WINGING IT - Law Society of Ireland by pengxuebo

VIEWS: 39 PAGES: 71

									Gazette
                 LAW           SOCIETY




                                                                         €3.75 March 2008




                                        WINGING IT:
                                           Airlines and
                                         passenger rights

INSIDE: HOLY GRAIL OF PARTNERSHIP? • CLOSE GUANTÁNAMO • ELECTRONIC TAGGING • YOUR LETTERS
LAW SOCIETY GAZETTE MARCH 2008 CONTENTS




                                                                  Gazette
                            On the cover                                            LAW           SOCIETY
                            Over the last 15 years, air travel
                            has changed beyond all
                            recognition, especially in Ireland.
                            But Irish consumers now comprise
                            16% of all European complainants
                            about passenger treatment. So
                            will EU regulations help?             March 08
                            PIC: GETTY IMAGES




                            Volume 102, number 2
                            Subscriptions: €57

                                                                  REGULARS
                                                                  5  President’s message

                                                                  7 News
                                                                  13 Comment13 Letters
                                                                            14 Viewpoint: independent immigration appeals process
                                                                               essential


                                                                  18 Analysis
                                                                            18 News feature: reform of Bosnia/Herzegovina’s court
                                                                               procedures
                                                        9                   21 News feature: landmark mediation decision: costs
                                                                               impact?
                                                                            22 Human rights watch: immigration and the rights of
                                                                               the child
                                                                            22 One to watch: misleading advertising regulations


                                                                  49 People and places
                                                                  50 Book review
                                                                            Poynings’ Law and the Making of Law in Ireland, 1660–1800


                                                                  51 Briefing
                                                                            51   Council report
                                                                            52   Practice notes
                                                                            54   Legislation update: acts passed in 2007
                                                        12                  57   Solicitors Disciplinary Tribunal
                                                                            58   Firstlaw update
                                                                            59   Eurlegal: EU public procurement rules


                                                                  63 Professional notices
                                                                  69 Recruitment advertising
                                                                  Editor: Mark McDermott. Deputy editor: Garrett O’Boyle. Designer: Nuala Redmond.
                                                                  Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates
                                                                  (lost land certificates, wills, title deeds, employment, miscellaneous), see page 63.
                                                                  Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 01 837 5018,
                                                                  fax: 01 884 4626, mobile: 086 811 7116, email: sean@lawsociety.ie.
                                                                  Printing: Turner’s Printing Company Ltd, Longford.
                                                                  Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), Paula Fallon,
                                                       49         Michael Kealey, Mary Keane, Aisling Kelly, Patrick J McGonagle, Ken Murphy,
                                                                  Philip Nolan.


2       www.lawsociety.ie
                                                                                                              CONTENTS LAW SOCIETY GAZETTE MARCH 2008




   Get more at lawsociety.ie                                                   PROFESSIONAL NOTICES: send your small advert details, with payment, to: Gazette
                                                                               Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: gazettestaff@lawsociety.ie.
   Gazette readers can access back issues of the                               ALL CHEQUES SHOULD BE MADE PAYABLE TO: LAW SOCIETY OF IRELAND.
   magazine as far back as Jan/Feb 1997, right up
   to the current issue at lawsociety.ie.                                      COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, tel:
                                                                               01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: sean@lawsociety.ie
   You can also check out:
   • Current news                                                              HAVE YOU MOVED? Members of the profession should send change-of-address
   • Forthcoming events, including the Law Society                             details to: IT Section, Blackhall Place, Dublin 7, or to: customerservice@lawsociety.ie
     annual conference, Budapest, 26–30 March                                  Subscribers to the Gazette should send change-of-address details to:
   • Employment opportunities                                                  Gazette Office, Blackhall Place, Dublin 7, or to: gazettestaff@lawsociety.ie
   • The latest CPD courses
                                                                               HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7.
   … as well as lots of other useful information                               Tel: 01 672 4828, fax: 01 672 4877, email: gazette@lawsociety.ie


FEATURES
26   COVER STORY:
     Turbulence ahead
            Advances have been made over the last few years in the
            area of air passenger rights, but airlines are accused of
            exploiting the vagueness of the regulations to minimise
            their obligations. Andrew Fergus fastens his seatbelt


30          Till death us do part
            According to an 1868 report, good marriage law should
            combine a maximum of simplicity and a maximum of
            certainty. So how does current Irish law measure up?
            Michael McNamara pops the question


34          Game of tag
            Electronic monitoring of offenders will be an innovation
            in Ireland once the relevant provisions are commenced,
            but Tanya Moeller argues that the impact on the right to
            privacy has not been sufficiently considered


38          Seen and heard
            Many practitioners dealing with childcare cases are                                  34
            concerned that the functions and powers of the guardian
            ad litem are in need of urgent reform. “Won’t somebody
            please think of the children?” asks Katie Dawson


42          Stop the presses
            New regulatory structures have added new elements to
            the institutional mix in which issues involving the print
            media and the law are discussed. Prof John Horgan
            explains how the new structures will work


46          Partnership – the Holy Grail?
            Bringing good people up through the ranks is more
            important than ever in law firms. But are younger
            lawyers as set on the goal of partnership as their
            predecessors? David Rowe hunts for treasure

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


                                                                                                 42
always be sought in relation to any specific matter.
Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877.
Email: gazette@lawsociety.ie Law Society website: www.lawsociety.ie


                                                                                                                                          www.lawsociety.ie              3
                                                                          PRESIDENT’S MESSAGE            LAW SOCIETY GAZETTE MARCH 2008




Cothrom
na féine
             his is the time of year when the




T            president gets the opportunity to meet
             extensively with members throughout
             the country at bar association meetings
             and other events. This feedback is
essential. Naturally, we hear of the disappointment
and, frankly, anger of colleagues at the actions of the
few. There is also dissatisfaction that solicitors rarely
get public acknowledgement of the excellent work
done by the overwhelming majority to the complete
satisfaction of their clients in hundreds of thousands
of transactions every year. Bad press for lawyers is
nothing new and has been a phenomenon for
centuries. We cannot allow it to deflect us from the
challenges and opportunities that face the profession
at this time. I am delighted, therefore, that the
overwhelming mood at meetings of colleagues
around the country is positive and progressive and
focused clearly on what lies ahead.

Exciting option
One such recent meeting was the launch of the
East Coast Collaborative Lawyers. This group,                  Finally, a major international conference on                “We cannot
comprising solicitors and other professionals, is           commercial arbitration is being held in Dublin from
following the lead of colleagues in Cork and Dublin         8–10 June 2008. The Society is pleased to support
                                                                                                                           allow bad press
in providing collaborative justice options for families     this conference, which is being brought to Ireland             to deflect us
in crisis. While not favoured by all, it nonetheless        by our colleagues at the Bar.
provides a new and exciting option, and I am
                                                                                                                           from the
delighted that solicitor colleagues are taking the          Rule of Law Project                                            challenges and
lead. I was particularly struck by the fact that            It is also refreshing to note that, notwithstanding
reference was made at the launch to the presidential        any difficulties we have, there is an understanding
                                                                                                                           opportunities
message in the last Gazette. I was firmly of the view       within the profession that the difficulties                    that face the
that such messages are only read by the author.             experienced by many of our colleagues abroad are
   The launch also featured a very inspiring address        much greater. I would particularly like to applaud
                                                                                                                           profession”
by Mrs Justice Catherine McGuinness, further                the work of the Rule of Law Project initiated by
underlining the importance of alternative dispute           Michael Irvine and Turlough O’Donnell SC. Any
resolution mechanisms.                                      solicitor prepared to become involved and give up
   2008 looks like it will be a red-letter year for         their time to help lawyers in developing countries
alternative dispute resolution. First and foremost,         should contact ruleoflaw@lawsociety.ie.
the Law Society will be launching its own arbitration          Finally, it is time to start training for the Calcutta
and mediation schemes and I would strongly                  Run, which will be held on 17 May. This is the run’s
encourage colleagues to support them.                       tenth anniversary and the ambition this year is to
   Secondly, there will be an international                 break the €2-million ceiling in terms of funds
conference on collaborative justice held in Cork            generated to date for GOAL’s orphanages in Calcutta
from 1–4 May, offering Ireland an opportunity to            and the Fr Peter McVerry Trust in Dublin. G
showcase the talent that is available here to
undertake this work, for which there are both               James MacGuill
domestic and international opportunities.                   President


                                                                                                                        www.lawsociety.ie    5
                                                                                              NEWS      LAW SOCIETY GAZETTE MARCH 2008


                                                                                                     nationwide
                                                              Send your news to: Law Society Gazette, Blackhall Place,
                                                                          Dublin 7, or email: nationwide@lawsociety.ie

■ KERRY                                                                                                          law and the elderly. An upcoming
Matthew Breslin, president of                                                                                    seminar on the complexities of
Kerry Law Society, tells me that                                                                                 VAT on property transactions is
the recent initiative of the                                                                                     planned, as well as a social event
President of the High Court to                                                                                   in the coming months.
roll out non-jury sittings
throughout the country, and to                                                                                   ■ MAYO
Kerry in particular, has worked                                                                                  The plight of the Ballina District
very well. Kerry practitioners are                                                                               Court Office continues to be a
looking forward to none other                                                                                    matter of concern to practitioners
than the Chief Justice himself                                                                                   in the town. Dermot Hewson has
and the President of the High                                                                                    been to the fore in raising the
Court to preside over further                                                                                    profile of the issue, both with
sittings in May.                                                                                                 local politicians and other
   In the meantime, there is                                                                                     interested parties. Circuit Judge
some concern about the                        Madrid: possible venue for Kerry’s annual conference               Patrick Moran has also lent his
courthouse in Tralee being under                                                                                 support and has written directly
threat of closure. Local             conference. All these seminars        with the Sinatra impressionist        to the CEO of the Courts
practitioners are very keen to       will take place in the courthouse     belting out all of the great hits     Service, PJ Fitzpatrick, asking
hold onto their venerable            and will be free to practitioners.    and an impromptu seisún until         him to reconsider the decision to
courthouse.                          Jarleth McInerney is also             dawn.                                 close the District Court Office.
   A seminar in practice             organising a sponsored walk in           Pat Mullins advises of a           Dermot tells me that there has
management and on the                Connemara on 19 April in aid of       conference on mental health law       been great support from the
enforceability of prenuptial         the Crumlin Children’s Hospital.      in UCC in April and,                  District Court Office staff, the
agreements by Marie Baker SC is                                            significantly, the forthcoming        gardaí, the press and various
planned. Furthermore, Matthew        ■ DUBLIN                              European Collaborative Law            court users, who shared concern
Breslin is currently putting         The March CPD seminars will           Conference in Fota in May.            also on the issue of the proposed
together plans for an annual         include ‘Advising elderly and                                               transfer of Charlestown District
conference abroad, with Madrid       vulnerable clients’ as well as ‘The   ■ KILKENNY                            Court area to the Tubbercurry
being the most likely venue.         new Charities Bill 2007’ and a        Owen O’Mahony, president of           area.
                                     family law seminar on 13 March        the bar association in Kilkenny, is      Pat O’Connor advises that the
■ WEST CORK                          on mediation.                         very proud of the Marble City’s       High Court judges who presided
President of the West Cork Bar                                             position as a High Court venue.       at the recent non-jury sittings
Association Richard Barrett is       ■ CORK                                The magnificent courthouse is         were very impressed with the
very pleased with the recent         By all accounts, the recent SLA       just about to undergo an              facilities in Castlebar and
uptake in CPD seminars. In the       dinner was a huge success for Pat     overhaul, which will put it out of    indicated that they would like to
pipeline are seminars on current     Mullins and his colleagues, with      commission for a couple of years,     see more cases there. Two more
PIAB developments by                 over 320 practitioners attending.     so that a venue for the               sessions will be held early in
Clonakilty solicitor Jim Brooks      Guests included President of the      November sittings of the High         2008.
and from the land registry on        Law Society James McGuill and         Court will need to be found. The
digital mapping.                     Donal Eakin, his counterpart in       Circuit Court currently sits in       ■ MIDLANDS
                                     Northern Ireland.                     the resplendent surroundings of       Charlie Kelly of the Midland Bar
■ GALWAY                                Of course, the SLA event           Kilkenny Castle, in the Parade        Association has informed me of
James Seymour reports that, in       would not be the institution it is    Tower, with stunning views of         the forthcoming visit of the Law
the coming months, CPD               without the ‘topical song’,           the river and its environs, while     Society president and director
seminars are planned on the Road     presented with style and panache      the District Court is located at      general, as well as the upcoming
Traffic Act 2006, recent             by Charlie Hennessy and Kieran        the Glebe House on Barrack            seminars in early April on BER
developments on PIAB, and e-         McCarthy, assisted on piano (but,     Street.                               certificates and compulsory regis-
stamping online, which will take     of course, with no involvement                                              tration and first registration. G
place on 7 March. On 11 April,       whatsoever in the lyrics!) by Pat     ■ WEXFORD
the association will hold a          Dorgan. I am told that nobody         Helen Doyle and her bar               ‘Nationwide’ is compiled by Kevin
practice management seminar          was left unscathed and the            association colleagues held a         O’Higgins, principal of the Dublin
and, on 9 May, a family law          general entertainment rolled on       recent well-attended seminar on       law firm Kevin O’Higgins.


                                                                                                                    www.lawsociety.ie            7
LAW SOCIETY GAZETTE MARCH 2008               NEWS




Litigation Committee discusses
issues with Courts Service
    itigation Committee               unnamed respondents at this                                               PIAB authorisation. This had
L   chairman Stuart Gilhooly
recently met with officials from
                                      point in time (but leaving it
                                      open that they may be joined in
                                                                                                                been occurring and was very
                                                                                                                frustrating for practitioners.
both the High Court and the           the future).                                                              Clearly, substantial errors will
Circuit Court at separate                The Litigation Committee is                                            be treated differently.
meetings to discuss matters of        of the view that this letter is                                               The chairman subsequently
mutual concern.                       entirely superfluous, but follow-                                         met with representatives of the
   At a meeting with High             ing a full and frank discussion,                                          Circuit Court. He made
Court officials, Nuala                the High Court is of the firm                                             representations about the
McLoughlin and Paula Healy, a         view that it is required for self-                                        notification of dates for trial,
number of issues were                 protection purposes. It, there-                                           callovers and the frequency of
canvassed. The most pressing          fore, will be necessary to provide                                        lists in areas outside Dublin.
matter was the requirement for        such a letter in all such instances.                                      The Circuit Court has agreed
a letter from practitioners in           On a more positive note, it                                            that, where cases are added to
personal injury cases where           was agreed that affidavits of                                             the list after it appears on the
                                                                               Litigation Committee chairman
more than one respondent is           verification in such cases could                  Stuart Gilhooly         website, parties will be notified
included on the authorisation         be endorsed on the original                                               individually by email, phone or
and not all respondents are           personal injuries summons and             On a similar note, the High     post. In addition, they have
named as defendants. The              lodged simultaneously, so long         Court has agreed that personal     agreed that there will be a
Central Office requires a letter      as the contents of the affidavit       injuries summonses will not be     prioritisation this year for
confirming that the plaintiff is      were consistent with this              refused because of a minor         family-law cases in most venues,
not proceeding against the            practice.                              typographical error on the         with more court time provided.



Committee invites law reform submissions
     ave you come across              improving the law and how it is          The committee has already        Child Law (March 2006). The
H    aspects of current law in
day-to-day practice that you
                                      practised – with great success.
                                      The committee has tackled a
                                                                             produced major reports that
                                                                             have identified reforms, such as
                                                                                                                full text of all committee
                                                                                                                reports are available online at
believe are in need of reform,        large range of issues with a view      Domestic Violence (May 1999),      www.lawsociety.ie.
asks Peter Fahy, chairman of the      to improving the law for both          Mental Health (July 1999),            The committee has just
Law Reform Committee.                 practitioners and clients. Its         Nullity of Marriage (October       completed a new report,
   Following the establishment        work is generally focused on           2001), Adoption (April 2000),      Enforcement of Environmental
of the Law Reform Committee           writing substantive reports on         Charity Law (July 2002),           Law, which will be published
ten years ago, the Law Society        areas of law of specific interest      Discriminatory Planning            shortly, and has also begun a
was able to channel energy into       to practitioners.                      Conditions (March 2005), and       report on divorce law.
                                                                                                                   The committee is always
                                                                                                                seeking out new areas for
    Rule of Law Project gets ‘green light’                                                                      examination. With that in
                                                                                                                mind, it is inviting practitioners
      n 2007, it was decided that the Law Society and     being formulated. When prepared, these will be        to submit to it areas of current
    I the Bar Council should jointly undertake to
    enhance the rule of law in countries in transition.
                                                          brought to the joint committee for approval.
                                                          Once approved, proposals will then be placed
                                                                                                                Irish law that might be
                                                                                                                considered in need of reform.
       A joint committee of the two organisations –       before Irish Aid to seek appropriate funding.            Please submit your
    consisting of seven people, including the president      Any solicitor or barrister may make a              suggestions to: Secretary, Law
    and chairman (for the time being) of the Law          proposal, and every solicitor or barrister is         Reform Committee, Law
    Society and the Bar Council respectively – was        welcome to join the initiative. Many solicitors       Society of Ireland, Blackhall
    formed. The committee is chaired by Attorney-         and barristers have already undertaken work in        Place, Dublin 7; or by email to:
    General Paul Gallagher.                               overseas aid. The level of interest in the            lawreform@lawsociety.ie. Your
       Approaches have been made to Irish Aid to          professions has been very high, which is most         submission should include a
    ascertain their support for this initiative. A        heartening. Anybody who is interested in              short summary of the area of
    positive response has been obtained. Proposals        becoming involved should contact:                     law in need of reform and the
    on programmes in various countries are now            ruleoflaw@lawsociety.ie for more information.         reasons why you believe reform
                                                                                                                is necessary or desirable.


8          www.lawsociety.ie
                                                                                              NEWS      LAW SOCIETY GAZETTE MARCH 2008




Time to close Guantánamo’s doors
     he Law Society of Ireland,                                                                                 grievous affronts to the rule of
T    the Law Society of England
and Wales, the Canadian Bar
                                                                                                                law. Yet many governments
                                                                                                                remain silent about
Association and the Paris Bar                                                                                   Guantánamo Bay.
have joined forces in drafting a                                                                                   “We do not deny that some
letter calling for Guantánamo                                                                                   of those detained at
Bay to be closed. The four                                                                                      Guantánamo may have
professional bodies have also                                                                                   committed criminal acts. If so,
called for a 21-year-old                                                                                        they should be tried by a
Canadian citizen, Omar Khadr,                                                                                   properly constituted court
to be repatriated to Canada to                                                                                  operating under rules that
face due process under                                                                                          guarantee a fair trial. If
Canadian law. Mr Khadr was                                                                                      convicted, they should be
aged 15 when he was arrested                                                                                    punished accordingly. But we
and is the last Westerner being                                                                                 must not tolerate – nor permit
detained in Guantánamo Bay.                                                                                     our respective governments to
   The letter is being sent to                  Guantánamo Bay: ‘Staining the concept of justice’               tolerate – the continuing denial
President George Bush (who has                                                                                  of the principles underlying the
the authority to close                profound disrespect for the rule    commission solely on the basis        rule of law. We have seen the
Guantánamo), to Canadian              of law,” it states. “Guantánamo     of their status as aliens. In         result recently in Pakistan of
Prime Minister Harper (who can        Bay has come to signify             effect, US citizens are not           continuing further down this
negotiate repatriation) and to the    injustice for some at the hands     subject to its provisions. The        road…”
leaders of the countries of the       of the powerful. The rule of law    act criminalises certain conduct         The letter concludes: “This
respective professional bodies,       – that everyone, including          for the first time and applies the    is no time to be silent. It is time
with the hope that such leaders       governments, is subject to the      law retroactively. It fails to meet   for us all, including
will try to bring influence to bear   law, and that the law itself is     the requirements of the Geneva        governments, to bring whatever
on the US and Canada.                 neutral and fair – has become       Convention Relative to the            pressure we can to end the
                                      an inconvenient afterthought.”      Treatment of Prisoners of War. It     inhuman and inhumane
‘Immediate closure’                      The combined statement also      permits military commissions to       treatment of the Guantánamo
The letter calls for “the             decries the US Military             consider coerced statements. It       detainees, and the violations of
immediate closure of the illegal      Commissions Act of 2006, the        denies defence counsel access to      the principles of the rule of law
US prison facility at                 authority under which the           evidence that may be essential        there that have stained the
Guantánamo Bay”.                      detainees are held and tried,       to a proper defence on the basis      concept of justice. Six years
   “Few governmental                  saying that it undermines the       of national security.                 after it opened, it is time to
operations in democratic              rule of law. “The act subjects         “Together, these measures,         close the doors of
countries have shown such a           individuals to trial by military    and many more, constitute             Guantánamo.”



Bar Council to iron out potential All change at the
                                  Registry of Deeds
fee estimate difficulties                                                                                              nder the provisions of the

A    s some practitioners may
     be aware from recent press
                                  U   representatives of the Law
                                      Society and the Bar Council,
                                                                          this issue from a solicitor’s
                                                                          perspective and, in addition,
                                                                                                                       Registration of Deeds and
                                                                                                                  Title Act 2006, the Property
reports, the Bar Council has          the new proposals were              are reminded of the                     Registration Authority (PRA)
recently issued a ruling to all       discussed at length. It was         requirement to ensure the               was established on 4
members of the Law Library            agreed that a number of             accuracy of counsel’s fees. In          November 2006.
requiring the provision of fee        practical issues remained to be     particular, all practitioners will          From 18 March 2008, all
estimates in relation to all work     determined and that the Bar         be aware that counsel must be           fees will have to be paid at
done, with limited exceptions.        Council would engage                actually present at a court             the Registry of Deeds. The
The ruling came into effect on        constructively with a small         hearing in order to have                Revenue Commissioners’
1 March 2008. From that date,         subcommittee of the Law             entitlement to a refresher fee.         stamp-duty offices in Dublin
all barristers will be required to    Society in order to iron out any    It is the obligation of the             Castle and Cork will no longer
provide an estimate of their          potential difficulties that may     solicitor, as well the barrister,       stamp the Registry of Deeds
fees for any case or transaction      arise with this new regime.         to ensure that all fee notes            registration fee on memorials
as soon as practicable.                   Practitioners will              submitted are accurate in this          (see practice note, p52).
   At a recent meeting between        understand the importance of        respect.


