview is conducted ontape and copies are made available. The solicitor may be party to discus-sions as to whether to charge or not, and will also make representationson the question of bail, all noted on the custody record by a custodysergeant who is statutorily charged with looking after the interests of thesuspect and protecting them.

While the length of interview in England may be shorter than inIreland, conversely the period of detention before charge may be longer(in England a defendant arrested for an offence may be detained withoutcharge for 24 hours, and in certain circumstances longer). Generally,interviews are quite short (around 45 minutes, the length of a tape) as offi-cers will have taken statements from witnesses which are then put to thedetained person.

Interviews should be tape-recordedThe real tragedy of the trial of Paul Ward is that the Special CriminalCourt did not follow through its observations with regard to the treatmentthat Ward received in Lucan Garda Station. Had the court dismissed thecharge against the accused, the shock waves would have shaken both theGardaí and the public.

If there are to be changes to the treatment of suspects in custody (andaltering the right to silence is only one of the proposals), then there mustbe a corresponding change in the way that solicitors are allowed to dotheir job. The role of the solicitor is not to get people off by some trick orother; it is to ensure that the State, which is the stronger party to any pros-ecution, is put to proof. Solicitors must be allowed to be present whiletheir clients are being interviewed.

The interviews themselves must be tape-recorded. The role of themember in charge should be strengthened to provide robust protection ofthe detainee’s constitutional rights.

If solicitors were able to play a more active role in the garda station,the way the Gardaí pursue evidence through questioning would change.No longer would they be able to relentlessly seek confessions with ques-tioning unmitigated by the intercession of a solicitor. Techniques offorensic interviewing, strategic considerations and interview plans wouldhave to replace teams of interrogators.

Undoubtedly there is a push to change the right to silence, and ifchanges are to be implemented the profession must press for a quid proquo: compulsory tape-recording of interviews and the paid attendance ofsolicitors upon their detained clients.

Richard English, a native of Dublin, is qualified as a solicitor in Englandand Ireland. He is now an associate with a firm of criminal defence advo-cates in the North of England.

Gnce?

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: ROSLY

N BY

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Exthe ne

S I No 391 of 1998 – entitled Rules of theSuperior Courts (No 6) (Disclosure ofReports and Statements) 1998 – was

signed into law on 14 October 1998. The rulesare deemed to have come into operation on 1September 1997.

The statutory instrument applies to:● All claims for damages for personal injuries

with the exception of those to which section1(3) of the Courts Act, 1988 applies inrespect of which trial by jury is available

● All parties to the action, including the plain-tiff or co-plaintiff, defendant or co-defendant, third party, counterclaimant ornotice party

● All reports or statements from accountants,actuaries, architects, dentists, doctors, engi-neers, occupational therapists, psycholo-gists, psychiatrists, scientists or any otherexpert whatsoever intended to be called togive evidence in relation to an issue in an

action, and containing the substance of theevidence to be adduced

● All maps, drawings, photographs, graphs,charts, calculations or other like matterreferred to in any such report

● A copy report, statement or letter from suchan expert where the original has been con-cealed, destroyed, lost or mislaid

● All proceedings instituted on or after 1September 1997

● Any report or statement coming into exis-tence after 1 September 1997 for the pur-poses of any proceedings (whether institut-ed before or after that date).

Obligations on parties and timelimit: Rule 46(1) and (2)Plaintiff. A plaintiff in an action shall furnishto the other party or parties or their respectivesolicitors a schedule listing all reports fromexpert witnesses intended to be called withinone month of the service of the notice of trial orwithin such further time as may be agreed bythe parties or permitted by the court.

Defendant. Within seven days of receipt ofthe plaintiff’s schedule, or within such furthertime as may be agreed by the parties or per-mitted by the court, the defendant or any otherparty or parties shall furnish to the plaintiff orany other party or parties a schedule listing allreports from expert witnesses intended to becalled.

Exchange. Within seven days of the receiptof the schedule of the defendant or other partyor parties, the parties shall exchange copies ofthe reports listed in the relevant schedule.

Requirements additional toexchange of reportsThe parties shall exchange with the other partyor parties or their respective solicitors the infor-mation and statements referred to in section45(i)(a) (iii), (iv) and (v) of the Act, namely:● The names and addresses of all witnesses

intended to be called to give evidence as tothe facts in the case

● A full statement of all items of special dam-age together with appropriate vouchers, orstatements from witnesses by whose evi-dence such loss would be proved in the action

● A written statement from the Department ofSocial Welfare showing all payments madeto a plaintiff subsequent to an accident or an

Section 45 of the Courts And Court Officers Act, 1995

and SI No 391 of 1998, Rules of the Superior Courts

(No 6) (Disclosure of Reports and Statements) 1998

radically overhauled the procedures for using expertevidence in personal injury litigation. Here, the Law

Society’s Litigation Committee sets out the mainchanges introduced by the new rules and explains

their implications for practitioners


LITIGATIONLITIGATION

xpert evidence: ew rules explained

authorisation from the plaintiff to the defen-dant to apply for such information

within one month of the service of the notice oftriaI or within such further time as may be agreedbetween the parties or permitted by the court.

Nothing to exchange: Rule 46(3)This sub-rule provides that ‘where a party orhis solicitor certifies in writing that no reportexists which requires to be exchanged pursuantto sub-rule 1, then the other parties shall, on theexpiry of the time fixed, agreed or permitted (asthe case may be) deliver any report within themeaning of the section to all other parties to theproceedings’.

Post initial exchange: Rule 46(4)Any party who, having complied with sub-rule(1) above, obtains any report or statement with-in the meaning of the section or the name andaddress of any further witness shall forthwithdeliver a copy of any such report or statementor details of the name and address of any suchwitness to the other party or parties or theirrespective solicitors.

Service: Rule 46(5)Service of any report, statement or informationrequiring to be exchanged or delivered may beeffected by letter in writing enclosing thereport, statement or information required to bedelivered and may be sent by ordinary prepaidpost or in any other manner in which service isauthorised by the rules.

Such letter shall specifically state that the ser-vice is for the purpose of complying with therequirements of section 45 of the Act and theserules.

Withdrawal of report or statementpreviously delivered: Rule 46(6)Any party who has previously delivered anyreport or statement or details of a witness maywithdraw reliance on such by confirming by let-ter in writing that he does not now intend to callthe author of such a report or statement or suchwitness to give evidence in the action.

Motion for directions on failure tocomply (prior to hearing): Rule 47Where an allegation is made by one party thatany other party to an action has failed to comply

with these rules, application may be made to thecourt by motion on notice ‘seeking the directionsof the court in relation to any such allegeddefault’. Such application shall be grounded onthe affidavit of the moving party.

On the hearing of any such motion, the courtmay:1) Direct compliance with such requirement(s)

forthwith or within such period as the courtmay fix, or

2) May make any other order as the justice of thecase may require, including orders providingthat, in default of compliance:a) the party in default be prohibited from

adducing such evidenceb) the claim or defence be struck out, andc) may make such costs order as seems meet.

Non-compliance with the rules (discovered while case is at hearing):Rule 48If it appears to the court at any stage of the hear-ing of an action that there has been non-compli-ance with any provision of the section or theserules, the court may, after hearing such evidenceas regards such non-compliance as may beadduced by the parties, make such order as itdeems fit, including:● An order prohibiting the adducing of evidence

to which such non-compliance relates, or● An order adjourning the case to permit com-

pliance with the provisions of the section andthe rules and on such terms and conditions asseem appropriate, and

● May make such order as to costs as appearsjust in the circumstances.

Actions transferred from the CircuitCourt into the High Court: Rule 49In such cases, the parties shall within one monthof the order adopting the proceedings exchange aschedule of reports and the reports in the mannerprovided for in rule 46(1) and the provisions ofthis part shall apply mutatis mutandis.

Exceptions: Rule 50(1) and (2)Any party may apply by motion on notice to thecourt for an order that in the interests of justicethe provisions of rule 46 shall not apply to anyparticular report or statement (or any part there-of) which is in the possession of that party andwhich he maintains should not be disclosed andserved as required. On such an application, the

court may make such order as seems just.Rule 50(2) provides that a party who has not

complied with the section or the rules may apply– in the absence of the consent of the other partyor parties – by motion on notice to the courtseeking the leave of the court to permit theadducing of such evidence as has not been dis-closed. The court may make such order asseems just in the circumstances.

Effective date (operative date)Rule 51 provides that rules 45 to 50 inclusiveshall not apply to:● Proceedings instituted before 1 September

1997, or to● Any report or statement coming into exis-

tence before that date for the purposes of anyproceedings (whether instituted before orafter that date).

The new rules come into operation on 1September 1997. The exchange of reports shallnot be required in any case in which proceed-ings were issued prior to 1 September 1997.

Furthermore, disclosure shall not be compul-sory in respect of any report or statement whichcame into existence prior to 1 September 1997,irrespective of whether proceedings were insti-tuted before or after that date.

The new rules revoked the Rules of theSuperior Courts (No 7) 1997 (SI No 348 of1997) and Rules of the Superior Courts (No 8)(Disclosure and Admission of Reports andStatements) (Amendment) 1997 (Sl No 471 of1997) as and from 14 October 1998. However,those rules remained in force until that date.

Mutuality of disclosure, not admissibilityThe mere fact that the parties are statutorilyobliged to exchange the reports and statementsto which the rules refer does not mean that theother party must accept them without formalproof. The rules refer to mutual disclosure notautomatic admission.

While this article is intended to be an aid,the Litigation Committee stresses that there isno substitute for reading the statutory instru-ment itself.

The Litigation Committee thanks solicitorPatrick J Groarke for his help in the prepara-tion of this article.

G


Assessments of the severity ofthe problem offered by theMillennium Bug vary: somehave suggested a doomsdayscenario in which computers

used by the Russian military malfunction andlaunch nuclear attacks; in contrast, someEuropeans have suggested that it is all anAmerican plot to derail the launch of the euro.Those who hope that this problem will beapproached calmly and reasonably will be dis-mayed by newspaper reports that Hollywoodis promising a number of disaster moviesbased on this theme.

On a more serious note, the FinancialTimes has reported that interest future contractprices in the UK, USA and Germany havestarted to be affected by fears that theMillennium Bug will cause havoc in financialmarkets. This rise in future interest rates isfuelled by fears that big banks may be unwill-ing to loan money close to the end of 1999since they will be worried that if computersystems collapse their funds will be lost. Ifmoney is harder to come by, its price (theinterest rate) will rise.

The Millennium Bug or Y2K problem hasits roots in decisions taken by programmersback in the 1950s. At the time computer mem-ory was expensive, so in order to conserve itprogrammers eliminated the first two digits ina date, so 1957 became 57. To ensure com-putability programmers stuck with this con-vention even after the cost of memory haddeclined dramatically. The problem is thatfrom 1 January 2000, any computer which hasbeen programmed to read dates in this fashionwill have serious difficulties. Such a computermight treat a woman born in 1899 as beingonly a year old or assess vast sums of interest

By now we’re all aware of the potentially destructiveeffects of the so-called Millennium Bug, but what

recourse do you have in law if your computer system is one of those affected? Can you sue for compensation

and, if so, whom do you sue? Denis Kelleher discusses the legal options arising out of this

extraordinary problem

on debt or savings. This article will examinelegal issues which may arise from trying todeal with this problem.

Fixing the programThe best option is to get the supplier of thesoftware to fix his faulty merchandise.However, suppliers may be unwilling to do so,or at least may insist on being paid for thiswork. It is an accepted fact of life in the infor-mation technology industry that software fre-quently does not work, and some licenceagreements will specifically acknowledge this:

‘The licensee acknowledges that software ingeneral is not error free and agrees that theexistence of such errors shall not constitute abreach of this licence.’

(Rennie, Computer contracts, Sweet & Maxwell, London)

This may make it difficult to bring pressure tobear on the company that supplied the soft-ware. Any dispute may settle on who specifiedthat the convention of treating years as a two-digit number should be used. If the purchaserinsisted that new programs should be written tobe compatible with programs written in the1950s, then they will have a weak case; astronger case might be brought by a companywhich bought computers for the first time in1996 and which never had any need to use thisconvention.

Alternatively, if you have a maintenancecontract with another group to manage yoursoftware, or if a consultant recommended thatthis package should be bought, then it might beargued that they should repair this problem.Even if you feel that the supplier is beingunreasonable or greedy, you may be welladvised to pay them as you cannot negotiate

and t

with the calendar. Furthermore, there areadvantages to getting the supplier to repair hisfaulty software: it is more practical – sincethey wrote it originally, they should be the bestpeople to fix it. In particular, they will haveaccess to all the relevant records and sourcecodes. Furthermore, if the original supplier‘fixes’ his already faulty software and it still

Litigation


TECHNOLOGYTECHNOLOGY

2000the Year

does not work on 1 January 2000, then youwill have a very good case for compensation.

Banks, insurance companies and other insti-tutions are currently expending huge sumsreprogramming their systems to rectify theYear 2000 problem. Copyright complicationsmay occur where the bank or other bodyrepairing a program does not actually own it.

Computer programs are protected as literaryworks under the European Communities(Legal Protection of Computer Programs)Regulations 1993. These regulations give theowner the exclusive right to control the repro-duction, translation, adaptation, arrangementand alteration of a computer program.

Assuming that you can overcome the seri-

ous practical difficulties which the repair of acomputer program offers1, such repair willinevitably infringe many of the owner’s exclu-sive rights. Such repair might be permitted bythe licence agreement or contract under whichthe software was originally supplied, but theprovisions of regulation 6(1) provide that:

‘Where there are no specific contractual


provisions to the contrary, the [reproduction,translation, adaptation and alteration of a pro-gram] shall not require authorisation by therightholder where they are necessary for theuse of the computer program by the lawfulacquirer in accordance with the intended pur-pose, including for error correction.’

So if there are no provisions to the contrary,you should be able to correct errors in a com-puter program.2 Great care should be taken inany situation in which another’s copyrightmay be infringed. Work should be kept to abare minimum, and careful controls should beimposed on any information which may bediscovered about the software as a result ofthis work. In particular, the staff used to carryout this work must sign confidentiality claus-es and when the work is finished all records,codes and other information should be heldsecurely – preferably by a third party.

Repairing a computer program is an unat-tractive option; there are many disadvantagesnot least the fact that there may not be enoughtime to complete this before 1 January 2000.But the major disadvantage is that the chancesof successfully suing the supplier may bediminished as the supplier will be able toclaim that it was the attempted repairs whichwere botched and not his original program.

Litigation post-2000As stated above, it is accepted that softwarewill fail from time to time. It must be remem-bered that potentially faulty computer chipsmay be found in a whole range of productsfrom microwave ovens to cars. If you suspectthat your software will suffer fromMillennium Bug problems, there are severalthings which you could do from a legal stand-point.● Do all that you can to mitigate your losses.

For example, the Dutch airline KLM hasstated that it may have to ground part of itsfleet on New Year’s Eve 1999 as it fears theconsequences of governments and air-traf-fic controllers failing to make their systemssafe

● Prepare to gather as much evidence as pos-sible to enable your client to quantify hislosses. Records of how your system per-forms should be kept, preferably on a sys-tem which will not suffer from MillenniumBug problems

● One of the main problems with computer-related litigation is that the evidence

becomes extremely complex and technical.To help keep it simple, run extensive tests onyour equipment in December 1999. The line‘We tested it on 31 December 1999 and itworked fine but on the morning of 1 January2000 it stopped’ has a clarity which willappeal to judges everywhere.

If their system fails, many will be tempted tosue for compensation. This will be difficult.One English solicitor has suggested that therewill be no wave of Millennium Bug litigation.‘There will be no Year 2000 litigation spree inthe UK. This assertion is, I believe, justified bythe difficulty of establishing a successful claimfor Year 2000 failures’, wrote John Mahwoodin Computer & Law (October/November 1998issue, p25). Proving that a system failedbecause of a programming error may be diffi-cult and expensive. Proving whose fault thaterror was may create even more problems.Complex computer systems may contain manydifferent components which will have beensupplied and updated by a variety of suppliersover the years. Finally, it may be difficult toassess the amount of damage which has been

caused by that error: what price do you placeon your reputation for reliability? If you canovercome all of the above problems, then thereare a number of specific legal issues that mayarise.

The Statute of Limitations. You can sue intort and contract for six years from the dateupon which the cause of action accrued (sec-tion 11 of the Statute of Limitations, 1957).The problem here will be deciding when thecause of action accrued. Was it when the soft-ware was supplied with a Millennium Bugproblem? Was it when you started to get wor-ried about it? Or will it be breached early in themorning of 1 January 2000? Even if you canget around this point, the courts may decidethat the author of a piece of software writtenback in 1970 could not reasonably have antic-ipated that his work would still be in use in theYear 2000.

Jurisdiction. Computers can be intercon-nected into international networks. If a systemin Germany crashes due to bug problems andbrings down your system in Ireland, who isliable and where do you sue? Lawyers in theUSA are clearing their desks in anticipation ofsome serious litigation on the back of this.Plaintiffs might do better if they become partof an American class action. However, the‘Good Samaritan Act’ recently passed byCongress may limit the liabilities of softwarecompanies for software which suffers from theMillennium Bug in the USA.

Was the product sold as being Year 2000compliant? The text of any guarantee shouldbe carefully examined to see whether it actu-ally promises that the product will continue towork through the Year 2000. The fine print ofsuch guarantees may seek to restrict what iscovered or reduce the amount of damages thatmay be paid. The provisions of section 13(1)of the Sale of Goods Act 1893 should also benoted. This section states that if a good is soldby its description then there is an implied con-dition that the goods meet this description. Butit must be remembered that proving that agood failed because of a Year 2000 problem asopposed to any other problem may beextremely difficult.

Limitation of liability clauses. All goodssupplied must be of merchantible quality.3

This means that they must be reasonably fit forthe purpose for which they are commonly pur-chased.4 Since software companies accept thatthe programs which they supply may containerrors, licence agreements and contracts drawnup by such companies will inevitably bedesigned to limit the damages which a soft-ware company may be liable for if their soft-ware should fail. So ‘limitation of liability’clauses are commonly inserted in computercontracts. A typical one reads:

‘… ICL’s liability will not exceed the price,

‘Proving that a system failed because of a

programming error may be difficult and expensive.

Proving whose fault that error was may create

even more problems’


TECHNOLOGYTECHNOLOGY

or charge payable for the item of equipment,program or service in respect of which the lia-bility arises or £100,000 (whichever is the less-er). Provided that in no event will ICL be liablefor:i) Loss resulting from any defect or deficiency

which ICL shall have physically remedied atits own expense within a reasonable time

ii) Any indirect or consequential loss or loss ofbusiness or profits sustained by the customer

iii)Loss which could have been avoided by thecustomer following ICL’s reasonable adviceand instructions.’

Such a clause will be void in a consumer con-tract and it can only be enforced in a commer-cial contract if it can be shown to be ‘fair andreasonable‘.5 If the courts have to decidewhether or not a term is fair and reasonable,they may have regard to the circumstances inwhich the contract was made, the strength ofthe parties’ bargaining positions, whether aninducement was given to accept the term,whether the customer knew of the existence ofthe term, the practicality of compliance withany terms and whether or not the goods wereadapted to the special order of the customer.

Such a clause was examined by the Englishcourts in St Albans City Council v ICL (1995FSR 686). The English sale of goods legislationis similar to the Irish but not identical. Theplaintiff was a local authority in the UK; thedefendant had agreed to supply a system to helpthe plaintiff administer the poll tax. The pro-gram malfunctioned and it overestimated thenumber of charge-payers in St Albans. As aresult, the council set the charge at too low alevel and failed to collect enough tax. Theplaintiff then sued for £1,314,846, but was metwith the limitation of liability clause discussedabove. The clause had been queried by theplaintiffs at negotiation, but they had gone on tosign the contract containing it. However, ScottBaker J held that the clause was not enforce-able. In looking at the reasonableness of thelimitation clause, he noted that:● The defendant had considerable resources –

it was part of a group which had a worth of£2 billion in 1988, and profits of £100 mil-lion in the first half of 1988

● The defendant had product liability insur-ance of £50 million

● The defendant called no evidence to showthat it was fair and reasonable to limit its lia-bility to £100,000

● The plaintiff received no inducement toaccept the clause.

The plaintiff won in the English High Court andthe defendant appealed unsuccessfully, save forthe fact that damages were reduced by£484,000 since this sum could still be recov-ered from the taxpayers. This case can be dis-

It should also be noted that there is no defin-itive answer to the question of whether soft-ware is a good for the purposes of the Sale ofGoods Acts.6 The Irish courts or the BritishHouse of Lords might hold differently,although it is my view that sale of goods legis-lation does apply to software. But it is quitepossible that software would be supplied aspart of a service, in which case you might suefor negligent supply of services.

Legislatures, courts and society treat error-laden software with remarkable indulgence.For example, there is no sign of the product lia-bility litigation which has been initiatedagainst targets as diverse as silicon breastimplant manufacturers, gun shops or cigarettecompanies in the USA. In this litigation-freeenvironment, the IT industry has flourished.One effect of the Millennium Bug may be toend this indulgence. If a large number of casesare brought over alleged Millennium Bugdefects, the courts will have to define legalrules and set out the standards by which faultysoftware is judged. How this changing envi-ronment will affect the software industryremains to be seen.

Denis Kelleher BCL is a Dublin-based barrister.

G

Footnotes1 Repairing software in this fashion presents

serious practical obstacles, not least ofwhich is the fact that the suppliers of com-puter programs usually only supply in theform of ‘object code’. Computer programshave to be written in a language which canbe understood by humans such as JAVA orBASIC and a program written in this formwill be known as the ‘source code’.However, computers can only understandinformation which is presented in the formof 0s and 1s; this is known as the objectcode, and when computer programs are sup-plied they are usually supplied in this form.However, a company may get its hands onthe source code in a number of ways: thecodes may have been supplied as part of theoriginal contract or they may have beenheld in escrow with a third party. Morenefarious methods of accessing sourcecodes exist (see Nintendo v Atari).

2 British Leyland v Armstrong Patents (1986AC 577). It should also be noted that regu-lation 6(3) provides that software can betested without infringing the rights of theowner of copyright.

3 Section 14(2) of the Sale of Goods Act, 1993(as amended by section 10, 1980) provides:‘Where the seller sells goods in the course ofbusiness there is an implied condition thatthe goods supplied are of merchantible

quality, except that there is no such condi-tion:a) As regards defects specifically drawn to

the buyer’s attention before the contractis made, or

b) If the buyer examines the goods beforethe contract is made, as regards defectswhich that examination ought to haverevealed.’

4 Section 14(3) of the Sale of Goods Act, 1993(as amended by section 10, 1980) provides:‘Goods are of merchantible quality if theyare as fit for the purpose or purposes forwhich goods of that kind are commonlybought and as durable as it is reasonable toexpect having regard to any descriptionapplied to them, the price (if relevant) andall the other relevant circumstances and anyreference in this Act to unmerchantiblegoods shall be construed accordingly.’

5 Section 55(4) of the Sale of Goods Act, 1993provides:‘In the case of a contract for sale of goods,any term of that or any other contractexempting from all or any of the provisionsof sections ... 14 ... of this Act shall be voidwhere the buyer deals as a consumer andshall in any other case, not be enforceableunless it is shown that it is fair and reason-able.’

6 See Kelleher & Murray, Information tech-nology law in Ireland (Butterworths, 1997).

tinguished on its facts. The plaintiff was undersevere pressure as to time when signing thecontract and the defendant was one of onlyvery few companies who could deal with thissort of problem.