                                                                                                                    www.lawsociety.ie            9
                                                                                           NEWS      LAW SOCIETY GAZETTE MARCH 2008




Immigration Bill concerns                                                                                     PIAB appeal
                                                                                                              postponed
         nnecessary and                                                Ken Murphy said: “Such a
“U       unjustified” is the
Law Society’s description of a
                                                                       provision already exists in
                                                                       the rules of court. Its                T   he Personal Injuries
                                                                                                                  Assessment Board’s appeal
provision in a recently                                                inclusion here is                      to the Supreme Court against
published bill that specifically                                       unnecessary and unjustified.           a January 2005 judgment of
provides for courts to award                                           It seems designed to                   Mr Justice John MacMenamin
costs against lawyers                                                  discourage vulnerable                  was due to commence on 26
personally if their clients’                                           people from fully exercising           February. However, because
judicial review cases are                                              their right to the protection          there were not sufficient
found “frivolous or                                                    of the law.”                           members of the court available
vexatious”.                                                               He continued, “Standing             to hear the case on that date,
   The Immigrant Council of                                            up for the rights of vuln-             the hearing was postponed.
Ireland has also criticised this                                       erable people, particularly               The appeal relates to the
provision, describing it as                                            where this may be                      High Court’s finding that
“intimidatory”.                                                        unpopular, is in the best              PIAB’s policy of insisting,
   The provision is contained                                          traditions of the legal                regardless of the applicant’s
in the Immigration, Residence            Ken Murphy: ‘The legal        profession.”                           wishes, on corresponding
and Protection Bill 2008, which       profession stands up for the        The Society has                     directly with the applicant
                                     rights of vulnerable people…’
was published by the                                                   communicated directly to               while copying the
government at the end of                                               the Minister for Justice, its          correspondence to the
January.                           extensively in the media on         concerns over this issue and           applicant’s solicitor was ultra
   Law Society criticisms of       the day after the bill’s            its view that the provision            vires and, although it was not
this provision were quoted         publication. Director general       should be withdrawn.                   necessary to make a finding in
                                                                                                              this regard, might well
                                                                                                              represent a breach of the
 GOOD COMPANY                      Solicitor sits on                                                          applicant’s constitutional
                                                                                                              rights.
                                                                                                                 The original judicial review
 Commercial law firm, O’Donnell
 Sweeney Eversheds, has been
 selected as one of the ‘Best
                                   Supreme Court                                                              proceedings were commenced
                                                                                                              by an applicant to PIAB
                                       he first practising solicitor                                          named Declan O’Brien. The
 Companies to Work For in
 Ireland’. The prestigious hon-
 our was announced on 28
                                   T   ever to be appointed a
                                   judge of the High Court, Mr
                                                                                                              Law Society was joined as an
                                                                                                              amicus curiae in the High
 February by the Minister for      Justice Michael Peart, sat for                                             Court and has been so joined,
 Enterprise, Trade and             the first time on the Supreme                                              once again, in the appeal to
 Employment, Micheál Martin,       Court recently. A shortage of                                              the Supreme Court.
 TD, prior to an awards ceremo-    available Supreme Court
 ny in the Crowne Plaza Airport    judges resulted in his being
 Hotel, Dublin. The list of 50     chosen from among the 36                                                     RETIREMENT TRUST SCHEME
 companies is selected annually    High Court judges to sit with                                                Unit prices: 1 February 2008
 by the Great Place to Work        Mr Justice Fennelly and Ms                                                   Managed fund: €5.466724
 Institute from more than 4,000    Justice Macken to hear a case                                                Cash fund: €2.809394
 eligible organisations in the     on 27 February.                     to be appointed a judge of the           Long-bond fund: €1.398473
 country.                             But the question remains –       Supreme Court? And when                  All-equity fund: €1.271143
                                   who will be the first solicitor     will that be?


The essentials of team work                                                                    SBA AGM
     he date for the 2nd           lawyers. The primary
T    European Collaborative
Practice Conference, at Fota
                                   training sessions will include
                                   one-hour talks with two              N    otice is hereby given that the 144th Annual General Meeting of the
                                                                             Solicitors’ Benevolent Association will be held at the Law Society,
Island, Cork, titled ‘Meitheal’,   hours of training and role            Blackhall Place, Dublin 7, on Monday 21 April 2008 at 12.30pm:
is looming.                        play each day.                        • To consider the annual reports and accounts for the year ended
    Conference participants           Day two’s plenary session             30 November 2007,
will have the opportunity to       will focus on children in the         • To elect directors,
hear from some of world’s          divorce process. See                  • To deal with other matters appropriate to a general meeting.
most renowned collaborative        www.acp.ie for more details.


                                                                                                                  www.lawsociety.ie           11
LAW SOCIETY GAZETTE MARCH 2008                NEWS



                                         HEALTH ADVICE AND SUPPORT FOR LAWYERS

                       DON’T BE A DEATHBED CONVERT
     We begin the first of a series of articles about LawCare and the health services it provides to lawyers, their staff and families in Ireland

    n 2003, the North Carolina Bar                                                                                                     studied the death claims from
 I




                                                                                                                   PIC: REX FEATURES
    Association published a                                                                                                            1 December 1994 to 30
 lifestyle survey based on                                                                                                             November 1996. These records
 research conducted among its                                                                                                          revealed that suicide was the
 members. It makes interesting                                                                                                         third leading cause of death
 reading, not least because what                                                                                                       among insured lawyers during
 the survey establishes is likely                                                                                                      this two-year period, ranking
 to be mirrored elsewhere                                                                                                              immediately after cancer and
 throughout the world.                                                                                                                 cardiac arrest. It amounted to
     Some of the most thought                                                                                                          11% of deaths that had occurred.
 provoking statistics included:                                                                                                           In the general population in
 • 56% of lawyers, when                                                                                                                Canada and the USA, the rate
     questioned, said that they                                                                                                        of suicide is in the range of ten
     would not enter law if they                                                                                                       to 14 suicide deaths per
     had their life over again, nor                                                                                                    100,000 of population. The
     would they encourage their                                                                                                        suicide deaths identified by this
     children to do so,                                                                                                                report into lawyer deaths
 • 16% of them were having                                                                                                             worked out at 69 suicide deaths
     three to five alcoholic drinks a                                                                                                  per 100,000 of the population –
     day in order to cope with the      developing and maintaining the       physical or psychological setback                         nearly six times the rate in the
     stress in their lives,             firm, coupled with only taking       before we will actually start to                          general population. The group
 • 16.8% of lawyers were using          one-third of the available holiday   put ourselves and our health and                          identified as ‘most at risk’
     prescription medicine to cope      time. End result? Deep               well-being first?                                         included ‘lawyers and judges’
     with their levels of stress and    unhappiness, coupled with               Sceptics, no doubt, think to                           aged 48 to 65.
     anxiety,                           physical and mental strain or        themselves that agencies like
 • 15% of lawyers were                  collapse, leading to a need for      LawCare exaggerate the                                    Reason for concern
     considering suicide up to          pastoral care and assistance.        incidence of stress/depression,                           In 1999, research carried out by
     twice a month,                         Senator Paul Tsongas of          alcohol abuse, suicide and so                             Johns Hopkins University found
 • 36% were taking on more              Massachusetts once famously          on, for the purposes of justifying                        statistically significant elevations
     work than they could handle.       said: “Nobody on his deathbed        its existence. In fact, this is far                       of major depressive disorders in
                                        ever said, ‘I wish I had spent       from being the case. For                                  only three of 104 occupations –
 It is worth noting that, of lawyers    more time at the office’.”           example, in 1997 a report was                             lawyers topped the list, suffering
 who sought assistance, the                 Doesn’t that say it all about    published, based on two years of                          from major depressive illnesses
 average billable hours that they       the work/life balance we should      statistics from the Canadian Bar                          at a rate of almost four times
 were expected to complete in a         all be striving to achieve, but so   Insurance Association – one of                            higher than non-lawyers sharing
 year was 1,800, with a further         frequently fail to attain? Do we     the largest life insurers of                              the same socio-demographic
 258 hours a year of non-billable       have to suffer some major            lawyers in the world. This report                         traits.
 work, for example, marketing,                                                                                                            So you can see the reasons
 administration, business                                                                                                              for our concern for those in the
 development, and client care –
 no wonder they were showing
                                                       ABOUT LAWCARE                                                                   various areas of legal practice.
                                                                                                                                       They are genuine, well founded
                                                LawCare is an advisory and support service to help
 signs of cracking! The lawyers              solicitors, their staff and their immediate families to deal                              and not hysterical. Many lawyers
 who were in the highest need of            with health problems such as depression and addiction, and                                 need our help but do not
 assistance also took only two                 related emotional difficulties. The service is free and                                 necessarily know where to turn.
 weeks of holidays a year out of                                  entirely confidential.                                                  Please stay alert for any such
 the 6.4 weeks they were allowed             For totally confidential, non-judgemental help, ring freephone                            lawyers among those with whom
 to take.                                                                                                                              you are acquainted – the
                                                              1800 991 801                                                             statistics indicate that there is
 Very clear picture                                  (9am – 7.30pm weekdays and 10am – 4pm                                             likely to be at least one you
 So, a very clear picture develops                  at weekends/bank holidays, 365 days a year.                                        know who could benefit from
 – long hours of chargeable work,                               Web: www.lawcare.ie                                                    being put in touch with LawCare.
 added to many hours of non-                                   Email: help@lawcare.ie                                                  We are here for you, 365 days a
 chargeable work devoted to                                                                                                            year.




12          www.lawsociety.ie
                                                                                           COMMENT        LAW SOCIETY GAZETTE MARCH 2008




                                                                                                 letters
                                                                    Send your letters to: Law Society Gazette, Blackhall
                                                                       Place, Dublin 7, or email: gazette@lawsociety.ie


‘Good Samaritan’ lawyers help bring home baby Misikir
From: Therese O’Loughlin, Teach          I cradled my children as they                                            they were prepared to take the
Mhuire, Cleveragh Road, Sligo         sobbed in my arms for their baby                                            case for no fees. Could this be
    ast October, my husband           sister. We had all our legal                                                happening to me – someone
L   and I and our two young
children were about to embark on
                                      papers and we had been guided
                                      by the Adoption Board
                                                                                                                  showing me the hand of kindness
                                                                                                                  in my darkest hour?
an adoption journey to Ethiopia,      throughout the whole process –                                                 The rest is history. We went
to bring home their new six-          they never led us to believe that                                           to the High Court, where Judge
month-old baby sister. The            we might have a problem. We                                                 Sheehan said I was legally
children were busy preparing          knew that the orphanage could                                               entitled to adopt and, within two
their rooms and making cards,         not hold her indefinitely for us. I                                         weeks, I was in Ethiopia.
and their bedtime stories were full   felt so helpless. We had invested                                              We are now home with our
of talk about the arrival of their    so much emotionally and                                                     beautiful daughter Misikir. Every
sister. The children and I spent      physically into this adoption and                                           time I look at her sleeping face I
days buying little pink clothes and   I had put my children through         Peter Finlay SC, who in turn          think of those tears I cried for
shoes, cleaning cots and buggy        vaccines. How could I explain to      contacted Daniel Simms (junior        her, those days when I thought
and preparing our home for the        them that their baby sister           counsel) and, together, they          I’d never get to hold her.
arrival of this little Ethiopian      wouldn’t be coming home?              agreed to take our case for           Regularly when I recount the
‘princess’. We were only days            I decided to ring a solicitor I    minimum fees. However, when           story to a friend in front of the
away from travelling to meet her      had found on the web and who          we realised the financial diffi-      children, they always pipe up:
when news broke from the              specialises in adoption – Andrew      culties involved – particularly if    “Three kind men in Dublin
Adoption Board that they had          Healy (Beatty & Healy                 our case failed – we decided not      helped mammy bring our baby
suspended adoptions from              Solicitors) – and I outlined our      to proceed. Failure would have        sister home.”
Ethiopia and that they were           case for him. As this stage, the      put our family’s entire financial        I can now live my life in peace
advising people not to travel until   orphanage had said that they          future in jeopardy. This was a        and happiness with my children
further notice. As you can            would hold our daughter for two       soul-destroying moment for me.        and husband, thanks to Andrew,
imagine, we were heartbroken.         more weeks. I forwarded Andrew           I replied by email to Andrew       Peter and Daniel. They will
We pleaded with the Adoption          our papers and he replied             explaining our decision and the       never know the extent of their
Board, telling them we had a          promptly, telling us that we          reasons for it. Within ten            kindness. I wish the whole world
referral and were days away from      would need to get a judicial          minutes, the phone rang. It was       to know how these kind,
travelling, but they weren’t in a     review in the High Court.             Andrew, saying he had spoken          considerate men helped me and
position to lift the suspension.         Andrew made contact with           with Peter and Daniel, and that       my family in our hour of need.


Press Ombudsman changes appeals timeline
From: Professor John Horgan, Press    of that decision within which to      complainant or by an editor, will     all steps of the process, including
Ombudsman, Dublin 2                   lodge an appeal. This timeline is     henceforth be two weeks from          any appeal, have been
  have been reviewing our             stated in our original brochure.      the date on which the Press           completed. There is a simple
I procedures in the light of the
experience of the first couple of
                                         However, given that meetings
                                      of the Press Council, where all
                                                                            Ombudsman’s decision has been
                                                                            issued. This should help to
                                                                                                                  reason for this, and it is that
                                                                                                                  failure to observe confidentiality,
months’ activity and would like       appeals are initially discussed,      expedite matters and should not       particularly where an appeal
to notify you of a change that        take place only once a month,         present any great difficulty, given   process has been invoked but not
should help to expedite matters       this timeline would involve quite     that much of the ground will          yet completed, could be seriously
generally, without affecting the      inordinate delays, to the point       have been covered already as          unfair to an editor, a
overall efficiency of our             where our desire to provide           part of the conciliation process.     complainant, or both.
procedures.                           everyone with a speedy                This is the same deadline that            That said, I would like to
   As originally envisaged,           resolution to complaints would        applies to editors’ responses to      express my thanks to all for the
complainants or editors who           be quite frustrated.                  individual complaints.                high degree of cooperation we in
wanted to appeal a decision by           In the circumstances, the             I would also like to reiterate     this office have experienced from
the Press Ombudsman were to           period within which an appeal         the importance of confidentiality     all concerned since we began our
be given six weeks from the date      can be lodged, either by a            in relation to any complaint until    formal operations on 2 January. G


                                                                                                                      www.lawsociety.ie          13
LAW SOCIETY GAZETTE MARCH 2008               COMMENT




Impartial immigration appeal
The government may find itself in breach of the ECHR and the Constitution if it fails to live up to its
commitment to provide a visibly independent appeals process for immigrants, writes Hilkka Becker

   n the Programme for
I  Government published in
June 2007, the government
stated that “a fair and strategic
immigration policy is an
imperative to the sustaining of
a strong economy” and
specifically welcomed “legal
immigrants who come here to
work to support Ireland’s
development”, promising to
“help them to become full and
active participants in Irish life”.
As a step towards this, it
undertook to ensure a “visibly
independent appeals process”.
    The establishment of an
independent appeals
mechanism to deal with
immigration decisions is the
only way to ensure access to an
effective remedy for migrants
seeking to challenge decisions
affecting their human rights as
protected under the ECHR, in
particular articles 3
(prohibition of torture) and 8
(right to family life).                                            The European Court of Human Rights, Strasbourg
    Currently, people seeking to
challenge decisions refusing          regarding time limits apply. In     notice to the other party and      the merits of a case and cannot
permission to remain in the           other words, the Minister for       within a strict time limit of 14   deal with questions of fact.
state or permission to enter the      Justice does not need to be         days from the date on which        Unlike an expert administrative
state – for example, for the          informed in advance of the          the person concerned was           tribunal, the High Court does
purpose of family reunification       making of the application and       notified of the relevant           not have the power to alter or
or the preservation of the            the application can be made         decision.                          vary an administrative decision.
family unit – are effectively         within three months,                                                      In Chahal v UK ([1997] 23
forced to seek judicial review        exceptionally six months, from      Effective remedy?                  EHRR 413), the European
of that decision by the High          the date of the decision to be      It is of grave concern to those    Court of Human Rights
Court instead of accessing a          challenged. However, this is set    seeking to defend the human        observed that “article 13 [of the
more efficient and cost-              to change with the coming into      rights of migrants and members     ECHR] guarantees the
effective immigration appeals         force of new immigration            of their families that already,    availability at national level of a
tribunal.                             legislation introduced in           even where an application may      remedy to enforce the
    Applications for judicial         January. If the provisions of the   be made ex parte and within        substance of the convention
review that do not fall within        Immigration, Residency and          extended time limits, access to    rights and freedoms in
the remit of section 5 of the         Protection Bill 2008 become law,    justice for migrants is limited,   whatever form they might
Illegal Immigrants (Trafficking)      all decisions taken under the       in that the High Court, as part    happen to be secured in the
Act 2000 can currently be made        forthcoming legislation will        of judicial review proceedings,    domestic legal order”.
ex parte and the normal rules         have to be challenged on            is not in a position to review     According to the court, “the


14          www.lawsociety.ie
                                                                                        COMMENT       LAW SOCIETY GAZETTE MARCH 2008




                                                                                                        viewpoint

process essential
effect of this article is thus to    exist substantial grounds for        an unduly short limitation          obligations or of a criminal
require the provision of a           fearing a real risk of treatment     period can, in certain              charge against him, within the
domestic remedy allowing the         contrary to article 3. This          circumstances, give rise to a       meaning of article 6(1) of the
competent national authority         scrutiny must be carried out         violation of article 6, which       convention”.
both to deal with the substance      without regard to what the           provides that everyone is              More recently, however, in
of the relevant convention           person may have done to              entitled to a fair and public       Juristic and Collegium Mehrerau
complaint and to grant               warrant expulsion or to any          hearing, within a reasonable        v Austria (2006), a case brought
appropriate relief”.                 perceived threat to the national     time, by an independent and         jointly by an applicant for an
    The court made reference to      security of the expelling state.”    impartial tribunal established      employment permit and his
the cases of Klass and Others v         Considering the above, cases      by law.                             prospective employer,
Germany ([1979-80] 2 EHRR            regarding the right to family           This is particularly relevant    challenging – among other
214) and Leander v Sweden            life as guaranteed by article 8 of   in the context of the new           things – the fact that there had
([1987] 9 EHRR 433), in which        the ECHR, the right to               immigration bill, which, as         been no oral hearing before the
it had held that article 13 only     freedom of expression                outlined above, is set to           administrative court against the
required a remedy that was “as       protected by article 10, and         provide that everyone who           refusal of the permit, the court
effective as can be” in              other rights under the               seeks to challenge a decision       concluded that “article 6 of the
circumstances where national         convention may not currently         made pursuant to the new            convention applies to the
security considerations did not      be adequately dealt with by way      legislation will have to do so in   proceedings concerning the
permit the divulging of certain      of judicial review in the High       the High Court by way of            second applicant’s request for
sensitive information.               Court, at least where national       judicial review, on notice to the   an employment permit”. The
However, it distinguished these      security considerations are not      other party and within a strict     court confirmed that “article
cases from the case at hand,         an issue limiting the exposure       time limit of 14 days from the      6(1) embodies the ‘right to a
stating that “it must be borne       of detailed information              date of the relevant decision.      court’, of which the right of
in mind that these cases             regarding a case and the                In Stubbings v UK ([1997] 23     access, that is, the right to
concerned complaints under           relevant government’s                EHRR 213), the ECtHR held           institute proceedings before a
articles 8 and 10 of the             considerations regarding the         that, in order to be in             court in civil matters,
convention and that their            matter.                              accordance with article 6(1) of     constitutes one aspect”. It went
examination required the court          It is also clear from the case    the ECHR, the limitations           on to hold that “while this
to have regard to the national       law of the European court that       applied must not “restrict or       right may be subject to
security claims which had been       the independent scrutiny of          reduce the access left to the       limitations, it must be satisfied
advanced by the government”.         claims required by article 13 of     individual in such a way or to      that the limitations applied do
In relation to Mr Chahal, the        the ECHR does not need to be         such an extent that the very        not restrict or reduce the
court held that “the                 provided by a judicial authority     essence of the right is             access left to the individual in
requirement of a remedy which        and, in that regard, the             impaired”.                          such a way or to such an extent
is ‘as effective as can be’ is not   establishment of an                     It is questionable whether       that the very essence of the
appropriate in respect of a          independent Immigration              the protection of article 6(1) of   right is impaired. Furthermore,
complaint that a person’s            Appeals Tribunal, as we have         the ECHR does extend to             a limitation will not be
deportation will expose him or       seen in Britain, may well be the     immigration decisions. Despite      compatible with article 6(1) if
her to a real risk of treatment      most appropriate way of              the fact that a decision to         it does not pursue a legitimate
in breach of article 3, where        securing the protection of           deport a person can certainly       aim and if there is not a
the issues concerning national       migrants’ rights in Ireland          lead to a violation of rights       reasonable relationship of
security are immaterial”.            while at the same time avoiding      protected under the                 proportionality between the
According to the court in            unnecessary litigation in the        convention, the court has           means employed and the aim
Chahal, “given the irreversible      High Court, as well as cases         consistently rejected such          sought to be achieved”.
nature of the harm that might        going to the European court.         applications as inadmissible. In       While it remains to be seen
occur if the risk of ill-                                                 Maaouia v France ([2001] 33         whether there will be a shift in
treatment materialised and the       Time limits                          EHRR 1037), the court               the court’s assessment of the
importance the court attaches        While the ECtHR has                  concluded that “decisions           applicability of article 6(1),
to article 3, the notion of an       accepted that judicial review        regarding the entry, stay and       even with regard to decisions
effective remedy under article       can constitute an effective          deportation of aliens do not        affecting family life as
13 requires independent              remedy for the purposes of           concern the determination of        protected under article 8, it can
scrutiny of the claim that there     article 13, it has also held that    an applicant’s civil rights or      certainly be argued that the


                                                                                                                  www.lawsociety.ie        15
                                                                                     COMMENT       LAW SOCIETY GAZETTE MARCH 2008



words “civil rights and             frivolous or vexatious” (section   of the ECHR.                           Provisions similar to those
obligations” in article 6(1)        118(7)).                              The proposed provision           proposed in section 118(7) and
should be given the broadest           This will further limit the     goes beyond what is already in      (8) of the Immigration, Residence
possible meaning, which, in         access of migrants and their       the Rules of the Superior Courts.   and Protection Bill 2008 do not
accordance with their context       family members to effective        Order 99, rule 7, allows for the    apply in any other context and
and in the light of the object      judicial remedies. It is hoped     making of wasted costs orders,      may act as a deterrent to legal
and purpose of the convention,      this provision, if enacted,        and these apply to both sides       representatives, particularly
should extend to all legal rights   would only be applied to cases     and are clearly designed to         where they only have 14 days
and obligations of the              that had no merit whatsoever,      prevent solicitors breaching        or less to consider the merits
individual whether vis à vis        such that they should not have     their duty to the court. In the     of a case.
other individuals or vis à vis      been brought before the court.     words of Finnegan J in Kennedy         The provision of access to
the state.                          However, in a situation where      v Killeen, “the power of the        effective remedies regarding
                                    the same provision will not        court to make an order under        immigration decisions remains
Costs against legal                 apply to respondents’              order 99, rule 7, whether as to     a challenge, and the
advisors                            solicitors, even if they had       costs as between the solicitor      government may well prove to
The Immigration Bill                sought to defend a decision        and his own client or an order      be in breach of provisions of
introduces the possibility of the   taken pursuant to the              that the solicitor personally       the ECHR as well as the
High Court awarding costs           legislation on similarly           bear the costs awarded against      Constitution by not living up
against legal representatives in    frivolous or vexatious             his own client, depends upon        to its own commitment to
cases where the court forms         grounds, this provision seems      the solicitor being guilty of       provide a “visibly independent
the opinion that “the grounds       in breach of basic judicial        misconduct in the sense of a        appeals process”. G
put forward for contending          fairness guaranteed by article     breach of his duty to the court
that an act, decision or            40.1 of the Constitution and       or at least of gross negligence     Hilkka Becker is senior solicitor
determination … is invalid or       the guarantee of equality of       in relation to his duty to the      with the Immigrant Council of
ought to be quashed are             arms as protected by article 6     court”.                             Ireland.




                                                                                                               www.lawsociety.ie           17
LAW SOCIETY GAZETTE MARCH 2008               ANALYSIS




Irish lawyers share knowledge
Bosnia and Herzegovina is getting hands-on assistance from Irish lawyers to update court
procedures. Insider Lynn Sheehan reports on progress
   n May 2007, Irish Aid agreed                                                                                                              Brako), 16 second-instance
I




                                                                                                                   PIC: BORIS SERTIC, HJPC
   to fund a project in Bosnia                                                                                                               courts (ten in the Federation of
and Herzegovina (BiH) under                                                                                                                  BiH, five in Republika Srpska,
the sponsorship of the country’s                                                                                                             and one in Brako) together with
High Judicial and Prosecutorial                                                                                                              a Supreme Court in each of the
Council (HJPC). The aim was                                                                                                                  entities.
to assist an already established                                                                                                                The standardised Book of
working group, comprising                                                                                                                    Rules will mean that each of
local experts, with drafting a                                                                                                               these courts will apply the same
Book of Rules on Internal Court                                                                                                              practices and policies in terms
Operations. A team of Irish                                                                                                                  of a range of issues, including:
lawyers (Judge Gerard Griffin,                                                                                                               • Registration, numbering,
Law Society past president                                                                                                                      assigning and processing
Michael Irvine and Joe McArdle                                                                                                                  cases, together with
BL) travelled to BiH on a                                                                                                                       guidelines for dealing with
number of occasions to                                                                                                                          case backlogs,
participate in the working                                                                                                                   • Use of information and
group sessions.                                                                                                                                 communications technology
                                       The Council of the HJPC in session, with President of the HJPC Branko
    The draft Book of Rules was     Peric presiding. Mr Peric is a judge of the Court of Bosnia and Herzegovina.                                by the courts, including
completed in December 2007           Also present is international member of the HJPC, Sven Marius Urke (left)                                  internal policies on the use of
and was distributed to all courts                                                                                                               email, data storage and
in BiH in January for input and     Probably the most important             will also mean that it is easier                                    internet access,
comments on the draft               initiative undertaken in this           for the HJPC to monitor court                                    • Personnel records of court
provisions. It will be presented    regard was the establishment of         efficiency throughout BiH. The                                      staff, including performance
to the HJPC for adoption in         the HJPC at state level.                assistance of the Irish experts                                     evaluations and attendance
March, and it is anticipated that      Since the conflict of                and the Law Society of Ireland                                      records,
it will be in use by the summer.    1992–1995, BiH has been                 has been invaluable in this                                      • Terms of reference for key
                                    divided into two entities, the          regard, as it has allowed                                           administrative staff in the
Efficient and effective             Federation of BiH (principally          principles of European and                                          courts, such as, for example,
The project was warmly              populated by Bosnian Muslims            international best practice to be                                   the court secretary, who is
welcomed and received in BiH.       and Croats) and the Republika           reflected in the final draft of the                                 essentially the manager of
In terms of the judicial reform     Srpska (principally populated by        Book of Rules.                                                      the court, and
process, the time had come for      Serbs). In order to establish the                                                                        • Organisation and
the introduction of a book of       HJPC, each of the entities had          Standardised content                                                management of court
rules for courts, which would       to transfer competences to the          The Book of Rules currently in                                      departments.
mean that all courts would be       state level of BiH, competences         existence in BiH dates back to
forced to adopt standardised        that politicians have since             the 1970s. Each of the courts                                    Irish visit
practices in terms of their         sought to reclaim. Such                 across the country has adapted                                   From 2–7 December 2007, a
operation.                          attempts have been severely             this Book of Rules to its own                                    delegation from BiH visited
   In order to establish a fully-   criticised by the international         requirements, so that there are                                  Ireland in order to gain an
functioning judiciary in any        community.                              a variety of versions in use                                     insight into the Irish legal
country, it is essential that the      Notwithstanding this, the            throughout the court system in                                   system and how it operates in
courts are independent and          time has come for attention to          BiH.                                                             practice. The delegation
accountable prior to the            the establishment of an efficient          BiH’s court system is quite                                   comprised two first instance
introduction of initiatives that    and effective court system for          complicated, and the variety of                                  judges, a representative of one
have the aim of making the          BiH. The Irish assistance with          versions of the rules in use                                     of the entity ministries of
judicial system more efficient      the drafting of the Book of Rules       further adds to that complexity.                                 justice, a representative of the
and effective.                      will ensure that standardised           Currently, there are 48 first-                                   HJPC and the author (an
   Over the last five years, much   court operations are introduced         instance courts in BiH (28 in                                    international member of the
has been done to make the           across the country. This will           the Federation of BiH, 19 in                                     HJPC).
courts in BiH more                  make it easier for the court            Republika Sprska, and one in                                        The delegation spent the
independent and accountable.        system to run efficiently, but          the independent District of                                      first three days of their visit in


18         www.lawsociety.ie
                                                                                   ANALYSIS     LAW SOCIETY GAZETTE MARCH 2008




with Bosnia and Herzegovina
Dublin and visited the            was rounded off by a visit to      meeting the conditions for        welcome initiative in terms of
Attorney General’s office, the    the Circuit Court Office and       signing a stabilisation and       the provision of similar
DPP’s office, the Law Society     by sitting in on a case at         association agreement in the      assistance to other countries in
and the Distillery Building of    hearing.                           first half of 2008. Slovenia      the future.
the Law Library. In addition,                                        currently holds the EU               Within such a framework, it
the delegation visited the Law    Main priority                      presidency and it will give       is hoped that focused advice
Reform Commission, the            On 21 January, the current         particular attention to the       and assistance can be given to
Courts Service, the Four          High Representative to BiH         Western Balkans and their         countries that are currently
Courts and the Glencree           met Javier Solana, EU High         integration into the EU.          tackling issues in the context of
Reconciliation Centre. At the     Representative for the                Projects such as that          the establishment of
Four Courts, the delegation       Common Foreign and Security        financed by Irish Aid last year   independent and credible legal
met with Mr Justice Iarflaith     Policy, in Brussels and stressed   assist in preparing BiH for EU    systems and structures. G
O’Neill, Judge Petria             that the main priority for this    membership. They also assist
McDonnell, Judge Gerard           year was the country’s EU          with the building of              Lynn Sheehan, solicitor, was
Griffin and Judge Desmond         agenda. Earlier in the month,      relationships between Ireland     appointed as an international
Hogan. The delegation spent       the High Representative had        and the Western Balkans. The      member of the High Judicial and
the fourth day viewing the        informal discussions with          joint committee established by    Prosecutorial Council of Bosnia
newly-renovated court building    representatives from EU            the Law Society and the Bar       and Herzegovina from 2006-
in Cork and also met with         member states in Slovenia and      Council (see p8) is an            2007. She currently works at the
Judge Patrick Moran. The day      outlined the prospects for         extremely important step and a    Law Society’s law school in Cork.




  THE LEADING ACCOUNTS PACKAGE FOR LEGAL FIRMS




         Complete management accounts

         Used by over 400 Irish legal firms

         Conversions from other
         accounting systems where possible

         Contact us for a demonstration


                                          HARVEST SOFTWARE,
                 UNIT 37, JOHNSTOWN BUSINESS PARK, WATERFORD
 TEL 051-872111        FAX 051-872880 E-MAIL harvestsoft@iol.ie

                            www.harvestsoftware.ie

 THE GOLDEN PATH TO PROFIT

                                                                                                           www.lawsociety.ie          19
                                                                                      ANALYSIS       LAW SOCIETY GAZETTE MARCH 2008




Landmark mediation decision
will impact on costs
Mediation before a court action can assist in settlements and is now being encouraged
by the courts, writes Gavan Carty
   n a recent medical negligence                                                                                             balance would be struck if the
I




                                                                                                         PIC: REX FEATURES
   case, Mr Justice Kevin Feeney                                                                                             burden were placed on the
directed that the plaintiff and                                                                                              proposing party to show that
defendant should engage in                                                                                                   there was a reasonable prospect
mediation before the trial of the                                                                                            that the mediation would have
action due before the court.                                                                                                 been successful.
This significant judgment was                                                                                                   Mr Justice Feeney considered
issued in the case of Carmel                                                                                                 the arguments in Halsey, but
McManus v Liam Duffy and                                                                                                     directed that, in this
involved a willing plaintiff and                                                                                             jurisdiction, whether mediation
an unwilling defendant in an                                                                                                 had a reasonable prospect of
application for a mediation                                                                                                  success should be interpreted as
conference.                                                                                                                  meaning whether the mediation
    The judge noted that there                                                                                               was likely to “assist”.
was no case guidance on section
15 of the Civil Liability and       that mediation would result in      arguments. Moreover,                                 Implications for costs
Courts Act 2004 in this             settlement. The particular          mediation might reveal                               It remains to be seen how the
jurisdiction. He noted that it      interpretation of the word          potential strengths and                              courts will interpret the
was an important section and        “assist” was important, in that     weaknesses of the parties.                           provisions of section 16(3) of
that, where one party did not       mediation could determine if                                                             the 2004 act. This section
wish to mediate, a court could      one side’s argument was weak.       England’s experience                                 provides that, at the conclusion
exercise its power to compel a      The word “assist” is a wide         Counsel for the plaintiff invited                    of a personal injuries action, a
mediation conference following      term, and Mr Justice Feeney         the court to consider two                            court may, having heard
an application by either party.     was of the view that there was      English cases, namely Halsey                         submissions, make an order
                                    considerable merit in taking an     and Dunnet v Rail Track Plc                          directing that if a party failed to
Assisting settlement                open view on the matter.            ([2002] 2AER850).                                    comply with the direction
Section 15 of the 2004 act             The judge considered the            Various aspects of these                          under section 15(1) to attend a
provides that, on request of any    appropriate authorities in the      cases, as they related to the                        mediation conference, that
party to a personal injuries        British jurisdiction and, in        McManus case, were considered,                       party should pay the costs of
action, a court may at any time     particular, the decision of the     including the nature of the                          the action, or such part of the
before the trial of the action      Court of Appeal in the medical      dispute, the merits of the case,                     costs of the action that the
direct that the parties meet and    negligence case Halsey v Milton     whether other settlement                             court directs should be incurred
attend a mediation conference       Keynes General, NHS Trust           methods had been attempted,                          after giving the direction under
if it considers that the holding    ([2004] 1 WLR 3002).                and the cost of mediation                            section 15.
of a meeting would “assist” in         The judge had to decide          related to the likely costs of the                      The issue of costs may not be
reaching a settlement.              whether the parties were truly      action itself, delays in seeking                     a major factor in low monetary,
    The court also considered       unwilling parties. It was his       mediation and the likely success                     run-of-the-mill cases. However,
the language used in section 16     view that they were not in this     of the mediation.                                    in significant High Court cases
of the act and noted that           case, and the fact that the            In Halsey, the Court of                           involving personal injuries or
“assist” was different from         defendant felt that mediation       Appeal held that the burden to                       medical negligence, a plaintiff
“likely” and implied that there     was unlikely to succeed did not     satisfy the court that mediation                     can make a cogent argument
were benefits to be gained as       mean unwillingness to proceed.      had no reasonable prospect of                        pursuant to the provisions of
distinct from a likelihood of          He also considered the           success should not be on the                         section 16(2) that a recalcitrant
reaching a settlement.              varying principles as laid down     objecting party. The                                 defendant, refusing to engage in
    It was noted that, in the       in Halsey. In McManus, it was       fundamental question was                             a mediation conference, should
McManus case, the defendant         the judge’s view that mediation     whether it could be shown by a                       face the appropriate sanction in
had set out its position in         would be of benefit and would       proposing party that the                             costs. G
correspondence at an early          potentially assist the experts in   objecting party unreasonably
stage in the proceedings and        fully understanding the             refused to agree to mediation.                       Gavan Carty is commercial
had stated that it was unlikely     differences in each party’s         The court judged that a fairer                       partner at Kent Carty Solicitors.


                                                                                                                                 www.lawsociety.ie           21
LAW SOCIETY GAZETTE MARCH 2008               ANALYSIS




Immigration decisions and
A recent Supreme Court decision raises very significant issues in relation to the interaction
between human rights and the power of the state, writes Elaine Dewhurst
     he decision in Bode v            Irish citizen child who may be       (a foreign national) to reside in     where the executive by an
T    Minister for Justice, Equality
and Law Reform (unreported,
                                      substantially affected by that
                                      decision, as such considerations
                                                                           the state. The decision had been
                                                                           made under the IBC/05 Scheme,
                                                                                                                 administrative act takes a
                                                                                                                 decision that affects an
[2007] IESC 62) displays a            can be taken into account in the     an administrative scheme set up       individual and it is alleged that
number of anomalies in Irish          statutory provisions surrounding     by the minister to allow parents      such legislation or decision is
law in relation to the status of      deportation. Thirdly, in making      of children born in the state         contrary to constitutional or
parents of Irish-born children.       administrative decisions, the        before 1 January 2005 to claim        legally-protected rights of the
The decision focused in               executive is under no obligation     residency on the basis of their       individual, it is a matter for the
particular on the Irish Born          to assist an applicant in            Irish-born child. The scheme          courts to hear and determine
Child Scheme 2005 (IBC/05             remedying a defect in their          provided that the parent must         that dispute.
Scheme) and the balance to be         application once the closing date    provide evidence that they have          Denham J in the Supreme
struck between the right of the       for applications has expired.        met certain conditions, including     Court noted that the state has
executive to control                  Finally, the court held that there   that they have been in continuous     the power to control the entry,
immigration, and the rights of        is no stand-alone right to apply     residence in the state. The father    residency, and exit of foreign
the child to family and private       to the minister for residency and    in Bode had been refused              nationals. This power is an
life under the Constitution and       that statutory procedures under      residency on the basis that he had    aspect of the executive power
under the European Convention         the Immigration Act already exist    not been continuously resident in     exercised by the minister on
on Human Rights.                      to adequately examine the rights     the state.                            behalf of the state. This
    The Supreme Court held that       of the applicant under the                                                 inherent power includes the
the decision-making powers of         Constitution and the                 Executive decisions                   right to establish an ex gratia
the executive were not subject to     convention.                          The Supreme Court held that, as       scheme such as the IBC/05
review by the courts, where the                                            the minister’s decision did not       scheme, which was established
decision does not impact on the       The facts in Bode                    have any effect on the applicant,     as a measure to assist certain
applicant or on their                 The case involved an application     the decision was not subject to       non-nationals. The court held
constitutional and convention         by a child (an Irish-born citizen)   review by the courts. This is in      that the effect of a refusal by the
rights. Secondly, in making such      and her parents to review the        stark contrast to the opinion of      minister did not impact on the
decisions, the executive does not     decision of the minister to refuse   Ms Justice Finlay Geoghegan in        applicant, as the applicant
have to consider the rights of the    permission to the child’s father     the High Court, who held that,        would be in the same position



      ONE TO WATCH: NEW LEGISLATION
European Communities                  certain circumstances. The           Definitions                           trader in order to promote the
(Misleading and Comparative           regulations will be influential in   A comparative marketing               supply of a product. This
Marketing Communications)             preventing unfair competition and    communication is defined as any       definition has the potential to
Regulations 2007, SI no 744 of        will provide traders with an         form of representation made by a      cover a much broader range of
2007                                  additional cause of action in        trader that explicitly or by          circumstances than that
                                      cases of passing off and             implication identifies a competitor   envisaged by the original
These new regulations on              trademark infringement.              of the trader or a product offered    directive, providing a much higher
misleading and comparative               The regulations perform a         by such a competitor. The             level of protection to traders
marketing communications have         threefold function:                  definition of ‘representation’ is     against unfair competition.
expanded the scope of unfair          • Supplementing the Consumer         very broad and includes any oral,
competition law in Ireland. The          Protection Act 2007,              written, visual, descriptive or       Prohibitions
regulations seek to protect           • Revoking the Misleading            other representation by a trader,     The regulations prohibit two types
traders against misleading               Advertising Regulations 1988,     including any commercial              of commercial practice:
marketing communications and             and                               communication, marketing or           • Misleading marketing
the unfair consequences thereof.      • Implementing the Misleading        advertising and any term or form         communications, and
They also prohibit comparative           and Comparative Advertising       of a contract, notice or other        • Certain prohibited comparative
marketing communications in              Directive (2006/114EC).           document used or relied on by a          marketing communications.


22          www.lawsociety.ie
                                                                                           ANALYSIS      LAW SOCIETY GAZETTE MARCH 2008




                                                                            human rights watch

the rights of the child
as they had been prior to their                                                                                 separate to the functions of the
application. They were still                                                                                    minister under the Immigration
entitled to have the minister                                                                                   Act 1999, as amended, in
consider their constitutional and                                                                               relation to deportation. In
convention rights under                                                                                         making a deportation order, the
statutory deportation                                                                                           minister must comply with the
proceedings.                                                                                                    Immigration Act and, in
                                                                                                                particular, section 3, which lists
Constitutional rights                                                                                           the criteria to be considered by
The assertion that the minister                                                                                 the minister in deciding
in the IBC/05 Scheme should                                                                                     whether to make a deportation
have considered the                                                                                             order. Under the case law, the
constitutional and convention                                                                                   minister is required to take into
rights of the applicant was,                                                                                    account constitutional and
according to the Supreme                                                                                        convention rights at this stage.
Court, misconceived. Once                                                                                       Therefore, to enforce such
again, this conflicts with the                                                                                  considerations during the
High Court decision, where Ms                                                                                   IBC/05 Scheme was not
Justice Finlay Geoghegan                                                                                        necessary or appropriate.
considered the rights of the
child under the Constitution                                                                                    Unfair procedures
and convention to be relevant        gave rise to very different            the scheme were left in exactly     In the High Court, Ms Justice
issues under the scheme. The         considerations and obligations         the same position both before       Finlay Geoghegan held that
citizen child is central to the      for the respondent.                    and after the scheme, there was     there had been unfair
scheme. The High Court held             The Supreme Court did not           no interference with their con-     procedures under the scheme.
that the fact that the scheme        agree. The IBC/05 Scheme was           stitutional or convention rights.   The applicant in this case had
was addressed only to parents of     an administrative scheme with          The fact that the applicant         not received a letter informing
citizen children distinguished it    very clear criteria. These             failed in the scheme does not       him of the omission of certain
fundamentally from a scheme          criteria were applied to the           mean that his constitutional or     documents in his application and
addressed to non-nationals with      applicant, and he failed to meet       convention rights would never       giving him time to reply, which
no such citizen family link, and     the criteria. As the applicants to     be considered. The scheme is        other applicants under the




Misleading marketing                   the trader’s motive for the          • Is misleading as described in       other distinguishing marks,
communications                         commercial practice; the nature        regulation 3 (as described          products, activities, or
A marketing communication will         of the trader’s commercial             above),                             circumstances of a competitor,
be misleading if it in any way         practice and the legal rights of     • Is misleading under sections      • For products with designation
(including in its presentation):       the trader to whom the product         43-46 of the Consumer               of origin, does not relate to
• Deceives, or is likely to            is supplied, and                       Protection Act 2007,                products in each case with the
   deceive, the trader to whom it    • By reason of its deceptive           • Does not compare products           same designation,
   is addressed or whom it             nature, it is likely to affect the     meeting the same needs or         • Takes unfair advantage of the
   reaches in relation to a            trader’s economic behaviour or         intended for the same               reputation of a trademark,
   number of factors, including,       for any reason it injures or is        purpose,                            trade name, or other
   among others, the existence or      likely to injure a competitor.       • Does not objectively compare        distinguished marks of a
   nature of the product; the main                                            one or more material, relevant,     competitor or of the
   characteristics of the product;   Prohibited comparative                   verifiable and representative       designation of origin of a
   the price of the product; the     marketing communications                 features, which may include         competitor’s products,
   need for any part replacement,    A comparative marketing                  price,                            • Presents goods or services as
   servicing or repair; the extent   communication will be prohibited       • Discredits or denigrates the        imitations or replicas of goods
   of the trader’s commitment;       if it:                                   trademarks, trade names,            or services bearing a


                                                                                                                    www.lawsociety.ie         23
                        Notice for Practitioners
                   New Registry of Deeds Rules and a new Fees Order will
                                operate from May 1st 2008

          From March 18th the Revenue will cease to accept Registry of Deeds fees
                which must be paid in the Registry of Deeds from that date.