So far the IT industry has seemed immune toproduct liability litigation


Time for a rethink A ccording to official figures, more than

nine out of ten of Ireland’s 165,000-plus companies are private limited

companies. A significant proportion of theseare small companies. One official estimate inBritain indicated that about 90% of companiesthere could be defined as small companies.

The forthcoming Companies (Amendment)Bill, 1999 proposes relieving those companieswith an annual turnover of less than £100,000of the obligation to have an annual audit oftheir accounts. The threshold is small whencompared with the limit of annual turnover of£3,000,000 for a small company in theCompanies (Amendment) Act, 1986, whichreduced small firms’ obligations of annual dis-closure to the Companies Office.

The proposals carry the weight of recom-mendations of both the Task Force on SmallBusiness (TFSB), which reported to theGovernment almost exactly five years ago(March 1994), and the Company Law ReviewGroup (CLRG) which reported in 1995. TheBill will also include other company matters,including widely-demanded reforms of the lawon Irish-registered non-resident companies. Itmight be argued that the proposed reform isfairly limited. But it is possible, if improbable,that it will be significantly amended in its pas-sage through the Dáil and Seanad. TheCompany Law Review Group, which waschaired by chartered accountant JamesGallagher of Arthur Andersen, recommendedthat the limit of £100,000 annual turnovershould be reviewed regularly. Is it time for itsfirst review yet?

It is even debatable whether the approach isentirely misplaced. David Tomkin and AlanDignam of Dublin City University argue thatthere is no apparent logic in using turnover asa measure for relief from the statutory audit.They maintain in the Irish law times that whatis required is a fundamental analysis of whatfinancial information could be of use to allthose dealing with companies and how suchinformation should be presented in more user-friendly fashion. Also, it has been suggestedby Dublin solicitor Tom Courtney in Companylaw review 1995 that it may be doubtedwhether ‘the outside world – and especiallythe financial world – will accept unauditedaccounts’.

Many small businesses gravitate towardsincorporation. The benefits appear to be obvi-ous. They include limited personal exposure for

the owners (at least until the first meeting withthe bank manager), the continuity of the busi-ness irrespective of the lives of the owners, andthe ability to transfer shares in the business.But is the vehicle, which carries corporate enti-ties of all sizes and which dates at least fromthe middle of the last century, due a re-fit forthe smaller models?

Worst system known to man?In the debate on the Limited Liability Bill in1855, Lord Stanley said that it would be absurdfor small enterprises to use the company formbut he was comforted in the belief that theexpense of incorporation would be a sufficientdeterrent. Lord Redesdale said that small busi-nesses should be prevented from setting up ascompanies ‘otherwise petty companies of allkinds would be set afloat by lawyers for thepurpose of getting long bills paid to them fortheir services’.

Small companies will bethe focus of legislation

which is due to be published over the coming

weeks. They are not at the glamour end of

commerce, but there are a lot of them and the

Companies (Amendment)

Bill, 1999 will be of greatrelevance to them and to their legal advisors.

Pat Igoe reports


COMPANY LAWCOMPANY LAW

on small business?

Winston Churchill argued that democracywas the worst system of government known toman with the exception of the other availableoptions. Likewise, one could argue that the lim-ited liability company is the least inappropriatevehicle for companies, big and small. But thereremains a respected view that, for small enter-prises, the partnership option has been steam-rollered by the limited company juggernaut.

The Company Law Review Group did rec-ommend that the application of company lawgenerally to small companies should be exam-ined either in a future phase of its work or bysome other such group. But this has not hap-pened, and the group itself is no longer in exis-tence.

The essential purpose of the Task Force onSmall Business’s report was to encourage newsmall enterprises and to strengthen existingones. Many of its recommendations related tothe burdens of labour and tax law on small busi-

nesses. But it did recommend that a new and lessonerous category of limited liability company becreated to assist companies in their first twoyears. This has not been enacted. A SmallBusiness Act was envisaged. We are still waitingfor it.

There has been remarkably little debate inIreland on the most suitable vehicles to encour-age business. The Company Law Review Groupitself felt that company law did not seem toimpact onerously on small companies on a day-to-day basis. Critics might argue that this is sim-ply because many (dare I say most?) know little

and care less about Table A and its provisions.The findings of Mr Justice Kelly in Re Aston

Colour Print Ltd in 1997 are salutary.Question: when is a board meeting not a boardmeeting? Answer: when the requirements ofthe Companies Acts are not complied with. Inthat case, a meeting was not a board meeting ashad been thought by the company principals.Mr Justice Kelly noted that meetings had beenheld in an informal fashion, which was under-standable for a small company. How manyother small companies are less than diligent intheir observance of the Companies code?

Fundamental review neededThe Company Law Review Group decided that‘whether company law could be amended orsimplified in a way that would be materiallyhelpful to small companies’ was worthy ofconsideration. The current Government pro-posal is not taking place in the context of anysuch overall fundamental review of legislationrelating to small companies.

Any such review might begin with the argu-ments of Judith Freedman of the LondonSchool of Economics in her seminal article‘Small businesses and the corporate form: bur-den or privilege?’, published in the Modernlaw review in July 1994. She quotes the 1944comments of controversial lawyer O Kahn-Freund that the limited liability company wasoriginally a capital-raising device which, hesaid, was wrongly appropriated by small com-panies. Kahn had suggested that the formation

of companies should be made more difficultand more expensive thereby reducing the num-ber of companies ‘and especially of smallcompanies’. Parliament might thus ‘go someway towards restoring to the limited companyits original function and to the partnership itsproper place in business life’.

In any fundamental look at the law of smallcompanies, there are various internationalprecedents to take into account. These rangefrom the Société à Responsabilité Limitée(SARL) and the Gesellschaft mit beshrankterHaftung (more easily pronounced as GmbH),

on the one hand, to South Africa’s CloseCorporations Act of 1985. Small company leg-islation has also been introduced in variousother common-law countries, includingAustralia, the United States and New Zealand.Such legislation tries to recognise the quasi-partnership realities of many small companies.

The issues involved are apparently simplebut deceptively complex. It is not clear whenor if the remaining recommendations for smallcompanies, including the Company LawReview Group’s ‘major task’ of examiningwhether company law could be amended orsimplified for them, will be the subject of leg-islative proposals.

Last December, the Minister for Justice,John O’Donoghue, announced theGovernment’s intention to establish a statutory‘council on crime’. It was described byProfessor Bryan McMahon, chairman of theNational Crime Forum, as a body which wouldsubject proposed legislation to ‘measured con-sideration on an on-going basis’. Arguably, asimilar welcome would be given to a perma-nent review body on company law.

It might also be said that our current vibranteconomy is precisely the best setting for a fun-damental review of the law to help small enter-prises and those doing business with them. Thealternative may be to wait until the tide goesout and see what is left behind.

Pat Igoe is principal of Dublin-based solici-tors’ firm Patrick Igoe and Company.

G

‘There remains a respected view that, for small

enterprises, the partnership option has been

steam-rollered by the limited company juggernaut’


E ver since the Law Society of Irelandmoved to its new Blackhall Place head-quarters in 1978, thousands of solicitors

have visited this historic building, many com-ing for business or pleasure but most comingsimply to begin their training as apprentices.And when they leave, they will know that theLaw Society regulates their profession in thepublic interest and fights the good fight ontheir behalf in its dealings with government,

Ask not what you can do for your professional body (well, not really: the Society would love to see members take a greater interest) but, rather, what your

professional body can do for you. The Law Society provides a wide range of servicesfor solicitors above and beyond its familiar regulatory and representative roles.

In the first of a series of articles, Member Services Executive Claire O’Sullivanexplains what these services are and how they can help your practice

the media and other professional bodies. But,sadly, that often seems to be where theirknowledge of the Society ends. Anecdotal evi-dence suggests that members view their pro-fessional body as some sort of Dublin-basedmonolith that has little interest in the ordinarysolicitor – unless it is to haul them over thecoals for some perceived misdemeanour – andwhich has certainly nothing to add to the pro-fessional lives of members.

Nothing could be further from the truth. TheLaw Society provides a wide range of servicesdesigned to help solicitors run their practicesmore efficiently and effectively and gearedtowards making their professional lives easier.As the newly-appointed Member ServicesExecutive, I hope that this series of articles willprovide some useful information on how theLaw Society can help you and your firm andthat it will encourage you to make more of the

What can we you?for

ALL PIC

S: ROSLY

N BY

RNE

Café society: The Law Society’s recently refurbished Friary Café in the Four Courts, which opened in October 1997


MEMBER SERVICESMEMBER SERVICES

services we offer. After all, it is your profes-sional body and we are here to help you.

As a result of our determination to focusmore on what the Law Society can do for you,the structure of the Society’s secretariat was re-organised in December 1997 to include afourth department, ‘Policy, Communicationand Member Services’. This department nowcomprises 13 members and is headed by theDeputy Director General, Mary Keane. Part ofthe department’s brief is the expansion andpromotion of the portfolio of Law Society ser-vices available to solicitors throughout thecountry.

These services fall into four broad cate-gories: ● Professional practice development● Growing your business● Personal benefits, and ● Ancillary services.

Professional practice developmentPractice development aims to provide timelyadvice and support to help members managetheir firms better. The Society endeavours tokeep members up to date with regular profes-sion-wide publications such as the Gazette, theLaw directory and regular practice notes. It alsoissues regular briefings on legislation and busi-ness-related topics to raise awareness amongsolicitors of proposed changes in these areas. Inthe last year, for example, we issued briefingson subjects as diverse as the InvestmentIntermediaries Act, the Conveyancing hand-book and the Education Policy Review Groupreport. Projects for the coming year includeissuing a CD-ROM of Irish statutes from 1922to date, an audio tapes pack, Managing yourlegal firm, and an update to the Get connectedsupplement.

Professional guidance, in both the areas ofpractice and professional conduct, is freelyavailable at the end of a telephone line from thevarious professional committees of the LawSociety. The secretaries of the individual com-mittees are listed at the front of your Law direc-tory and can be contacted on the main Law

Society number. The Society also runs anextensive programme of continuing legal edu-cation and personal development courses formembers throughout the year. The speakers atthese seminars are all experts in their fields andthe subjects chosen on the basis of topicality orperennial interest to the profession. Last year,for example, we ran CLE courses on Recentdevelopments in conveyancing practice,Essentials of personnel management, and Theconduct of modern litigation. This year weintend to expand the CLE programme and torun more courses around the country.Hopefully, this should make it easier for thosesolicitors outside Dublin to keep up to date withthe burning legal issues of the day.

Another recent initiative that has really takenoff has been the Law Society’s New Horizonsbusiness links programme which is run in asso-ciation with accountants PriceWaterhouse-Coopers. The programme is designed to reflectand promote the increasing diversification byyoung solicitors into new areas of practice andaims to provide a forum for young solicitorsand apprentices to meet senior personnel froma variety of industries in a semi-social setting.Events include breakfast, lunch and eveningmeetings where short talks are given by promi-nent members of the business and legal com-munity. New Horizons kicked off with a talk byPaul Coulson, chief executive of Yeoman

I n t e r n a t i o n a lGroup, and has

since featured suchluminaries as ‘show busi-

ness’ lawyer James Hickey ofMatheson Ormsby Prentice and MaryO’Rourke TD. Forthcoming New Horizonsevents will be publicised in the news pages ofthe Gazette, so keep your eyes peeled!

But possibly the most important project to becarried out this year will be the unveiling of theLaw Society’s new web site. The launch is setfor 10 February, and next month’s article willset out in detail the contents of the site and howyou can get the best out of it. Basically, the website will aim to inform and update the profes-sion about the work and activities of the LawSociety and to provide information and adviceto members in the conduct and management oftheir practices. This is a wonderful opportunityfor feedback and communication betweenmembers and their professional body, and wehope that everyone will find it useful and easyto use. If you can’t wait until next month’sissue, you can access the site on www.lawsoci-ety.ie after 10 February (see also news story,page 13).

Growing your businessThe second major category of services that theLaw Society provides for its members can betermed Growing your business. This concen-trates on enhancing business opportunities andclient-care services for members through the

do

At your service: Claire O’Sullivan,Member Services Executive, and (inset)Blackhall Place’s silver service restaurant


MEMBER SERVICESMEMBER SERVICES

provision of corporate finance schemes, com-pany formations and client-care leaflets. Forexample, a funding scheme to make it easier topay professional indemnity insurance and thepractising certificate fee has been negotiated bythe Society on behalf of its members on highlycompetitive terms with Equity Bank. Likewise,the Society operates a comprehensive companyformation service for members from its premis-es at Blackhall Place. Again, these schemes willbe discussed in more depth in a later article.

Personal benefitsOf course, no solicitor’s life is just work, work,work. There has to be scope for entertainment,even if that simply means availing of theSociety’s ample facilities to meet potential newclients or to wine and dine valued contacts.

Conference, accommodation and enter-tainment facilities. Few venues can rivalBlackhall Place as the setting for a social func-tion or business event. Besides playing host tothe Law Society, Blackhall Place is an out-standing Dublin landmark and is steeped in his-tory and tradition. Because it operates as thehub of the solicitors’ profession in Ireland, youcan be sure that its picturesque grandeur is

matched by a thoroughly business-like func-tionality that provides the working environmentand support services you require.

Blackhall Place is an adaptable building andmakes an excellent venue for a wide range ofsocial or business events for solicitors and theirclients. Blackhall Catering, the Society’s in-house catering team, is available to assist andadvise members who wish to organise a busi-ness dinner, a press conference, a trainingcourse or even a wedding. Menus will be cus-tomised to suit individual requirements andoriginal settings and table decorations will beprovided. An extensive menu range is availableon request from the Society. Likewise, you canbook daily lunch in the silver service Members’Dining Room.

And if you find that you can’t tear yourselfaway, we provide overnight accommodation formembers at keen rates. These cosy rooms arefully equipped with tea and coffee-making facil-ities, a self-service kitchen and a TVroom/lounge. Full breakfast is available in theMembers’ Dining Room.There is ample on-sitecar parking forovernight guests,

but be warned: rooms must be booked inadvance. They cost £20 for a single room and£30 for a double room.

Four Courts consultation rooms. Over thepast 18 months, the Law Society has expendeda good deal of time and money upgrading itsconsultation rooms at the Four Courts. Theresult has been 24 state-of-the-art meetingrooms which have been carefully refurbishedfor members’ use. These rooms may bebooked in advance or (depending on availabil-ity) paid for on the spot. Rooms can be bookedat the one-hour rate of £20 while £30 secures aroom for the standard two-hour period. The£20 rate is subject to an immediate cash orcredit card payment to reduce administrationcosts. There are a large number of telephonesavailable for members’ use, and tea and coffeewill be served to each room on request. Fullphotocopying facilities (including a colourphotocopier) and storage lockers are also avail-able. The solicitors’ writing room is also avail-able for members and provides a quiet spacewhere you can catch up on your paperwork.

The Friary Café. In response to members’requests for improved catering facilities at

the Four Courts, the Society opened theFriary Café in October 1997. Thisdelightful tea-room occupies the areaknown to generations of apprentices asMrs O’Reilly’s Kitchen and is an oasisof calm amid the hurly-burly of thecourts. The new design has cleverlyincorporated many of the features ofthe old kitchen, including the old cast

iron range. The café is open from 9amto 4.30pm every weekday and offers a

range of sandwiches, snacks and lightrefreshments to members and their clients.

Ancillary servicesFinally, the Society also offers a wide range ofpersonal and ancillary services to its membersand these will be dealt with more comprehen-sively in a later article.

One of the themes of Patrick O’Connor’spresidency for 1999 is to make the LawSociety more accessible to solicitors, and hehas identified the delivery of first-class ser-vices and benefits to members as one of thepriority areas in this regard. The focus of allSociety services is relevance, practicality, use-fulness and value for money. We recognise thatthe key to success for modern professionals isexcellent management and business skills. Tothis end, we aim to deliver practical, targetedservices that will bring tangible benefits tomembers that will allow both practices andpractitioners to meet the challenges of theyears ahead.

Claire O’Sullivan is the Law Society’s MemberServices Executive.

G

Detail of the Council stairwell, Blackhall Place, and (inset) the Four Courts’ Friary Café

Council reportReport on Council meeting held on 5 November 1998


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New Council membersThe Council welcomed its newly-elected members, Walter Beatty,Anne Colley, John Fish and John PShaw, together with the new nom-inees from the DSBA, DavidBergin and Kevin O’Higgins andfrom the SLA, Simon J Murphy,and wished them well for theirterm of office.

Taking of office byPresident and Vice-PresidentsThe outgoing President, LaurenceK Shields, thanked the Councilmembers, the Director Generaland staff of the Society, his wifeHelen, and the profession for theirsupport and encouragement duringthe past year and expressed hisbest wishes to the incomingPresident, Patrick O’Connor, whowas then formally appointed tooffice by the Council.

Mr O’Connor expressed hisdeep sense of pride and privilegeto be appointed as President of theSociety and to follow in the foot-steps of his late father, Val, whowas President in 1972/73 and thefirst Mayo man to hold that posi-tion. He paid tribute to the unstint-ing commitment of Laurence KShields during his year in office,who had dedicated himself on afull-time basis to the work of theCouncil and the Society.

With close to 6,600 solicitors onthe Roll, he identified the greatestchallenge for the Council as antic-ipating and preparing for changeand ensuring that all solicitorsreceived the best possible educa-tion. He noted the disappointinglevel of interest among memberswilling to seek election to theCouncil and he indicated his inten-tion to appoint a working group toexamine this issue and to make

recommendations to the Council.He identified the greater use of

technology and an increasingfocus on the services provided bythe Society as areas for particularemphasis during the coming yearand expressed his intention thatevery practitioner would receive apersonal invitation to attend afunction at Blackhall Place, so asto have an opportunity of visitingtheir headquarters.

In relation to the committees forthe coming year, he had sought toadhere to the recommendations ofthe Review Working Group and,accordingly, the number of com-mittees had been reduced, somehad their areas of responsibilityextended and the number of mem-bers had been reduced. To empha-sise the accountability of theCouncil to the members and theresponsibility of the committees tothe Council, he had sought, wherepossible, to appoint a Councilmember as chairman and vice-chairman.

Mr O’Connor confirmed his100% commitment to the Council,the Society and the profession forthe coming year. The Senior Vice-President, Anthony Ensor, and theJunior Vice-President, GerardGriffin, both then took office andthanked the Council for the hon-our bestowed on them.

Proposed designation ofsolicitors pursuant to sec-tion 32 of the CriminalJustice Act, 1994John Fish outlined the backgroundto the issue and identified theSociety’s fundamental concernsregarding the proposal.

Solicitors (Amendment)Bill, 1998The Director General reported

that the Bill had been passed bythe Seanad and was due to be con-sidered in the Dáil during the fol-lowing two weeks.

Statutory Instrument 391of 1998James McCourt reported that SI391 of 1998, replacing SI 348 of1997, had been signed into law on14 October 1998. However,because of the wording of the newrules, there was some confusionas to whether both statutoryinstruments were to be consideredas running in tandem up to 14October 1998, or whether SI 348of 1997 would be regarded as nothaving been in effect up to thatdate. The Society had sought anurgent meeting with the Presidentof the High Court, with a view todiscussing the issue of a practicedirection by him on the matter.(See pages 16-17 for explanatoryarticle on the new rules.)

Outcome of postal ballotThe Council noted with pleasurethat 76% of those who had partic-ipated in the postal ballot hadvoted in favour of the resolutionand that work would proceedimmediately on the constructionof the new Education Centre. Inresponse to a query from OrlaCoyne, Owen Binchy said that theEducation Committee was exam-ining a number of options fordealing with the backlog of stu-dents in advance of the introduc-tion of the new course and thedevelopment of the new building.

Younger MembersRemuneration SurveyThe Council considered theresults of the Younger MembersRemuneration Survey, as present-ed by Stuart Gilhooly and con-

cluded that the matter should beconsidered further by the Co-ordi-nation Committee.

Year 2000 compatibilityand indemnity insuranceDavid Martin reported that theProfessional Indemnity InsuranceCommittee was considering theissue of Year 2000 compatibility, assome of the approved insurers hadindicated that they would not pro-vide Year 2000 indemnity cover.

CCBEThe Council considered documen-tation presented by GeraldineClarke regarding proposedchanges to the CCBE code of con-duct and to the voting systemwithin the CCBE and her recom-mendations, following consulta-tion with the Guidance and EthicsCommittee, as to the Society’sstance. Following discussion, theCouncil approved Ms Clarke’srecommendations on the proposedamendments to the code of con-duct and authorised her to vote infavour of the proposed system of adouble qualified majority vote fordecisions on major issues withinthe CCBE. The Council alsoapproved the appointment of JohnFish as the Society’s representa-tive on the CCBE sub-committeeon money laundering.

Law Clerks JLC: proposedpension schemeGerard Doherty reported that theemployee representatives on theJLC sub-committee had indicatedtheir intention to seek agreementfor a compulsory pension schemefor all employees, with anemployer’s contribution of 4%and an employee’s contribution of2%, with a death benefit of twoyears’ salary. On a payroll of

THE SOCIETY OF YOUNG SOLICITORS IRELANDIN ASSOCIATION WITH THE BAR OF IRELAND

Spring Conference 199919-21 March 1999 at Dromoland Castle, Co Clare

Friday 19 March 19995pm onwards Registration of delegates

Saturday 20 March 1999 TERRACE ROOM10.15am to 10.55am The decade of the tribunal

Eamonn Leahy SC10.55am to 11.30pm Tribunals and the media

Ted Harding, legal correspondent, Sunday Business PostFollowed by discussion session

11.50am-12.10pm COFFEE BREAK12.10pm to 12.50pm Developments in conveyancing practice

Patrick Sweetman, Partner, Matheson OrmsbyPrentice, Solicitors

1pm to 2pm LUNCH available at delegate’s cost2pm-6pm Activities including tennis, golf (pre-book through

hotel), fishing, clay pigeon shooting (deposit of £10required), leisure centre with steam room, sauna andgymnasium

7pm to 8pm Drinks reception, Brian Boru Balcony8pm. until late Banquet, followed by band and disco (Black Tie)

Sunday 21 March 1999Up to 10.30am Breakfast12 noon Check out of hotel

NOTES:1. Accommodation at Dromoland Castle Hotel

will be limited. Early booking is essential and

accommodation will be allotted strictly on a

first-come, first-served basis.

2. Conference fee is IR£165 pps, and includes

Friday and Saturday night accommodation,

two breakfasts, subsidised activities, Saturday

evening banquet and conference materials.

3. A conference rate without accommodation is

available at £65 which entitles the delegate to

attend the lectures, subsidised activities,

Saturday evening banquet and to a copy of the

conference materials.

4. Individual applications only are acceptable

(that is, one registration form per applicant per

envelope). All applications must be made by

ordinary prepaid post and only postal applica-

tions exhibiting a postal mark dated 12

February 1999 or after will be processed.

5 No booking will be accepted without payment

of the conference fee. Cheques to be made

payable to the Society of Young Solicitors. A

cheque may cover several applicants provided

each applicant posts a separate registration

form. Please write delegate names on the

reverse side of all cheques.

6. All cancellations must be notified to Julian

Yarr by Monday 1 March 1999. Cancellations

after that date will not qualify for a refund.