                            See PRAI.ie for full details

                                               The online service of the
                                               Property Registration Authority




New Registry of Deeds Rules on 1st May
The risk of fire is ever present and your insurance cannot replace your hard work or
your good name with your clients. Talk to Crothers Security Ltd. about our range of
fire safes for both Paper, Cash and Media to protect your information and assets.
•   Small desk top Fire Coolers
•   Medium sized underdesk units
•   Large Fire resistant File Store Cabinets
•   All fully certified
•   Professional, uniformed staff
•   Fully insured, qualified tradesmen
•   Licensed by the P.S.A
•   Fully equipped, G.P.S. tracked vehicles
•   Members of the I.S.I.A

Callsave                   1850 276 843
www.crothers.ie            info@crothers.ie
                                                                                           ANALYSIS       LAW SOCIETY GAZETTE MARCH 2008



scheme had received. The             of the deportation order, such as      applicant of a refusal by the         parents’ presence in the state
minister’s omission was unfair to    the birth of an Irish-born child.      minister under the IBC/05             and their parents’ ability to
the applicant in this case.          The minister would then be             Scheme. Most significantly, the       provide for them by working
   The Supreme Court held that       under a duty to consider the new       applicant’s status was “in limbo”     and creating a stable
there was no obligation on the       information to determine               pending deportation proceedings.      environment in which the child
minister to send a letter to the     whether to revoke the                  They had no right or entitlement      may develop. A balance between
applicant informing him of the       deportation order. As there is a       as an individual to be in the state   the interests of the child and the
omission and giving him time to      statutory process in place, there is   and, importantly, they are not        community must be considered,
reply. The minister was merely       no need for further procedures to      allowed to work.                      but this would necessarily
required to consider the             allow an applicant to make a              Secondly, the Supreme Court        involve the respondent in a
application within the ambit of      stand-alone application for            did not take account of the rights    consideration of the rights of
the scheme. As the applicant         residency.                             of the child who was an applicant     the child. The failure of the
would be in the same position                                               in the proceedings and who            respondent to do that in this
both before and after the            Questions raised                       would also be affected by the         case constituted an interference
minister’s decision, there were no   The Supreme Court decision             refusal of the minister. The High     with the right to private life
serious consequences arising         raises a number of questions in        Court was of the opinion that the     under article 8, for which there
from the refusal. In such cases,     relation to the status of parents of   ineligibility of the applicant to     was no justification.
the minister was not acting          Irish-born children in particular,     work affected the ability of the         An application has been filed
unfairly in refusing to consider     and administrative schemes in          applicant to provide for the          in the European Court of
additional material after the        general. Firstly, to hold that the     citizen child and to rear and         Human Rights in this case and a
closing date.                        decision-making power of the           educate the child with due regard     decision on admissibility is being
                                     executive is not subject to review     for their welfare. The grant of       considered. It is presumed that
Right to apply                       where there is no impact on the        residency to the parent of the        the applicants will rely on articles
The Supreme Court considered         applicant presupposes that there       Irish-born child is of immediate      8 and 14 of the convention. It
that there was no right to make a    was no effect on the                   benefit to the life of the citizen    will be interesting to see how the
stand-alone application for          constitutional or convention           child.                                European Court of Human
residence to the minister. It held   rights of the applicant in the case.      Thirdly, a recent decision of      Rights will deal with this delicate
that the appropriate process         The Supreme Court based this           the European Court of Human           balance between the right of the
within which to consider issues      assertion on the fact that the         Rights, Liu and Liu v Russia,         state to control immigration and
relating to constitutional or        applicant would have their             confirms the fact that article 8      the rights of the applicant and
convention rights was under          constitutional and convention          of the convention imposes a           child to family and private life. It
section 3 of the Immigration Act     rights considered at a later date      positive obligation on the state      is hoped that the decision, if
1999 relating to deportation.        under deportation proceedings.         in immigration cases to ensure        admitted, will finally confirm the
There is provision in the act for    However, there is no guarantee         that the enjoyment of rights is       status of Irish-born children and
an application to revoke a           that the state would take              “practical and effective”. The        their parents in Ireland. G
deportation order. The applicant     deportation proceedings against        child in this case is of such an
could at this stage notify the       the applicant. In the High Court,      age that their effective exercise     Elaine Dewhurst is the Law Society’s
minister of any altered              it was found that there were           of their right to a private life in   parliamentary and law reform
circumstances since the making       significant consequences for the       the state is dependent on their       executive.




  protected trademark or trade       or High Court for an order                The court may order that the       Where such prohibited conduct is
  name, or                           prohibiting the trader from            trader:                               promoted by a code of practice or its
• Creates confusion among            engaging in or continuing to           • Desist from engaging in             code owner, a trader or other person
  traders (i) between the trader     engage in a misleading marketing          misleading marketing               may apply to the Circuit Court or
  who made the comparative           communication or a prohibited             communications or prohibited       High Court for an order prohibiting
  marketing communication and        marketing communication.                  marketing communications,          the code owner from such promotion
  a competitor or (ii) between          The court may, after a              • Publish a corrective statement,     or requiring the code owner to
  the trademarks, trade names,       consideration of all the interests        at the trader’s own expense        withdraw or amend the code, as the
  other distinguished marks,         involved, including the public            and in any manner that the         court considers necessary to
  goods or services of the trader    interest, make such an order              court considers appropriate,       prevent such promotion. The court
  who made the comparative           without proof of any actual loss       • Comply with other terms and         is free to impose any terms and
  marketing communication and        or damage on the part of the              conditions that the court          conditions that it considers
  those of a competitor.             trader against whom the order is          considers appropriate. There is    appropriate on the code owner. G
                                     sought or any intention or                no provision for damages
Remedies                             negligence on the part of the             made in the regulations, but       Elaine Dewhurst is the Law
The trader or other person may       trader against whom the order is          this may well fall under this      Society’s parliamentary and law
make an application to the Circuit   sought.                                   category.                          reform executive.


                                                                                                                      www.lawsociety.ie           25
LAW SOCIETY GAZETTE MARCH 2008          COVER STORY




Great advances have been made over the last few years in the area of air passenger rights, but
airlines are accused of exploiting the vagueness of the regulations to minimise their obligations.
Andrew Fergus fastens his seatbelt




TURBULENCE                            he airline industry has changed beyond      laws of that third country. A national enforcement




                         T            all recognition in Europe over the past
                                      15 years, nowhere more so than in
                                      Ireland. The EU-driven liberalisation of
                                      the marketplace, particularly in
                         loosening the grip of the flag carriers, has led to an
                         explosion of new entrants into the market. This
                         proliferation of new airlines has led to fierce
                                                                                  body is to be set up in each member state to ensure
                                                                                  compliance by the airlines.

                                                                                  The aviator
                                                                                  Compensation payments are only to be made in the
                                                                                  event of a passenger being involuntarily denied
                                                                                  boarding, or when a flight is cancelled and the
                         competition within the sector, resulting in ever-        consumer is not given adequate warning and offered
                         lower prices and ever more people choosing to            rerouting. However, the air carrier is not obliged to
                         travel by air. An unintended, though perhaps             pay this compensation if the cancellation is caused
                         unsurprising, consequence of this increasingly           by ‘extraordinary circumstances’ that could not have
                         competitive environment has been the steadily            been avoided, even if all reasonable measures had
                         worsening industrial relations between airline           been taken. ‘Extraordinary circumstances’ are
                         management and staff, leading to a rise in strike        nowhere defined in the regulation, but recital 14 of
                         action. Recently, passengers have also had to            the preamble sets out a non-exhaustive list of
                         contend with increased security measures and             examples of such circumstances. These include
                         threats, often leading to delays and cancellations.      political instability, unsafe meteorological
                         Fortunately, the protections afforded to passengers      conditions, security risks, unexpected aircraft
                         have also undergone changes over the last number         shortcomings and strikes affecting the operation of
                         of years. Consumers are principally protected by EC      the air carrier. Air traffic control decisions out of the
                         Regulation 261/2004, which establishes common            hands of the airlines that lead to cancellations and
                         rules on compensation and assistance to airline          delays despite any reasonable measures that could be
                         passengers when denied boarding or when a flight is      taken also constitute an ‘extraordinary circumstance’.
                         delayed or cancelled. This protection is                    The only other guidance on this issue comes from
                         supplemented by the Montreal Convention, an              the opinion of Advocate General Sharpston in SAS v
                         international treaty to which the EU acceded             Kramme, where he said that, for an aircraft’s
                         concerning, among other things, the liability of air     withdrawal for technical reasons to constitute an
                         carriers in the event of delays.                         extraordinary circumstance, both the technical
                                                                                  problem and the unavailability of a replacement
                         Those magnificent men                                    aircraft must be extraordinary in the light of past
                         The regulation entered into force on 17 February         experience. In other words, the problem must be
                         2005. It details the type of assistance that must be     one that does not typically occur on that type of
                         offered to passengers in the event of a delay,           airplane or has not previously occurred on the
                         cancellation, denied boarding or downgrading. The        particular aircraft in question. Whether the
MAIN POINTS              regulation is designed to reduce these problems and      unavailability of a replacement is extraordinary will
 • Protecting rights     to introduce standardised levels of compensation and     depend on the extent to which this could have been
   of air passengers     assistance for affected passengers. It applies to all    foreseen by an air carrier making reasonable
 • Compensation          passengers departing from an airport in a member         provision, in the light of past experience, for the
   and assistance        state and also to passengers departing from an           replacement of aircraft withdrawn from operation as
 • Hostile reaction      airport in a third country to a member state on a        a result of technical problems. While the AG’s
   of airlines           European Community carrier, unless they have             opinion is not binding, the court follows it in the
                         already received such assistance as required by the      vast majority of cases.


26       www.lawsociety.ie
        COVER STORY   LAW SOCIETY GAZETTE MARCH 2008




                                                   PIC: GETTY IMAGES
AHEAD




                               www.lawsociety.ie   27
LAW SOCIETY GAZETTE MARCH 2008          COVER STORY



                           The compensation levels to be paid by the airline      direct relationship with Regulation 261/2004, but
                        are set out in article 7 of the regulation and range      does supplement its protections. The convention
                        from €250 to €600, depending on the length of the         applies to “all international carriage of persons,
                        flight. This compensation may be reduced by 50%           baggage or cargo by aircraft for reward. It applies
                        in the event that passengers are offered                        equally to gratuitous carriage by aircraft
                        rerouting to the final destination and they                        performed by an air transport undertaking.”
                        arrive within a set time of their original                              While it does not specifically cover
                        arrival time.                                                         cancellations, under article 19, an air
                                                                                               carrier is liable for damage caused by
                        Memphis belle                                                           flight delays unless it can prove it took
                        The level of assistance to be                                            all reasonable measures or it was
                        rendered under the                                                       impossible to do so. In the case of
                        regulation is set out                                                             damage caused by delay, article
                        in article 8, ‘the                                                                   22 limits the liability of air
                        right to                                                                               carriers to 4,150 Special
                        reimbursement                                                                             Drawing Rights (€4,565),
                        or rerouting’,                                                                             unless the act causing
                        and article 9, ‘the                                                                          damage was
                        right to care’.                                                                                intentional or
                           Where article 8 applies, that is, in the                                                     reckless. Article 29
                        case of cancellation or denied boarding,                                                         goes on to say that
                        passengers are to be offered a choice                                                           any action for
 “The court             between the reimbursement of any                                                              damages in the
                        unused portion of their ticket                                                            carriage of passengers,
 pointed out            together with a return flight to                                                      however founded, can only
 that delay,            the point of departure at the                                                     be brought subject to the
                        earliest opportunity, or rerouting                                            conditions and limits of liability set
 cancellations          to the final destination under                                              out in the convention.
 and denied             comparable transport conditions                                                Montreal also addresses the issue of
                        at the earliest opportunity or at                                          jurisdiction. Insofar as it concerns the
 boarding can           the passenger’s convenience.                                              subject matter of this article, an action
 cause two              Article 8 only applies with regard to                                   for damage must be brought, at the
                        delay where it is more than five                                       option of the plaintiff, in the territory of
 types of               hours, and then passengers are only                                   one of the states party to the convention,
 damage”                entitled to the reimbursement and                                   either before the court of the domicile of
                        return flight element.                                              the carrier or of its principal place of
                           Article 9 is the other limb of                                    business, or where it has a place of
                        assistance, the right to care. This help is                           business through which the contract has
                        to be offered to passengers whose flights                             been made, or before the court at the
                        are cancelled, delayed or who are                                     place of destination. This seems to be at
                        involuntarily denied boarding. It states                              variance with provisions of European law,
                        that passengers shall be offered free meals                           principally Regulation 44/2001 on
                        and refreshments in reasonable relation to                           jurisdiction, which allows a consumer to
                        the waiting time. It also stipulates that,                           bring proceedings against a party in the
                        where a stay of one or more nights is                                courts where the consumer is domiciled.
                        necessary, hotel accommodation and transfers                         However, it also stipulates in article 71 that
                        must be provided. Passengers are also to be                         “this regulation shall not affect any
                        offered telecommunications facilities free of                       conventions to which the member states
                        charge, for example, access to telephone                            are parties and which in relation to
                        calls, faxes or emails.                                            particular matters, govern jurisdiction”. In
                                                                                           any event, the EU is bound by such an
                        Executive decision                                            international treaty by article 300(7) EC, and
                        The Convention for the Unification of Certain Rules for   European Court of Justice (ECJ) case law in this
                        International Carriage by Air was signed in Montreal      area has made it clear that such treaties prevail over
                        on 28 May 1999. The EU has acceded to the                 any provisions of secondary community law.
                        convention and it became part of European law on          Therefore, a plaintiff taking a case to enforce
                        28 June 2004. The convention was incorporated             Montreal Convention rights may not be able to take
                        into Irish law by the Air Transport and Navigation        that case in his home country. This could lead to the
                        (International Conventions) Act 2004. It updates and      situation where a passenger suing to enforce rights
                        replaces the Warsaw Convention. Montreal has no           under both the regulation and the convention may


28      www.lawsociety.ie
                                                                                 COVER STORY         LAW SOCIETY GAZETTE MARCH 2008



have to bring two separate cases in two different
jurisdictions. The impact of this anomaly on Irish
consumers is slightly mitigated by the dominance of
Ryanair and Aer Lingus in the Irish aviation market.

Battle of Britain
The regulation received a hostile reception from the
airline industry: the validity of the British
implementing rules was challenged by means of a
judicial review in the English High Court. The
court referred a number of questions on the
regulation to the ECJ. The Grand Chamber of the
ECJ delivered its judgment on these questions on 10
January 2006 in IATA v Department of Transport.                                                                        Customer service
Essentially, the airlines argued that articles 5, 6 and   Montreal Convention only applied to the latter type of       with a smile
7, that is, those headed ‘delay’, ‘cancellation’ and      damage and the community act to the former, and
‘denied boarding’, were inconsistent with the core        thus there was no inconsistency.
European principles of legal certainty and
proportionality, and that they were not supported by      Snakes on a plane
any adequate reasoning. The airlines also asserted        Great advances have been made over the last
that the regulation was inconsistent with the             number of years in the realm of air passenger rights.
Montreal Convention.                                      The introduction of Regulation 261/2004 and the
   The court rejected all of these arguments and          accession of the EU to the Montreal Convention have
upheld the validity of the regulation. The court          placed a greater onus on airlines to respect the rights
stated that the articles were sufficiently precise and    of their customers. They have also levelled the
clear to be valid. The issue of inconsistency with the    playing field somewhat for passengers taking on the
Montreal Convention was raised on the basis of a          airlines. However, the evidence suggests that airline        “Irish
purported conflict between articles 19, 22 and 29 of      compliance with these measures has been
                                                                                                                       consumers
the convention and the regulation regarding the           incomplete at best. The airlines stand accused of
liability of the carrier and the extent of                exploiting the vagueness of the regulation with              have been
compensation for damage. The court pointed out            respect to definitions in order to minimise their
                                                                                                                       disproportion-
that delay, cancellations and denied boarding can         obligations, often through an over-zealous use of the
cause two types of damage. Firstly, there is the          ‘extraordinary circumstances’ defence and defining           ately hit,
“damage that is identical for every passenger, redress    effective cancellations as delays. It seems that many
                                                                                                                       comprising
for which may take the form of standardised and           airlines have yet to adapt to this new landscape of
immediate assistance, for example meals or                passenger rights and continue to operate as of old.          16% of all
accommodation”. Secondly, there are individual            Irish consumers have been disproportionately hit,
                                                                                                                       complaints
damages suffered by a passenger that are inherent in      comprising 16% of all complaints across Europe,
that person’s reason for travelling, which requires a     while complaints against Irish carriers are 24% of           across Europe,
case-by-case assessment. The court felt that the          the total, according to the European Consumer
                                                                                                                       while
                                                          Centre Network’s 2006 report. These numbers
                                                          represent a significant jump on those of a year              complaints
                                                          previously.
  LOOK IT UP                                                                                                           against Irish
                                                             In the absence of an alternative dispute resolution
  Cases:                                                  procedure in Ireland, many consumers who                     carriers are
  • Case C-396/06, Kramme v SAS, opinion of AG            complain about their treatment are left with no
                                                                                                                       24% of the
    Sharpston, 27 September 2007                          option but to go to court. Claims related to delay,
  • IATA v Department of Transport (Britain) [2006] 2     cancellation or denied boarding would be dealt with          total”
    CMLR 20                                               as an ordinary breach of contract claims. While
                                                          many consumers can avail of the small claims
  Legislation:                                            procedure, other cases will belong in the District or
  • Air Transport and Navigation (International           Circuit Courts. The recent high-profile industrial
    Conventions) Act 2004                                 relations problems within the airline industry and
  • Convention for the Unification of Certain Rules for   the problems that can follow in terms of
    International Carriage by Air (Montreal               cancellations and delays, coupled with a growing
    Convention)                                           awareness on the part of consumers of their rights,
  • EC Regulation 261/2004                                make it likely that we shall see many more such
  • Regulation 44/2001 on jurisdiction                    cases in the coming months. G
  • Warsaw Convention
                                                          Andrew Fergus is a practising barrister.


                                                                                                                    www.lawsociety.ie     29
LAW SOCIETY GAZETTE MARCH 2008          MARRIAGE LAW




“A good general marriage law ought to embrace the maximum of simplicity and the maximum of
certainty,” declared the 1868 Report of the Royal Commission on the Laws of Marriage. So how
does current Irish law measure up? Michael McNamara pops the question

                              f the desirable criteria for good marriage law          Impediments to marriage are listed in section 2(2)




                       I      are indeed maximums of simplicity and
                              certainty, then it is fair to say that the
                              commencement of part 6 of the Civil
                              Registration Act 2004 on 5 November 2007
                        considerably simplifies the law relating to marriage
                        in Ireland, but not without uncertainties.
                           Under section 46(1)(a)(i) of the 2004 act, both
                                                                                   of the act:
                                                                                   • The marriage would be void by virtue of the
                                                                                      Marriage Act 1835, as amended by the Marriage
                                                                                      (Prohibited Degrees of Relationship) Acts 1907 and
                                                                                      1921,
                                                                                   • At least one of the parties to the marriage is
                                                                                      already married,
                        parties are required to give notice in writing to the      • At least one of the parties to the intended
                        registrar not less than three months prior to the date        marriage will be under the age of 18 years on the
                        of the marriage.                                              date of solemnisation of the intended marriage
                           An exemption from this requirement may be                  and an exemption from the application of section
                        obtained from the High Court or the Circuit Family            31(1)(a) of the Family Law Act 1995 in relation to
                        Court, to be “exercised by a judge of the circuit in          the marriage was not granted under section 33 of
                        which either of the parties to the intended marriage          that act,
                        concerned ordinarily resides or carries on any             • The marriage would be void by virtue of the
                        profession, business or occupation or where the               Marriage of Lunatics Act 1811, or
                        place at which the marriage concerned is intended to       • Both parties are of the same sex.
                        be solemnised is situate”.
                           Similar provisions for exemptions were introduced       Thus the 2004 act introduced for the first time into
                        by the Family Law Act 1995. However, in a                  the Irish Statute Book the common law requirement
                        significant number of cases, exemptions were               that marriage be between a man and a woman, and




TILL DEATH              obtained from judges not fitting the description
                        outlined in the act, and thus the exemptions were
                                                                                   the impediment of bigamy.
                                                                                      In the years between the law’s enactment and the
                        invalid for want of jurisdiction. The Family Law           commencement of part 6, the statutory prohibition
                        (Miscellaneous Provisions) Act 1997 was introduced to      on a marriage between a woman and the brother of
                        remedy this. However, as the 1997 act refers               her former husband during the lifetime of that
                        specifically to the 1995 act, the relevant provisions of   former husband – contained in the Deceased Wife’s
                        which have been repealed by the Civil Registration         Sister’s Marriage Act 1907 – was found to be an
                        Act, it would not appear that this remedying               unjustified restriction on the constitutional right to
                        provision has survived the commencement of the             marry by Laffoy J in O’Shea and O’Shea v Ireland.
                        new law.
                                                                                   How I met your mother
                        King of Queens                                             Once the civil preliminaries have been completed to
MAIN POINTS             In all cases, even where an exemption to the three-        the satisfaction of the registrar, he or she shall
 • Notification         month notification requirement is granted by the           complete a marriage registration form, valid for six
   requirements         appropriate court, the couple is required to attend at     months, in relation to the intended marriage,
 • Solemnisers of       a registrar’s office not less than five days before the    without which it cannot be solemnised.
   marriages            date of the wedding to complete the remaining civil          The marriage registration form, signed by each of
 • Places and times     preliminaries, that is, sign a declaration that there is   the parties to the marriage, the two witnesses to the
 • Canon law            no impediment to the marriage and present other            marriage, and the person who solemnised the
                        evidence as required by the registrar.                     marriage, must be returned to the registrar within a


30      www.lawsociety.ie
                                                                                                 MARRIAGE LAW         LAW SOCIETY GAZETTE MARCH 2008
PIC: REX FEATURES




                    US DO PART
                    month. Whereas previously it was the responsibility
                    of solemniser of the marriage to do so, it is now the
                                                                            solemnise a marriage, but only where the following
                                                                            requirements, declared to be substantive
                    responsibility of the parties to the marriage to        requirements for marriage, are met:
                    return the form.                                        • Both parties to the marriage are present,
                                                                            • Two persons professing to be 18 years or over are
                    Married, with children                                     present as witnesses,
                    The 2004 act replaces the previous and varied           • The place where the solemnisation takes place is
                    formalities for solemnisation of marriage by               open to the public,
                    Catholic priests, Church of Ireland clergy,             • The solemniser is satisfied that the parties to the
                    Presbyterian ministers, solemnisers of church              marriage understand the nature of the marriage
                    buildings used for public worship and registered by        ceremony and the declarations made by the
                    An tArd-Chláraitheoir, appointed registrars of             parties to the marriage in the presence of each
                    marriage, and the registration of marriages by             other, the registered solemniser who is
                    registering officers of the Religious Society of           solemnising the marriage, and the two witnesses
                    Friends and secretaries of synagogues in respect of        to the solemnisation, to the effect that he or she
                    Jewish marriages, described in Shatter’s Family Law        does not know of any impediment to the
                    as “complex and obscure, being contained in a              marriage, and to the effect that they accept each
                    labyrinth of statutes stretching from 1844 to 1972”.       other as husband and wife, and
                       Instead, part 6 of the 2004 act provides for a       • The form of the ceremony has been approved by
                    register of solemnisers with the exclusive right to        An tArd-Chláraitheoir, includes and is in no way


                                                                                                                                    www.lawsociety.ie   31
LAW SOCIETY GAZETTE MARCH 2008                    MARRIAGE LAW




 ARE YOU FAMILIAR WITH THE CANON?
 Some members of the clergy are understood to have had concerns                      A particular question would arise as to the civil status of a Catholic
 about the new law and the functions of religious solemnisers. On the            marriage where one of the parties only had the intention to marry for
 other hand, many were also happy to be relieved of the previous civil           a limited time. If proven, this would lead to a decree of nullity in
 responsibilities, especially of verifying that neither party was already in a   canon law due to lack of due discretion in consent and, possibly,
 valid marriage – an easier function to perform years ago when both              inability to enter into and sustain a normal marital relationship. Nor
 parties were probably from the same parish, or at least the same                would it be saved by the common law definition of marriage, the
 county, than now, when both parties could be from different countries,          classic exposition of which was given in Hyde v Hyde as “the
 neither of them Ireland. That requirement still prevails in canon law.          voluntary union for life of one man and one woman to the exclusion
     An interesting question arises as to the civil status of a religious        of all others”. The Irish courts have demonstrated a willingness to
 marriage not carried out in accordance with the requirements of the             follow the approach of canonical tribunals in granting decrees of
 relevant religious community. In the case of the former, there is an            nullity on the grounds of inability to enter into and sustain a normal
 Irish case, Ussher v Ussher, in which it was held that that the mere            marital relationship in RSJ v JSJ. However, when looking at the issue
 fact that there was only one witness did not preclude the existence of          of consent, the courts have tended to confine themselves to the
 a valid civil marriage, although it was accepted that the marriage was          existence of duress, in the absence of which there has been a
 not valid according to canon law. It was held that the presence of two          reluctance to look beyond the presumption that parties intended their
 witnesses was not a requirement of the common law. Therefore, it                vows of perpetuity. Moreover, more recently, in PF v GO’M (orse GF),
 would appear that a marriage that was not carried out in accordance             an increased reluctance to grant decrees of nullity on expanded
 with the requirements of the relevant religious community would still           grounds was demonstrated by the Supreme Court in the light of the
 be a valid civil marriage once the requirements laid down in section            availability of the remedies of judicial separation and divorce, both of
 51 of the 2004 act are met.                                                     which, unlike nullity, are clearly defined by statute.



                                   inconsistent with the declarations by the parties,             enactment to be considered in accordance with the
                                   and, in the case of a registered solemniser who is             law: it must be both accessible and foreseeable.
                                   not a registrar, is recognised by the religious body           Thus, the granting of an unfettered discretion to
                                   of which he or she is a member.                                interfere with the exercise of a protected right would
                                                                                                  be incompatible with the convention.
                                ‘Religious body’ is defined in section 45 as “an                     In this regard, the lack of criteria by which An
                                organised group of people, members of which meet                  tArd-Chláraitheoir is to grant or withhold approval
                                regularly for common religious worship”. The                      for the form of the ceremony under section 51(3)(a)
                                application of this requirement of common religious               and the provision whereby An tArd-Chláraitheoir
“Barron J held                  worship may produce problematic effects, as it may                may cancel the registration of a solemniser “for any
                                possibly be contrary to the proscription of                       other reason” under section 55 may hinder their
that the                        discrimination based on the ground of religious                   application in practice.
essential                       profession, belief or status contained in the                        It is interesting to note in this regard that the
                                Constitution and the inclusive definition of religion             Islamic community have registered two solemnisers,
ingredients of                  adopted by the courts in cases such as Quinn’s                    notwithstanding a previous case, Conlan v Mohamed,
a common law                    Supermarket v Attorney General and Conway v                       in which Barron J held that the essential ingredients
                                Independent (Newspapers) Ltd. The European Court                  of a common law marriage were not present in an
marriage were                   of Human Rights has also adopted a very broad                     Islamic marriage, as it was potentially polygamous. It
not present in                  definition of religion, encompassing a very wide                  is also perhaps noteworthy that there are Buddhist
                                range of religions and beliefs, including the right               solemnisers registered, although common religious
an Islamic                      not to believe. The European Convention on Human                  worship is not a requirement of Buddhism, though it
marriage, as it                 Rights and the jurisprudence of the European Court                does regularly occur.
                                of Human Rights was introduced into Irish law by
was potentially                 the European Convention on Human Rights Act 2003,                 The war at home
polygamous”                     which requires all state bodies to act in compliance              A marriage may be solemnised at a time and place
                                with the convention.                                              chosen by the parties with the agreement of the
                                                                                                  registered solemniser, subject to the requirement
                                The good life                                                     that the marriage ceremony be open to the public.
                                Article 12 of the convention concerns the right to                Where the registered solemniser is a registrar, the
                                marry, providing that “men and women of                           approval of the HSE is also required, and this is to
                                marriageable age have the right to marry and to                   be determined by reference to such matters as may
                                found a family, according to the national laws                    be specified by the Minister for Health.
                                governing the exercise of this right”.                               Religious solemnisers will be bound by their
                                   In cases such as Sunday Times, the court has                   respective liturgical and canonical requirements,
                                established two major requirements for an                         which in the case of the Catholic Church would


32          www.lawsociety.ie
                                                                               MARRIAGE LAW           LAW SOCIETY GAZETTE MARCH 2008



almost always require that weddings take place in a
church or chapel.                                            LOOK IT UP
   Provisions regarding places and times at which            Cases:
civil marriages may be conducted have generated              • Cassidy v Minister for Industry and Commerce [1978] IR 297
most public comment. The Minister for Health has             • Conlan v Mohamed, unreported, High Court, Barron J, 25 July 1986
specified, among other things, that the venue in             • Conway v Independent (Newspapers) Ltd [1999] 4 IR 484, [2000] 1 ILRM 426
which the ceremony room is situated must conform             • Hyde v Hyde and Woodmansee [1886] LR 1 P&D 130
to all the requirements of any venue open to the             • Leontjava v Director of Public Prosecutions [2004] 1 IR 591
public in respect of planning permission and                 • O’Shea and O’Shea v Ireland [2006] IEHC 305
certificate of fire safety, must meet all relevant           • PF v GO’M (orse GF) [2001] 3 IR 1
health and safety requirements, must be accessible to        • Quinn’s Supermarket v Attorney General [1970] IR 1
all, in particular to people with disabilities, and must     • RSJ v JSJ [1982] ILRM 263
be a fixed structure – thus precluding marriages             • Sunday Times v United Kingdom, 26 April 1979, 2 EHRR 245
being solemnised in the open air, a tent, marquee or         • Ussher v Ussher [1912] 2 IR 445
other temporary structure, or a private dwelling.
   Whether this delegation of the matters to which           Legislation:
reference must be made complies with the                     • Civil Registration Act 2004, part 6
‘principles and policies’ test most recently refined by      • Deceased Wife’s Sister’s Marriage Act 1907
the Supreme Court in Leontjava remains to be seen.           • European Convention on Human Rights
Assuming that it does, as it is essentially an               • European Convention on Human Rights Act 2003
administrative matter, it could also be rendered             • Family Law (Miscellaneous Provisions) Act 1997
invalid by virtue of its being considered to be an           • Family Law Act 1995
unreasonable use of delegated powers, as occurred in         • Marriage (Prohibited Degrees of Relationship) Acts 1907 and 1921
Cassidy v Minister for Industry and Commerce, which          • Marriage Act 1835
was recently endorsed in Leontjava.                          • Marriage of Lunatics Act 1811
                                                             • Marriages Act 1994 (Britain)
Terry and June
It is difficult to see how the introduction of the           Literature:
requirement of ‘fixed structure’ is intended by the          • Registrar General’s Guidelines (Britain)
act. Furthermore, its effect is to differentiate             • Report of the Royal Commission on the Laws of Marriage, no 1216 (1868)
between those partaking in religious and civil                  (British Parliamentary Papers, 1867-68)
marriages, which may constitute discrimination on            • Shatter, Alan (1997) Shatter’s Family Law (Dublin: Butterworth’s)
the basis of religion. Under the European
convention, it would have been open to the
legislature to introduce similar requirements for all
marriage venues in the interests of public safety, but     understood that the current practice is to solemnise
it chose not to.                                           civil marriages only during normal HSE working
   While the British equivalent, the Registrar             hourse, that is, 9-5, Monday to Friday. As this has
General’s Guidelines, contains similar provisions          been explained in the media by HSE representatives
precluding outdoor civil marriages, authority is           to be dictated by the availability of resources rather
delegated to do so by section 46A of the Marriages         than any fixed policy, it most probably is
Act 1994, concerning “approval of premises”. The           unassailable. G
Civil Registration Act 2004, by contrast, contains no
mention of premises.                                       Michael McNamara is a barrister on the South Western
   While the minister does not specify any matters         Circuit who has taught on UL’s MA programme in civil
regarding time to which the HSE is to refer, it is         and canon law.




                                                                                                                    www.lawsociety.ie     33
LAW SOCIETY GAZETTE MARCH 2008              HUMAN RIGHTS




Game of
                         TAG
                         Electronic monitoring of offenders will be an innovation in Ireland once the
                         relevant provisions are commenced. In her winning human rights essay – on
                         which this article is based – Tanya Moeller argues that the impact on the
                         right to privacy has not been sufficiently considered
                                         racking the geographical movements of a       they can also apply to have the court order varied.




                         T               certain person – electronic monitoring –
                                         is governed by the Criminal Justice Acts
                                         2006 and 2007. Sophisticated technology
                                         may enable this form of surveillance to
                             intrude into the private life of a person at previously
                             unprecedented levels. It is therefore necessary to
                             consider the impact of electronic monitoring on the
                                                                                          The acts require that the court or the Minister for
                                                                                       Justice need to consider different matters in the
                                                                                       making of an order or decision for electronic
                                                                                       monitoring. In addition, the acts provide for an
                                                                                       enforcement mechanism by way of arrest warrant.
                                                                                          In the context of the right to privacy, it is more
                                                                                       interesting that the provisions concerning the
                             right to privacy.                                         convicted offender on the one hand, and the person
                                The acts allow electronic monitoring to record         charged with a criminal offence on the other, are
                             the movements of a person in three ways. Firstly, his     very similar. This has important consequences for
                             movements may be restricted simpliciter – that is,        the evaluation of the constitutionality of electronic
                             absolutely, without qualification. Secondly, he may       monitoring.
                             be required to remain at, or stay away from, a
                             specific place during temporary release by virtue of      British bulldog
                             a direction from the Minister for Justice. Thirdly, he    Looking at the technology that facilitates electronic
                             may be required to remain or reside at a particular       monitoring in England and Scotland can shed light
MAIN POINTS                  location or refrain from attending at a place by          on how such surveillance may be put into operation
 • Electronic                virtue of a court order while he is on bail. The latter   here. There are three main types. The home-based
   monitoring                applies in case he is appealing a conviction in the       scheme is by far the most commonly used in England.
 • Three ways of             District Court to the Circuit Court, or if he is          A tag is fixed on the body and it sends a signal to a
   monitoring                charged with a serious offence.                           receiver that is installed in the home. As a result, the
 • Right to privacy             In this way, electronic monitoring will directly       tagged person must remain within the family home,
 • Related                   apply to both convicted offenders and people              inside the signal radius of the receiver unit.
   constitutional            remanded on bail. However, it will also apply                By contrast, satellite monitoring has the person
   issues                    indirectly to affected third parties. They are,           carry both tag and receiver, which calculates its
                             therefore, required to give their prior consent, and      location by means of global positioning system


34       www.lawsociety.ie
                                                                                 HUMAN RIGHTS          LAW SOCIETY GAZETTE MARCH 2008




                                                                                                                                                   PIC: REX FEATURES




                                                                                                                          “It’s an ankle Rolex,
                                                                                                                          I tells ya!”
(GPS) and relays this information to a monitoring       home-based system would allow for implementation of
centre. In real-time surveillance, any movements        the relevant legislation in part, once a feasibility test is
would appear as location trails on a computer screen    carried out. Like in England, this type of electronic
map, detailing which street and in what direction       monitoring is likely to be most prevalent here.
the person is moving. Satellite surveillance is not
fully operable yet, but may be so in the future.        Sardines
   Finally, voice recognition depends on the storage    The right to privacy is an unenumerated right under
of voiceprints in a central computer. The presence      article 40.3 of Bunreacht na hÉireann. A surveillance
of the person in a particular place can then be         tag can be seen as a form of interfering with the
checked by scheduled telephone calls.                   “right to be let alone”, as defined in Kennedy v
   The former Minister for Justice indicated that the   Ireland, which prohibited the interception of private


                                                                                                                       www.lawsociety.ie          35
LAW SOCIETY GAZETTE MARCH 2008               HUMAN RIGHTS




                                                                                        to privacy, even if no private conversations where
                                                                                        overheard. The tag cannot record communication or
  HOME ALONE                                                                            images of the person, but it can monitor his
  The home-based system intrudes into the family home for technical as well as          whereabouts at any requisite time in any area,
  operational reasons. In England, the tag must be fitted on a person at home           constrained only by the limitations inherent in the
  because that is where the receiver unit is installed and tested, and the              type of technology employed.
  equipment requires maintenance visits. Regular phone calls will also check on            Furthermore, electronic monitoring can interfere
  the presence of the person at home in case of small-scale alerts. These can be        with the private life in the family home, which is
  triggered by minor signal failures caused by ordinary activities, such as the         entwined with the inviolability of the private
  person taking a bath.                                                                 dwelling (article 40.5) and the right to private
      Besides these physical intrusions, living with an electronic tag can create       property (article 43).
  pressures for the household, especially for women, who traditionally have greater        The right to privacy is not unqualified. According
  family responsibilities at home. A study by the National Audit Office in England      to Norris v Attorney General, it is restricted by
  showed that tagged women commit substantially more breaches than tagged               considerations such as state security, public order,
  men. Childcare becomes problematic if the tagged parent cannot collect or             morality or other “essential components of the
  discipline children because they are confined to the house, and there can be          common good”. However, the doctrine of
  difficulties in emergency situations. Moreover, the relatives or partners of tagged   proportionality, as developed by the Irish courts,
  persons often observe a curfew with them.                                             requires that the state must impair a constitutional
      Satellite monitoring may be less intrusive into the private life of the family    right as little as possible and in proportion to its
  home because the receiver is carried on the body, but the visibility of the tagging   objective. The Criminal Justice Acts 2006 and 2007
  equipment on a person can lead to family embarrassment. In England, one in            apply electronic monitoring to the convicted
  ten monitored persons were recalled to court or reported for a possible recall to     offender and to a person remanded on bail. It also
  prison because his or her relatives withdrew their consent to electronic              affects third parties. The constitutionality of
  monitoring.                                                                           electronic monitoring in the context of privacy
                                                                                        depends on the category of person this surveillance
                                                                                        is applied to.
                              communications where this was deliberate,                    Arguably, the least harm is caused to a convicted
                              conscious and unjustifiable. It can also be seen as a     offender because the common law has typically
                              type of watching and besetting, which in X v Flynn        required such a person to accept a limitation to his
                              was established to be a means of violating the right      personal rights, which arises from the imposition of


36         www.lawsociety.ie
                                                                                 HUMAN RIGHTS          LAW SOCIETY GAZETTE MARCH 2008



his sentence. His criminal record could require him
to be monitored to discourage further crimes.             LOOK IT UP
    However, it is not clear if electronic monitoring     Cases:
does, in fact, prevent criminal activity. Pilot           • Kennedy v Ireland [1987] IR 587
schemes in Scotland did not increase perceptions of       • Norris v Attorney General [1984] IR 36
public safety or reduce the custodial remand              • Scott v Spain (1997) 24 EHRR 391
population in any significant way. The Home               • X v Flynn (19 May 1994) HC
Office was also sceptical, observing that it was
“likely to be the access that offenders on curfew         Legislation:
had to training, employment, housing and family           • Bail Act 1997
life that helped them to reconnect with society and       • Criminal Justice Act 2006
reduce their offending” rather than electronic            • Criminal Justice Act 2007
monitoring. Moreover, a tagged person can simply
ignore or remove the tag while committing an              Literature:
offence. It would therefore not be unreasonable to        • Law Reform Commission, Report on Privacy,
question the imposition of electronic monitoring,            Surveillance and the Interception of
even on a convicted offender.                                Communications, LRC 57-1998
                                                          • National Audit Office (Britain), The Electronic
Stuck in the mud                                             Monitoring of Adult Offenders: Report by the
The second target group are people who are                   Comptroller and Auditor General, HC 800
remanded on bail and who still enjoy the                     Session 2005-2006 (1 February 2006)
presumption of innocence. An interference with            • Scottish Executive, Tagging Offenders: The Role
their personal rights during criminal prosecution            of Electronic Monitoring in the Scottish Criminal
must be carried out very carefully. For example,             Justice System, www.scotland.gov.uk/
the European Court held that pre-trial detention             consultations/justice/toem-03.asp
can only be justified by “specific indications of a       • Scottish Executive Social Research, An
genuine requirement of public interest, which,               Evaluation of the use of Electronic Monitoring as
notwithstanding the presumption of innocence,                a Condition of Bail in Scotland, June 2007
outweigh the rule of respect for individual liberty”      • Shute, Satellite Tracking of Offenders: A Study of
(Scott v Spain). A similar justification would have          the Pilots in England and Wales, July 2007
to be made for the case of electronic monitoring
but, given the lack of evidence for its success in
the prevention of crime, it cannot fulfil the
“genuine requirement of the public interest”.
   Moreover, it was noted above that the relevant       policymakers will have sufficient time to consider
provisions governing the monitoring of persons          the probable impact of electronic monitoring on the
pre- and post-conviction in the Criminal Justice Acts   right to privacy and plan the implementation of such
2006 and 2007 are quite alike. If this legislative      surveillance accordingly.
similarity causes the person who is presumed                Comparisons with Britain can be helpful, not only
innocent to suffer from the same intrusive              in suggesting the type of technology most likely to
surveillance as the person who is found guilty, the     be used here, but also in measuring its performance
proportionality of the activity would be put in         in the prevention of crime. The lack of evidence for
doubt.                                                  the success of electronic monitoring calls the
   Finally, electronic monitoring indirectly affects    constitutionality of this new measure into question.
third parties. While it is accepted that the            The promise of the former Minister for Justice that
prosecution of criminal offences commonly has an        a feasibility test will be carried out prior to full
impact on a family, electronic monitoring should be     introduction is of some comfort, but is insufficient.
regarded as unique in the regularity and length at      Authoritative studies should establish whether this
which it intrudes into the family home. These           type of surveillance would indeed enhance
intrusions can be explained by the circumstantial       compliance of the tagged person with court orders,
misfortune of being related to the monitored            and thereby reduce crime – or whether it will create
individual, but they cannot be excused. They            a chaotic monitoring system that unjustifiably
appear to be inherently disproportionate.               intrudes into family homes and generates needless
                                                        litigation. G
Blind man’s buff
Pending the commencement of the relevant                Tanya Moeller holds a European Master’s degree in
provisions in the Criminal Justice Acts 2006 and        human rights and democratisation from the University of
2007, a precise prediction on the operation of          Padua and has worked for the Irish Council for Civil
electronic monitoring in Ireland cannot be made.        Liberties. She is currently a trainee solicitor with Michael
This should be seen as an advantage, as                 J Staines & Company.


                                                                                                                       www.lawsociety.ie   37
LAW SOCIETY GAZETTE MARCH 2008           FAMILY LAW




BOTH SEEN
and   HEARD
Many practitioners dealing with childcare cases before the courts are concerned that the
functions and powers of the guardian ad litem are in need of urgent reform. “Won’t somebody
please think of the children?” asks Katie Dawson

                                     or many years, the old adage that ‘children     nature of such cases, the court has increasingly




                        F            should be seen and not heard’ was a
                                     common feature of the Irish legal system.
                                     This position has, of course, changed in
                                     recent years, with both the legislature and
                         courts placing increased emphasis on the rights of
                         children to be heard and represented in proceedings
                         affecting their welfare. One area where practitioners
                                                                                     sought to avail of the knowledge of an independent
                                                                                     expert in child welfare and protection, namely the
                                                                                     guardian ad litem.
                                                                                         The legislature first made provision for the
                                                                                     appointment of a GAL in public law proceedings in
                                                                                     the Child Care Act 1991. Section 26(1) provides that
                                                                                     “the court may, if it is satisfied that it is necessary in
                         have seen significant developments in recent years is       the interests of the child and in the interests of
                         in the area of child welfare/protection. The Child Care     justice to do so, appoint a guardian ad litem for the
                         Act 1991 allows the District Court to appoint a             child”.
                         guardian ad litem (GAL) in childcare proceedings.               Unfortunately for practitioners, nothing
                         Twelve years after this provision became fully              further is written in that act or subsequent
                         operational, many practitioners who deal routinely          legislation that clarifies the role and functions of
                         with these cases in the District Court are concerned        the GAL in childcare cases. Presumably, section
                         that the role, functions and powers of the GAL are ill      20 on the Child Care (Amendment) Act 2007 will
                         defined, under legislated and in need of urgent             change this position. Section 20, which came into
                         redress.                                                    effect on 23 July 2007, sets out the functions of
MAIN POINTS                                                                          the Children’s Acts Advisory Board (CAAB),
 • Rights of children    In whose interests?                                         formerly the Special Residential Services Board.
   to be heard and       In Ireland, applications for care orders (s18), interim     The second of these functions is to “publish
   represented in        care orders (s17) or supervision orders (s19) are           guidance on the qualifications, criteria for
   proceedings           made in the District Court and are legislated for           appointment, training and role of any guardian ad
 • Role and              under the provisions of the Child Care Act 1991. In         litem appointed for children in proceedings under
   functions of the      these proceedings, the District Court undertakes an         the act of 1991”.
   guardian ad litem     inquiry as to what is in the best interests of the child.       While the publishing of clear guidelines on the
   in childcare          The Health Service Executive (HSE) sets out a case          role and functions is a welcome development –
   cases                 for why the child should be removed from the care           indeed CAAB has already sought representations in
 • Shortcomings in       of its parents, often calling a number of expert            relation to this – it is unclear when such guidelines
   the present           witnesses in support of their application. Parents will     will actually be published or what statutory basis
   system                often strenuously oppose such applications, arguing         they will have. There are some matters, such as the
 • Proposed reforms      that the state is unjustifiably interfering with their      issue of dual representation for children in these
                         constitutional rights as a family. Given the emotive        cases, presently prohibited under section 26 of the


38       www.lawsociety.ie
PIC: GETTY IMAGES                                                                                      FAMILY LAW        LAW SOCIETY GAZETTE MARCH 2008




                    1991 act, which cannot be satisfactorily addressed by     the various options available to the court and a
                    means of CAAB guidelines. Similarly, it is unclear        recommendation as to the appropriate order to be
                    what legal redress such guidelines would give             made. Best practice in Ireland seems to follow this
                    practitioners representing parties either opposing        model.
                    the appointment of a particular GAL or seeking the
                    removal of the GAL appointed. In such                     What’s wrong?
                    circumstances, it might have been preferable if the       A number of criticisms of the present system have
                    legislature had gone further and amended section 26       been set out in a large number of reports and articles,
                    of the 1991 act itself.                                   and are repeated below. For practitioners
                       In doing so, the legislature could have given          representing a GAL in childcare proceedings, or
                    consideration to sections 41 and 42 of Britain’s          indeed representing one of the other parties to the
                    Children’s Act 1989. In England, the GAL’s role           proceedings, the continuing lack of legislative
                    involves an investigation into all the aspects of the     guidelines in this area is a growing problem. Under
                    child’s life and family. Such investigations involve      current legislation:
                    interviews with the child and other members of the        • Where a GAL is appointed, a child cannot have
                    child’s immediate and extended family, along with            separate legal representation (dual representation).
                    social workers and other care professionals involved         If a child wishes to avail of separate legal
                    in the case. When the GAL has concluded the                  representation, than the GAL appointed must be
                    investigation, he/she provides a report, or series of        discharged,
                    reports, for the court, setting out the child’s wishes,   • There is limited guidance as to when a GAL


                                                                                                                                        www.lawsociety.ie   39
NOW OPENING A NEW OFFICE IN DUBLIN
 Merchants House, Merchants Quay, Dublin 8. Opposite the Four Courts. Tel: 01 675 0819
                                           Are you
                           Happy with the interest you are Earning?
                            Happy with the interest you are Paying?
                        Are you paying Set-Off interest on all Facilities?
                         Paying Uncleared Interest/Surcharge Interest?