REGISTRATION FORM Please use block letters (Individual postal applications only – no block bookings)

Name: Firm:

Business address Phone no: (Home) (Office)

ACCOMMODATION IN DROMOLAND CASTLE: £165 per person sharingPlease tick box Double Twin Sharing with: Single

I wish to avail of the vegetarian option at the banquet I wish to participate in clay pigeon shooting (£10 extra enclosed)

NON-ACCOMODATION RATE: £65 I enclose cheque/postal order payable to the Society of Young Solicitors for £ in payment of the conference fee (includes£10 for clay pigeon shooting, if relevant)

Please post this registration form with the conference fee to The Treasurer, SYS-Spring Conference, PO Box 52, Carlow.Postal applications exhibiting a postal mark of on or after 12 February 1999 only will be accepted. All enquiries regarding the conference should be

directed to Julian Yarr at (01) 661 3311 after 6pm Monday to Thursday.


BRIEFINGBRIEFING

£100,000, this would cost anemployer £2,000 a year.

Mr Doherty said that, as a com-pulsory scheme would represent anew obligation for the profession,he believed that soundings amongcolleagues were urgently required.The Council agreed that (a) theprofession should be notified ofthe on-going discussions, and (b) aworking group should be estab-lished to provide guidance and

support to the Society’s representa-tives on the JLC.

Wills promotionPhilip Joyce asked whether theSociety proposed to take anyaction in relation to a wills promo-tion being run by The SundayTimes under which readers of thatnewspaper would be entitled to afree will once they collected anumber of promotional tokens

from the newspaper. In his view,the promotion was in extremelybad taste and should be vigorous-ly opposed. The Director Generalconfirmed that he had received aletter from the newspaper, seekingthe Society’s support for the pro-motion, together with letters fromsolicitor colleagues objecting,quite rightly, to it. Donald Binchysaid that the Society should replyfirmly to The Sunday Times, indi-

cating that the Society did notregard this type of promotion asappropriate, as it demeaned theservice provided by solicitors andindicated that there was no partic-ular skill involved in the drawingof a will. He also believed that theSociety should recommend thatmembers should not participate inthe promotion. The Council unan-imously endorsed Mr Binchy’ssuggestion.

Nominees from the LawSociety of NorthernIrelandThe Council approved the nomi-nees from the Law Society ofNorthern Ireland as ExtraordinaryMembers of the Council, as fol-lows: Catherine Dixon, AntoinetteCurran, John Meehan, AlastairRankin and George Palmer.

Motion: In-house complaints procedureThat this Council approves thedraft regulations providing for theestablishment of a mandatory in-house complaints procedure inevery firm of solicitors.Proposed: Francis D DalySeconded: John D Shaw

Proposed designation of solicitors pursuant tosection 32 of the CriminalJustice Act, 1994John Fish reported that he had beenappointed by the CCBE to chair atask force, which included repre-sentatives from three other delega-tions, to deal with the immediatetask of responding to the EuropeanCommission regarding theCommission’s proposal to extendthe provisions of the Money-laun-dering directive to lawyers.Geraldine Clarke noted that it wasa measure of the esteem in whichMr Fish was held at the CCBE thathe had been appointed to chair thisimportant task force at Europeanlevel. On behalf of the Council, thePresident complimented Ms Clarkeand Mr Fish on their commitmentand hard-working representation ofthe profession at the CCBE.

Solicitors (Amendment)Bill, 1998The President reported that it wasnow unlikely that the Bill wouldreach committee stage in the Dáilbefore January 1999, at the earliest.

Financial services regulationIt was agreed that the Societywould make a submission to theImplementation Advisory Groupon the establishment of a SingleRegulatory Authority for the finan-cial services sector, confirming theSociety’s view that solicitors whoacted as investment intermediariesshould be regulated by the Society,and not by the proposed new body,other than to the extent currentlyundertaken by the Central Bank.

Education fees and coursesThe Council considered andapproved draft regulations in rela-tion to apprentices’ fees whichwould be presented to thePresident of the High Court for hisapproval. The Chairman of theEducation Committee, OwenBinchy, confirmed that the pro-posed increase in fees would bematched by improvements in thecourses being provided and thatproposals were also being consid-ered to deal with the backlogs.

Practising certificate feefor 1999The Chairman of the FinanceCommittee, Ward McEllin, report-ed on the committee’s recommen-dations regarding the practisingcertificate fee for 1999. In relation

to the compensation fund contri-bution, the committee believedthat, given the level of reservesand insurance for the fund, it wasnot necessary to maintain the pre-sent level of contribution to thefund of £600 and it was proposedthat this should be reduced to£400, with the registration feeincreasing by £200, £100 of whichwould be allocated to the newEducation Centre and £100 beingapplied towards the cost of theprovision of services by theSociety and the further reductionof the Society’s indebtedness. Heconfirmed that the total practisingcertificate fee would increase by£15, which reflected inflation.

The Chairman of theCompensation Fund Committee,Gerard Doherty, said that, person-ally, he believed that the recentlow claims history, the reserves inthe fund and the insurance on thefund combined to support theview that a contribution of £400was adequate to meet its currentneeds. The Council approved thepractising certificate fee for 1999,as outlined by Mr McEllin.

CD-ROMsThe Council overwhelminglyapproved a proposal from theChairman of the PracticeManagement Committee, NiallFarrell, that the Society shouldpurchase, at a discounted rate, aset of CD-ROMs being producedby the Attorney General’s Officecontaining all Acts of theOireachtas and statutory instru-ments since 1922, for distributionto every solicitors’ firm.

Budget submissionThe Council noted, with approval,the excellent submission by theTaxation Committee on theBudget and the correspondencefrom Anthony Collins, Chairmanof the Retirement FundCommittee, to the Minister forFinance requesting the granting ofinterim relief for self-employedindividuals who were presentlyrequired to purchase an annuity atthe time benefits were drawndown.

Law Clerks JLCGerard Doherty reported that theJLC had approved an increase of1.5%, effective from 1 April1999, and an increase of 1%,effective from 1 January 2000, atits meeting held in November.This was in line with a previousCouncil decision. Mr Dohertysaid that the pension scheme pro-posed by the JLC was being con-sidered by a working group com-prising himself, Hugh O’Neill,Niall Farrell and Philip Joyce.The Council approved a memo-randum on the proposed schemefor issue to the managing partnerof every firm.

VAT on legal servicesGeraldine Clarke reported that theCCBE submission to the EUCommission in relation to areduction in VAT on legal serviceshad been taken on board by theCommission and it appeared thatthe Commission’s proposedamendments to the VAT directivewould contain the CCBE’s sug-gestions. G

Report on Council meeting held on 4 December 1998

Committee reports


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Criminal Legal AidScheme: delay in introduc-tion of tax clearance certificate regulationsThe Department of Justice hasadvised the Society that the dateby which practitioners on theCriminal Legal Aid SchemePanel will be required to submit atax clearance certificate (previ-ously set at 1 March 1999) hasbeen deferred to a date to beadvised (possibly April/May).The date for application to theCollector General for the certifi-cate (previously set at 15 January1999) has also been deferred. TheDepartment will automaticallyforward an application form toeach solicitor on the current LegalAid Scheme Panel as soon as theforms are available and willadvise practitioners of the newapplication and submission dates.Practitioners who are not current-ly on the panel but who wish toobtain an application form shouldapply to the Courts Division,Department of Justice.

Criminal Legal Aid FeesRegulationsThe committee is receiving anincreasing number of complaintsfrom practitioners regardinganomalies in the above regula-tions and difficulties which arisein relation to payments for certainwork carried out under thescheme. For example, practition-ers are dissatisfied with the prac-tice whereby a fee is not paid tothe defence where adjournmentsare sought by the State and grant-ed. The level of fee paid where a late nolle prosequi is entered

CRIMINAL has also been criticised. To thisend, the committee is endeavour-ing to establish whether practition-ers would be interested in attend-ing a meeting to discuss the issuesarising and to consider whatcourses of action are open to practitioners to deal with the situation. The committee wouldbe pleased to hear from practition-ers in this regard and membersshould write to/telephone ColetteCarey, Solicitor, Criminal LawCommittee, Law Society ofIreland, Blackhall Place, Dublin 7(tel: 01 6724800).

Criminal Legal Aid Scheme:prison visitsIn order to improve the service pro-vided to solicitors assigned to casesunder the Criminal Legal AidScheme, the Department has intro-duced a new procedure for claimingprison visit fees with effect from 1October 1998. This will involve thepresentation of claim forms in bookformat, each form with an individ-ual serial number and carbon copyattached. This will allow the form tobe completed by a solicitor and cer-tified and stamped by a prison offi-cer with the original completedform being forwarded by the solici-tor to Finance Division, Killarney,for payment and a copy beingretained in the prison for referencepurposes.

Criminal Law Committee

Review of guide to professional conductThe Guidance and EthicsCommittee has been asked toreview and update the publication A

GUIDANCE AND ETHICS

guide to professional conduct ofsolicitors in Ireland – often referredto as The grey guide.

The legal framework for the reg-ulation of the conduct of solicitorsin Ireland is the Solicitors Acts,1954 to 1994. In addition, there arerecognised principles of good pro-fessional conduct, such as avoid-ance of conflict of interest and com-pliance with undertakings, contra-vention of which amount to mis-conduct. The publication of theguide in 1988 was an attempt tostate the principles and to convertsome of the principles into practicalguidelines in specific situations.

Members are now invited to con-tribute to the current review bymaking their views known to thecommittee, either generally or on aparticular topic, in writing or bytelephone, directed to ThereseClarke, Solicitor, secretary to thecommittee, Law Society of Ireland,Blackhall Place, Dublin 7 (tel: 018681220). The committee believesthat an updated guide will greatlyassist the profession.

Keenan Johnson, Chairman,Guidance and Ethics Committee

Budget submissionThe Society’s Taxation Committeehas drafted a detailed submission tothe Minister for Finance in relationto the 1999 Budget and FinanceBill. A copy has been sent to eachbar association for information.Members who wish to obtain acopy of the submission should con-tact Colette Carey, TaxationCommittee, Law Society of Ireland,Blackhall Place, Dublin 7.

Taxation Committee

TAXATION

Taxation AdministrationLiaison CommitteeThe Taxation AdministrationLiaison Committee (TALC) con-tinues to provide an extremely use-ful forum between the RevenueCommissioners and practitioners.Practitioners’ involvement inTALC is made up of representa-tives from these bodies, namelythe Law Society, Institute ofTaxation and CCAB-I.

TALC operates through varioussub-committees and ad hocgroups, with the head committee(called plenary or main TALC)monitoring the activities of eachsub-committee and ad hoc group-ing while also pursuing its ownagenda.

There is flexibility in the forma-tion of the committees, and wherethe tasks for any particular sub-committee have been fulfilled andit is considered that any particularsub-committee or ad hoc group isno longer necessary, then this par-ticular section can be disbanded oradjourned indefinitely. Alterna-tively, new project-driven commit-tees can be established and theflexibility of the entire structureensures that issues are dealt withon a timely basis.

For 1999, the current TALCsub-committees are:1) Audit sub-committee whose

principal functions for 1998have centred around voluntarydisclosure. The committee dis-cussed a code of practice forRevenue auditors. This has nowbeen published and is effectivein respect of audits commencingsince 1 December 1998. A copyof the code is available from theRevenue upon request. Thecommittee has been discussingRevenue’s prosecution criteria


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and a survey of cases re-auditedto establish whether taxpayerswho have been subject to anaudit and who are subsequentlyre-audited have become com-pliant

2) Technical sub-committee.This committee addresses cer-tain topics of general interest tothe profession. Recent topicscovered include employeeshare option schemes, foreignearnings and residency issues,together with termination pay-ments and the signing of taxreturns by tax advisers onclients’ behalf. The committeegenerally endeavours to prepareand agree a memorandum onthe selected topic, which coversgeneral principles, while alsocovering areas of uncertainty

3) Capital taxes ad hoc commit-tee. This committee wasinstrumental in the introduc-tion of a new stamp duty FormSD4 and the similar form forcapital acquisitions tax, in eachcase concerning share valua-tions, and speeding up theadjudication process. It has sofar been very successful inreducing turnaround time withthe Revenue Commissioners. Ithas also dealt with practicalissues such as the issue of cap-ital gains tax clearance certifi-cates and the identification ofother administrative issuesaffecting practitioners in theseareas

4) Indirect Taxes Committee.The issues to be dealt with bythis committee in the nearfuture will include VAT on thetransfer of business and irrecov-erable VAT costs associatedwith shares issues

5) Collection Committee. Var-ious issues such as direct debitfor preliminary tax and practi-cal issues covering the paymentof cheques to the RevenueCommissioners and instalmentarrangements are included inthe agenda for this committee.

The main committee has dealtwith a number of issues over thepast year including dealing withthe outcome of discussions which

the audit sub-committee has heldconcerning voluntary disclosure.It has also dealt with the proposedintroduction of the new pay andfile system.

Each committee/sub-commit-tee generally meets approximate-ly four times a year, or more fre-quently where there is an urgentneed (for example, a meeting isgenerally always held in connec-tion with the publication of aFinance Bill in any year to dealwith issues which arise fromthis). Each committee and sub-committee handles a heavy agen-da and there is usually at least onemajor achievement by each sepa-rate committee on a yearly basis.What are sometimes unspoken,however, are minor issues andproblems which are solved in aseamless manner which facilitiesthe on-going healthy relationshipbetween the Revenue Commis-sioners and the practitionerswhich is essential for the Irish taxsystem.

Any practitioners experiencingadministrative problems or issuesare invited to contact the LawSociety’s Probate, Administrationand Taxation Committee whichcan arrange to have these mattersdealt with at TALC, if appropri-ate. In addition, the views ofsolicitors on the new stamp dutyForm SD4 are welcomed, beforethis pilot scheme is copper-fas-tened.

Probate, Administration andTaxation Committee

Election for auditorThe result of the election for theauditor to the 115th session ofSADSI was as follows:● Total poll: 141● Invalid votes: 15● Total valid poll: 126

Boyle, Aaron: 27Gallagher, Louise: 99

Louise Gallagher was deemedelected for the 115th session.

John Cahir, SADSI Auditor

SADSI

Apprentice survey resultsSADSI conducted a survey lastyear in order to gauge the currentwork conditions and attitudes ofapprentice solicitors. In all, nearly500 post-professional courseapprentices were sent the question-naire, and there was a responserate of 15%.

As one would expect, the issueof salaries was the main bone ofcontention. The Celtic Tiger hasfailed to shed even a few hairs onthe fortunes of apprentice solici-tors. The average monthly grosssalary of apprentices is £707 (itreduces to £558 after tax). Theaverage working week is a surpris-ingly low 43 hours. We calculated(on the basis of there being 4.3weeks in a month) that the averagehourly rate of pay for an appren-tice, before tax, is a meagre £3.82an hour. Burger King is currentlyadvertising jobs, which pay £4 anhour. Need we say more?

The problem of low salaries isfurther compounded by the factthat very few firms pay theirapprentices’ professional andadvanced courses fees. In all, only23% of the respondents’ firms paidtheir fees. There was, however, amarked contrast between thoseworking in small and large firms.Some 82% of large firms pay theirapprentices’ fees, whereas only12% of small firms do. In view ofthe fact that the total cost of thetwo courses runs to nearly £5,000,an average apprentice would haveto donate nine months’ net pay tocover the cost of the courses.Seeking outside financial assis-tance is therefore inevitable for thevast majority of apprentices.

On a bare analysis of the fig-ures above, one would wonderwhy anyone would want to enterthe profession and, indeed, whythe profession is still such a popu-lar choice with university gradu-ates. Other results of the survey gosome way to explaining thisapparent anomaly: 74% of respon-dents stated that they were satis-fied with the quality of their work.Few other careers can claim suchhigh job satisfaction ratings, espe-cially ones that pay on average amere £8,500 a year.

It would appear, therefore, thatapprentices as a whole are satis-fied with the quality and nature oftheir work despite the lowsalaries. The job satisfaction rat-ing is backed up by the findingthat 77% of respondents statedthat they intended to practise assolicitors upon qualification (7%said that they did not, and 16%were undecided). There was, how-ever, considerable uncertaintyamong apprentices as to whetherthey would be offered employ-ment after completing theirapprenticeship. Only 30% ofapprentices believed that theirfirms would be in a position tooffer them a job; 16% expectednot to be offered a job; and 54%did not know.

On the basis of our survey, it isclear that there is a genuine desireto work in the profession, but thisis being hindered by the cripplingfinancial cost. Maybe it’s time foremployers to break the cycle ofapprentice hardship.

John Cahir, SADSI Auditor,and Louise Cox, SADSI

Education Officer

LAW SOCIETY OF IRELAND ON E-MAIL

Now contactable [email protected]

Individual mail addressestake the form:

[email protected]

In early 1998 the Revenue

Commissioners (in consultation

with the Law Society and other bod-

ies) introduced a new Form SD4 on a

pilot basis concerning the transfer of

shares in unquoted companies. The

form has been in use for the past cou-

ple of months and has apparently

greatly increased the turnaround

time in stamping and valuation of

such shares.

The form requires various general

details of the instrument and the

transaction to be stated together

with details of the method of valua-

tion used for the shares. Practition-

ers should note the following in rela-

tion to the form:

1. The scheme is still operating on a

pilot basis and therefore any com-

ments or feedback are welcome

and should be directed to the

Probate Administration and

Taxation Committee of the Law

Society

2. Part six of the form containing

valuation details will generally

require input either directly from

the client or from the auditors of

the company whose shares are

being transferred. Accordingly,

purchasers of unquoted shares

should endeavour to accumulate

the relevant information for com-

pletion of the form before com-

pletion of the transaction so that

the form can be submitted along

with the share transfer forms at

the appropriate time for stamping

3. As the form contains certain fac-

tual matters, such as valuation

details and confirmation of rela-

tionships between parties, it is

advisable that solicitors would not

sign the form but would ask their

client (the purchaser) or their

client’s auditors to sign the form.

Any queries or comments in relation

to the form are welcomed as soon as

possible and will be presented to the

Revenue Commissioners for consid-

eration in finalising the scheme.

Probate, Administration and

Taxation Committee

Stamp duty: new Form SD4


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Where a purchaser is

required to pay penalty

interest, income tax cannot be

deducted from the interest pay-

ment if the purchaser is an indi-

vidual. However, if the purchaser

is a company and is paying the

proceeds of the sale to an Irish

resident vendor, no income tax

can be deducted unless it was the

intention of the parties that the

transaction would not be closed

in under one year, in which case

the transaction might be viewed

as a yearly loan. If a ‘yearly loan’

situation does exist, then with-

holding tax at the standard rate

should be stopped by the purchas-

er company.

Where interest is purely penal-

ty interest on a transaction which

will be completed within a year,

no tax can be stopped.

Practitioners should note the

provisions of section 31 of the

Finance Act, 1974 whereby a gen-

eral obligation to stop tax at the

standard rate from yearly interest

payments is set out.

Probate, Administration and

Taxation Committee

Memorandum: withholding tax and penalty interest

PRACTICE NOTE

PRACTICE NOTE

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Leave it to the experts!

PHONE CARMEL OR RITA ON 01 672 4914/6, EXT 450 (FAX: 672 4915)

SHELF COMPANY NOW £160SHELF COMPANY NOW £160• Private limited company – ten days, £150• Guarantee company – ten days, £98.40• Shelf company – ten minutes, £160

• Single member company – ten days, £150• New companies, using complete nominees –

ten days, £165


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LEGISLATION UPDATE: 14 NOVEMBER – 31 DECEMBER 1998ACTS PASSEDAppropriation Act, 1998Number: 48/1998Contents note: Appropriates to theproper supply services and purposessums granted by the Central Fund(Permanent Provisions) Act, 1965, andmakes certain provisions in relation tofinancial resolutions passed by DáilÉireann on 2/12/1997.Date enacted: 18/12/1998Commencement date: 18/12/1998

Carriage of Dangerous Goods byRoad Act, 1998Number: 43/1998Contents note: Enables effect to begiven to the European agreement con-cerning the international carriage ofdangerous goods by road (ADR), andto European Union Directives 94/55/ECon the transport of dangerous goodsby road and 95/50/EC on uniform pro-cedures for checks on the transport ofdangerous goods by road.Date enacted: 2/12/1998Commencement date: Commence-ment order/s to be made

Comptroller and Auditor Generaland Committees of the Houses ofthe Oireachtas (Special Provisions)Act, 1998Number: 47/1998Contents note: Provides for theexamination and investigation by theComptroller and Auditor General ofthe assessment and collection by theRevenue Commissioners, during suchperiod as may be specified by resolu-tion by Dáil Éireann, of income tax(deposit interest retention tax) whichcertain financial institutions werelegally required to deduct from certaindeposits of money held with them.Amends the Committees of the Housesof the Oireachtas (Compellability,Privileges and Immunities ofWitnesses) Act, 1997, and theComptroller and Auditor General Act,1923.Date enacted: 16/12/1998Commencement date: 16/12/1998

Education Act, 1998Number: 51/1998Contents note: Provides for a rangeof issues relating to rights and dutiesarising in respect of education, otherthan third-level education, and pro-vides for the structure and administra-tion of the education system. The mainprovisions of the Bill provide for: the

recognition of schools for the purposesof funding by public funds; the estab-lishment of the inspectorate on a statu-tory basis; the establishment of boardsof management of schools; the estab-lishment and role of parents’ associa-tions; the functions of principals andteachers; appeals by students or theirparents; the making of regulations bythe Minister; the establishment of theNational Council for Curriculum andAssessment and regulation of the Stateexamination system.Date enacted: 23/12/1998Commencement date: Commence-ment order/s to be made

Fisheries and Foreshore(Amendment) Act, 1998Number: 54/1998Contents note: Makes further provi-sion in relation to applications foraquaculture licences and confirms anumber of applications for aquacul-ture licences; provides for additionalpowers to deter unauthorised devel-opments and the deposit of unaccept-able or harmful matter on the fore-shore, and provides for related mat-ters. Amends and extends the FisheriesActs, 1959 to 1997, the Foreshore Act,1933 and the Fishery Harbour CentresAct, 1968.Date enacted: 23/12/1998Commencement date: 23/12/1998

George Mitchell Scholarship FundAct, 1998Number: 50/1998Contents note: Establishes a fund inthe United States to be known as theGeorge Mitchell Scholarship Fund forthe purpose of providing scholarshipsfor citizens and nationals of the UnitedStates who are attending universitiesor colleges of higher learning in theUnited States to enable them to studyor carry out research in universities inthe State. The fund is a tribute toGeorge Mitchell’s role as Chairman ofthe Northern Ireland Peace Talks.Date enacted: 23/12/1998Commencement date: 23/12/1998

Jurisdiction of Courts andEnforcement of Judgments Act,1998Number: 12/1998Contents note: Enables Ireland toratify the Convention on the accessionof Austria, Finland and Sweden (‘the1996 Accession convention’) to theconvention on jurisdiction and

enforcement of judgments in civil andcommercial matters (‘the 1968 conven-tion) and the protocol on the interpre-tation of that convention by theEuropean Court of Justice. Consoli-dates the provisions of the Jurisdictionof Courts and Enforcement ofJudgments Acts, 1988 and 1993.Date enacted: 23/12/1998Commencement date: Commence-ment order/s to be made

Plant Varieties (ProprietaryRights) (Amendment) Act, 1998Number: 41/1998Contents note: Provides for ratifica-tion by the State of the 1991International convention for the pro-tection of new varieties of plants(‘UPOV convention’) and implementsthe provisions of Council Regulation2100/94/EC setting up a communityplant variety rights system. Amendsand extends the Plant Varieties(Proprietary Rights) Act, 1980.Date enacted: 16/11/1998Commencement date: Commence-ment order to be made

Protections for Persons ReportingChild Abuse Act, 1998Number: 49/1998Contents note: Grants immunityfrom civil liability to any person who ingood faith reports a child to be a vic-tim of abuse and contains provisions toprotect any person who makes suchreport from unfair dismissal from hisor her employment.Date enacted: 23/12/1998Commencement date: 23/1/1999(per section 7(2) of the Act)

Scientific and TechnologicalEducation (Investment) Fund(Amendment) Act, 1998Number: 53/1998Contents note: Amends and extendsthe Scientific and TechnologicalEducation (Investment) Fund Act,1997. Increases payments into thefund, established under the 1997 Act,for the year 1998 and extends theareas of research and development forwhich payments out of the fund maybe made.Date enacted: 23/12/1998Commencement date: 23/12/1998

State Property Act, 1998Number: 44/1998Contents note: Amends the StateProperty Act, 1954 and the National

Stud Act, 1945 to enable the Ministerfor Agriculture and Food to sell andotherwise deal with the National StudFarm, Co Kildare.Date enacted: 8/12/1998Commencement date: 8/12/1998

Tourist Traffic Act, 1998Number: 45/1998Contents note: Increases the statuto-ry limit, from £22 million to £50 mil-lion, on the aggregate amount ofgrant-in-aid that may be paid to BordFáilte to support tourism capital devel-opment works. Amends and extendsthe Tourist Traffic Acts, 1939 to 1995.Date enacted: 12/12/1998Commencement date: 12/12/1998

Voluntary Health Insurance(Amendment) Act, 1998Number: 46/1998Contents note: Enables the VoluntaryHealth Insurance (VHI) Board, with theconsent of the Minister for Health andChildren, to act as agent for the sale ofan international healthcare plan underwhich insurance cover may be providedagainst healthcare costs incurred whileresiding temporarily outside the State.Amends and extends the VoluntaryHealth Insurance Acts, 1957 and 1996.Date enacted: 15/12/1998Commencement date: 15/12/1998

Western DevelopmentCommission Act, 1998Number: 42/1998Contents note: Establishes theWestern Development Commission ona statutory basis – to promote econom-ic and social development in the coun-ties of Clare, Donegal, Galway, Leitrim,Mayo, Roscommon and Sligo – and pro-vides for the operation of the WesternInvestment Fund by the commission.Date enacted: 25/11/1998Commencement date: Establish-ment day order to be made (per sec-tion 6 of the Act)

SELECTED STATUTORY INSTRUMENTSControl of Dogs (Amendment)Act, 1992 (Commencement) Order1998Number: SI 443/1998Contents note: Appoints 1/2/1999 asthe commencement date for the Act.