                                    Talk to Kieran       Finnan

     I will make Money for your Practice
                                               with my

                     Banking Health Check
                          A Nationwide Service to the Legal Profession

                                             Call us now
                                       Finnan Financial Limited
          Dublin: Merchants House, Merchants Quay, Dublin 8 (opposite Four Courts) 01 675 0819
               Waterford: 21 O’Connell Street, Waterford. DX 44058 Waterford 051 850672
                          kieran@finnanfinancial.com www.finnanfinancial.com
                                                                                       FAMILY LAW        LAW SOCIETY GAZETTE MARCH 2008



  should be appointed or what remedies might be
  available if any of the parties do not agree with the        LOOK IT UP
  GAL appointed. While it might not be advisable to            Legislation:
  allow any party to the proceedings to automatically          • Child Care (Amendment) Act 2007
  veto the appointment of a particular GAL,                    • Child Care Act 1991
  circumstances might arise where a party might                • Children’s Act 1989 (Britain)
  have a legitimate reason for opposing the                    • United Nations Convention on the Rights of the Child
  appointment of, or seeking the removal of, an
  appointed GAL,                                               Literature:
• There are no guidelines under the act as to who              • Bainham, Andrew, Children: The Modern Law, 3rd edition (Bristol: Jordan, 2005)
  should be appointed as a GAL, what qualifications,           • Capita Consulting Ireland in association with the Nuffield Institute for Health,
  skills or knowledge are necessary and/or preferable             Review of the Guardian ad litem Service (March 2004)
  to being appointed, nor are there any directions as          • Nestor, Jim, The Law of Childcare (Blackhall Publishing 2004)
  to how appointments should be vetted,                        • Ombudsman for Children, Report of the Ombudsman for Children to the UN
• There are no guidelines under the act clearly                   Committee on the Rights of the Child (April 2006)
  defining the specific role of GALs or the duration           • Shannon, Geoffrey, Child Law (Thomson Round Hall, 2005)
  or nature of the GAL’s task, including, for example,
  whether they need to provide a report or whether           should be appointed, along with the requirement that
  the role ends once proceedings are concluded,              a GAL provide the court with a written report(s). In
• The powers of a GAL are not outlined under the             compiling such reports, a GAL should have the right
  act and there is no guidance on whether the GAL            to examine, take copies of, and use in evidence,
  should have access to HSE and third-party reports          materials and documentation held by the HSE and
  or files.                                                  other relevant agencies. A formal, mandatory
                                                             selection process should be introduced, applying to all
In a number of recent cases, parties to the                  current GAL practitioners and any individual seeking
proceedings have sought to ‘suggest’ what                    to be considered for appointment as a GAL. The
documentation a GAL can have access to, ‘comment’            minimum qualifications and experience required to
upon how a GAL report to the court may be                    allow for an individual’s appointment as a GAL
presented, or ‘remark’ upon what information such a          should be clearly defined in order to ensure that all
report can contain. It is clear that allowing other          GALs have the requisite level of knowledge and
parties to the proceedings to define the role, functions     experience in the area of child welfare/protection.
and powers of a GAL is not compatible with a court              Furthermore, in addition to any guidelines
process seeking to ensure that the rights of the child       published by CAAB, the legislature should amend
are given paramount importance.                              section 26 of the 1991 act, firstly to set out the role,
   One obvious concern for practitioners operating           functions and powers of the GAL and, secondly, to
under the current system is that if a child becomes a        provide for dual representation in public-law cases.
party in the proceeding, any GAL appointed must be           The powers of the GAL should be defined so that the
discharged from the case. This provision suggests            GAL is recognised as an independent officer of the
that, as a GAL performs the same role in representing        court, with the ability to bring specific matters to the
a child’s interests as a lawyer directly representing that   court’s attention. Furthermore, an amended section
child, a child does not need both. Clearly that is not       26 could make reference to any additional guidelines,
the case. The role of the GAL is not to act as an            to be published by CAAB in respect of the operation
‘advocate’ for the child’s wishes. As such, the              of the GAL system.
prohibition on ‘dual representation’ contained in the           It is clear that the role of the GAL in public law
1991 act should be removed if Ireland is to fully            proceedings is a developing one and that the
adhere to the principles set out in article 12 of the        appointment of GALs, who in most cases avail of
UNCRC.                                                       separate legal representation, is likely to become a
                                                             more regular occurrence. In the absence of necessary
What to do?                                                  legislation and statutory guidelines, childcare cases
In circumstances where District Court childcare cases        continue to be heard in the District Court. For
are becoming increasingly acrimonious and lengthy (a         practitioners, the current system remains wholly
recent childcare case where the HSE applied for care         unsatisfactory. The guardian ad litem is a welcome
orders ran for a total of 57 days at hearing in the          development in the area of Irish childcare law. It must
District Court), it is clear that legislation and/or         now be hoped that the legislative amendments and
statutory guidelines are required to define the role of      guidelines are put in place to ensure that the system
the GAL, and indeed the manner in which these                operates in a manner that best protects the interests
childcare cases are run.                                     of the children that the GAL is appointed to
   While it is not the author’s purpose to make              represent. G
recommendations to CAAB, guidelines should be
drafted on the specific circumstances in which a GAL         Katie Dawson is a Dublin-based barrister.


                                                                                                                        www.lawsociety.ie           41
LAW SOCIETY GAZETTE MARCH 2008                 MEDIA LAW




STOP
the presses
The new Press Council and ombudsman add new elements to
the institutional mix in which issues involving the print media
and the law are discussed. The ombudsman, Prof John Horgan,
indicates how the new structures will work and explores some
of the legal implications

             he recent establishment of new press            newspapers that had commissioned their research




T            regulatory structures is the result of a
             complex interplay of forces going back at
             least two decades, and the effect of the new
             structures is still difficult to predict with
any certainty. In this context, it is perhaps more helpful
to tease out the intentions behind the structures than
to suggest scenarios that the courts, and indeed the
                                                             was able to tell them with any certainty how many
                                                             defamation actions they had faced in any given
                                                             period – or what these had cost.
                                                                Together with this has come the realisation that a
                                                             major factor undermining the credibility of the print
                                                             media generally has been the absence of
                                                             intermediate solutions for problems caused by
legislature, might alter at any given moment.                articles that might cause offence for a wide variety of
   The key element of the new structures is their            reasons, but that might not involve defamation in
independence from both government and the industry.          the strict sense. The system of readers’
This is a necessary precondition both of their               representatives, instituted briefly by some
acceptability and their effectiveness. This is not self-     newspapers in the wake of the Boyle/McGonagle
regulation; it is independent regulation. Although the       report, was an early and unsuccessful attempt to
Press Council and the Office of the Press Ombudsman          plug this accountability gap.
are non-statutory bodies, they may be formally                  The new structures – funded by, but independent
recognised by the Minister for Justice under the             of, the industry – have a direct relationship both to
provisions of the defamation legislation currently en        problems of defamation and those of readers’
route through the Oireachtas, and this will give their       grievances generally, as well as providing a new and        MAIN POINTS
statements certain necessary protection under law.           substantial measure of public accountability.               • Effective
                                                                In relation to defamation, it will evidently continue      independent
I love trouble                                               to be the case that there will occasionally be                regulation of
It is incontestable that the experience of the print         publication of some statements about people who will          newspapers
media in relation to defamation has been a key driver        feel, quite justifiably, that monetary compensation –       • Print media
of this innovation. Since the Boyle/McGonagle                and substantial monetary compensation at that – is the        response to
report on press freedom and libel, commissioned by           only remedy acceptable to them. It is difficult to see        defamation
National Newspapers of Ireland and submitted to the          that the Press Ombudsman or the Press Council               • Court
Law Reform Commission, it has been clear that the            would have any substantial role in such a situation.          consideration of
episodic and somewhat disorganised response of the                                                                         roles of Press
industry to this perennial problem was inadequate.           Ace in the hole                                               Council and
Indeed, those familiar with that report will remember        If a plaintiff feels that a decision in his favour by the     ombudsman
the authors’ astonishment that none of the                   ombudsman or council will strengthen his legal


42          www.lawsociety.ie
                                                                                      MEDIA LAW          LAW SOCIETY GAZETTE MARCH 2008




position, he of course has the option to make a             Press Ombudsman, the Press Council, and the Code
formal complaint to the ombudsman in the first              of Practice for Newspapers and Periodicals as relevant in
instance. However, if the publication concerned             any discussion of the professional standards and
feels that this is merely a proxy battle, it is likely to   behaviour of journalists and editors embroiled in a
dig its heels in, and the end result may not affect the     defamation action.
court’s decision either way. Conversely, if there is a
feeling that a conciliatory response will enhance the       Absence of malice
publication’s defence, the plaintiff’s advisers may         It is worth noting that, while people have the option
well advise him to forego this option. The absence –        of instituting legal proceedings or complaining to
at this point – of experience of the operation, either      the ombudsman, they cannot ride both horses at the
of these new structures or of the courts’                   same time. If legal proceedings have been instituted,
interpretation of the new legislation after it has been     the ombudsman will not examine the issue
passed, makes prediction hazardous.                         concerned until those proceedings have been
   What is also unknown is whether the courts will,         completed or withdrawn. In this context, we would
in the future, consider the respective roles of the         not regard a solicitor’s letter to a publication as


                                                                                                                        www.lawsociety.ie   43
LAW SOCIETY GAZETTE MARCH 2008               MEDIA LAW




                                                                                         PIC: GATTY IMAGES
                                                                                                             agreement of the person affected by the article to
                                                                                                             make the approach on his behalf.) The new
                                                                                                             structures offer the possibility of quick, fair and free
                                                                                                             redress by an independent ombudsman or by a Press
                                                                                                             Council with a lay majority. If the person who is the
                                                                                                             subject of the offending article chooses to retain his
                                                                                                             solicitor as his agent in the matter, then of course
                                                                                                             costs will be involved, but this is not essential. And
                                                                                                             no respondent’s costs are involved. In all cases,
                                                                                                             complainants must demonstrate that the offending
                                                                                                             article is in breach of one or more of the sections of
                                                                                                             the industry’s new Code of Practice.

                                                                                                             Citizen Kane
                                                                                                             The hope embodied in the new structures, whether
                                                                                                             in reference to defamation or other issues, is
                                                                                                             twofold. It is that readers will feel more empowered
                                                                                                             to make their grievances known, and to expect a
                                                                                                             reasonable response from their newspapers, and that
                                                                                                             editors and journalists will feel less constrained by
                             ‘legal proceedings’, but, in fairness to the                                    the culture of defensiveness that (conditioned in
                             publication, we would expect a complainant to                                   large part by our old libel regime) traditionally gave
                             suspend exchanges between his solicitor and the                                 confrontation priority over conciliation and
                             editor concerned until the conclusion of the                                    compromise.
                             ombudsman’s procedures. This is a common-sense                                     The basic premise of the new structures is that
                             approach that will, I hope, have the effect of                                  the closer to source the problem can be resolved,
                             enhancing the attractiveness of our procedures as a                             the better it is for all concerned. Our procedures,
                             first option, not least because they are risk-free, cost-                       therefore, generally require complainants to contact
                             free, and expeditious.                                                          the editor of the relevant publication first, and to
                                Defamation apart, however, many solicitors will                              lodge a formal complaint with us only if this initial
                             have had experience of clients who are exercised                                approach has been unsuccessful. The incentive for
                             about statements made about them in the media, but                              editors to solve the problem at this stage hardly
                             whose chances of succeeding in a classic defamation                             needs elaboration.
                             action are not closely related to the intensity of their                           Failing that, our structures and procedures come
                             feelings on the matter. Some defamation actions are                             into play.
                             also brought by plaintiffs who feel, with regret, that                             The case officer in my office is effectively the first
                             this is the only course of action open to them, but                             port of call for all complainants and handles all cases
                             who are not interested, primarily or at all, in                                 up to the penultimate stages of the conciliation
                             monetary compensation.                                                          process. If that conciliation process has been
                                Practitioners whose clients fall into these                                  effective, the final agreement between complainant
                             categories have nothing to lose by recommending an                              and newspaper is effectively ratified by me as
                             initial approach to the Press Ombudsman.                                        ombudsman.
                             (Incidentally, although in such cases a solicitor is                               If the conciliation process has not been effective, it
                             technically a third party, he can be considered as the                          falls to the ombudsman to decide on the merits of the
                             complainant on the basis that he has the express                                case, except in cases where the ombudsman decides to


 THE INSIDER
 There are a number of sections in the Code of Practice that represent    allow the drawing of practical conclusions in complex situations.
 another important step towards the effective independent regulation         Under the new structures, the ultimate decision on what does or
 of newspapers and towards providing expeditious and cost-free            does not constitute justifiable harassment or intrusion into an
 redress for members of the public. These are in the areas of privacy     individual’s private life no longer rests solely with an editor or an
 and harassment.                                                          individual journalist. In the absence of legal proceedings, that
    Up to now, however, the definition of what constitutes intrusion or   decision now falls to be made by the Press Ombudsman or, in certain
 harassment, and what constitutes the public interest, has been one       cases, by the full Press Council. Likewise, there is now, in the Code
 that has effectively been the prerogative of journalists and their       of Practice, a formal definition of what is in the public interest. It may
 editors. The courts, of course, also have a role – but recourse to the   not satisfy the purists and it needs to be fleshed out in due course by
 courts is expensive, that role is not often tested, and the ways and     decisions of the new institutions, but it offers a common-sense
 occasions on which it has been tested have rarely been such as to        benchmark to which anyone can sensibly relate.




44        www.lawsociety.ie
                                                                                       MEDIA LAW         LAW SOCIETY GAZETTE MARCH 2008



refer a case to the full Press Council for
determination. Although there is an understanding               LOOK IT UP
that cases referred to the council by the ombudsman             Literature:
will be those of some complexity or importance, there           • Boyle, Kevin and Marie McGonagle, A Report on
is no requirement on the ombudsman to refer all such               Press Freedom and Libel (Dublin: National
cases to the council, nor any expectation that he will.            Newspapers of Ireland)
Indeed, he is completely independent of the council in          • Code of Practice for Newspapers and Periodicals,
relation to any decision he may take on referrals.                 available at www.presscouncil.ie
   It is quite possible, at the end of the day, that either
the ombudsman or the council will find, in a case in
which conciliation has not proved possible, that the          Some of these are definitional, and I have already
newspaper concerned has made an adequate, non-                referred to them. Others relate to the possible
monetary offer of redress. On the other hand, if the          impact of decisions by the Press Ombudsman or the
complainant believes that the newspaper’s offer is            Press Council on court proceedings held after the
inadequate, and the ombudsman or council agrees, the          conclusion of the ombudsman’s or council’s
newspaper will be required to publish our decision            involvement. It is not possible to speculate
with due prominence, where it will be available for           realistically about this particular area in advance of
discussion and comment by the general public and,             the passage of the Defamation Bill and some
indeed, by that newspaper’s rivals and competitors.           experience of its consequences, but it is something
People who believe that this is an inadequate sanction        that may assume some significance at a later date.
should perhaps canvass the views of editors and               Nor have I dealt with some other aspects of the Code
journalists on the matter!                                    of Practice, such as the importance of press freedom
                                                              and the protection of journalistic sources, not least
All the president’s men                                       because this would require a quite different and
Determinations by the ombudsman are not necessarily           equally lengthy article.
the end of the matter. Depending on the way the                  There are, I would add finally, important positives
decision has gone, either the complainant or the              about this initiative. It has the active support of
newspaper has the option of appealing a decision by           journalists, editors and proprietors of newspapers, to
the ombudsman to the council. In line with the                a degree that would have been unthinkable even five
common practice in other regulatory agencies that             years ago. It has received a welcome, albeit cautious
have an appeals system, such appeals must generally           and provisional, from government. Public
show and state reasonable grounds, such as the                expectations are as yet limited, and this is in a sense
emergence of significant new information or of a              better than a crisis of expectations that might be
procedural issue. It follows that there is no further         difficult to manage. For the future, we will have to
appeal against a determination that has been made             wait and see. I trust that members of the legal
either in the first instance, or on appeal, by the            profession will share with me and the council a
council.                                                      willingness to wait and evaluate the evidence before
   If the complainant is still dissatisfied, he or she        coming to any definitive conclusions. G
always retains the option of legal proceedings.
   As with all new institutions, there are grey areas.        Prof John Horgan is the Press Ombudsman.




                                                                                      D OYLE COURT REPORTERS LTD




      VERBATIM TRANSCRIPTS
       2 Arran Quay 7. Tel: 872 2833. Fax: 872 4486                                     Accurate shorthand recording of the
       Email: info@doylecourtreporters.com                                              High Court, Public and Private Inquiries,
       Web: doylecourtreporters.com                                                     AGM’s, Conferences etc.



                                                                                                                        www.lawsociety.ie   45
LAW SOCIETY GAZETTE MARCH 2008          PRACTICE MANAGEMENT




PARTNERSHIP:
In mid-size and
larger law firms,
bringing good
people through
                         the Holy             e have seen more changes in the     but, since then, it has been increasingly difficult to




                         W
the ranks is
                                              environment in which Irish law      sell a legal practice as the market tightens. Today’s
more important                                firms operate in the past three     buyer is looking more closely at the style of the
than ever. This                               years than perhaps in the           practice, the client base, the staff and the systems
                                              previous 20. The pace of change     and technology in operation within the firm.
involves                 is increasing, and many firms have had to change the     Practices are currently selling at a significant
attracting the           way they operate. It is no longer sustainable to run     discount to the levels being achieved two years ago,
                         an old-style firm with little or no management –         and in some cases are not selling at all. For the
right people,            increased management and better systems are a            smaller firm and the single practitioner, this is
keeping them,            feature of all today’s progressive firms.                deflating: a lifetime’s work transferred to another
                             High salaries and bonuses have had a further         party for a relatively small sum.
and having               subtle effect on the way partnerships work. The             The best succession plan in a small firm is to
attractive               proprietors of today’s firms are senior lawyers who      grow your own successor. An individual coming
                         worked throughout their careers with partnership as      through a practice is in a better position to hold
partnership              an unquestioned goal. Many of today’s young              onto the client base and knows the strengths and
arrangements in          lawyers are equally ambitious, but a significant         weaknesses of the practice.
                         percentage has focused on work/life balance and             In mid-size and larger firms, bringing good
place. David             does not wish to achieve the holy grail of               people through the ranks is more important than
Rowe hunts for           partnership. Often these young lawyers are the most      ever. This involves attracting good people, retaining
                         talented in a firm, and the perceived lack of drive      them as solicitors, and having partnership
treasure                 and ambition in this group is a major concern for        arrangements in place that are seen as attractive.
                         existing equity partners. Many senior equity partners    There is no buy-in to partnership any more in mid-
                         attribute this to high salaries and good bonuses,        size and larger firms; partnership is earned on merit.
                         thereby lessening the hunger for partnership.
                                                                                  Temple of doom
                         Raiders of the lost ark                                  There have been fundamental changes in the way
                         Succession planning is a key part in the continuing      that partnership profit-sharing has operated in the
                         success of any firm. Partners will grow old together     past five years. The traditional model of agreed
                         unless there is an infusion of new ideas, new services   percentages for equal profit-sharing has been
MAIN POINTS              and fresh impetus from a younger generation.             gradually eroded, particularly in mid-size and larger
 • Succession            Without this, a partnership eventually declines.         firms. These firms are increasingly looking at
   planning                Many smaller firms and single practitioner firms       putting between 10% and 20% of their profits aside
 • Profit sharing        have no succession plan in place, having relied on       for a partner performance pool. This works well if it
 • Consolidation of      the fact that they have built an asset (the firm) and    is fair and objective. If it is not, it is an unmitigated
   firms                 that this asset can be disposed of on retirement.        disaster.
                         This was true up to approximately 18 months ago              In these firms, both the spread of profits between


46       www.lawsociety.ie
                                                                   PRACTICE MANAGEMENT               LAW SOCIETY GAZETTE MARCH 2008




Grail?

                                                                                                                      Indiana Jones doesn’t
                                                                                                                      work with partners ... but
                                                                                                                      then, he’s still searching
                                                                                                                      for that Holy Grail

the top and the bottom of the profit-sharing             after all, the partners are the firm’s greatest assets.
mechanism has narrowed, and the length of time              Being a partner in today’s law firm is a different
that it takes to get to the top of the profit-sharing    proposition to that of a couple of decades ago.
mechanism has shortened. This has been a response        There are huge advantages to partnership. These
to pressure from newer entrants within the               include the opportunity to build the business
partnership, who argue that a partner is at peak         together in a supportive environment, drawing from
contribution levels during their 30s and 40s and the     each others’ strengths, the mutual respect culture
profit share should reflect this.                        that many firms have managed to preserve, the
                                                         opportunity to share successes with others and the
The last crusade                                         ability to concentrate on one or two areas of work,
Firms are now increasingly managing their partners’      and hence become an expert or specialist beyond
performance levels. This is often done by                what the general practitioner can hope to achieve.
conducting annual appraisal-type reviews, similar to        There are downsides to being a partner too. The
those for other staff. This often breaks a traditional   larger firms have, of necessity, become more
comfort zone, but it is also good management –           corporately managed, and some partners within


                                                                                                                   www.lawsociety.ie         47
LAW SOCIETY GAZETTE MARCH 2008                 PRACTICE MANAGEMENT




 COME TOGETHER
 There is currently a consolidation upwards in the
 average firm size in Ireland. This is because bigger
 firms are more competitive and they share the
 burdens of management and different areas of
 expertise with greater ease. Different partners
 inevitably have different strengths, and having a mix
 of attributes across a firm means the firm can play
 its individual partners to their strengths. Many firms
 are currently considering a merger, and it is
 inevitable that firm size will increase in a more
 competitive environment.
    Well thought-out and strategically intelligent
 mergers work well, and there are many examples of
 good mergers in the Irish market. The critical issue
 in choosing a new merger are that the personalities
 get on, that the business mix is right, that the new
 partners share a common objective, and that the
 cultures within the firms are compatible. This does
 not mean that both firms need be the same –
 indeed, many mergers work because the mix is
 different in each firm.                                                                                                     “Howdy, pardner”



“Partners will                them would say that the sense of fun goes when you          ‘Partner’ should no longer be regarded as
                              get to a certain size. The expectations of you and      synonymous with ‘owner’. ‘Partner’ should instead
grow old                      the fact that you are expected to be a manager as       describe the firm’s role models: those individuals
together unless               well as a lawyer do not always sit easily.              who represent the best the firm has to offer, who
                                  With the pace of change accelerating, the role of   other staff admire, on whom today’s newly qualifieds
there is an                   the partner is changing: it has become that of a        seek to model their careers, and to whom clients
infusion of new               business manager and a business winner.                 instinctively turn for advice.
                                  After today’s partners will come a new generation       ‘Partner’ is a statement about aspiration and
ideas, new                    – more women than men – with aspirations that no        ambition – the ideal of what we’d like to be.
services and                  longer begin and end with becoming a partner. The           A strong partnership is the most rewarding space
                              lifestyles and needs of this new generation are         to be in, both financially and supportively. In fact, it
fresh impetus                 challenging traditional partnership models and          is the only space to be in. G
from a younger                cultures.
                                  The reasons for this are easy to understand. The    David Rowe is a legal graduate and a chartered
generation”                   careers of today’s senior partners started when a       accountant and was formerly finance director with MOP.
                              firm was a club. Now every successful firm is run as    His firm, Outsource, provides hands on financial
                              a business. Law firms – like any other – have to be     management and business advice to a wide range of Irish
                              well managed or they don’t survive.                     law firms.




48         www.lawsociety.ie
                                                                              PEOPLE AND PLACES            LAW SOCIETY GAZETTE MARCH 2008




                                                                                                                                                          PIC: LENSMEN
          Can we build it?
    James Kinch, a solicitor who
 contributes regularly to ‘Eurlegal’                                   Law Society and Bar Council summit meeting
in the Gazette, has been awarded       Pictured at a meeting of the Joint Consultative Committee of the Law Society of Ireland and the Bar Council in
    a Distinction and the Nael G          Blackhall Place on 21 February 2008 were (back, l to r): Philip Joyce, Paul O’Higgins SC, Stuart Gilhooly,
 Bunni Medal in his postgraduate       Gerard Doherty, Deputy Director General Mary Keane and David Nolan SC. (Front, l to r): Ken Murphy (director
  diploma in construction law and      general), John D Shaw (senior vice-president), James MacGuill (president), Turlough O’Donnell SC (chairman of
 contract administration from TCD                      the Bar Council), Michael Collins SC (vice-chairman) and Jerry Carroll (director)




                               Northern lights                                                             Rebels strike!
   Two past presidents of the Law Society were admitted to the roll of         President James MacGuill with trainees from the ‘Rebel County’, who
   solicitors in Northern Ireland at a ceremony on 15 February (l to r):       defeated their Dublin counterparts in the National Client Counselling
past president Philip Joyce, past president Michael Irvine, the Lord Chief      Competition, giving them the opportunity to represent Ireland at the
 Justice Sir Brian Kerr, President of the Law Society of Northern Ireland     international final in Bangalore, India, in April. The Law School in Cork
      T Donald Eakin, and John Kerr (son of the Lord Chief Justice)                     was represented by Jennifer Keane and Marie Gavin




                         Cáca milis agus madra rua...                                            Outstanding achievement for MOP
 Walter P Toolan & Sons, Solicitors, of Ballinamore, Co Leitrim, has won      Matheson Ormsby Prentice has received an ‘Outstanding achievement
   the ‘Best eco-friendly building’ award at the recent Local Authority        award’ at the Irish Institute of Training and Development’s National
 Managers’ Association (LAMA) Awards 2008. At the awards ceremony            Training Awards 2008 in the ‘Indigenous companies (250+ employees)’
were (l to r): William Ireland (chairman of LAMA), Sinead Guckian (Leitrim    category. (L to r): Jackie Robinson-Adams, Mark Hyland, Valerie Byrne,
   County Council), Gabriel Toolan, Minister for the Environment John          Christine Ryder, Kevin Hannigan, Jackie Brennan, Lisa Farrelly, Kelly
            Gormley TD, and Sharon Ní Bheoláin (awards host)                                         Simon and Norella Broderick


                                                                                                                        www.lawsociety.ie            49
LAW SOCIETY GAZETTE MARCH 2008 BOOK REVIEW




                           books
                          Poynings’ Law and the Making
                          of Law in Ireland, 1660–1800
James Kelly. Four Courts Press (2007), Malpas Street, Dublin 8. ISBN: 978-1-84682-078-6. Price: €55.

         e are now in the 86th       been crowned Edward VI in                                                  This book is particularly
W        year of our independent
legislature. It is therefore hard
                                     Dublin with the support of
                                     Gearóid Mór and others, and
                                                                                                             interesting in a lawyerly way in
                                                                                                             its detail of this 140-year
to imagine a situation where         subsequently in 1492 by a                                               period up to the Act of Union
the Dáil could not sit without       similar Irish-supported claim by                                        and its focus on the legislative
the prior consent of a foreign       Perkin Warbeck. Many will                                               function and its key
authority, and even then could       recall Lambert and Perkin                                               personalities, both in Dublin
not pass legislation without its     simply as two naïve and tragic                                          and London, and the varying
prior approval. That, in a           figures, but the reality is that                                        subject matters of the bills
nutshell, would have been the        their abortive regal assertions                                         being ‘negotiated’, whether
effect of Poynings’ Law (1494) if    were for three centuries to have                                        ultimately rejected or passed.
it still applied today.              a profound impact on our                                                All the time, the reader is
    The junior cert answer to the    legislative history, as this                                            conscious of what is going on
question: ‘What was Poynings’        scholarly study demonstrates.                                           outside the ‘precincts’
Law?’ is that it was a notable          Poynings’ Law ordained, as                                           throughout the same period;
example of how the English           the author summarises, firstly,                                         not least the Battle of the
crown sought to strengthen its       that no parliament could legally     Westminster commenced and          Boyne (1690) and the resultant
lordship of Ireland by               be convened without the prior        was so to continue up to 1922.     inter-religious tensions, which
controlling the ability of the       communication from the King’s           The year 1660 was, of           are reflected in the nature of
Irish parliament to pass laws for    Lieutenant and Privy Council of      course, a year of huge             the bills presented – revenue-
Ireland – an early example of        Ireland of “the causes and           significance in English history,   raising, indemnities for the
what later became the norm of        considerations” requiring such       with the restoration of the        military and anti-‘popish’
England’s control of its colonies    an assembly, and the                 monarchy and Charles II,           measures being, for this
around the world. James Kelly’s      certification under the great seal   marking the end of the two-        reviewer, the most notable.
book, however, provides a much       of England by the King in            decades-long Cromwellian              Dr Kelly, head of the History
more sophisticated answer to         Council that the reasons             interlude. An extended             Department, St Patrick’s
that question.                       proffered were acceptable; and,      interpretation of the law was at   College, Drumcondra, is to be
    Sir Edward Poynings would        secondly, the law directed that      that time negotiated, which        complemented in producing a
probably have been a mere            “acts” communicated from the         permitted Irish                    work of real value that fills a
footnote on the pages of Irish       Council in Ireland could only        parliamentarians to draft bills    gap in an important aspect of
history if it were not for ‘10       become law if they were              “with the advice of” the Irish     our history. His other more
Henry VII, Chap 4’ passed at         deemed “good and expedient”          Council and to transmit same       recent books show his particular
the end of 1494 by the Irish         by the King in Council.              to the English Council for         18th century interest – Sir
parliament of the day, which act        The law, in its manner of         consideration and, if certified    Edward Newenham, MP
was long-titled: “... an act that    application, went through a          as approved, a session of the      (1734–1814): Defender of the
no parliament be holden in this      number of manifestations             Irish Parliament would be          Protestant Constitution (2004)
land until the acts be certified     during the long period from          consented to by the English        and The Liberty and Ormond
into England”. Poynings had          1494 to 1782 when, for the           Council – the consequence          Boys: Factional Riot in 18th
been sent to Ireland by Henry        short time up to the Act of          being that the Irish Council, as   century Dublin (2005). The St
VII to take over as the King’s       Union in 1800, Grattan’s             an executive body, controlled      Patrick’s ‘stable’ is certainly now
Deputy from Gearóid Mór              Parliament had legislative           the Irish legislative function.    producing winners, Poynings’
Fitzgerald, essentially to reduce    independence. Dr Kelly, having       A further concessionary            Law following immediately on
the country to greater               outlined what transpired with        interpretation of the law          the success of Dr Diarmaid
obedience to London and to           the law during the period of         manifested itself by 1695,         Ferriter’s Judging Dev: A
avoid a repetition of the            legislative dependence from          whereby it became sufficient       Reassessment of the Life and
challenge from Anglo-Irish           1494 to 1660, focused his            for “heads of bills” to be         Legacy of Eamon deValera. G
leaders to the Tudor dynasty         detailed examination on how          transmitted to London for
that had initially occurred in       the law was applied between          approval, leaving the details to   Michael V O’Mahony is past
1487, when Lambert Simnel, a         1660 and 1800, when direct           be filled out by the Irish         president of the Law Society of
pretender to the throne, had         legislative rule from                Parliament itself.                 Ireland.


50         www.lawsociety.ie
                                                                                                                                                BRIEFING
                                                                                                LAW SOCIETY GAZETTE MARCH 2008




                                                                                        council report


Law Society Council meeting, 18 January 2008
Meeting of presidents,             or vexatious, the court could         (Irish Language) Bill 2007. A     prior to circulation of the prac-
secretaries and PROs of bar        direct that the costs or a part of    letter from the president of      tice note to the solicitors’ pro-
associations                       the costs of the proceedings          Conradh na Gaeilge seeking        fession.
The president and director         should be borne by the legal          the Society’s support for two
general briefed the Council on     representative of the applicant.      proposed amendments to the        Certificate in legal Irish
the meeting of presidents, sec-       The Council noted that this        bill was noted. The Council       James O’Sullivan reported that
retaries and PROs of bar asso-     was the first occasion on which       agreed that the Society should    it was intended to provide a
ciations, which had been held      a provision of this nature,           emphasise its policy to support   certificate in legal Irish, to
on 10 December 2007. It was        which related to one group of         and promote the use of the        commence at the Law School
noted that meetings of the         clients (that is, migrants) and       Irish language wherever possi-    in April 2008.
Society with the presidents,       one group of lawyers (that is,        ble, but believed that the
secretaries and PROs of bar        legal     representatives      for    approach being promoted by        Oireachtas Committee
associations were a routine        migrants), had been contained         government was the correct        on the Constitutional
exercise but, on this occasion,    in legislation. The Council           one. It was agreed that there     Amendment on Children
had been held on a different       agreed that the provisions were       might be benefit in a meeting     Moya Quinlan reported that the
date than normal. The media        unnecessary and heavy-hand-           between the Society and           Family Law Committee was
had chosen to represent the        ed, particularly given that           Conradh na Gaeilge to discuss     preparing a submission to the
meeting as a ‘crisis’ meeting.     order 99 of the Rules of the          the positive contribution that    Oireachtas Joint Committee on
However, this was not the case.    Superior Courts entitled judges       the Society could make to the     the Constitutional Amendment
   The Council noted the wide      to levy costs in any type of legal    work undertaken by Conradh.       on Children. The proposed
range of agenda items discussed    proceedings        where     they                                       scope of the amendment to the
at the meeting. The president      regarded the application as           Practice note on solicitors’      Constitution related to (a) a
noted that it had provided a       frivolous or vexatious.               terms and conditions of           recognition of the natural and
valuable opportunity to receive       It was noted that the              engagement                        imprescriptible rights of chil-
feedback from the profession       Immigrant Council of Ireland          The Council approved a prac-      dren; (b) the protection of the
and to correct some of the mis-    had similar concerns and had          tice note on solicitors’ terms    best interests of children in pro-
information promulgated by         expressed the view that the pro-      and conditions of engagement,     ceedings concerning custody,
the media in recent weeks.         visions could be intimidatory,        which had been prepared by        guardianship and access; (c) the
                                   particularly for smaller law          the Guidance and Ethics           protection of the best interests
Immigration, Residence and         firms, and could create another       Committee. The Council            of children in the care and
Protection Bill 2007               barrier to justice for migrants. It   noted that the terms and con-     adoption system; and (d) the
The Council considered the         was agreed that the Society’s         ditions of engagement had         protection of children in the
content of the Immigration,        concerns should be communi-           been forwarded to the National    criminal justice system.
Residence and Protection Bill      cated to the Minister for Justice,    Adult Literacy Agency (NALA)         Aspects of the submission
2007 and, in particular, subsec-   Equality and Law Reform.              to obtain its approval for the    would be discussed with the
tions 99(7) and (8), which pro-                                          content in terms of readability   Criminal Law Committee,
vided that, where a court          Legal Practitioners (Irish            and the use of plain English.     and the draft submission
formed the opinion that a judi-    Language) Bill 2007                   Once approved by the Council,     would be circulated for discus-
cial review brought on behalf      The Council reiterated its sup-       a certificate of plain English    sion by the Council at its
of an immigrant was frivolous      port for the Legal Practitioners      would be obtained from NALA       February meeting. G



                                              The Law Society’s e-zine is the legal            you can sign up by visiting the members’
  Are you getting                             newsletter of the solicitors’ profession. The    section on the Law Society’s website at

  your e-zine?                                e-zine issues once every two months and
                                              brings news and information directly to
                                                                                               www.lawsociety.ie. Click on the ‘New e-
                                                                                               zine for members’ section in the left-hand
                                              your computer screen in a brief and easily-      menu bar and follow the instructions. You
                                              digestible manner. If you’re not receiving       will need your solicitor’s number, which
                                              the e-zine, or have opted out previously         can be obtained by emailing the records
                                              and would like to start receiving it again,      department at: l.dolan@lawsociety.ie.



                                                                                                                         www.lawsociety.ie       51
BRIEFING   LAW SOCIETY GAZETTE MARCH 2008




           practice notes


                  ELECTRONIC FUNDS TRANSFER: REQUIREMENTS FROM SOLICITORS
                 he Office of Accountants of     in the post. In addition, on each          See below a suggested               In the event that any of these
             T   the Court of Justice (‘the
             accountants’) have set out their
                                                 occasion that a payment is
                                                 made, a remittance advice
                                                                                         format that the accountants will
                                                                                         require from each firm of solici-
                                                                                                                             details change in the future,
                                                                                                                             please ensure that the account-
             requirements from solicitors for    advising that the funds have            tors who wish to receive funds      ants are notified as soon as
             the introduction of electronic      been lodged to the bank                 electronically.                     possible.
             funds transfer (EFT) for pay-       account will be issued.
             ments out of court funds to             The accountants can only               I confirm that the following bank details are correct:
             solicitors.                         make EFT payments where the                Full name of solicitor’s firm:
                This will ensure that the        payment is due to the solicitor’s          Name and address of bank:
             funds will be lodged directly to    firm, as their system is based on          Sort code:
                                                                                            Account no:
             the designated account and will     the bank details of suppliers. If a
                                                                                            Signed:
             be available for immediate with-    payment is made to an individual
                                                                                            Date:                          Phone no:
             drawal. This will also eliminate    client ‘care of’ the solicitors, they
             the risk of a cheque getting lost   will continue to issue cheques.                               Probate, Administration and Trusts Committee



             DUBLIN CIRCUIT COURT: INFORMATION TO ACCOMPANY NOTICES OF TRIAL
             Practitioners should note that the Dublin Circuit Court Office has advised that a notice, in the form set out below and printed on the solic-
             itor’s headed notepaper, is to be completed and attached to all notices of trial for the Dublin Circuit Court.

                                                        (TO BE PRINTED ON SOLICITOR’S HEADED NOTEPAPER)
                                                                          NOTICE OF TRIAL
                  Record no                                                                                      Landlord and tenant
                  TITLE                                                                                          Assault
                  1)      No outstanding particulars on either side                                              Building contract
                  2)      All discovery dealt with (both sides)                                                  False imprisonment
                  3)      Proofs advised                                                                         Defamation
                  4)      Up-to-date reports available (where applicable)                  7) DURATION OF CASE
                  5)      Matter not subject to application to transfer to the             8) Dated to be avoided or any further notes
                          High Court (if applicable)                                       Signed
                  6) TYPE OF CASE Personal injury                                          Solicitor plaintiff/defendant
                                     Debt collection                                       Date
                                     Breach of contract                                    Solicitor’s address
                                                                                                                                         Litigation Committee



                         CESSER OF PAYMENT OF REGISTRY OF DEEDS FEE BY MEANS
                                         OF A REVENUE STAMP
                  evenue has been informed       to a memorial may be paid               impact, as the majority of fees     Revenue are ceasing to accept
             R    by the Property Registra-
             tion Authority (PRA) that a new
                                                 directly to the Registr y of
                                                 Deeds or, alternatively, the fee
                                                                                         in respect of memorials are
                                                                                         currently paid directly to the
                                                                                                                             Registry of Deeds fees in rela-
                                                                                                                             tion to memorials from 18
             Registry of Deeds fees order is     may be paid through Revenue             Registry of Deeds.                  March 2008.
             expected to be introduced           by having a stamp impressed                In anticipation of this             From 18 March 2008, all
             shortly. Under the new fees         on the memorial. The payment            change and to ensure that the       memorials should be sent
             order, fees will only be payable    method by means of a                    stamping of memorials pre-          directly to: Registry of Deeds,
             directly to the PRA by cash,        Revenue stamp will cease                sented to Revenue offices is        Kings Inns, Henrietta Street,
             cheque or electronically.           under the new fees order. This          finalised before the operative      Dublin 7, together with the
                Currently, the fee in relation   change will have limited                date of the new fees order,         appropriate fee.



    52     www.lawsociety.ie
                                                                                                                                                   BRIEFING
                                                                                                    LAW SOCIETY GAZETTE MARCH 2008




                           NOTICE
VIDEO-CONFERENCING WITH PRISONERS IN CLOVERHILL: PILOT SCHEME
       ith effect from Wednes-        from the sources referred to            on the second-last working       Society’s website (www.lawsoci-
W      day 20 February 2008,
solicitors may avail of video-con-
                                      below.)
                                         Consultations are reserved
                                                                              day prior to the proposed
                                                                              date of link-up. Emails must
                                                                                                               ety.ie – ‘News’ section of the
                                                                                                               members’ area), the Four
ferencing facilities linked to        in 15-minute slots. The fee             be in plain text only (no let-   Courts’ desk (leaflet available),
Cloverhill Remand Prison by way       payable to solicitors in respect        terheads, sketches, dia-         and the Criminal Law Committee
of facilities located in the Law      of conferencing sessions during         grams, attachments) as oth-      (leaflet available – tel: 01 672
Society’s consultation rooms in       the period of the pilot scheme is       erwise the email will be quar-   4800).
the Four Courts. The video-con-       €75. There will be no charge for        antined.                            The pilot scheme will operate
ferencing facilities will be avail-   the use of the conferencing          2) Receive confirmation of          for approximately three to six
able to practitioners at the fol-     suite for the period of the pilot       appointment by email from        months, with an operational re-
lowing times:                         scheme.                                 the prison authorities.          view in April 2008. Members who
• Monday-Friday: 10am-12 noon,           To arrange a video-conferenc-                                         have comments/suggestions in
    2pm-4pm,                          ing session, practitioners must:     Detailed information on the pro-    relation to the operation of the
• Thursday: 10am-12 noon,             1) Request a video consultation      cedures for arranging video-con-    system should forward same to
    2.30pm-4pm.                          by email to the prison author-    ferencing sessions, and on the      Mr Ciaran Nevin, Prisons Service,
(Information regarding consulta-         ities at legalvisits@irishpris-   video-conferencing scheme gen-      at cmnevin@irishprisons.ie.
tions at other times is available        ons.ie, not later than 3.30pm     erally, is available from the                Criminal Law Committee




 CALCUTTA RUN 2008
                                th
1                                     Saturday 17th May 2pm
                          celebrating 10 years keeping kids off the streets

 As it’s our 10th anniversary we hope to make it the best yet! All you have to do to take part is get fit enough
 to run, jog or walk the scenic 10k and try to raise a minimum of €150 sponsorship so we can reach our target
 €300k to help us reach our 10 year target of €2 million. After the run/walk join in the fun with a monster
 barbeque, musical entertainment, activities for children and lots lots more. See our website for a training
 programme to help you prepare for your run / walk (target 80 minutes).

 Every finisher is a winner and makes a huge difference to the lives of kids in Calcutta and Dublin and
 remember a great day out for you can make a great difference for them.