Control of Dogs Regulations 1998Number: SI 442/1998

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LEGISLATION UPDATE: 14 NOVEMBER – 31 DECEMBER 1998 (CONTD)Contents note: Consolidate andrevoke certain regulations on controlof dogs.

Freedom of Information Act, 1997(Section 6(9)) Regulations 1998Number: SI 517/1998Contents note: Relate to records ofcontractors to public bodies.

Freedom of Information Act, 1997(Section 17) Regulations 1998Number: SI 518/1998Contents note: Provide similararrangements for requesters in usingsection 17 of the Freedom ofInformation Act, 1997, as currentlyobtain when making a standardrequest for access to informationunder section 7 of the Act. Provide forassistance to be given by public bodiesto requesters when using the Act tohave personal information held onthem corrected when that informationis inaccurate or misleading.

Freedom of Information Act, 1997(Section 18) Regulations 1998Number: SI 519/1998Contents note: Provide similararrangements for requesters in usingsection 18 of the Freedom ofInformation Act, 1997 as currentlyobtain when making a standardrequest for access to informationunder section 7 of the Act. Provide forassistance to be given by public bodiesto requesters when using the Act toobtain reasons for decisions taken thatparticularly affect them.

Freedom of Information Act, 1997(Section 25(6)) Regulations 1998

Number: SI 520/1998Contents note: Prescribe the Ministerfor Finance and the Minister forEnterprise, Trade and Employment forthe purposes of section 25(6) in rela-tion to the issue of a certificate that arecord is an exempt record.

Freedom of Information Act, 1997(Section 28(1)) (Amendment)Regulations 1998Number: SI 521/1998Contents note: Relates to requestsfor records containing joint personalinformation.

Freedom of Information Act, 1997(Section 47(3)) (Amendment)Regulations 1998Number: SI 522/1998Contents note: Provide for an addi-tional category of record for which acharge can be imposed.

Freedom of Information Act, 1997(Third Schedule) (Amendment)Regulations 1998Number: SI 524/1998Contents note: Correct a typographi-cal error in the third schedule to theFreedom of Information Act, 1997.Also provide for the addition of a ref-erence to the Access to Information onthe Environment Regulations 1998,and of a reference to the HealthServices Regulations 1971 to the thirdschedule. This means that the Freedomof Information Act will overriderestrictions on access to informationunder those regulations.

National Cultural Institutions Act,1997 (Commencement) Order 1998

Number: SI 438/1998Contents note: Appoints 14/11/1998as the commencement date for section6(2) of the Act, in so far as it relates tosection 24 of the National MonumentsAct, 1930, and for section 48 of theAct, in so far as it relates to paintingsin the care of the Hugh Lane MunicipalGallery of Modern Art.

Nursing Homes (Subvention)(Amendment) Regulations 1998Number: SI 498/1998Organisation of Working Time(Code of Practice on SundayWorking in the Retail Trade andRelated Matters) (Declaration)Order 1998Number: SI 444/1998Contents note: Prescribe a code ofpractice on Sunday working in theretail trade for the purposes of theOrganisation of Working Time Act,1997, section 14.

Safety, Health and Welfare atWork (Children and YoungPersons) Regulations 1998Number: SI 504/1998Contents note: Implement the healthand safety aspects of Council Directive94/33 on the protection of young peo-ple at work.

Safety, Health and Welfare atWork (Night Work and Shift Work)Regulations 1998Number: SI 485/1998

Solicitors Acts 1954 to 1994(Investment Business and InvestorCompensation) Regulations 1998Number: SI 439/1998

Contents note: Provide that a solici-tor, who is not an authorised invest-ment business firm or who does nothold himself out as a provider of invest-ment business services or investmentadvice, who applies to the Law Societyof Ireland for an annual practising cer-tificate will undertake: (a) only to pro-vide investment business services(which include the activities of aninsurance intermediary) or investmentadvice to clients incidental to the pro-vision of legal services to such clients;(b) not to hold himself out as being aninvestment business firm; and, (c) whenproviding such incidental services andacting as an investment product inter-mediary, not to hold an appointmentin writing other than from CentralBank of Ireland-authorised financialfirms, institutions or persons situate inthe State. Provide that a solicitor, inrespect of whom a practising certificateis in force who also chooses to operateas an authorised investment businessfirm providing investment business ser-vices (which includes the activities of aninsurance intermediary) or investmentadvice not incidental to the provisionof legal services, or who holds himselfout as providing such services or advice,will be required to provide forms ofindemnity against losses due to hisdefault, that may be suffered by clientsto whom he provides such non-legalservices, of an equivalent level to thatprovided (under the Solicitors Acts1954 to 1994) by law to clients who arein receipt of legal services from a solic-itor in respect of whom a practisingcertificate is in force but who is not sooperating.

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Personal injury judgmentsRoad traffic accident –two car collision – narrow country road –acute anxiety reaction –liability in dispute

CaseAnne O’Connor Gordon vDiethard Schmid; High Court onCircuit in Galway before the HonMr Justice Peter Kelly, judgmentof 6 February 1997.

The factsAnne O’Connor Gordon, theplaintiff, an artist and art teacher,was driving her Opel Kadett caron a country road betweenTullycross and Lettergesh,County Galway. At about 4.50pmon 11 September 1992, a sunnyday, her car was in collision witha Volvo estate car. The accidentoccurred just around a bend onthe road described by a gardasergeant at the scene of the acci-dent as being ‘near enough aright-angled one’. The plaintiff,in evidence, estimated she wasdriving at around 25 to 30 milesper hour on her correct side of theroad when the defendant’s carappeared in front of her on thewrong side of the road. The plain-tiff stated there was enough roomfor the defendant’s car to pass,had it been on its correct side. Shetook evasive action, but she statedthe other car made no attempt tostop and ran into her.

Ms Kohler was a passenger inthe Volvo and gave a differentversion of the collision. She saidthe plaintiff’s car appeared atexcessive speed from around thebend.

Garda Sergeant Folen, whoinvestigated the accident, andattended at the scene, gave evi-dence that the driver of the defen-dant’s car admitted driving at thecentre of the road but refused toaccept liability.

Photographs were taken afterthe collision before the cars hadbeen moved.

The plaintiff was taken to hos-pital where she remained for 48

hours. She suffered no bone dam-ages or fractures although sheappeared to have some loss ofconsciousness at the scene of thecollision. For some time after theaccident, the plaintiff complainedof lack of stamina, headaches andhad become frightened of busi-ness.

Medical evidence at the trialwas to the effect that the plaintiffsuffered a severe acute anxietyreaction to her trauma. Her symp-toms were out of proportion to thephysical injuries she suffered.Due to her complaints, a special-ist arranged for a CT scan but itrevealed no evidence of any sig-nificant intra-cranial abnormality.She was also referred to a neurol-ogist. The plaintiff also attended aneuro-psychologist and a consul-tant psychiatrist. The psychiatristdid not find any psychiatricabnormality.

Mrs O’Connor Gordon didstate that she finds difficulty inremembering a name in connec-tion with her academic workwhen giving a lecture. She had,however, no long-term physicalsymptoms.

Mrs O’Connor Gordon issuedHigh Court proceedings for dam-ages including damages to her carand damages for personal injury.

The judgmentAn ex tempore judgment in thecase was delivered by Kelly J inthe High Court on Circuit inGalway on 6 February 1997.

Having outlined the facts of thecase, and having the benefit of thephotographs, observing that thephotographs ‘speak for them-selves’, Kelly J held that both par-ties shared blame for the colli-sion. The judge was influenced bythe fact that there was an uncon-troverted admission to the investi-gating garda sergeant that thedefendant’s car was on the centreof the roadway at the time of thecollision. The driver had not beencalled as a witness to contradictthat evidence.

Kelly J said that the evidence

was supported by the fact that thedefendant was not driving to theleft as was practicable. But thejudge held that the plaintiff wasdriving too fast given the nature ofthe road.

The judge held that the plaintiffwas entitled to recover damagesagainst the defendant but was one-third contributorily negligentbecause of her speed.Accordingly, she was entitled torecover two-thirds of the damagesagainst the defendant. The judgewas satisfied that Mrs O’ConnorGordon’s physical injuries wereundoubtedly minor but that the‘side effects’ were more pro-nounced. No loss of earnings wasproved. The judge held that therewas no question of future pain andsuffering. For pain and sufferingto the date of the trial, he awardedthe plaintiff £20,000 with agreedspecial damages of £8,406.50.Reduced by one-third for her con-tributory negligence, MrsO’Connor Gordon was awarded£18,937.66.

Circuit Court costs wereawarded and a certificate forsenior counsel was granted by thejudge.

Public liability – fall in a pool of water atpetrol service station –liability in dispute

CaseJohn Payne v Artane ServiceStation; High Court on Circuit inWaterford before the Hon MrJustice Paul Carney, judgment of17 February 1997.

The factsJohn Payne, a young sportsman ofconsiderable distinction, fell in apool of water and diesel at a petrolservice station in Waterford. Hismother witnessed the fall. MrPayne suffered from initial con-cussion, was taken to hospitalwhere he remained for two days.He suffered soft tissue injuries tohis neck and also sustained a softtissue injury to his back.

The manager of the garage gaveevidence in court of being proud ofthe manner in which the servicestation was maintained.

The judgmentAn ex tempore judgment was deliv-ered by Carney J in the High Courton Circuit, Waterford, on 17February 1997. Having outlined thebasic facts of the case, the judgestated he accepted the evidence ofJohn Payne and the corroboration ofthe fall by his mother, described bythe judge as an impressive witness.

The judge held that the evidenceestablished that there was no systemof supervision and inspection inoperation at the time of the accidentto ensure that there was no accumu-lation of diesel and water in theprecincts of the service station. Thejudge noted that Richard Ryan, whowas in charge of receiving the cashat the service station on the day, didnot leave his cash till to go out tolook at the scene of the accidentbecause he considered that his firstpriority was the cash and that he hadan overriding belief that he shouldnever leave the cash unattended.

Finding for the plaintiff, CarneyJ held that none of John Payne’sinjuries would result in permanentsequelae or residual symptoms, buthis sporting career had been ‘seri-ously circumscribed’. Carney Jawarded him general damages inthe single sum of £30,000; and therewas also an agreed sum of specialdamages amounting to £251.

Mr McCarthy SC for the servicestation sought a stay on the judg-ment arguing that the award wasexcessive having regard to the med-ical evidence and to the weight ofthe evidence put forward by the ser-vice station. Having listened tolegal argument, Carney J put a stayon the judgment on the basis that£15,251 was paid to Mr Payne.Costs were awarded to Mr Paynewith no stay.

These judgments were summarisedby Dr Eamonn Hall, Solicitor, fromDoyle court reports of personalinjury judgments.

G

ILT digestof legislation and superior court decisions

Compiled by David P Boyle


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Arbitration clause survives avoidance of rest of contract● An arbitration clause was a self-

contained contract which couldsurvive the avoidance of theremaining terms of a contract.

The defendant company refusedto indemnify the plaintiff on footof his motor insurance policy onthe grounds that: the plaintiff hadfailed to disclose a material fact toit (his conviction for drunk dri-ving) at any renewals of the insur-ance policy; that this was non-dis-closure of a material fact underthe contract; that the defendantwas exercising its entitlement toavoid the policy; and that theeffect of the defendant’s avoid-ance was to invalidate retrospec-tively each renewal of the policyafter the conviction. The plaintiffdid not accept the validity of thedefendant’s purported avoidanceof the insurance policy, andsought specific performance ofthe insurance contract. The defen-dant sought an order staying theproceedings, pursuant to section 5of the Arbitration Act, 1980, onfoot of an arbitration clause in thepolicy which provided that ‘alldifferences arising out of this pol-icy shall be referred’ to arbitra-tion. The plaintiff claimed that as

ARBITRATION the defendant was treating thepolicy as void with retrospectiveeffect, it could not rely on thearbitration clause since thatclause formed part of the voidcontract. In granting the defen-dant’s application to stay the pro-ceedings, it was held that:● There was a distinction

between an arbitration clauseand the rest of a contract.While the purposes of a con-tract might have failed, thearbitration clause was not oneof the contract’s purposes. Thisprinciple applied where oneparty sought to avoid orrescind a contract on theground of a misrepresentationor non-disclosure, whether thelatter were fraudulent, negli-gent or innocent. Provided thewords of the clause were suffi-ciently wide, these were mat-ters which could be referred toarbitration. The arbitrationclause was a self-containedcontract and it had survived theavoidance of the contract

● It was a matter of constructionwhether the clause was wideenough to cover the dispute. Inthis case it was; the defendantwas entitled to have the disputereferred to arbitration in accor-dance with the policy.

Doyle v Irish National InsuranceCompany plc (Kelly J), 30January 1998

Registrar of FriendlySocieties entitled toappoint inspector● The Registrar of Friendly

Societies was entitled toappoint an inspector in order toinvestigate the affairs of thesociety in question, and he wasentitled to continue the investi-gation notwithstanding the factthat there were winding-up pro-ceedings in place in respect ofthat society.

In 1986, a conditional order ofprohibition was made by the HighCourt against the respondent inrespect of the proposed exerciseby him of his powers pursuant tosection 13(3) of the Industrial andProvident Societies (Amendment)Act, 1978. In 1988, the High Courtallowed the cause shown andrefused to make absolute the con-ditional order against the respon-dent. The applicants appealedagainst that decision to theSupreme Court and also chal-lenged the constitutionality of theimpugned provision. TheSupreme Court upheld the consti-tutionality of the provision, andwent on to deal with the merits ofthe applicants’ appeal. The soci-ety in question, formed in 1974,sought and accepted deposits fromthe public and loaned out money

BANKING so deposited. By virtue of section5 of the 1978 Act, it was bound torepay all deposits not later than 15November 1993. This caused cer-tain problems for the society andits associated companies. In 1984the respondent appointed aninspector over the society andlater on that day a provisional liq-uidator was also appointed overit. The inspector examined thefirst-named applicant on oath.Following the making of theinspector’s report, the first-namedrespondent informed the appli-cants separately that it was hisintention to consider making adirection under section 13(3) ofthe 1978 Act, requiring them topay all or a proportion of theexpenses of or incidental to theinvestigation which had been car-ried out by the inspector. Thecosts amounted to some£200,000. The applicants soughtand were granted a conditionalorder of prohibition preventingthe first-named respondent fromavailing of section 13(3). Theapplicants applied to have theconditional order of prohibitionmade absolute. They contendedthat the appointment of theinspector had been unnecessaryas a provisional liquidator hadalso been appointed. In reply, therespondent contended that theinspector had wider powers thanthe liquidator and could investi-gate the affairs of associated com-


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panies. Following earlier proceed-ings, the respondent decided tolevy the charges on the applicantsin his own name, and not in thename of the company. In dismiss-ing the appeal, it was held that:● The extent and powers of the

inspector went far beyond thepowers of the liquidator, as hewas confined to investigatingthe affairs of only those compa-nies which were in liquidation

● The respondent was entitled toappoint the inspector in orderto investigate the affairs of thesociety and he was entitled tocontinue the investigationnotwithstanding the fact thatthere were winding-up pro-ceedings in place

● The respondent had an essen-tial obligation to see that therights of depositors were safe-guarded and that the publicinterest was served

● The investigation was worth-while, even if it did involve acertain duplication of effortwith the liquidator’s activities.

State (Plunkett and PonderwoodSociety Limited) v Registrar ofFriendly Societies (SupremeCourt), 9 February 1998

Hague convention to be ratifiedProposed legislation will, ifpassed, enable the State to ratifythe 1996 Hague convention onjurisdiction, applicable law,recognition, enforcement and co-operation in respect of parentalresponsibility and measures forthe protection of children. Theconvention seeks to:● Determine the state whose

authorities have jurisdiction totake measures directed to theprotection of the person orproperty of a child

● Determine which law is to beapplied by such authorities inexercising their jurisdiction

● Determine the law applicableto parental responsibility

● Provide for the recognition and

CHILDREN

enforcement of such measuresof protection in all contractingstates, and

● Establish such co-operationbetween the authorities of thecontracting states as may benecessary in order to achievethe purposes of the convention.

The text of the convention isappended to the Bill as a schedule.Protection of Children (HagueConvention) Bill, 1998

Carrier obliged to continue to provide service● It was not open to a private

undertaking to yield too tamelyto threats of vandalism, oradverse publicity, if that under-taking’s prime duty underCommunity law had beenbreached.

The plaintiff was a haulier andlivestock transporter and wasengaged in the business of export-ing live animals from Ireland tothe continent. The defendant, alimited liability company, was amember of the P&O group. Thedefendant operated a ferry servicefrom Ireland to France, which ser-vice included the transportation oflivestock. From August 1994 untilOctober 1994, the defendant car-ried livestock for breeding and fat-tening purposes. From October1994 to 30 July 1996, the defen-dant carried livestock for breedingpurposes only. In March 1997, thedefendant recommenced the trans-port of livestock for fattening pur-poses as well as for breeding pur-poses. Three months later thedefendant informed the Ministerfor Agriculture that all shipmentsof livestock for fattening andslaughter would cease as of 31July 1997. The plaintiff institutedproceedings seeking an orderdirecting the defendant to contin-ue to provide a livestock exportservice to the plaintiff for breed-ing and fattening purposes pend-ing the trial of the action. The

COMPETITION

plaintiff claimed that it was essen-tial for the success, if not survival,of its business that it should be ina position to export to the conti-nent. The defendant submittedthat because of the adverse public-ity generated by the animal rightsactivists and the little profit itmade in this trade that it shouldnot be required to bear the burdenof providing this service. It furthersubmitted that its refusal to carrythe livestock did not amount to anabuse of a dominant position and,even were it an abuse, the defen-dant was objectively justifiedbecause it was not in its commer-cial interests to provide this ser-vice. Interlocutory relief wasrefused in the High Court.

In allowing the appeal andgranting the relief sought, it washeld that:● A prima facie case was made

out that the defendant was in adominant position and that,prima facie, there was an abuseof that position

● As there was a fair question tobe decided on the article 86point, no view was expressedon the applicability or other-wise of article 34 of the Treatyof Rome

● In the circumstances, the bal-ance of convenience favouredgranting the injunction

● It was not open to a privateundertaking to yield too tamelyto threats of vandalism oradverse publicity if that under-taking’s prime duty underCommunity law had beenbreached.

Hinde Livestock Exports Ltd vPandoro Ltd, Gernon v PandoroLtd (Supreme Court), 18December 1997

Evidence by video-linknot an interference withright to a fair trial● An accused person’s right to a

fair trial did not include theright in all circumstances torequire that the evidence be

CONSTITUTIONAL

given in the physical presenceof the accused.

The defendant sought a declara-tion that certain sections of theCriminal Evidence Act, 1992 wereinvalid as repugnant to theConstitution. He appealed theHigh Court’s dismissal of thisclaim and the refusal to grant himan order of certiorari in respect ofhis conviction for sexual assault ofa 14 year-old girl. The relevantstatutory sections concern the giv-ing of evidence through a livetelevision link in certain criminalcases involving offences of a sex-ual or violent nature. They permita witness under 17 years of age togive evidence in this mannerunless the court sees good reasonto the contrary, and in other casespermit such procedure with theleave of the court. The defendantclaimed that such procedure con-stituted an interference with hisconstitutional right to a fair trial.In dismissing the appeal, it washeld that:● An essential ingredient in the

concept of fair procedures wasthat an accused person shouldhave the opportunity to hearand test by examination the evi-dence offered by or on behalfof his accuser

● The impugned provisions ofthe Act did not restrict in anyway the rights of an accused asestablished by the constitution-al jurisprudence of the courtsand caselaw. The assessment ofthe credibility of the testim-onyof a child witness did notrequire that the witness bemade to give evidence in thephysical presence of theaccused. The requirements offair procedures were adequate-ly fulfilled by requiring that thewitness give evidence on oathand be subjected to cross-examination, and that the judgeand jury have ample opportuni-ty to observe the witness’sdemeanour while giving evi-dence and undergoing cross-examination

● Fair procedures did not requirea case-by-case determination asto whether a person under 17


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would be traumatised by givingevidence in court in theaccused’s presence, and theOireachtas was entitled to enactlegislation permitting the giv-ing of evidence by such personsby live television link unlessthe court saw good reason tothe contrary.

Donnelly v Ireland (SupremeCourt), 22 January 1998

International War CrimesTribunals Bill, 1997This Bill has been passed by DáilÉireann.

Circuit Court jurisdictionupheld● If it was being alleged on

behalf of any of the applicantsthat they had been broughtbefore the District Court by aprocess so tainted with illegali-ty as to warrant their immediaterelease, that case should havebeen made at that stage by wayof an application for habeascorpus to the High Court; as nosuch challenge was made, theCircuit Court clearly had juris-diction to try each of applicantson the counts laid in the indict-ment.

The applicants were charged withvarious offences relating to theillegal importation into the Stateof controlled substances. At theirtrial, the first-named applicantdecided to discharge his legal rep-resentatives. None of the appli-cants went into evidence. At theclose of the hearing, counsel forthe prosecution made a closingaddress to the jury. After that, thefirst-named applicant began toaddress the jury personally.Shortly after commencing hisaddress, the prosecution objectedto the first-named applicant’saddress. The prosecution contend-ed that the first-named applicantwas deliberately attempting tohave the jury discharged. The trialjudge agreed and refused to allow

CRIMINAL

the first-named applicant to con-tinue with his address. The appli-cants were all convicted andrefused leave to appeal. Theyappealed to the Court of CriminalAppeal against the refusal to givethem leave to appeal. They con-tended that the prosecution hadnot discharged the burden of proofon them to prove that the appli-cants knew that they were han-dling packets which containedcontrolled drugs. The applicantssubmitted that they had no knowl-edge that they were handlingdrugs and that the prosecution hadfailed to prove that they did havesuch knowledge. In reply, theprosecution contended that it haddischarged the burden of proof onit by adducing proof that the appli-cants had reasonable grounds forsuspecting that they were in pos-session of controlled drugs, evenin the absence of actual knowl-edge. In refusing all the applica-tions for leave to appeal, it washeld that:● The issue as to whether the

applicants were lawfully arrest-ed pursuant to section 30 of theOffences Against the State Act,1939 was relevant only to theadmissibility of the statementsallegedly made by them whilein custody

● If it was being alleged onbehalf of any of the applicantsthat they had been broughtbefore the District Court by aprocess so tainted with illegali-ty as to warrant their immediaterelease, that case should havebeen made at that stage by wayof an application for habeascorpus to the High Court

● There was ample evidencebefore the jury that the fourapplicants were the same fourmen who were observed by theGardaí on the night of theirarrest

● The probative value of evi-dence that three of the appli-cants had been seen earlier onthe evening of their arrest out-weighed any possible prejudicethat it may have excited in themind of the jury

● It was not sufficient for merephysical possession to be estab-

lished; the applicant mental ele-ment or animus possidendi hadalso to exist

● There was evidence on whichthe jury could be satisfiedbeyond a reasonable doubt thateach of the applicants had, andknew that he had, the bales inhis control, that the bales con-tained something and that thebales in fact contained the con-trolled drug specified in theindictment

● The applicants could not com-plain where, as here, the chargeby the trial judge was undulyfavourable to them and placed aheavier onus than was requiredon the prosecution, and theywere nonetheless subsequentlyconvicted

● The exception contained ins24(1) of the 1984 Act did notapply in this case as the first-named applicant was legallyrepresented from the beginningof the trial and was representedsave for the closing stages

● The balance would be tiltedunfairly in the direction of thefirst-named applicant if, afterdischarging his legal represen-tatives after they had tested thestrength or otherwise of theprosecution case in full, theprosecution was deprived of theopportunity of making a clos-ing speech.

Director of Public Prosecutions vByrne, Healy and Kelleher (Courtof Criminal Appeal), 17December 1997

Case for unequal pay notmade out● Taken in the context of the

report of the Labour Court as awhole, and the report of theEquality Officer which it effec-tively adopted, there were ade-quate reasons given to theapplicant for the decisionreached by the Labour Court.

The applicant was employed atDublin Airport. The applicant and

EMPLOYMENT

two of her female colleagues con-tended that they were entitledunder the provisions of the 1974Act to the same rate of pay as twomale radio operators, the com-parators, who were also employedat the airport and worked in thesame office as the applicant. Theapplicant contended that the workcarried on by her and the com-parators was not the same workbut was of a ‘similar nature’, andthat any differences between thework performed and the condi-tions under which it was per-formed occurred only infrequentlyor was of small importance. Theapplicant’s claim was assessed byan Equality Officer who fullyinvestigated the work done by theapplicant and the comparators.The officer found that the workwas similar in nature. However,he went on to find that the com-parators’ work frequently differedfrom the applicant’s, and that thedifferences which occurred wereof more than small importance inthat they required the compara-tors’ additional qualifications andskills. He further found that thecomparators’ work required agreater amount of skill, and couldinclude the handling of maritimeemergencies. He also found thatthe comparators had supervisoryand administrative responsibilitiesnot shared by the applicant. Hetherefore concluded that the appli-cant and the comparators did notperform like work within themeaning of the Act. The officer’sreport was appealed to the LabourCourt. The court upheld thereport’s findings. That decisionwas appealed to the High Court.The High Court found that theappeal was one on the facts andnot on the law. It held that the alle-gation of discrimination had notbeen made out before the courtand that the nature of the trueemployment had been found to bedifferent. The applicant appealedto the Supreme Court on thegrounds that the Labour Court hadgiven inadequate reasons for itsdecision. In dismissing the appeal,it was held that:● For the claims to succeed, it

would have to be established


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that the applicant and the com-parators were engaged in ‘likework’ as that term was definedin the 1974 Act

● The possibility of establishingequality of demands or identify-ing the basis for any inequalitymust be enhanced in proportionto the degree of similaritybetween the allegedly differentworks

● There was no doubt that theLabour Court fully intended toendorse the findings and con-clusions of the Equality Officer

● It was clear that the issue to bedetermined by the Labour Courtwas one of fact, and it wasdetermined by reference to theconclusions reached by theEquality Officer

● Taken in the context of thereport of the Labour Court as awhole, and the report of theEquality Officer which it effec-tively adopted, there were ade-quate reasons given to the appli-cant for the decision reached bythe Labour Court

● Once the question of ‘likework’ was decided against theapplicant, the question of otherqualifications did not arise

● The matters canvassed on theappeal were matters of fact onwhich there had been ampleevidence to support the deci-sions reached.

O’Leary v The Minister forTransport, Energy and Communi-cations (Supreme Court), 3 Feb-ruary 1998

Alterations to EIA regimeRegulations have been madeamending the EuropeanCommunities (EnvironmentalImpact Assessment) Regulations1989–1996 and EIA-related provi-sions in the Local Government(Planning and Development) Acts,1963–1998 as well as certain otherActs. The amendments:● Restate provisions relating to

the information to be containedin an environmental impact

ENVIRONMENT

assessment (EIA)● Set out exemptions from the

requirement to prepare an EIA● Extend the provisions concern-

ing the furnishing of additionalinformation relating to an EIA

● Include provisions relating toapplications for planning per-mission involving an EIAwhere the proposed develop-ment may have effects onanother Member State of theEC, and

● Extend the time available to aplanning authority in relation tosuch an application and enablethe authority to enter into con-sultations with the MemberState concerned.

European Communities (Environ-mental Impact Assessment)(Amendment) Regulations 1998(SI No 351 of 1998)

Packaging and packagedproductsNew regulations amend the exist-ing packaging rules so as to pro-vide that no person may supplypackaging or packaged goods tothe domestic market unless thepackaging concerned complieswith specified requirements as toits packaging and composition.Waste Management (Packaging)(Amendment) Regulations 1998(SI No 382 of 1998)

Garda compensation decision by Minister overruled● The Minister, acting in a quasi-

judicial manner, breached therules of natural justice by rely-ing only on the GardaSurgeon’s report and not exam-ining the medical evidence sub-mitted on behalf of the appli-cant when deciding that hisinjuries were minor. Wherethere was respectable medicalopinion from the applicantwhich indicated that hisinjuries were not of a minorcharacter, the Minister wouldnot be entitled to form a view

GARDA SÍOCHÁNA

that the injuries were minor atleast without further investiga-tion.

The respondent refused to allowthe applicant to apply to the HighCourt for compensation pursuantto the Garda Síochána(Compensation) Act, 1941. Theapplicant sought judicial reviewof that decision and sought, interalia, a mandatory injunction com-pelling the respondent to authorisethe applicant’s application forcompensation. The applicant hadbeen injured while on duty. Heapplied for compensation. Fiveyears later the respondent ruledthat his injuries were of a minorcharacter and that they had notbeen sustained in the course of theperformance of a duty involvingspecial risk. Accordingly, therespondent dismissed the applica-tion. The applicant contended thatin making her decision that hisinjuries were of a minor character,the respondent relied only on themedical report of the GardaSurgeon, and not on any of theapplicant’s own medical reports.In granting the relief sought, itwas held that:● It was difficult to see how the

respondent could have formedthe opinion that the applicant’sinjuries were minor in charac-ter within the meaning of theAct, given that there wereundisputed continuing adversesequelae four and a half yearsafter the incident

● On the basis of the GardaSurgeon’s report, the appli-cant’s injuries were not minorwithin the meaning of the Act,and so the respondent’s deci-sion was irrational

● The expression in the Act ‘of aminor character’ implied a con-sideration of the nature of theinjury rather than the amount ofcompensation which would bepaid for it

● The respondent ought to refuseto authorise proceedings in acase where there had been acomplete recovery within amatter of weeks with no med-ically explicable adversesequelae

● The respondent, acting in aquasi-judicial manner, breachedthe rules of natural justice byrelying only on the GardaSurgeon’s report and not exam-ining the medical evidence sub-mitted on behalf of the appli-cant

● Where there was respectablemedical opinion from the appli-cant which indicated that hisinjuries were not of a minorcharacter, the respondent wouldnot be entitled to form such aview at least without furtherinvestigation

● The respondent would have tohave an open mind and notform any such opinion.

Merrigan v Minister for Justice(Geoghegan J), 28 January 1998

Trainee garda losesappealThe applicant was a probationarymember of the Garda Síochána. In1993, the applicant was involved inan incident in a licensed premises.The incident was the subject of aninvestigation and the applicantchallenged certain aspects of theinvestigation in the High Court andsucceeded. On appeal, the SupremeCourt upheld the trial judge’s find-ing that there had been a lack ofdue process. However, the courtoverturned the trial judge’s rulingthat there could be no further pro-ceedings in the matter. As a result,inquiries into the matter recom-menced. The first-named respon-dent was appointed to be the newofficer in charge of the investiga-tion. The applicant sought an orderof prohibition preventing the first-named respondent from continuingwith disciplinary proceduresagainst the applicant. The applicantcontended that the first-namedrespondent conducted the investi-gation with a measure of biastowards him. That bias was basedon an objective basis and not a sub-jective one. The applicant also con-tended that there was undue delayon the part of the respondents. Heargued that it was an essential pre-requisite for a valid disciplinaryprocedure that it was left to the aca-demic co-ordinator to decide if


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there had been a breach of the rulesfollowing the conduct of the cor-rect disciplinary procedures. In thiscase, the applicant alleged that thefirst-named respondent’s statementwould lead to a reasonable appre-hension on the part of the applicantthat he had already decided thecase, that the breach of disciplinehad been made out, and that all thatremained to be dealt with was thepenalty. The applicant further con-tended that the first-named respon-dent had to make a finding as towhether there was a breach of dis-cipline isolated from the identifica-tion of any particular student asbeing responsible for it. In dismiss-ing the appeal, it was held that:● When considering the period of

delay, the court was restricted tothe period since the court previ-ously decided on the matter

● To hold that the first-namedrespondent’s conduct wouldcreate the impression that hehad prejudged the case wouldamount to a monstrous charadeand no reasonable person couldtake that reading from it

● One could not glean any ele-ment of bias from the utter-ances made by the first-namedrespondent. They were merelyformalistic statements of a con-clusion

● No reasonable person couldinfer that the first-namedrespondent was summoningover 30 witnesses in order toenable him to form some viewas to the penalty he shouldimpose on the applicant

● The whole course of conducton the part of the first-namedrespondent showed that he wastaking the whole matter veryseriously and that he had notengaged in any form of pre-judgment

● With regard to the question ofdelay, the time-scale involvedin this case was consonant withdoing complete justice to theapplicant

● In making a finding of breachof discipline, the first-namedrespondent would normallyhave made also a prima faciefinding of which student wasresponsible.

McAuley v Chief SuperintendentKeating (Supreme Court), 21January 1998

Expanded remit for VHIProposed new legislation seeks topermit the VHI to act as an agentfor an international healthcareplan which would be applicable topersons resident outside the State.Voluntary Health Insurance(Amendment) Bill, 1998

Rules for review of awardof public contractsNew rules came into force on 19October 1998, prescribing proce-dures in relation to the review bythe High Court of the award or ofa decision to award a public ser-vices, public supply, public utili-ties or public works contract.Rules of the Superior Courts (No4) (Review of the Award of PublicContracts) 1998 (SI No 374 of1998)

Rules for Oireachtas witnessesNew rules came into force on 20October 1998, prescribing proce-dures in relation to applicationsand appeals to the High Courtunder the Committees of theHouses of the Oireachtas(Compellability Privileges andImmunities of Witnesses) Act,1997.Rules of the Superior Courts (No5) (Committees of the Houses ofthe Oireachtas (CompellabilityPrivileges and Immunities ofWitnesses) Act, 1997) 1998 (SINo 381 of 1998)

Changes to disclosure of reports and statementsrulesNew rules deemed to have comeinto force on 1 September 1997replace the rules introduced lastyear concerning the disclosure of

PRACTICE ANDPROCEDURE

HEALTH SERVICES

reports and statements in thecourse of litigation (SI nos 348 and471 of 1997). The present rules:● Apply to all proceedings which

were instituted on or after 1September 1997

● Require that, from that date, aparty to such proceedings mayonly rely on a statement orreport during the course of thetrial of an action where thatstatement or report has beendisclosed in accordance withthe rules.

Rules of the Superior Courts (No6) (Disclosure of Reports andStatements) 1998 (SI No 391 of1998)

Rules for appeals fromHepatitis C TribunalNew rules came into force on 23October 1998, prescribing proce-dures in relation to appeals againstdecisions and awards of theHepatitis C CompensationTribunal under the Hepatitis CCompensation Tribunal Act, 1997.Rules of the Superior Courts (No7) (Hepatitis C CompensationTribunal) 1998 (SI No 392 of1998)

Hearsay rules permit evidence to the effectthat words were spoken● The general rule against

hearsay was not infringedwhere a witness gave evidencethat words were spoken, wherethe uttering of the words them-selves was a relevant fact, andnot the truth or otherwise of thefacts asserted by those words.

The respondent was arrested andcharged with offences before theDistrict Court. The applicantmember of the Garda Síochánagave evidence that he heard asergeant, who was not present incourt, tell the respondent why hehad been arrested and that he had aright to call a solicitor or other per-son, and that he saw a notice ofrights for persons in custody beinghanded over by the sergeant to therespondent. The respondent sub-mitted that this evidence was inad-missible as it was hearsay, and that

there was no evidence of compli-ance with the Criminal Justice Act,1984 (Treatment of Persons inCustody in Garda Stations)Regulations 1987. The case camebefore the High Court by way ofcase stated from Judge Windle onthe question whether he was cor-rect in holding that the evidence ofcompliance with the regulationsby the sergeant was hearsay. Inanswering the question posed inthe negative, it was held that:● The 1987 regulations required

that the accused be informed ofhis rights, whether he under-stood them or not, and theessential proof was that he wasso informed. All that wasrequired was that the relevantinformation be given to theaccused and the relevant noticehanded to him

● The only evidence requiredwas that the words were spokenand the notice handed over. Thegarda heard the words spokenin the accused’s presence andsaw the notice being handedover. He was entitled to givethe evidence of these facts. Inrelation to hearsay, there wasno general rule of evidence tothe effect that a witness couldnot testify as to the words spo-ken by a person not producedas a witness. Subject to manyexceptions, the general rulewas that evidence of the speak-ing of words was inadmissibleto prove the truth of the factsasserted by the words. Theuttering of words might itselfbe a relevant fact, apart fromthe truth or falsity of anythingasserted by the words spoken.To prove, by the evidence of awitness who heard the words,that they were spoken wasdirect evidence, and did notencroach on the general ruleagainst hearsay

● There was sufficient evidencebefore the court that therespondent had been given thenecessary information pursuantto the regulations.

Director of Public Prosecutions vO’Kelly (McCracken J), 10February 1998


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Claim of legal professional privilege not upheld● A claim of legal professional

privilege depended on whetherthe dominant purpose for whichthe documents in question cameinto being was in apprehensionor anticipation of litigation.

The plaintiff, an infant, sufferedserious injuries in the process ofbeing born and a claim for negli-gence and damages was broughtagainst the defendants. The usualdocuments were discovered fol-lowing an order for discovery, butprivilege was claimed by the sec-ond-named defendant in respect ofstatements made by three nurseson duty at the relevant time, on thebasis that they were made solelyfor the purpose of or in contempla-tion of litigation. The second-named defendant claimed that thestatements were not ordinary med-ical or treatment records as theywere not made in the ordinarycourse of treatment. The HighCourt disallowed the claim of legalprofessional privilege and the sec-ond-named defendant appealed tothe Supreme Court. In dismissingthe appeal, it was held that:● The issue was whether the sec-

ond-named defendant’s domi-nant reason or motive forobtaining the statements was theanticipation or contemplation oflitigation. If not, privilege didnot apply to the statements

● It was likely to aid the course ofthe trial if the statements weremade available to the plaintiff’sadvisors. They were straight-forward accounts of events andconversations and did not con-tain any element that wouldattract an entitlement to legalprofessional privilege.

Gallagher v Stanley (SupremeCourt), 17 December 1997

Interrogatories consideredThe plaintiff applied to the courtfor leave to deliver interrogatoriesfor the examination of the first-named defendant. The first-named defendant opposed thisapplication on the grounds thatthe interrogatories sought wereprolix, oppressive, vague andimprecise and had not beenshown to be essential in the inter-ests of justice.

In allowing the delivery of cer-tain interrogatories, it was heldthat:● No party had the right to have

interrogatories delivered andanswered but had to satisfy thecourt either that a special exi-gency or some necessity exist-ed which warranted the deliv-ery and answering of interroga-tories. Giving leave to deliverinterrogatories had to beregarded as an exception in anycase to be heard on oral evi-dence and had to be justified bythe party seeking to deliverinterrogatories

● Once the party seeking to deliv-er the interrogatories satisfiedthe court that such deliverywould serve a clear litigiouspurpose by saving costs or pro-moting the fair and efficientconduct of the action in ques-tion, then the court should beprepared to allow the deliveryof the interrogatories unless itwas satisfied that the said deliv-ery would work an injusticeupon the party interrogated

● The court had to look at eachand every interrogatory for thepurposes of determiningwhether it was necessary to beanswered for the purpose ofdisposing fairly of the case orfor saving costs

● Interrogatories which soughtadmissions as to the existenceof documents and signatures to

documents identified in discov-ery documents would normallybe allowed unless there werespecial reasons why, in theinterests of justice, an ordershould not be made

● Interrogatories which soughtadmissions about the facts sur-rounding documents identifiedin discovery affidavits had torelate to the issues raised in thepleadings and could not beused as a means to prove theinterrogating party’s case

● Interrogatories which soughtinformation had to relate to theissues raised in the pleadingsand not to the evidenceadduced in the case

● Questions as to opinions, themeaning or effect of documentsor as to statements or conductshould not be permitted

● An order to deliver interrogato-ries would be refused if a fairhearing of the issues betweenthe parties would be prejudicedby it, even if the costs of theproceedings could be reducedby making the order

● The fact that the current casewas a Competition Act case didnot constitute a special exi-gency warranting the deliveryof interrogatories

● The questions which the courtproposed to allow were allquestions which met the crite-ria set out above.

Woodfab Limited v CoillteTeoranta (Shanley J), 19December 1997

Increased tow-awaychargesWith effect from 29 September1998, the charge for release of avehicle towed away in accordance

ROAD TRAFFIC

with the regulations increases from£75 to £100 and the storage chargeper day increases from £25 to £30.Road Traffic (Removal, Storageand Disposal of Vehicles)(Amendment) Regulations 1998(SI No 358 of 1998)

Statutory Sports Councilto be establishedA Bill has been presented whichaims to establish, on a statutoryfooting, a body to be known as theIrish Sports Council with the aimsof promoting and encouraging thedevelopment of sport in the State. Irish Sports Council Bill, 1998

CIÉ to have telecommun-ications remitA new order permits CIÉ toexpand its field of activities toinclude owning and operatingtelecommunications equipment(including fibre optic cable andnetwork equipment) and enteringinto agreements with other bodiesin this regard.Córas Iompair Éireann(Additional Functions) Order1998 (SI No 76 of 1998)

Carriage of DangerousGoods by Road Bill, 1998This Bill has been amended in theSelect Committee on PublicEnterprise and Transport.

The ILT digest is reproduced bykind permission of the Irish LawTimes.

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EurlegalNews from the EU and International Affairs Committee

Edited by TP Kennedy, Legal Education Co-ordinator, Law Society of Ireland

Free movement of persons: some recent developments

This article reviews a numberof developments in the field

of free movement of persons overthe past year or so. It covers: ● Progress towards the imple-

mentation of the Amsterdamtreaty

● New legislative proposals inthe field of free movement ofworkers

● Recent caselaw on the identityof the beneficiaries of freemovement

● Developments in relation to theapplication of the principle ofnon-discrimination

● Recent caselaw on services.

The survey below is not exhaus-tive. In particular, it does notcover developments in relation tothe European space of profession-al mobility, including theLawyers’ establishment directive,or progress in relation to supple-mentary pensions.

1. The treaty framework:implementing AmsterdamIt is useful, first, to recall thestructural changes wrought by theAmsterdam treaty.

Existing provisions on the freemovement of persons and flank-ing measures are to be transferredfrom the Third Pillar to the First,Community, Pillar and thus froma system of strict inter-govern-mental decision-making to a mod-ified version of EC-based deci-sion-making. At the same time,

there is a renewed commitment tolifting internal frontier controls.Ireland is, for as long as theCommon Travel Area remains,covered by a new protocol allow-ing it, and the UK, to remain out-side the new regime. Ireland has,however, by declaration, made itclear that it intends to exercise itsright to take part in the adoptionof common measures to the maxi-mum extent compatible with theCommon Travel Area. Denmarkhas also decided to remain outsidethe new free movement regime.The work involved in thechangeover is considerable. TheDecember 1998 Vienna EuropeanCouncil has endorsed the actionplan on establishing an area offreedom, security and justice:much work has yet to be done onthe ‘flanking measures’.

The Amsterdam treaty alsoallows for the ‘Unionisation’ ofthe Schengen system. By integrat-ing the Schengen acquis into theUnion system, the Member Stateshave also agreed to bring into theEuropean Union a system ofagreed rules on free movementwhich has, up to now, existed out-side the legal framework of theEuropean Union. Again, Irelandand the UK have opted to stay out-side, though Ireland has said that itwill work in developing theSchengen acquis where it can.Denmark has signed up toSchengen, but is subject to specialarrangements that will allow it to

behave as if ‘Community’Schengen measures continue to bebased on Title VI, even where it isdecided to base them on EC treatyprovisions.

The Amsterdam treaty will enterinto force only when it has beenduly ratified by all the MemberStates. With ratification delays byBelgium, France and Portugal, it iscurrently envisaged that this willbe in the first half of 1999. In themeantime, work is proceeding toensure that all is ready to roll assoon as the treaty takes effect.

2. The free movement ofworkers: new legislativeproposalsIn July 1998, the Commissionadopted three legislative propos-als aimed at updating and clarify-ing citizens’ rights to movearound the EU to take up work.The proposals are intended partlyto update the existing legislationto reflect the caselaw of the ECJand partly to make improvementsin line with recommendations inthe 1997 Report of the High LevelPanel (the ‘Veil report’). Theirobjective is not only to promotethe free movement of workers as abasic freedom (seen in the contextof Union citizenship) but also touse worker mobility as an instru-ment in the promotion of employ-ment. Indeed, this bifurcatedobjective has been central tounderstanding the free movementprovisions from the beginning.

In relation to residence, it isproposed to modify and updateDirective 68/360. Proposedamendments make it clear, in linewith ECJ caselaw, that EU nation-als have the right to go to anotherMember State to seek work or toundertake vocational training andthat EU nationals seeking a jobhave an automatic right of resi-dence for six months and can stayfor longer if they can prove theyare actively seeking employmentand have a reasonable chance offinding a job. It is also proposedto improve the residence rights ofpersons with a series of fixed-term or short-term contracts whohave worked for 12 months in an18-month period and to simplifyadministrative procedures forissuing residence permits.

In relation to treatment, it isproposed to modify and updateRegulation 1612/68. It is intendedto reinforce and clarify the princi-ple of equal treatment, in line withECJ caselaw which makes it clearthat direct and indirect discrimi-nation is prohibited across theboard (see 4 below). It will bemade clear that facts and events ofprofessional/vocational relevancearising in a Member State otherthan that of employment – such asprevious experience and militaryservice – must be taken intoaccount in the Member State ofemployment: this again reflectsECJ caselaw. It is proposed toimprove the position of family


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members by removing the ageand dependency criteria fordescendants and ascendants.Family members should have theright to take up self-employedactivity. It is also proposed to pro-tect the position of third-countrynationals married to aCommunity worker and divorcedafter three years’ residence.

It is also proposed to introducea clause outlawing discriminationon the grounds of race, religion,sex, age, disability or sexual ori-entation.

3. The beneficiaries offree movement: the Salaand the Clean Car judg-mentsThe May 1998 Sala judgment(Case 85/96) has clarified theextent to which an individual canclaim rights of free movementmerely by virtue of his or her sta-tus as a Union citizen, withoutneeding to show membership of afunctional category (worker, self-employed person and so on).

It was unclear in that casewhether the individual seekingnon-discriminatory treatment forrights granted to host nationalson the basis of residence was orwas not a worker, though it wasaccepted that she was lawfullyresident. The court establishedthat the right to equal treatmentunder article 6 of the EC treatyattached to the individual byvirtue of her Union citizenshipstatus coupled with lawful resi-dence. As a result of this judg-ment, unequal treatment ongrounds of nationality comingwithin the scope rationae materi-ae of Community law can bechallenged by all legally-residentUnion citizens coming within thescope rationae personae of theUnion citizenship provisions.

Although this judgment is criticalfor the free-mover whose status isnot established, specific cate-gories of free-mover (such asworkers, self-employed personsand service-providers/receivers)enjoy specific wider rights ofnon-discrimination on grounds ofnationality, so that article 6 of theEC treaty as lex generalis doesnot apply.

In the Clean Car judgment,delivered in May 1998 (Case350/96), the court affirmed that thefree movement of workers’ provi-sions could be invoked not only byworkers themselves but also bytheir employers.

Clean Car – an Austrian comp-any established in Vienna – hadsought to register in order to carryout trade. Its application was reject-ed because, contrary to the provi-sions of the Austrian trade code,the manager appointed did not

reside in Austria at the materialtime. Clean Car then brought courtproceedings claiming that the per-son whom it had appointed as man-ager was entitled, as a worker, toenjoy the right to freedom ofmovement under article 48.

The court held that the rule ofequal treatment in the context offreedom of movement for workerscould be relied on by an employerin order to employ in the MemberState of its establishment workerswho were nationals of otherMember States. The court consid-ered that this result was not pre-cluded by the wording of article48 of the EC treaty and that it pre-vented rules applying to employ-ers from being used to circumventthe free movement regime. Theconclusion was supported by arti-cle 2 of Regulation 1612/68 andby the court’s caselaw, in particu-lar, the 1995 Bosman case.

4. The principle of non-discriminationThe court has, over the past fewyears, developed the principle ofnon-discrimination on grounds ofnationality, whether contained inarticle 6 of the EC treaty, or in‘special rules’ such as article48(2) (‘discrimination based onnationality between workers ofthe Member States as regardsemployment, remuneration andother conditions of work andemployment’). The principle cov-ers not only explicit discrimina-tion on grounds of nationality, butalso covert discrimination which,by the application of othergrounds for distinction (in partic-ular residence), leads in fact to thesame result. The requirement ofcomplete equality – meaning thatnot only a substantive right butalso the conditions for enjoying itmust be the same – applies toareas outside the workplace,where the right can be seen as acorollary to free movement.

Private law. In a series ofcases beginning in late 1996, thecourt has effectively outlawedany national requirement thatCommunity plaintiffs who bringan action before the courts of aMember State other than theirMember State of origin mustlodge a sum as security for legalcosts (the cautio judicatum solvi).The principle of non-discrimina-tion thus extends to rules of civilprocedure and access to justice,so that, where necessary,Community law takes precedenceover national rules in the field ofprivate law.

Criminal law. The principleextends to the application of thecriminal law as well. InSeptember 1998, the Commissionissued a reasoned opinion underarticle 169 of the EC treaty to

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Italy in relation to a legal provi-sion that an offender whose car isregistered outside Italy must pay aminimum fine to the police officerinvolved without the chance ofappeal, or a sum by way of securi-ty of one-half of the maximumpenalty. A driver of an Italian-reg-istered car (who may, of course,not be Italian) is able to pay theminimum fine at a police stationor by bank transfer, or appealwithin 60 days. The Commissionconsiders that this different treat-ment constitutes unjustified anddisproportionate discrimination.

Residence. The court has alsoconfirmed that the principle ofnon-discrimination applies topenalties for failure to produce avalid identity document. InCommission v Germany (Case24/97), it ruled that by treatingnationals of other Member States‘disproportionately differently’ asregards the degree of fault andscale of fines from Germannationals when they committed acomparable infringement of theobligation to hold a valid identitydocument, Germany had failed tofulfil its Community law obliga-tions.

The court has characterised asdiscriminatory the case where theobtaining of a given benefit – incasu a child-raising allowance – isrefused or delayed for a ‘free-mover’ entitled to reside in thehost Member State on grounds ofnon-possession of a formal resi-dence permit where host nationalsare entitled to the benefit simplyon the grounds of permanent orordinary residence (the May 1998Sala judgment). The court repeat-ed, referring to the 1975 Royerjudgment (Case 48/75), that a res-

idence permit can only havedeclaratory and probative, and notconstitutive, force for the purpos-es of recognition of the right ofresidence.

Frontier workers. There havealso been a number of non-dis-crimination cases involving fron-tier workers – individuals residentin one Member State who com-mute to work in another.

In its September 1998 judg-ment in Commission v France(Case 35/97), French rules on sup-plementary pensions applied toworkers resident in France butexcluded frontier workers residentin Belgium who had worked inFrance. Although this was notovert discrimination on groundsof nationality, it was indirectlydiscriminatory since the residencecondition could more easily befulfilled by French workers (mostof whom resided in France) thanby workers from other MemberStates.

The May 1998 judgment inGilly (Case 336/96) concerned thedifficult question of taxation offrontier workers and shows thelimits of the non-discriminationprinciple. Workers who live inone Member State and work inanother may suffer unfavourabletax treatment resulting directlyfrom different levels of taxation inthe two Member States, in theabsence of any Community har-monisation of scales of direct tax-ation. This factor, and the desirenot to encroach on Member Statesovereignty in the field of taxa-tion, means that suchunfavourable results as arise fromthe application of double-taxationarrangements will not be regardedas prohibited discrimination.

5. Freedom to provide servicesOn 28 April 1998, the court deliv-ered two important judgments inrelation to services.

In its Safir judgment (Case118/96), the court considered theCommunity law implications ofSwedish tax legislation which,despite the aim of maintainingcompetitive neutrality betweensavers holding Swedish life insur-ance policies and savers holdingforeign life insurance policies,established different tax regimesfor capital life assurance policies,depending on whether they weretaken out in Sweden or elsewhere.The legislation contained a num-ber of elements liable to dissuadeindividuals from taking out capi-tal life insurance from companiesnot established in Sweden andliable to dissuade companies fromoffering their services on theSwedish market.

The Swedish Government hadargued that the need to fill the fis-cal vacuum arising from the non-taxation of savings in the form ofcapital life assurance policiestaken out with companies notestablished in Sweden justifiedthese restrictions on freedom toprovide services. The court reject-ed this, arguing that it was possi-ble to conceive of systems whichwere more transparent and capa-ble of filling this fiscal vacuum,while being less restrictive of thefreedom to provide services.

In the Kroll judgment (Case158/96), the court considered aLuxembourg provision that thereimbursement of medical costsin respect of medical servicesprovided outside Luxembourgcould only be made where this

had been authorised in advance.Such prior authorisation was notrequired for treatment inLuxembourg and the court held,on the basis of long-establishedcaselaw, that this constituted abarrier to provide services.

The court accepted that the riskof seriously undermining thefinancial balance of the socialsecurity system might in principleconstitute an overriding reason inthe general interest capable of jus-tifying such a barrier. However,there was no such risk in thiscase.

The court also held that thebarrier could not be justified onpublic health grounds. In the lightof the mutual recognition regimeapplying to members of the med-ical professions, Luxembourgcould not argue that the ruleswere necessary to guarantee thequality of medical services pro-vided in other Member States.

The court recognised that theobjective of maintaining a bal-anced medical and hospital ser-vice open to all could fall withinthe public health derogation eventhough it was intrinsically linkedto the method of financing thesocial security system. MemberStates could restrict the freedomto provide medical and hospitalservices in so far as the mainte-nance of a treatment facility ormedical service on national terri-tory was essential for the publichealth and even the survival of thepopulation. However, it had notbeen established that the rules inissue were necessary to theseends.

John Handoll is a partner withsolicitors William Fry.

G

AEuropean Economic InterestGroup (EEIG), registered in

Luxembourg, comprising a num-ber of European law firms, wouldlike to invite an Irish firm interest-ed in international work to join itsnetwork. The member firms aresmall to medium law firms with ageneral practice in business and

International network looking for its Irish membercorporate law. Most of the partnersof these firms are in their fortiesand are experienced lawyers. Theyare very keen to work on adding anew international dimension totheir current activities by creating atruly multinational structure. Theyfeel that there is a need for a net-work of medium-sized firms doing

quality work for local and foreigncorporations, and run by a perma-nent officer with a small staffactively engaged in marketing andorganising the network. Each firmparticipating in the network isguaranteed a degree of exclusivityin its jurisdiction. The foundingmembers have decided to have an

open recruitment policy in order tosubstantially increase the numberof countries represented in the net-work. If any Irish firm is interestedor would like more information, itshould contact Marc Jobert (tele-phone: 0033 1 45252515; fax:0033 1 45254781; e-mail:[email protected]). G


BRIEFINGBRIEFING

RECENT DEVELOPMENTS IN EUROPEAN LAW

On 9 November 1998, the UKCompetition Act 1998 received theroyal assent. Broadly speaking, thisAct proposes to do for English com-petition law what our ownCompetition Act, 1991 did for Irishcompetition law. It is based on arti-cles 85 and 86 of the EC treaty andintroduces concepts of EC competi-tion law into domestic English law.Investigative and regulatory powersare given to the Director General ofFair Trading. He is given wide powersto impose fines on persons in contra-vention of the Act. The maximumamount of any fine is 10% ofturnover. A right of appeal is givenagainst his decisions to a newly-established body, the CompetitionCommission. There is a further rightof appeal on a point of law or con-cerning the level of a penaltyimposed to the Court of Appeal.Chapter 1 of the Act contains its pro-visions on restrictive agreements.Section 2 mirrors article 85. Certainagreements are excluded from theAct and the Director is given thepower to grant exemptions in indi-vidual cases. Block exemptions canbe introduced by way of statutoryinstrument. Section 39 sets out a deminimis provision – the categories ofagreement falling within this provi-sion are to be set out in a statutoryinstrument. Chapter 2 of the Act pro-hibits abuse of a dominant position.Section 18 mirrors article 86 of thetreaty. Unlike the treaty, the Actestablishes procedures for the notifi-cation of conduct that may amountto abuse of a dominant position. Thedirector may give guidance on theconduct or reach a formal decisionon the conduct.

Financial servicesIn 1997, a directive was adopted toprotect consumers who conclude dis-tance contracts (contracts concludedover the telephone or the Internet).The directive did not apply to finan-cial services. The Commission hasnow proposed a new directive toapply to investment services, insur-ance and reinsurance operations,banking services, operations relatingto pension funds and services relat-ing to dealings in futures or options.

The proposed directive provides for a‘cooling off period’ before a contactof this nature would be concluded bya consumer – the consumer has aright to withdraw from the contractwithout penalty and without givingany reason for a period of 14 days (inthe case of mortgages, life insuranceor pensions 30 days). It proposes lim-itations on cold-calling and for acomplaints and redress procedure forthe settlement of consumer disputes.

Compulsory information andconsultation for employeesThe Commission has proposed adirective establishing a frameworkfor informing and consultingemployees. The proposal applies toall organisations with more than 50employees. It requires such organisa-tions to inform and consult theiremployees in good time about issuesdirectly affecting work organisationand their employment contracts.There is to be an attempt to seekprior agreement when the decision islikely to lead to substantial changesconcerning work organisation andcontractual relations. It provides thatif such decisions are taken in seriousbreach of the information and con-sultation obligation, they will haveno legal effect on contractual rela-tions until the situation has been rec-tified or adequate redress has beenestablished.

PersonsCommission v Spain (Case 114/97),judgment of 19 October 1998. TheCommission challenged Spanish leg-islation making the grant to compa-nies of authorisation to carry on pri-vate security activities subject to therequirement of being incorporatedin Spain with Spanish resident direc-tors and managers and the furtherrequirement that security staff be ofSpanish nationality. The ECJ heldthat these laws infringed articles 48,52 and 69 of the treaty. Spaindefended the action on the basisthat security activities came withinarticle 48(4). The ECJ pointed outthat the activities were private andcould not be considered as formingpart of the Spanish public service.Spain also put forward the defencethat it could derogate from the

treaty articles on grounds of publicsecurity. The court held that thisexception was to be narrowly con-strued. It pointed out that privatesecurity undertakings had no powerof constraint. They merely con-tributed to the maintenance of pub-lic security, as any individual citizenshould be expected to do. A clear dis-tinction was drawn between thepublic security force and privatesecurity firms. The ECJ held that thedefences of public policy, public secu-rity or public health operated torefuse access to persons whose accessor residence would constitute a dan-ger on one of these grounds. Theycould not be used to justify a gener-al exclusion of the type in the instantcase. Clearly, both the residence andincorporation requirements werecontrary to the treaty.

Electronic commerceThe Commission has recently pro-posed a directive setting out a legalframework for electronic commercewithin the EU. It is proposed thedirective would apply to all informa-tion services provided electronically,whether for a charge or for free. Thedirective would extend the treatyrules on establishment and servicesto such information services. Theplace of establishment is defined asthe place where an operator actuallypursues an economic activity, irre-spective of where the web sites orservers are located. The operatorwould be subject to supervision inthe Member State where they wereestablished. The proposal also callson Member States to remove anynational legislation prohibiting theuse of electronic media for conclud-ing contracts. These provisions com-plement the recent proposal for adirective on electronic signatures.Service providers who act purely asconduits for information would beexempted from liability.

Trade MarksCanon Kabushiki Kaisha v Metro-Goldwyn-Mayer Inc (Case 39/97),judgment of 29 September 1998.CKK has registered the trade mark‘Canon’ in respect of cameras, pro-jectors and other recording devices.MGM applied to register ‘Canon’ as atrade mark in respect of video cas-

settes and services involving the pro-duction, distribution and projectionof films for cinemas and televisionorganisations. The ECJ was askedwhether the distinctive character ofthe mark and its reputation was tobe taken into account in determiningwhether the similarity between thegoods and services gave rise to thelikelihood of confusion under article4(1)(b) of the First trade mark direc-tive and thus MGM’s application toregister could be refused. The courtheld that it must be taken intoaccount. It said that there may be alikelihood of confusion even wherethe public perception is that thegoods or services have differentplaces of production but not wherethe public do not believe the goodsor services come from the sameundertaking or from economically-linked undertakings.

Brussels conventionRéunion Européenne Sa & Ors vSpliethoff’s Bevrachtingskantoor BVand the Master of the vesselAlblasgracht V002 (Case 51/97), judg-ment of 27 October 1998. The caseconcerned the application of article5(3) in a case involving the trans-portation of goods by sea. The Dutchcompany SA carried a consignmentof pears from Australia to Rotterdamaboard its vessel under a bill of lad-ing. They were unloaded there andtransported by road to France. Onarrival, it was discovered that thepears were damaged. The ECJ wasasked to identify the place of theharmful event. The court referred toits earlier decision where it had heldthat the place where a harmful eventoccurs confers jurisdiction both onthe place where the causal eventtakes place and the jurisdictionwhere damage is actually suffered. Inthis case the place of the causalevent was difficult and might evenbe impossible to determine. Thus,the consignee of the goods shouldbring the carrier before the court forthe place where the damageoccurred. This could not be either theplace of final delivery, which couldbe changed in mid-voyage, or theplace where the damage was ascer-tained. The place where damagearose in a transport operation of thisnature could only be the place wherethe carrier was to deliver the goods.

LITIGATIONINTELLECTUAL

PROPERTY

FREE MOVEMENT

EMPLOYMENT

CONSUMER PROTECTION

COMPETITION


PEOPLE AND PLACESPEOPLE AND PLACES

The Mayo solicitors’ firm P O’Connor & Son has been awarded the Q-Mark

for customer service from Excellence Ireland and has also won the national

award in the small service company category. The firm, home to Law

Society President Patrick O’Connor, is one of only 15 law firms nationwide

to receive the Q-Mark.

To achieve the Q-Mark, a company must achieve a score of 75% or high-

er in the Excellence Ireland assessment. O’Connor’s firm achieved a rating

of 95% on its most recent audit and beat off competition from 57 con-

tenders in the small service company category

Law Society President Patrick O’Connor and Director General Ken Murphy recently visited Athlone to meet the Midlands Bar Association. Pictured at themeeting are (back row, l-r): Dermot Scanlon, Denis Shaw, Jack Duncan, Brian Murphy, Evan Dunne, John O’Carroll (bar association secretary), Derek McVeigh,

Thomas Shaw, Sean McMullin; (front row, l-r): John Wallace, Sarah O’Reilly (Law Society CLE Executive), Aidan O’Carroll, Barra Flynn (bar association president), President Patrick O’Connor, Director General Ken Murphy and Crona Hughes

Agroup of solicitors have gottogether to raise money for

third world charity, GOAL. Theaim is to raise £20,000 for a shel-ter for street children in Calcutta.A portion of the money raised willalso go to help homeless people inDublin.

In order to raise this money,they are organising a 10K spon-sored run/walk on Saturday 15May 1999. The route will bringparticipants from Blackhall Placeinto the Phoenix Park and backagain. Afterwards, there will be apost-event party and barbecue forall participants and their support-ers.

‘We need as many people aspossible to take part if we are toreach the target’, says organiserEoin MacNeill of A&LGoodbody. Volunteers are activelybeing recruited now from withinthe profession and from families,friends and other colleagues, withclients and suppliers being target-ed for sponsorship. ‘We hope tohave a fun day out in addition toraising the money’, he adds.

GOAL funds projects inCalcutta which are organiseddirectly by local aid agencies. Inmany cases, former street childrenwho have themselves been helpedare recruited to help others in sim-

Law firms go for GOALilar situations.

Law Society President PatrickO’Connor has endorsed the eventand urged as many members as pos-sible to put on their running shoes.‘The legal profession in Ireland hasa long and proud tradition of help-ing those in less fortunate positionsthan themselves, whether it bethrough pro bono work or involve-ment with their local communities’,he says. ‘I hope members will comeout in force to support this initiativewhich may go some way towardsimproving the lives of Calcutta’schildren’.

The runners will also be raisingmoney for homeless people inDublin. ‘It is often easy to forgetthat there are people living in dread-ful poverty on the streets of our owncountry’, MacNeill points out. ‘Wefelt it was important to supportsome of the excellent projects spon-sored by local charities as well’.

Runners and walkers are urgent-ly required. The organisers are alsolooking for people to act asrecruiters within their own firms.Sponsorship cards, details of theevent and a special training sched-ule for novice runners will be avail-able in due course.

For more information on partici-pating or recruiting, contact EoinMacNeill on 661 3311.

Law Society President Patrick O’Connor receives the Excellence Ireland national award in the small service company category from

broadcaster Cynthia Ni Mhurchu and Sean Conlon, Chief Executive of Excellence Ireland

Mayo law firm scoops top quality award



Pictured at the Tormey & Co Annual Scholarship presentation were (backrow, l-r): Karol Mannion, Athlone (third place), Aisling Campion, Athlone

(second place), Paul McGrath TD, Clr Kieran Molloy; (front row, l-r): Barra JFlynn, Principal, Tormey & Co, William Penrose TD, Tadgh O’Shea (first

prize), and Catherine Murphy, Tormey & Co

Albert Power, Director of Educationat the Law Society’s Law School,

was recently awarded a PhD fromUniversity College Dublin.

Dr Power’s thesis was entitled Thelaw of easements, licences andcovenants running with land in

Ireland

The County and City of Limerick Bar Association recently hosted a functionto honour the appointment of Judge Tom O’Donnell to the District CourtBench. Pictured at the function are (l-r) Maeve Callanan, president of thebar association, former Law Society President Patrick Glynn, outgoing bar

association president Siobhan Fahy, Judge Tom O’Donnell and Jean O’Donnell

Members to benefit from Equity Bank dealThe Law Society has negotiated a range of benefits for members from

Equity Bank, including loans at a fixed rate of 2.87% (6.4% APR) to financepractising certificate fee, PII and single premium insurance. Pictured at theannouncement of the exclusive package were Equity Bank’s Katrina Kelly

and Donal Moore, Law Society President Patrick O’Connor and the Society’sDirector of Finance Cillian MacDomhnaill

The Society of Young SolicitorsIreland held their Autumn

Conference in the Ardilaun HouseHotel, Salthill, Galway on 13-15November 1998. Over 250 youngsolicitors attended.

Three papers were delivered atthe lecture session on Saturdaymorning. Paul Lavery of McCannFitzGerald delivered the first paper,on the Freedom of Information Act,1997. This covered the principalfeatures of the Act, the type ofinformation to which the Actapplies, procedures governing theright of access to information, thefees chargeable in respect of suchaccess, the right to amend personalinformation, and the right to obtainreasons for decisions of public bod-ies. Paul Lavery also commented onthe Office of the InformationCommissioner and the publicationswhich will be made available bythat office.

The second paper was deliveredby Dr Abbie Lane, a consultant psy-chiatrist in the Dublin CountyStress Clinic at St John of GodHospital, Dublin. The title of thepaper was highly relevant to all pre-sent: Reducing stress in your work-ing day! Dr Lane indicated that thekey to reducing stress was to identi-

Report on SYS AutumnConference 1998

fy the source of the stress, and toimplement mechanisms to dealwith the stress.

Thirdly, Patrick Groarke pre-sented a paper on the new rules ofthe superior courts dealing withDisclosure of reports and state-ments: mutuality of disclosure.These rules were implemented inlate 1998, and deal with pre-trialdisclosure. Mr Groarke discussedthe types of reports and statementswhich the parties are required toexchange, the time limits for doingso, the procedures for service andwithdrawal of a report. The impli-cations of failure to comply withthe rules and the rights of the par-ties in such circumstances were alsooutlined, as well as the exceptionsto the rules.

A checklist was provided for usewhen dealing with cases to whichthe rules apply.

Post-lecture activities includedgo-karting and horse riding, whilethe less active chose to lounge insome of the many watering holes inGalway city.

We were delighted that the newPresident of the Law Society, PatO’Connor, could join us and ourguests, Judge John F Buckley andDirector General Ken Murphy.

Chairman of the Younger MembersCommittee, Stuart Gilhooly, pre-sents a cheque for £1,500 to the

Chairman of the Solicitors’Benevolent Association, Thomas A

Menton. The money was raisedthrough the committee’s annual

soccer blitz and quiz nights



Taoiseach Bertie Ahern joinedthe descendants of Irish repub-

licanism’s founding fathers tounveil a plaque honouring lawyerswho took part in the 1798 rising.Descendants of United IrishmenThomas Addis Emmet andBagenal Harvey, who were bothlawyers, were among the guests atthe ceremony in the Round Hall ofthe Four Courts last December.

The plaque commemorates tenlawyers who sacrificed their lives,careers or both fighting for thecause of an independent self-gov-erning republic. Paying tribute tothe men, who included WolfeTone, one of the rising’s key fig-ures, Ahern said the principles forwhich they fought and died werestill important today.

Taoiseach honours original republicans

The picture shows (from left): Law Society President Patrick O’Connor, An Taoiseach Bertie Ahern and Justice Hugh O’Flaherty, with the plaque

in the background

Pictured at the recent presentation of parchments to newly-qualified solici-tors were Patricia Keary and Aideen Dennehy, both from Castleknock in

Dublin, and Regina O’Brien, Cork

‘They all chose to put principlebefore profit, and the general goodabove their private gain’, he said.‘Today, more than ever, in the after-math of the Good Friday agree-ment, we are guided by the plural-ist, democratic and republican prin-ciples of the United Irishmen. Theywere a truly talented, if tragic, gen-eration’.

The Taoiseach was joined at theceremony by Law SocietyPresident Patrick O’Connor and anumber of other guests from thelegal profession, including JusticeHugh O’Flaherty, AttorneyGeneral David Byrne SC, JusticeMinister John O’Donoghue,Chairman of the Bar Council JohnMacMenamin SC and Law SocietyDirector General Ken Murphy.

At the recent CLE seminar on planning law were (l-r) John Gore-Grimes,Gore & Grimes, Patrick Sweetman, Matheson Ormsby Prentice, Barbara

Joyce, CLE Co-ordinator, Tom O’Connor, A&L Goodbody, and Colm Price,Keans Price

Outgoing Presidents’ Dinner at Blackhall Place

(Above) Michael V O’Mahony (Law Society President 1993-94) shares ajoke with immediate Past President Laurence K Shields and PresidentPatrick O’Connor (centre) at the traditional dinner in honour of the

outgoing president last December(Below) Three in a row: Frank Daly (President, 1996-97) with LaurenceK Shields (President, 1997-98) and current President Patrick O’Connor



The Arthur Cox Dramatic Society staged its inaugural production

Twelve angry men in the Presidents’ Hall at Blackhall Place last

November. The play was performed and produced by members of

staff and played to a capacity audience on two nights, raising £2,000

for the Irish Cancer Society.

The President of the Law Society, Patrick O’Connor, a Mayo man himself, recently hosted a lunch for Mayo-bornsolicitors who are living and working in Dublin

The cast of the play present the proceeds of the performances tothe Irish Cancer Society, with (inset) Ian Scott and Pat O’Brien in a

scene from Reginald Rose’s classic drama

Arthur Cox treads the boards

Law Society President PatrickO’Connor pictured with Yuka

Fujita, who is the first Japanesenational to be presented with aparchment by the Law Society

Retiring Sligo State SolicitorThomas E Tighe receives a presen-

tation from Judge OliverMcGuinness, marking his many

years’ service

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26/28 South Terrace, Cork Carmichael House,Tel: (021) 319 200 Fax: (021) 319 300 60 Lower Baggot Street, Dublin 2.

Tel: (01) 475 4640 Fax: (01) 475 4643email: [email protected]


BOOKSBOOKS

Book reviewsA casebook on equity and trusts in Ireland

(second edition)JCW Wylie

Butterworths (1998), 26 Upper Ormond Quay, Dublin 7. ISBN: 1 85475 8802. Price: £50

This is the second edition ofProfessor Wylie’s casebook

on equity and the law of trusts inIreland. Thirteen years havepassed since the first editionappeared and, in that time, therehave been many significantdevelopments in the field.Reflecting this, the second editionis almost twice as long as its pre-decessor and the casebook nowruns to more than 1,250 pages.The paperback volume is attrac-tively presented and, despite itsconsiderable length, is easy tohandle and read.

When this casebook first cameout in 1985, it was designed(along with a companionCasebook on Irish land law) tosupplement Professor Wylie’stext on Irish land law (then in itsfirst edition). We now have thebenefit of the third edition of Irishland law (Butterworths, 1997), aswell as Hilary Delany’s recenttext dealing exclusively withEquity and the law of trusts in theRepublic of Ireland (Round HallSweet and Maxwell, 1996) (andJudge Ronan Keane’s earlier vol-ume on Equity and the law oftrusts in the Republic of Ireland(Butterworths, 1988)). In view ofthe existence of these textbooktreatments of equity and trusts,Professor Wylie does not attemptin his casebook to providedetailed discussion of the caseswhich he presents. Instead, eachof the casebook’s 23 chaptersbegins with a paragraph or two

setting the topic in question incontext and directing the reader tofurther sources of reference. Thecases themselves are presented infull ‘without editing of any kind,and unadorned by headnotes’.The individual cases are followedwith light notes and cross-refer-ences to other relevant authorities.As always, Professor Wylie’sguidance to the reader is reliableand fully up-to-date.

Noticeable developments fromthe first edition include the sub-stantial strengthening of the treat-ment of injunctions (with eightnew cases being added), as wellas increased coverage of the areasof resulting trusts, undue influ-ence and tracing. In all, some 60new cases are included (and ahandful of cases deleted). In addi-tion, the author has placed aslightly greater emphasis on mate-rial from Northern Ireland(although cases from the Republicof Ireland and from the pre-inde-pendence Irish courts still com-prise the vast bulk of the casesreproduced in the book).

When one surveys the body ofIrish case law on equity, as expert-ly assembled by Professor Wyliein this volume, one is struck bytwo points. First, it is interestingthat approximately half of thecases are more than 50 years old(and indeed the greater number ofthese are more than 100 hundredyears old). It appears that, after aflowering in the 19th century, thedevelopment of equity in Ireland

slowed in this century, particularlyin the later decades. There are sur-prisingly few important authori-ties from the 1950s, 1960s and1970s. However, something of arenaissance has occurred in the1980s and, perhaps to an evengreater extent, in the 1990s. Thus,the casebook includes manyimportant Supreme Court casesfrom the last two or three years,notably Lynch v Burke [1996] 1ILRM 114 (resulting trusts), Bankof Nova Scotia v Hogan [1997] 1ILRM 407 (undue influence),O’Mahony v Horgan [1995] 2 IR411 (Mareva injunctions), DublinCorporation v Building and AlliedTrade Union [1996] 2 ILRM 547(constructive trusts), and Mackeyv Wilde [1998] 1 ILRM 449 (spe-cific performance).

A second general point whichemerges is that, for this reviewerat least, the Irish caselaw on equi-ty has not yet developed to thepoint that it can stand alone. Thestudent of equity or the practition-er facing a practical problem willoften need to look beyond theIrish cases to the English authori-ties which have influenced them.

This is not to say that the Irishjudiciary are not beginning toassert their independence. Onemay note, for example, the rejec-tion by Murphy J in O’Byrne vDavoren [1994] 3 IR 373 of thedecision of the House of Lords inMcPhail v Doulton [1971] AC424 (see p702 of the casebook)and the doubts expressed by the

same judge (this time in theSupreme Court) in Bank of NovaScotia v Hogan (above) concern-ing aspects of the leading Englishauthority of Barclays Bank vO’Brien [1994] 1 AC 180 (seep495 of the casebook).

However, at least for themoment, one cannot say thatthere is a fully independent Irishlaw of equity. Although, on oneview, this is a weakness of thiscasebook (which includes noEnglish authorities); on the otherhand, it increases its potentialcontribution. Academic works(casebooks as well as textbooks)do not merely record the law buthelp to shape it as well. Just asProfessor Wylie’s seminal texton Irish land law has made amajor contribution to the devel-opment of the Irish law of prop-erty, so too will the casebookunder discussion assist in thedevelopment of the law of equityin Ireland.

A greater awareness of thewealth of Irish authorities, newand old, can only lead to areduced dependence on Englishcases in our courts and to the fur-ther development of a distinctiveIrish jurisprudence. ProfessorWylie is to be congratulated onthis work of scholarship, whichshould find a market among bothpractitioners and students ofequity.

Dr John Mee is a lecturer in lawat University College Cork.

G


BOOKSBOOKS

The author has provided anentry-level book which will

assist in our understanding ofeveryday practice and procedurein the High Court. This work willbe of assistance to solicitors,judges, barristers and lay liti-gants. It will be of particularvalue to students and to thosepractitioners who only rarelyinvolve themselves in High Courtlitigation.

Mr Wood is to be commendedfor his excellent attempt to unrav-el the intricacies of the superiorcourt rules. It is perhaps surpris-ing that no previous attemptappears to have been made to dothis at introductory level. I concurwith the view of Mr JusticeO’Flaherty, contained in the fore-word, that the book, like the rulesfrom which it is derived, ‘willcontinue to be updated over theyears’. At entry level, the book isof necessity more accessible and

user friendly than the rules. Thereis a straightforward easy-to-useindex of contents which willenable the user to elicit requiredand essential information speedi-ly. There is also significant refer-ence to caselaw. There is nothingnovel in marrying rules withcases. By doing so the authorholds the reader’s attention.

In many ways this is a book oflists. For example, the differencesbetween the jury list and the non-jury list, between the common lawlist and the Master’s list, are short-ly and succinctly explained.Although the lists of what may becontained in the pleadings in cer-tain causes of action may be obvi-ous to the specialist litigationpractitioner, they will provideessential information and guide-lines to the occasional visitor tolitigation. Indeed, there is a chap-ter devoted to court lists. Thischapter will assist the unwary

practitioner or lay litigant in nav-igating the legal diary.

That the book is significantlymore than a book of lists is clearfrom the large number of exam-ples of the rules as they are inter-preted in practice. Relevant casesare quoted in brief and succinctfashion, something whichappears to be the author’s trade-mark.

The chapters on injunctionsand enforcement of money judg-ments demystify many of theheadings which struck fear intothe student or newly-qualifiedpractitioner in the past. Garnisheeorders, fieri facias, Anton Pillarorders, and Mareva injunctionsneed not instil the same fear andloathing as they may have donepreviously.

The book endeavours to coverevery area of litigation practice ina very general way. I have nodoubt that it will provide much

comfort to those people entering(for them) previously unchartedwaters.

In his preface, Mr Wood saysthat ‘this book does not pretend tobe a comprehensively updatedversion of the rules. It is intendedto be a practical guide to some ofthe more common problems facedby practitioners’. Mr Wood hassucceeded admirably. His bookwill be a valuable source for stu-dents, practitioners and lay liti-gants alike. It is well written. Ibelieve it will become essentialreading for all students of law.Practitioners would be welladvised to keep a copy to handalongside the Rules of the superi-or courts themselves.

James McCourt is a partner in theDublin firm O’Mara GeraghtyMcCourt and chairman of the Law Society’s LitigationCommittee.

G

The High Court: a user’s guideKieron Wood

Four Courts Press (1998), Fumbally Lane, Dublin 8. ISBN: 1-85182-307-7. Price: £25

Agnes Foy’s work tackles theimportant and exciting area

of the law and regulation relatingto capital markets. This area,which has undergone significantdevelopments since the break-down of the Bretton WoodsAgreement in the 1970s, is charac-terised by exotic arrangements:Swedish company Electroluxissued a Eurobond in 1990, repay-ment of the principal being depen-dent upon whether an earthquakeoccurred in Japan!

The main text of Capital mar-kets runs to 575 pages and is divid-ed into two parts and seven chap-ters. Part I, which runs to 202pages, is subdivided into twochapters which deal with the play-ers on the capital markets and theproducts which are offered onsuch markets. Chapter one consid-ers, inter alia, stock exchanges

The capital markets: Irish and international laws and regulations

Agnes FoyRound Hall Sweet & Maxwell (1998), Brehon House, 4 Upper Ormond Quay, Dublin 7. ISBN 1-899738-54-1. Price £98

and futures and options exchanges,regulators, professional advisersand both institutional and retailinvestors. Chapter two on productsavailable to investors in capitalmarkets, deals with, inter alia,bonds, equities, derivatives andinvestment funds.

Part II of the book comprisesfive chapters and deals with legis-lation pertaining to capital markets.Chapter three examines the CentralBank Acts, 1942-1997. This chap-ter considers, among other things,the licensing and investigativepowers of the Central Bank.Chapter four on collective invest-ment schemes deals with the lawand regulations relating to UCITS(Undertakings for CollectiveInvestments in TransferableSecurities), unit trusts, investmentcompanies and investment limitedpartnerships. Chapter five consid-

ers the Netting of FinancialContracts Act, 1995, while chap-ters six and seven deal with the1995 Stock Exchange Act and theInvestment Intermediaries Act.

The book would have benefitedfrom a name index identifyingimportant contributors to the field.A separate section containing aglossary of technical terms wouldalso have been useful, although theauthor does extensively lay thegroundwork for the non-specialistreader in part I of the book. Thisapproach, however, has led to somerepetition, the discussion of UCITSat paragraphs 2-68 and 2-69 in partI and paragraphs 4-05 and 4-06 inpart II being a case in point.Further, although the author refersto the Black-Scholes OptionPricing Model, this reviewer couldfind no reference in the index to theEfficient Markets Hypothesis,

which is of significance in areas asdiverse as insider trading and track-er bonds. In addition, given therecent collapse of Barings Bank(remember Nick Leeson?), a fullerdiscussion of the objectives of inter-nal control systems and the types ofinternal controls which should beimplemented by financial institu-tions would have been welcome.

These issues aside, however,Agnes Foy has produced a sub-stantive and readable contributionto a highly-complex and rapidly-changing area. She is to be con-gratulated both on her efforts andher achievement.

Niall O’Hanlon BA (Hons) (Acct &Fin), LLM (Comm Law), ACA, AITIis a practising barrister specialis-ing in general commercial and tax-ation law and is a consultant to theLaw Society’s Law School.

G


BOOKSBOOKS

I t was inevitable, given the bur-geoning public interest in Irish

military affairs as a result of thehigh profile attaching to armydeafness cases, that a book deal-ing with military law in Irelandwould sooner or later be pub-lished. The authors in producingsuch a magnum opus have donean invaluable favour for practi-tioners and the public alike.

Mrs Justice Susan Denham, inher foreword to the book,describes the publication as ‘animportant part of the growinglibrary of Irish law’. She compli-ments the authors in providing aguide for legal practitioners in acomplex area of law.

The authors set out to providea practical guide to themilitary/civilian relationship inlaw in Ireland.

Approximately 200 pages (orhalf of the book) concentrate onoutlining offences against mili-tary law, the investigation andprosecution of offences, and inproviding summaries of CourtsMartial Appeal Court judgmentsfrom December 1983 untilFebruary 1997. Courts martialprocedures are outlined in greatdetail. The decisions relating tolegal representation at informalinvestigation of charges areexplained by reference to caselaw

– Scariff v Taylor ([1996] 1 IR242) and Dunford and O’Neill vMinister for Defence and others,unreported, High Court, Laffoy J,15 December 1995.

The authors have wisely seenfit to devote an entire chapter toservice in the Defence Forces.Promotions procedures in respectof all ranks in the Defence Forceshave in recent times undergonemajor changes. I have no doubtthat this particular section of the

book will be well visited by manypersonnel.

For those practitionersinvolved in cases against theMinister for Defence, the authorshave provided a very useful guidewhich will help to decipher mili-tary jargon which one inevitablyencounters on discovery of armydocuments. One can get a feelingfor the military/civilian relation-ship in law by studying the judg-ments which appear in the form ofan appendix. Subject mattersreferred to include the much-pub-licised murder trial of PrivateMichael McAleavey [1 CM/84],rights of privacy and sexual activ-ity in a private home (Re C [3CM/94]), and more routine mili-tary matters such as whether arequest by a superior officeramounts to an order (Re LeadingSeaman Paul McSweeney [2CM/89]). It’s a pity that theauthors did not provide a com-mentary on the appendixedcaselaw. Perhaps they feel thatthis is a subject for another day.

The authors have devoted anentire chapter to compensation,negligence and breach of statutoryduty. The duty of care of militaryauthorities is explored by refer-ence to caselaw and comparison iscontinually made with the situa-tion pertaining with the UK’s

armed forces. Compensationschemes available to military per-sonnel in the UK, Norway andCanada are summarised.

The operation of health andsafety legislation in military cir-cumstances is examined. Theauthors highlight the particulardifficulties for practitionerscaused as a result of privilegeattaching to the proceedings ofmilitary courts of enquiry and toUN-sourced documents.

Other topics covered includegrievances, representation andinterpersonal relationships, inter-national humanitarian law andservice overseas by the DefenceForces.

All in all, this is a well-struc-tured, comprehensive and timelybook. Military law has beenplaced in its proper context. Ourarmed forces are part of our com-munity and it is proper that thepublic be aware and understandthe particular and unique environ-ment in which they operate. Thisbook will benefit the practitionerand the public alike, and providesa bedrock for future works in thisarea of law.

Martin Reidy, Capt (Retired), BComm LLB is an apprentice solic-itor with the Athlone firm Tormey& Company.

G

Military law in IrelandGerard Humphreys and Ciaran Craven

Roundhall Sweet & Maxwell (1997), Brehon House, 4 Upper Ormond Quay, Dublin 7. ISBN: 1-899738-33-9. Price: £78

LAW SOCIETY OF IRELAND

Please supply disk(s)(disk suitable for Word 2, 6 and 7, and WordPerfect 6.1) for EnduringPower of Attorney Prescribed Form

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ALL NOW

AVAILABLE onDISK ORDER FORM

JUST PUBLISHEDThe role of the expert witness

Edited by Bart DalyInns Quay (1998),

Richmond Business Campus, North Brunswick Street,

Dublin 7. ISBN: 1-902354-01-X. Price: £24

The Family Law (Divorce) Act 1996

Annotated by Nuala Jackson andStephanie Coggans

Round Hall Sweet & Maxwell (1998),Brehon House,

4 Upper Ormond Quay, Dublin 7.

ISBN 1-85800-125-0. Price: £25

The Irish police: a legal and constitutional perspective

Dermot PJ WalshRound Hall Sweet & Maxwell (1998),

Brehon House, 4 Upper Ormond Quay,

Dublin 7. ISBN 1-899738-78-9. Price: £85

ENDURING POWER OF ATTORNEY PRESCRIBED FORMAs per SI no 196 and 287 of 1996. Available in Word 2, 6 and 7, and WordPerfect 6.1. Reproduced with the permission of the Controller, Government Stationery Office. Price per disk (incl p&p): £5 + 1.05 (VAT): £6.05

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PROFESSIONAL INFORMATIONPROFESSIONAL INFORMATION

Registration of Title Act, 1964

An application has been received from the regis-tered owners mentioned in the schedule heretofor the issue of a land certificate as stated to havebeen lost or inadvertently destroyed. A new cer-tificate will be issued unless notification isreceived in the registry within 28 days from thedate of publication of this notice that the originalcertificate is in existence and in the custody ofsome person other than the registered owner.Any such notification should state the groundson which the certificate is being held.(Register of Titles), Central Office, LandRegistry, Chancery Street, Dublin (Published 5 February 1999)

Regd owner: Patrick Cooney, Castlebank,Ardnacrusha, Co Clare; Folio: 11831 and11825; Lands: Prop 1 – Townland ofBallyfinneen and Barony of Bunratty Lowerand Castlebank and Barony of Bunratty

LOST LANDCERTIFICATES

Lower; and Prop 2 – Townland ofBallyfinneen and Barony of BunrattyLower; Area: Prop 1 – 6a 2r 3p and 0a 1r 0p;and Prop 2 – 23a 0r 32p; Co Clare

Regd owner: Jack Keane and Siobhan Keane,Cappanty, Meelick, Co Clare; Folio:19120F; Lands: Capateemore East, BunrattyLower; Area: 0.370 Hectares; Co Clare

Regd owner: Hans Juerg Bracher; Folio:31097F; Lands: Property situated in part ofthe Townland of Curraheen and Barony ofKinnataloon; Co Cork

Regd owner: Cormac Cahill; 2 Endsleigh,Carrigaline, Co Cork; Folio: 8727L; Lands:Townland of Carrigaline West and Barony ofKerrycurrihy; Co Cork

Regd owner: Cork County Council; Folio:13077; Lands: Property in the Kanturk RuralDistrict, County of Cork (the LabourersOrder 1907); Co Cork

Regd owner: Rosaleen Dennehy (deceased);Folio: 1234L; Lands: Property situated inpart of the Townland of Ballinure, south sideof Skehard Road and Parish of SaintFinbarrs and City of Cork; Co Cork

Regd owner: Richard Gordon Good; Folio:48836; Lands: Property situated in part ofthe Townland of Knockaverry and Barony ofImokilly, County Cork; Co Cork

Regd owner: John Hegarty and CalasanctiusHegarty; Folio: 2907L; Lands: Property sit-uated in part of the Townland of Coolroe andBarony of Muskerry East, County Cork; CoCork

Regd owner: Patricia Heneghan; Folio: 35074F;Lands: Property situated in the Townland ofKnockadoon and Barony of Imokilly,County Cork; Co Cork

Regd owner: Cornelius Murphy; Folio: 42871;Lands: Property part lands at RathgogginMiddle and Barony of Orerry and Kilmoreand County of Cork; Co Cork

Regd owner: Francis Murphy; Folio: 29756;Lands: Property situate in part of theTownland of Awhirl More and Barony ofMuskerry East, County Cork; Co Cork

Regd owner: William O’Callaghan; Folio:30179; Lands: Property situated in theTownland of Scarteen and Barony ofMuskerry East, County of Cork; Co Cork

Regd owner: John P O’Leary; Folio: 44956;Lands: Property situated in the Townland ofBallinaspig More and Barony of Cork; CoCork

Regd owner: Patrick C Cunningham; Folio:17384; Lands: Ummerawirrinan; Area: Prop1 – 1a 2r 4p; and Prop 2 – 71a 0r 0p; CoDonegal

Regd owner: Patrick McDermott, 29 HawthornHeights, Letterkenny, Co Donegal and c/oMrs Eileen Daly, 23 West ChapeltownAvenue, Bersden, Glasgow, Scotland; Folio:6736F; Lands: Sallaghagrane; Co Donegal

Regd owner: Michael and MargaretMcLaughlin, Aghavannon, Rathmullen, CoDonegal; Folio: 33307; Lands: AghavannanNear; Area: 0a 3r 2 40p; Co Donegal

Regd owner: Maria Cassidy and DesmondO’Neill, both of 21 Canonbrook Park,Newcastle Road, Lucan, County Dublin;Folio: 86043F; Lands: Property known as 21Canonbrook Park situate in the town andParish of Lucan, County Dublin; Co Dublin

Regd owner: Kevin Dooney and Lynda Dooneyof 77 Newbury Avenue, Clonshaugh, Dublin17; Folio: 8711F; Lands: Property situate inthe Townland of Priorswood and Barony ofCoolock; Co Dublin

Regd owner: Bridget Duff; Folio: 45363L;Lands: Townland of Rush and Barony ofBalrothery East, property situate to the eastside of Skerries Road in the town of Rush;Co Dublin

Regd owner: John A Hegarty of 21 OrmondSquare, Ormond Quay, Dublin; Folio:14135; Lands: Property situate on the southside of Collins Avenue Extension in theParish and District of Santry and City ofDublin; Co Dublin

Regd owner: Anthony and Caroline Lynch of 51Shanliss Avenue, Santry, City of Dublin;Folio: 11328; Lands: Prop 1 – Townland ofSantry and Barony of Coolock; and Prop 2 –A plot of ground situate on the east side ofShanliss Road in the Parish and District ofSantry and City of Dublin; Co Dublin

Regd owner: Juliana Lyons, Teresa Meenan,Catherine Geehan, Katherine Hopkins, Mary

O’Reilly, Maureen Flanagan, Grainne Druryand Mary Margaret Kealy of DominicanConvent, Saint Mary’s, Cabra, Dublin;Folio: 3075; Lands: Townland ofBallyfermot Lower in the Barony ofUppercross; Co Dublin

Regd owner: Anne Perkins; Folio: 110747F;Lands: Property known as 142 BallyshannonRoad, Coolock in the Parish of Coolock andDistrict of Coolock West; Co Dublin

Regd owner: Patrick Crowe, Parnell Avenue,Mervue, Galway; Folio: 26684; Lands:Townland of Illaunbaun and Barony ofCorcomroe; Area: 81a 0r 35p; Co Clare

Regd owner: Bridget Geoghan; Folio: 419F;Lands: Townland of Muing West andBarony of Trughanacmy; Area: 0a 0r 25p;Co Kerry

Regd owner: Lorna Cotter and Liam Griffin;Folio: 32697F; Lands: Townland of ManorWest; Co Kerry

Regd owner: Patrick Nolan; Folio: 6675F;Lands: Townland of Sackville and Barony ofClanmaurice; Area: 0.581; Co Kerry

Regd owner: Mary Windle; Folio: 7207 and7137; Lands: Townland of Aughrim andBarony of Iraghticonnor; Area: Prop 1 – 17a0r 7p; and Prop 2 – 9a 2r 23p; Co Kerry

Regd owner: Declan and Mary Johnson; Folio:24193F; Lands: Coolree and Barony ofClane; Co Kildare

Regd owner: Denis Bennett; Folio: 2509F;Lands: O’More’s Forest and Barony ofMaryborough East; Co Laois

Regd owner: James Phelan; Folio: 9367F;Lands: Killeaney and Barony ofMaryborough West; Co Laois

Regd owner: Thomas Reynolds, Mohercregg,Drumshanbo, Co Leitrim; Folio: 18218;Lands: Prop 1 – Moher (Gregg) and Prop 5– Moher (Gregg); Area: Prop 1 – 12 acresand Prop 5 – 0.225 acres; Co Leitrim

Regd owner: Thomas Brennan; Folio: 2208;Lands: Townland of Rivers and Barony ofClanwilliam; Area: 120a 1r 28p; CoLimerick

Regd owner: Timothy Hickey; Folio: 7711;Lands: Townland of Ballylahiff and Baronyof Glenquin; Co Limerick

Regd owner: John J Reynolds, Aghanoran,Lough Gowna, Co Cavan; Folio: 10591;Lands: Aghanoran; Co Longford

Regd owner: Michael Bell and Elizabeth Bell,122 Newfield Estate, Drogheda; Folio:1599L; Lands: Borough of Drogheda; Area:0a 0r 10p; Co Louth

Regd owner: Hotel and Motel EnterprisesLimited, Saint Bridgets, Clonskeagh, CoDublin; Folio: 11864; Lands: Carrickcarnan;Area: 0a 0r 35p; Co Louth

Regd owner: James Coffey, Maheraboy,Kilmovee, Co Mayo; Folio: 42682; Lands:Prop 1 – Townland of Maheraboy andBarony of Costello; and Prop 2 – Townlandof Magheraboy and Barony of Costello;Area: Prop 1 – 14a 0r 9p; and Prop 2 –12.862 acres; Co Mayo

Regd owner: Patrick John Moran and ElizabethMoran; Folio: 16933; Lands: Townland ofBallinrobe Demesne (part) and Barony ofKilmaine; Area: 2.313 acres; Co Mayo

Regd owner: Gerard P O’ Donnell, DownhillHotel, Ballina, Co Mayo; Folio: 450F;

PARTNERSHIP OPPORTUNITYPractice in South West Munster wishes to recruit a senior solic-itor. This is a long-established, profitable and progressivepractice, a leader in its area and committed to expansion andthe successful application of modern technology. The initialrole will include responsibility for probate, conveyancing andtaxation over a range of clients.

This is an exciting opportunity for a mature, ambitious, career-minded person who is seeking a partnership within 3/5 years -depending upon performance and compatibility.

The successful candidate will:

● have 4 or more years post-qualification experience in general practice.

● be self-reliant and calmly confident of theirprofessional abilities.

● understand current technology and its application in legal practice.

● be able to participate quickly and effectively at a senior level.

● have strong inter-personal/communications skills.

● have a commercial and client service focus.

RemunerationInitial remuneration offer will reflect the experience and abili-ty of the successful candidate. Longer term prospects will beextremely rewarding.

Please forward applications and C. V.’s (markedpersonal/strictly confidential) - to be received not later than 26February 1999, to:

Mr. James Hyland,Hyland Johnson,Chartered Accountants & Business Advisers,26-28 South Terrace, Cork.



Co Westmeath and Glascorn, Ballinea,Mullingar, Co Westmeath; Folio: 14577;Lands: Balrath; Area: 1a 0r 32p; CoWestmeath

Regd owner: Mary Roche; Folio: 790(r); Lands:Gibberwell and Barony of Bargy; CoWexford

Regd owner: Ormond Morgan; Folio: 6207 and2740; Lands: Clara More and Meetings,Trooperstown and Barony of BallinacorSouth Wicklow; Co Wicklow

Bazzani, Rosetta, deceased, late of 7 MillbrookTerrace, Old Kilmainham, Dublin 8. Would anyperson having knowledge of a will of the abovenamed deceased, who died on 11 August 1998,please contact Peter McDonnell & Associates,Solicitors, 5 Inns Court, Winetavern Street,Dublin 8, tel: 01 6795500, fax: 016795457

Campbell, Christina, deceased, late of 4 StJohn’s Avenue, Pimlico, Dublin 8. Would anyperson having knowledge of a will of the abovenamed deceased, who died on or about 2October 1998, please contact Mary Cowhey &Company, Solicitors, Main Street, Maynooth,Co Kildare, tel: 01 6285711, fax: 01 6285613

Carrigan, John, deceased, late of KilshaneCross, Ashbourne Road, Finglas, Dublin 11 andformerly of 296 Cappagh Road, Finglas West,Dublin 11. Would any person having knowledgeof a will of the above named deceased, who diedon 7 October 1998, please contact SextonKeenan & Company, Solicitors, 138Walkinstown Avenue, Dublin 12, tel: 014500833, fax: 01 4500226

Corcoran, Martin, deceased, late of Apartment5A, The Glen, Bettyglen, Raheny, Dublin 5.Would any person having knowledge of awill/codicil of the above named deceased, whodied on 14 December 1998, please contactMessrs H C Browne & Company, Solicitors,Malahide Road/Kilmore Road Corner, Artane,Dublin 5, tel: 01 8327849, fax: 01 8327852

WILLS

ADVERTISING RATES

All advertisements must be paid for prior to publication. Deadline for MarchGazette: 19 February 1999. For further information, contact CatherineKearney or Andrea MacDermott on 01 672 4800

• Lost land certificates – £30 plus 21% VAT• Wills – £50 plus 21% VAT• Lost title deeds – £50 plus 21% VAT• Employment miscellaneous – £6 per printed

line plus 21% VAT (approx 4/5 words a line)

Advertising rates in the Professional information section are as follows:

Lands: Townland of Ballyholan and Baronyof Tireragh; Area: 0a 2r 4p; Co Mayo

Regd owner: Michael James Ryan; Folio:24946F; Lands: Townland of Bundovowenand Barony of Carra; Area: 1.868 acres; CoMayo

Regd owner: Joseph Caffrey, Oldcastle, CoMeath, also Napers Dome, Loughcrew,Oldcastle, Co Meath; Folio: 5606; Lands:Rahaghy; Area: 87a 3r 4p; Co Meath

Regd owner: Michael Connolly, The FlatHouse, Dunboyne, Co Meath; Folio: 2119F;Lands: Prop 1 – Piercetown; and Prop 2 -Pace; Area: Prop 1 – 6.525 acres; and Prop 2– 7.535 acres; Co Meath

Regd owner: Dermot and Jean Butler; Folio:6427F; Lands: Puttaghan and Barony ofBallycowan; Co Offaly

Regd owner: James Egan, White Cottage,Culleenamore, County Sligo; Folio: 15670;Lands: Townland of Culleenduff and Baronyof Carbury; Area: 6.026 acres; Co Sligo

Regd owner: Michael Fallon, Kilsellagh, Calry,County Sligo; Folio: 14166; Lands: Prop 1 –Townland of Drumkilsellagh and Barony ofCarbury; and Prop 2 – Castlegar (E DGlencar) and Barony of Carbury; Area: Prop1 – 27a 3r 13p; and Prop 2 – 3a 1r 20p; CoSligo

Regd owner: Monica Curran; Folio: 27272;Lands: Barretstown and Barony ofMiddlethird; Co Tipperary

Regd owner: John and Tina Kennedy; Folio:21610F; Lands: Toberaheena and Barony ofIffa and Offa East; Co Tipperary

Regd owner: John King; Folio: 5009F; Lands:Lacka and Cloncorig and Barony of OrmondLower; Co Tipperary

Regd owner: Jane McTighe and MarieMcTighe; Folio: 19342; Lands:Castleholding and Barony of Skerrin; CoTipperary

Regd owner: Fintan Nagle, Balrath, Ballinea,

Dalton, Theresa, deceased, late of 43 NewportSquare, Waterford. Would any person havingknowledge of a will dated 26 January 1988 of theabove named deceased, who died on 15September 1998, please contact Messrs T Kiersey& Company, Solicitors, 17 Catherine Street,Waterford, tel: 051 874366, fax: 051 870390

Daly, Cornelius, deceased, late ofClounmellane, (otherwise Gurrane), Firies,Killarney, Co Kerry formerly of 10 SunburyGardens, Dartry Road, Rathmines, Dublin.Would any person having knowledge of a will ofthe above named deceased, who died on 18November 1998, please contact David Twomey& Company, Solicitors, Castleisland, Co Kerry,tel: 066 7141211, fax: 066 7142252

Domican, John, deceased, late of Mylerstown,Roberstown, Naas, County Kildare. Would anyperson having knowledge of the drafting or exe-cution of a will for/by the above nameddeceased, who died on 26 April 1996, pleasecontact Stephen Maher, Solicitor, 6 The Courts,Newbridge, Co Kildare, tel: 045 433425, fax:045 434203

Donnelly, John Joseph (otherwise Sean),deceased, late of 53 Milford, Malahide, CoDublin and formerly of 32 St Fintan’s Road,Sutton, Co Dublin. Would any person havingknowledge of a will of the above nameddeceased, who died on 30 December 1997,please contact Orpen Franks, Solicitors, 28/30Burlington Road, Dublin 4 (Ref CC/SC), tel: 016689622, fax: 01 6689004

Donohoe, John, deceased, late of 37 KylemoreAvenue, Ballyfermot, Dublin 10. Would any per-son having knowledge of a will of the abovenamed deceased, who died on 21 August 1997,please contact Patricia Carroll, Solicitor, LawCentre, 45 Lower Gardiner Street, Dublin 1, tel:01 8745440, fax: 01 8746896

Donohoe, Sadie, deceased, late of 37 KylemoreAvenue, Ballyfermot, Dublin 10. Would any per-son having knowledge of a will of the abovenamed deceased, who died on 21 October 1997,please contact Patricia Carroll, Solicitor, LawCentre, 45 Lower Gardiner Street, Dublin 1, tel:01 8745440, fax: 01 8746896

Dowling, Michael, deceased, late of 2 KentRoad, Ballyphehane, Cork City. Would any per-

son having knowledge of a will of the abovenamed deceased, who died on 18 January 1997,please contact FitzGerald & O’Leary,Solicitors, 70 Shandon Street, Cork, tel: 021301307, fax: 021 300020

Edwards, Christopher, deceased, late of 494Crewhill, Maynooth, Co Kildare. Would anyperson having knowledge of a will of the abovenamed deceased, who died on 11 January 1995,please contact Patrick Neligan, Solicitor, MainStreet, Maynooth, Co Kildare, tel: 01 6285322,fax: 01 6285281

Jennings, William, deceased, late ofKilluremore, Ahascragh, Ballinasloe, CountyGalway. Would any person having knowledgeof a will of the above named deceased, whodied on 2 October 1998, please contact Pearts,Solicitors, 24-26 Upper Ormond Quay, Dublin7, tel: 01 8722311, fax: 01 8722852

McKeon, Con, deceased, late of Rathvilla,Edenderry, Co Offaly. Would any person havingknowledge of a will of the above nameddeceased, who died on 27 November 1998,please contact Byrne & O’Sullivan, Solicitors,Windsor Lodge, Edenderry, Co Offaly, tel: 040531522, fax: 0405 31828

McNally, Stephen Oliver, deceased, late of 7Castle Court, Newtownforbes, Co Longford andformerly of 27 Grenville Road, Blackrock, CoDublin and of Edenderry and of 12 RaheenHeights, Limerick. Would any person havingknowledge of a will of the above nameddeceased, who died on 17 November 1998,

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) 8725622 Fax: (01) 8725404

E-mail: [email protected] Bank Building, Hill Street

Newry, County Down.Tel: (0801693) 65311Fax: (0801693) 62096E-mail: [email protected]

ENGLISH AGENTS:Agency work undertaken

for Irish solicitors in both litigation and

non-contentious matters –including legal aid.

Fearon & Co,Solicitors, Westminster House,

12 The Broadway, Woking, Surrey GU21 5AU.

Tel: 0044 1483 726272Fax: 0044 1483 725807

LOST A WILL?

TRY THEREGISTRY OF WILLS

SERVICE

Tuckey’s House,8, Tuckey Street,

CORK.

Tel: +353 21 279225Fax: +353 21 279226

Dx No: 2534 Cork Wst



Top Dublin Bankseeks

Legal Sec c£17K!

Ph Gina on6 6 2 8 6 8 6

Fax 6628689or email

osborne@ tinet.ie

OSBORNE RECRUITMENT

GRACE CORRIGANFamily Mediator

Marriage Separation MediationFamily/Workplace Conflict Resolution

By Appointment

01-2892896

please contact John J Quinn & Company,Solicitors, Earl Street, Longford, tel: 04341541, fax: 043 45343

Maguire, Frank, deceased, late of Gurranes,Caheragh, Drimoleague, Co Cork. Would anyperson who holds or has knowledge of a will ofthe above named deceased, who died on 5February 1998, please contact Wolfe &Company, Solicitors, Market Street,Skibbereen, Co Cork (Ref POR) tel: 02821177, fax: 028 21676

Mahon, John Aidan, deceased, late of 43Nugent Road, Churchtown, Dublin 14. Wouldany person having knowledge of a will of theabove named deceased, who died on 16November 1998, please contact Cogan-Daly &Company, Solicitors, Brighton House, 50Terenure Road East, Rathgar, Dublin 6, tel: 014904494, fax: 01 4903190

O’Shea, Ellen Ann, deceased, late of CorballyNursing Home and lately of St Gerard’sNursing Home, Limerick. Would any personhaving knowledge of a will of the above nameddeceased, who died on 2 January 1999 at StCamillus’ Hospital, Shelbourne Road,Limerick, please contact William Fitzgibbon,Solicitor, Mitchelstown, Co Cork, DX 30 003,tel: 025 84255, fax: 025 84329

Rice, Margaret, deceased, late of 249Connolly Road, Ballyphehane, Cork. Wouldany person having knowledge of a will of theabove named deceased, who died on 29 April1998, please contact Eamon Murray &Company, Solicitors, 6/7 Sheares Street, Cork,tel: 021 276163, fax: 021 274801

Sutton, Thomas, deceased, late of Rathard,Mullinavat, Co Kilkenny. Would any personhaving knowledge of a will dated 8 December1980 of the above named deceased, who diedon 27 April 1985, please contact Messrs TKiersey & Company, Solicitors, 17 CatherineStreet, Waterford, tel: 051 874366, fax: 051870390

Assistant solicitor required for Midlandsoffice. Reply to Box No 10

Solicitor required – Sligo. Minimum twoyears’ experience in probate and conveyancing.Excellent conditions. Salary commensuratewith experience. Reply to Box No 11

Experienced apprentice required for practicein large town in the west of Ireland for five tosix months’ contract commencing April 1999.Reply to Box No 12

Newly-qualified solicitor required for five tosix months’ contract in large west of Irelandtown. Reply to Box No 13

Solicitor – ten years’ post-qualification expe-rience conveyancing/probate seeks fresh chal-lenge – Dublin area. Reply to Box No 14

EMPLOYMENT

Midwest position sought by reliable and com-petent male solicitor, three years’ post-qualifica-tion experience. Experience mainly litigationand conveyancing. Reply to Box No 15

Solicitors’ apprentice with experience andpost-professional course, seeks apprenticeshipin Midlands region. Reply to Box No 16

Solicitor – with experience in litigation avail-able for part-time work on a contract or locumbasis in the Dublin area. Reply to Box No 17

Co Mayo solicitor required for busygeneral practice – litigation, con-

veyancing and probate. Appointee willhave responsibility for effective legal

management of the office, with the assistance

of an efficient administration functionand regular input

from the principal.This is a full-time position. May suit a

solicitor living within a 30 mile radius who could spend three

days per week on site, andremainder working and

communicating by telephone,fax and e-mail.

For further information, please con-tact, in complete

confidence, Noeleen Gibson, Gibson &Gibson Recruitment

Consultants, tel: 01 6607211,fax: 01 6607078 or write to her at 21

Percy Place, Dublin 4

Solicitor required for practice in tourist town inthe west of Ireland with a least one year’s post-qualification experience in general practice, par-ticularly conveyancing, probate and taxation.Reply to Box No 18

Solicitor required for temporary, full-timeposition in busy Waterford City practice for aminimum of three months. Experience in con-veyancing and litigation essential. Modernoffice with excellent pay and conditions. Applyin confidence with CV to MM Halley & Son,Solicitors, 5 George’s Street, Waterford

Experienced solicitor available for locumwork. Reply to Box No 19

Family Mediator – Private Practitioner. Trained by Michael Williams.

Immediate appointments. Tel: A Gannon 01 8328730

MEDIATIONDown, tel: 080 1693 64611, fax: 080 1693 67000.Contact K J Neary

A luxury spacious one bedroom apartment; carspace, tennis court, near Smithfield, Four Courtsetc, tel: 01 6768844 (w) or 01 2892603 (h)

D2 Wintergarden – new luxury furnished onebedroom apartment, car space, tel: 01 2892603

Practice wanted to purchase in Cork City orCounty Cork/Kerry area – size immaterial – adver-tiser is outside these areas – all replies will be treat-ed with complete confidence. Reply to Box No 191

In the matter of the Registration of Title Act,1964 and of the application of Owens MedicalHall Ltd in respect of property in the county ofCarlowCounty: CarlowLands: Premises at no 24 Main Street,BagenalstownDealing no: J5440/98

Take notice that Owens Medical Hall Ltd of MainStreet, Bagenalstown, Co Carlow, has lodged anapplication for registration on the FreeholdRegister free from encumbrances in respect of theabove property. The original title documents spec-ified in the schedule hereto are stated to have beenlost or mislaid. The application may be inspected atthis registry.

The application will be proceeded with unlessnotice is received in the registry within one calen-dar month from the date of publication of thisnotice that the original documents of title are inexistence. Any such notice should state thegrounds on which the documents are held andquote the dealing reference above.

Sean MacMahon, Examiner of Titles, 23December 1998

Schedule1. Original probate of the will dated 16 March

1951 of Patrick Joseph Owens who died on 20April 1951 which issued forth of the KilkennyDistrict Registry of the High Court on 9November 1951 to Thomas R Chambers, thesole executor therein named

2. Original indenture of assignment dated 21August 1952 made between Elizabeth Lynch ofthe one part and Owens Medical Hall Limitedof the other part.

Fanning, Ms Nora (otherwise Hanora), a ward ofcourt: Property of 66 Park Crescent House,Blackhorse Avenue, Dublin 7. Would any personholding or knowing the whereabouts of the docu-ments of title relating to the above premises, theproperty of the above please contact the GeneralSolicitors Office for Minors and Wards of Court,Aras Ui Dhalaigh, Inns Quay, Dublin 7 (RefLS/1454). The deeds would comprise the following:1. Original indenture of lease dated 2 May 1974

between Blackhorse Estates Ltd of the one partand Robert Stewart of the other part

2. Assignment dated 24 May 1977 between MaryMullery of the one part and Nora Fanning of theother part.

TITLE DEEDS

Northern Ireland solicitors providing an effi-cient and comprehensive legal service in all con-tentious/non-contentious matters. Dublin-basedconsultations and elsewhere. Fee apportionment.ML White, Solicitors, 43-45 Monaghan Street,Newry, County Down, tel: 080 1693 68144, fax:080 1693 60966

Northern Ireland agents for all contentious andnon-contentious matters. Consultation in Dublin ifrequired. Fee sharing envisaged. Offices inBelfast, Newry and Carrickfergus. ContactNorville Connolly, D&E Fisher, Solicitors, 8Trevor Hill, Newry, tel: 080 1693 61616, fax: 0801693 67712

Personal injury claims, family law, criminal lawand property law in England and Wales. We havespecialist departments in each of these areas, andoffices in London (Wood Green and Camden) andBirmingham. One of our staff is in Ireland for oneweek in every month. Legal aid available to clientsthat qualify. Contact David Levene & Company,Ashley House, 235-239 High Road, Wood Green,London N22 4HF, England, tel: 0044 181 8817777, fax: 0044 181 889 6395, and The McAllenBuilding, 35 Dale End, Birmingham B4 7LN, tel:0044 121 212 0000, fax: 0044 121 233 1878

London solicitors will advise on UK matters andundertake agency work. All areas. Corporate/pri-vate clients. Ellis & Fairbairn, 26 Old BromptonRoad, South Kensington, London SW7 3DL, tel:0044 171 589 0141, fax: 0044 171 225 3935

Agents – England and Wales. We are willing toact as agents for Irish solicitors in civil and crimi-nal litigation. Contact: Olliers, Solicitors,Alderman Downward House, 2/3 The Birtles,Civic Centre, Wythenshawe, Manchester M225RF, tel: 0044 161 437 0527, fax: 0044 161 4373225

Northern Ireland solicitors. Will advise andundertake NI-related matters. All areas corpo-rate/private. Agency or full referral of cases as pre-ferred. Consultations in Dublin or elsewhere ifrequired. Fee sharing envisaged. Donnelly Neary& Donnelly, 1 Downshire Road, Newry, Co

MISCELLANEOUS

Documents

JANUARY/FEBRUARY 1999 CONTENTS - Law Society of Ireland · JANUARY/FEBRUARY 1999JANUARY/FEBRUARY 1999 The Law Society of Ireland can accept no responsibility for the accuracy of contributed