              Sponsorship cards are available from our website www.calcuttarun.com or email us at
                                           calcuttarun@lawsociety.ie




   So sign up now and bring your family along for this really fun day out donations over €250 are tax deductable.
         For more information, contact your firm’s Calcutta Run representative or visit www.calcuttarun.com



                                                                                                                              www.lawsociety.ie     53
BRIEFING   LAW SOCIETY GAZETTE MARCH 2008




                                     legislation update

                                    Acts passed in 2007
           Details of commencement          Number: 26/2007                    Date enacted: 9/7/2007             1925 to 2006’); part 7 (ss41-
           dates updated to 15/2/2008.      Date enacted: 8/5/2007             Commencement date: 9/7/            43, ‘Amendment of Garda
           Details of all bills, acts and   Commencement date: Com-            2007                               Síochána Act 2005’) (other
           statutory instruments since      mencement order(s) to be                                              than s41); part 9 (ss45-60,
           1997 are on the library cata-    made (per s1(4) of the act):       Consumer Protection                ‘Miscellaneous’) (other than
           logue – www.lawsociety.ie        23/7/2007 for ss1, 2, 3 and 4,     Act 2007                           s57); schedule 2; 1/7/2007
           (members’ and students’          part 3 (ss14-21, ‘Consequen-       Number: 19/2007                    for s3; ss6, 9, 10, 14, 15 and
           areas) – with updated infor-     tial and other amendments to       Date enacted: 21/4/2007            18;     part    4    (ss28-32,
           mation on the current stage      Children Act 2001’) and the        Commencement date: Com-            ‘Inferences to be drawn in
           a bill has reached and the       schedule (per SI 509/2007)         mencement order(s) to be           certain circumstances’); s57
           commencement date(s) of                                             made (per s1(2) of the act):       and schedule 1 (per SI
           each act.                        Citizens Information Act           1/5/2007 for all sections of       236/2007)
                                            2007                               the act, except ss48 and 49
           Appropriation Act 2007           Number: 2/2007                     (which deal with surcharging)      Criminal Law (Sexual
           Number: 41/2007                  Date enacted: 21/2/2007            (per SI 178/2007); 1/5/2007        Offences) (Amendment)
           Date enacted: 21/12/2007         Commencement date: 21/             appointed as the establish-        Act 2007
           Commencement date: 21/           2/2007 for s3 (change of           ment day for the National          Number: 6/2007
           12/2007                          name from Comhairle to             Consumer Agency (per SI            Date enacted: 7/3/2007
                                            Citizens Information Board).       179/2007)                          Commencement date: 7/3/
           Asset Covered Securities         Commencement order(s) to                                              2007
           (Amendment) Act 2007             be made for all other sections     Copyright and Related
           Number: 13/2007                  (per s10(3) of the act):           Rights (Amendment) Act             Criminal Procedure
           Date enacted: 9/4/2007           30/3/2007 for all other sec-       2007                               (Amendment) Act 2007
           Commencement date: Com-          tions, other than s4 (insofar as   Number: 39/2007                    Number: 36/2007
           mencement order(s) to be         it relates to the insertion of     Date enacted: 4/12/2007            Date enacted: 25/10/2007
           made (per s61(3) of the act):    paragraph (bb) in section 7(1)     Commencement date: 4/              Commencement date: 25/
           31/8/2007 for all sections of    of the Comhairle Act 2000)         12/2007                            10/2007
           the act other than section 30    and s5 (per SI 141/2007)
           (per SI 591/2007)                                                   Courts and Court Officers          Defence (Amendment) Act
                                            Communications                     (Amendment) Act 2007               2007
           Broadcasting (Amendment)         Regulation (Amendment)             Number: 4/2007                     Number: 24/2007
           Act 2007                         Act 2007                           Date enacted: 5/3/2007             Date enacted: 21/4/2007
           Number: 15/2007                  Number: 22/2007                    Commencement date: 5/3/            Commencement date: 21/
           Date enacted: 10/4/2007          Date enacted: 21/4/2007            2007                               4/2007 for part 1 (ss1-3,
           Commencement date: 18/           Commencement date: Com-                                               ‘Preliminary’) and for ss6 to
           4/2007 for all sections of the   mencement order(s) to be           Criminal Justice Act 2007          9, 12, 14 to 17, 31 to 34 and
           act (per SI 158/2007)            made (per s1(2) of the act):       Number: 29/2007                    65 (per s1(3) of the act).
                                            15/5/2007 for all sections,        Date enacted: 9/5/2007             Commencement order(s) to
           Building Control Act 2007        other than ss9 and 21;             Commencement date: 9/5/            be made for all other sections
           Number: 21/2007                  1/7/2007 for s9; 15/5/2007         2007 for part 8 (‘Amend-           (per s1(2) of the act). All com-
           Date enacted: 21/4/2007          for s21, except in relation to     ments to the Sea Fisheries Acts    mencement dates are subject
           Commencement date: Com-          s32(2) and (6) of the Electronic   2003 and 2006’). Commence-         to the saving and transitional
           mencement order(s) to be         Commerce Act 2000 (these           ment order(s) to be made for       provisions set out in schedule
           made (per s1(3) of the act)      provisions will be brought         all other sections (per s1(2) of   1 (per s3 of the act); 7/5/2007
                                            into force when the necessary      the act): 18/5/2007 for part 1     for section 71 (inserts a new
           Carbon Fund Act 2007             commencement order is              (other than s3); part 2 (ss5-      s240A, ‘Courts Martial Rules
           Number: 12/2007                  made) (per SI 224/2007)            23, ‘Amendment of enact-           Committee’, into the Defence
           Date enacted: 7/4/2007                                              ments relating to bail’) (other    Act 1954) (per SI 204/2007);
           Commencement date: 7/4/          Community, Rural and               than ss6, 9-15, 18 and 19);        24/9/2007 for s70 (substitutes
           2007                             Gaeltacht Affairs                  part 3 (ss24-27, ‘Sentencing’);    a new subsection 240(1) relat-
                                            (Miscellaneous Provisions)         parts 5 (s33, ‘Misuse of           ing to rules of procedure in
           Child Care (Amendment)           Act 2007                           drugs’) and 6 (ss34-40,            the Defence Act 1954) (per SI
           Act 2007                         Number: 32/2007                    ‘Amendment of Firearms Acts        660/2007)


    54     www.lawsociety.ie
                                                                                                                                             BRIEFING
                                                                                               LAW SOCIETY GAZETTE MARCH 2008



Education (Miscellaneous           tion 19(2) of the act, being        certain amendments to the           Local Government (Roads
Provisions) Act 2007               given to the provisions of sec-     Freedom of Information Act          Functions) Act 2007
Number: 9/2007                     tion 19(1) (as construed with       1997, item 1 of part 4 of           Number: 38/2007
Date enacted: 10/4/2007            reference to the European           schedule 2, itemising certain       Date enacted: 26/11/2007
Commencement date: 10/4/           Communities (Income Tax Relief      amendments to the Health Act        Commencement date: 1/1/
2007                               for Investment in Corporate         2004, and part 5 of schedule        2008 (per SI 793/2007)
                                   Trades – Business Expansion         2, itemising certain amend-
Electoral (Amendment) Act          Scheme and Seed Capital             ments to the Civil Registration     Markets in Financial
2007                               Scheme) Regulations 2007 (SI        Act 2004); (e) the following        Instruments and
Number: 14/2007                    613/2007). 1/10/2007 for            schedules: (i) schedule 1, part     Miscellaneous Provisions
Date enacted: 10/4/2007            s109, subject to certain qualifi-   2; (ii) schedule 2, part 2; (iii)   Act 2007
Commencement date: 10/4/           cations. Section 109 amends         schedule 2, part 3 (except          Number: 37/2007
2007                               part 6 (‘Special provisions         item 3); (iv) schedule 2, part 4    Date enacted: 31/10/2007
                                   relating to uncertificated secu-    (except item 1); (v) schedule       Commencement date: Com-
Electricity Regulation             rities’) of the Stamp Duties        2, part 6; (vi) schedule 2, part    mencement order(s) to be
(Amendment) (Single                Consolidation Act 1999 (per SI      7     (per     SI   226/2007).      made (per s2 of the act):
Electricity Market) Act            649/2007). 3/12/2007 for sec-       15/5/2007 appointed as the          1/1/2008 for s25 and
2007                               tion 104(1), which inserts a        establishment day for the           1/11/2007 for all other sec-
Number: 5/2007                     new s81C (farmers’ relief from      Health Information and              tions, other than ss5, 8 and 19
Date enacted: 5/3/2007             stamp duty in certain circum-       Quality Authority under the         (per SI 730/2007). The act
Commencement date: 18/             stances) into the Stamp Duties      act (per SI 227/2007).              already provides that ss5 and
6/2007 for ss1, 2, 3, 6, 7, 8,     Consolidation Act 1999 (per SI      6/6/2007 for ss8(1)(d) and 9        8 come into operation on
12, 13, 16 and 20 of the act;      783/2007)                           and for certain sections in         1/11/2007. 1/2/2008 for s19
18/6/2007 for ss9 and 10,                                              parts 9 (ss70-78, ‘Inspections      (per SI 782/2007)
except insofar as those sec-       Finance (No 2) Act 2007             and investigations’) and 10
tions relate to the single elec-   Number: 31/2007                     (ss79-80, ‘Offences’) – see SI      Medical Practitioners Act
tricity market committee (per      Date enacted: 9/7/2007              262/2007 for details (per SI        2007
SI 287/2007); 1/11/2007 for        Commencement date: 9/7/             262/2007). 5/11/2007 for (a)        Number: 25/2007
all other sections of the act,     2007                                section 105, insofar as it          Date enacted: 7/5/2007
including ss9 and 10 insofar                                           relates to the amendments           Commencement date: Com-
as these sections are not          Foyle and Carlingford               referred to in part 5 of sched-     mencement order(s) to be
already in operation (per SI       Fisheries Act 2007                  ule 2 to the act, and (b) part 5    made (per s1(3) of the act)
731/2007)                          Number: 17/2007                     of schedule 2 to the act (these
                                   Date enacted: 10/4/2007             provisions amend the Civil          Ministers and Secretaries
European Communities Act           Commencement date: Com-             Registration Act 2004) (per SI      (Ministers of State) Act
2007                               mencement order(s) to be            735/2007)                           2007
Number: 18/2007                    made (per s2 of the act)                                                Number: 33/2007
Date enacted: 21/4/2007                                                Health Insurance                    Date enacted: 9/7/2007
Commencement date: 21/             Health Act 2007                     (Amendment) Act 2007                Commencement date: 9/7/
4/2007                             Number: 23/2007                     Number: 3/2007                      2007
                                   Date enacted: 21/4/2007             Date enacted: 22/2/2007
Finance Act 2007                   Commencement date: Com-             Commencement date: 22/              National Development
Number: 11/2007                    mencement order(s) to be            2/2007                              Finance Agency
Date enacted: 2/4/2007             made (per s3 of the act):                                               (Amendment) Act 2007
Commencement date: 1/1/            15/5/2007 for the following         Health (Miscellaneous               Number: 16/2007
2007 for part 1 (ss1-56,           provisions of the act: (a) part     Provisions) Act 2007                Date enacted: 10/4/2007
‘Income tax, corporation tax       1 (except the definition of         Number: 42/2007                     Commencement date: 10/
and capital gains tax’), except    ‘designated centre’ in s2(1) of     Date enacted: 21/12/2007            4/2007
where otherwise expressly          that part and except s2(2) of       Commencement date: 21/
provided in part 1 (per            that part), part 2 (except          12/2007                             National Oil Reserves
s130(9) of the act); 2/4/2007      ss8(1)(c) and (d), 9 and 11 of                                          Agency Act 2007
for other sections of the act,     that part), parts 3, 4, 5, 6, 11    Health (Nursing Homes)              Number: 7/2007
except where otherwise             and 12; (b) ss40, 43 and 44 of      (Amendment) Act 2007                Date enacted: 13/3/2007
expressly provided for or          part 7; (c) s104(2) and (3) of      Number: 1/2007                      Commencement date: Com-
where there is provision for       part 15; (d) s105 of part 15        Date enacted: 19/2/2007             mencement order(s) to be
the making of a commence-          (except for the purposes of         Commencement date: 19/              made (per s1(2) of the act):
ment order. Section 19(1) is       part 1 of schedule 2, itemising     2/2007 for ss10 and 11; com-        16/4/2007 for part 1 (ss1-3,
commenced by SI 614/2007,          certain amendments to the           mencement order(s) to be            ‘Preliminary and general’)
resulting in retrospective         Child Care Act 1991, item 3 of      made for all other sections         and part 2 (ss4-6, ‘Share
effect, as per the dates in sec-   part 3 of schedule 2, itemising     (per s12(3) of the act)             transfer’) of the act (per SI


                                                                                                                        www.lawsociety.ie     55
BRIEFING   LAW SOCIETY GAZETTE MARCH 2008



           153/2007); 1/8/2007 for all       ‘Preliminary and general), part     Social Welfare and                  Pensions Act 2006) of the
           other sections (per SI            4 (ss17-29, ‘Requirements           Pensions Act 2007                   Pensions Act 1990 to specify
           565/2007)                         relating to construction and        Number: 8/2007                      the sections of the Pensions
                                             extensions of prisons’), part 5     Date enacted: 30/3/2007             Act 1990 a contravention of
           Personal Injuries                 (ss30-32, ‘Inspector of pris-       Commencement date: 30/              which will warrant the appli-
           Assessment Board                  ons’) and part 6 (ss33-43,          3/2007 for all sections of the      cation of a fine (per SI
           (Amendment) Act 2007              ‘Miscellaneous’) (other than        act, other than ss5, 8, 9, 14,      632/2007); 26/9/2007 for s9
           Number: 35/2007                   ss33, 34, 38 and s42(a)) (per SI    18, 20 to 25, 27, 28 and 34 to      (other than paragraphs (b),
           Date enacted: 11/7/2007           180/2007); 1/10/2007 for part       37, for which commence-             (e)(i), (g)(i) and (i) of that
           Commencement date: 11/            3 (ss11-16, ‘Prison discipline’)    ment orders are to be made          section) (per SI 702/2007);
           7/2007                            and s42(a) (repeal of s3(3) of      (per s1(4) of the act):             27/9/2007 for ss21(b) and (c)
                                             the Prisons (Visiting Committees)   3/4/2007 for s35(a)(ii) and         and 24 (per SI 699/2007);
           Pharmacy Act 2007                 Act 1925) (per SI 370/2007);        (iii), 5/4/2007 for s35(c)(ii)      1/11/2007 for s14 (per SI
           Number: 20/2007                   1/10/2007 for s38 (‘Payment         and (iii) and 6/4/2007 for          749/2007)
           Date enacted: 21/4/2007           by prisoners for requested          s35(b)(ii) (per SI 146/2007);
           Commencement date: Com-           services’) (per SI 650/2007)        1/5/2007 for ss5, 8 and 28(b),      Statute Law Revision Act
           mencement order(s) to be                                              3/5/2007 for ss22 and 23,           2007
           made (per s1(2) of the act):      Protection of Employment            and 7/6/2007 for s28(a) (per        Number: 28/2007
           22/5/2007 for the following       (Exceptional Collective             SI 219/2007); 27/4/2007 for         Date enacted: 8/5/2007
           provisions of the act: part 1     Redundancies and Related            s37 insofar as it relates to: (a)   Commencement date: 8/5/
           (other than s4); part 2 (ss5-9,   Matters) Act 2007                   part 1 of schedule 2; (b) part      2007
           ‘The Pharmaceutical Society       Number: 27/2007                     2 of schedule 2 (except inso-
           of Ireland’); part 3 (ss10-12,    Date enacted: 8/5/2007              far as it relates to s3A of the     Water Services Act 2007
           ‘The council of the society’);    Commencement date: 8/5/             Pensions Act 1990), and (c)         Number: 30/2007
           s18 (‘Regulation of retail        2007                                part 3 of schedule 2 of the         Date enacted: 14/5/2007
           pharmacy businesses’); s76                                            Social Welfare and Pensions Act     Commencement date: Com-
           (‘Codes, rules and regula-        Roads Act 2007                      2007 (per SI 181/2007);             mencement order(s) to be
           tions’); schedule 1 (per SI       Number: 34/2007                     22/5/2007 for s18; 6/6/2007         made (per s3 of the act):
           243/2007)                         Date enacted: 11/7/2007             for ss25(1), 35(b)(i), (c)(i) and   31/12/2007 for certain provi-
                                             Commencement date: 11/              (d) and 36; 4/7/2007 for s20        sions of the act, including the
           Prisons Act 2007                  7/2007                              (per SI 256/2007); 5/6/2007         repeal of enactments set out
           Number: 10/2007                                                       for s34 (per SI 268/2007);          in the schedule to SI
           Date enacted: 31/3/2007           Social Welfare Act 2007             17/9/2007 for s37 and part 2        846/2007 (per SI 846/2007).
           Commencement date: Com-           Number: 40/2007                     of schedule 2 insofar as these      See SI for details. G
           mencement order(s) to be          Date enacted: 20/12/2007            provisions amend section 3A
           made (per s1(2) of the act):      Commencement date: Var-             (as inserted by s39 of the                        Prepared by the
           1/5/2007 for part 1 (ss1-3,       ious – see act                      Social Welfare Law Reform and                  Law Society Library




                                               DATES FOR YOUR DIARY
                The Law Society of Ireland
               Annual Conference 2008 will
              take place in Budapest, capital
                                                             Budapest
                of Hungary. The conference                   26–30 March 2008
              package includes return flights
                 from Dublin or Cork, four
               nights’ accommodation at the
              five-star Hilton Hotel, welcome
                 reception and gala dinner.



                    Package price for bookings:
                    €1,145 per person sharing.
             For more information or to register, go to
             www.lawsociety.ie or phone Anna Keating
                   at Ovation, tel: 01 280 2641




    56     www.lawsociety.ie
                                                                                                                                                            BRIEFING
                                                                                                         LAW SOCIETY GAZETTE MARCH 2008




Solicitors Disciplinary Tribunal
This report of the outcome of a Solicitors Disciplinary Tribunal inquiry is published by the Law Society of Ireland
as provided for in section 23 (as amended by section 17 of the Solicitors (Amendment) Act 2002) of the Solicitors
(Amendment) Act 1994
THE HIGH COURT 2007                         to the complainant in a timely        manner or at all,                   imposed in regard to their
No 32SA                                     manner, having received same       e) Failed to reply to the specific     findings in respect of the
In the matter of Gerard                     in April 2005 and only paid           enquiries set out in the            respondent solicitor.
Murphy, solicitor, practising               the complainant in March              Society’s letter of 7 October          On 22 October 2007, the
as Gerard Murphy, Solicitor,                2006, 11 months later,                2005 in a timely manner or at       President of the High Court
at 1 Goldsmith Terrace,                  b) Failed to comply with a               all.                                ordered, pursuant to section 8 of
Bray, Co Wicklow, and in                    section 10 notice dated 6                                                 the Solicitors (Amendment) Act
the matter of the Solicitors                February 2006 in a timely          The tribunal ordered that the          1960 (as substituted by section
Acts 1954-2002 [4354/DT                     manner, having only furnish-       Law Society do bring such              18 of the Solicitors (Amendment)
66/06]                                      ed his file to the Society on      finding of the tribunal in respect     Act 1994 and amended by
Law Society of Ireland                      3 May 2006,                        of the respondent solicitor            section 9 of the Solicitors
(applicant)                              c) Attempted to charge the            before the High Court, together        (Amendment) Act 2002), that the
Gerard Murphy                               complainant         fees     of    with the report of the tribunal to     respondent solicitor shall not be
(respondent solicitor)                      €2,268.75 for time that he         the High Court, which report           permitted to practise as a sole
                                            allegedly spent in dealing         includes the opinion of the            practitioner or in partnership,
On 8 February 2007, the                     with her complaint to the          tribunal as to the fitness or          that he be permitted only to
Solicitors Disciplinary Tribunal            Society,                           otherwise of the respondent            practise as an assistant solicito/r
found the respondent solicitor           d) Failed to reply to the Society’s   solicitor to be a member of the        under the direct control and
guilty of misconduct in his                 letters of 8 September 2005,       solicitors’ profession, having         supervision of another solicitor
practice as a solicitor in that he:         16 September 2005, 20              regard to their findings and           of at least ten years standing, to
a) Failed to pay over a                     October 2005 and 6                 recommendations in respect of          be approved in advance by the
   settlement cheque of €18,000             December 2005 in a timely          the sanction that should be            Law Society of Ireland. G


 Publication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland.




                                                                                                   SPANISH LAWYERS

                                                                                 RAFAEL BERDAGUER
                                                                                                            ABOGADOS
                                                                                          TWENTY YEARS ADVISING CLIENTS
                                                                                       IN REAL ESTATE TRANSACTIONS IN SPAIN
                                                                                              PROFILE:                        FIELD OF PRACTICES:

                                                                                 S    panish Lawyers Firm focused
                                                                                      on serving the need of the
                                                                                 foreign investors, whether in
                                                                                                                       G     eneral Practice, Administra-
                                                                                                                             tive Law, Civil and Commer-
                                                                                                                       cial Law, Company Law, Banking
                                                                                 company or property transac-          and Foreign Investments in
                                                                                 tions and all attendant legalities    Spain, Arbitration, Taxation,
                                                                                 such as questions of inheritance,     Family Law, International Law,
                                                                                 taxation, accounting and book-        Litigation in all Courts.
                                                                                 keeping, planning, land use and
                                                                                 litigation in all Courts.

                                                                                                      Avda. Ricardo Soriano, 29,
                                                                                  Edificio Azahara Oficinas, 4 Planta, 29601 Marbella, Malaga, Spain

                                                                                      Tel: 00-34-952823085 Fax: 00-34-952824246
                                                                                    e-mail: rberdaguer@berdaguerabogados.com
                                                                                      Web site: www.berdaguerabogados.com
     Regulated by the Solicitors Regulation Authority of England and Wales




                                                                                                                                     www.lawsociety.ie       57
BRIEFING   LAW SOCIETY GAZETTE MARCH 2008




           firstlaw update
                                         News from Ireland’s online legal awareness service
                                         Compiled by Bart Daly for FirstLaw


                                                 foot of an order under section              McGovern J refused the            the plaintiff’s husband in a car
             CONSTITUTIONAL LAW
                                                 14 of the act, which was an              application, holding that the        accident where his car collided
           Mental health law                     admission order. The applicant           applicants’ mother signed a doc-     with a truck and the contents of
           Admission order – renewal order –     was detained in accordance with          ument confirming that she            the load on the truck propelled
           whether the correct procedures were   law and in his own interest. The         wished to include her children in    forward, causing extensive
           adopted in the circumstances – no     appeal was dismissed.                    her      asylum       application.   injuries. The plaintiff sought to
           detention without independent         MD (applicant/appellant) v               Furthermore, the concerns of         amend the statement of claim
           review – Mental Health Act            Clinical Director of St                  the applicants’ parents in rela-     after receiving details of particu-
           2001.                                 Brendan’s       Hospital     and         tion to their children were raised   lars from the defendant. A
           The applicant had a history of        Miriam Gannon (respondents),             before the Refugee Applications      motion was heard on that basis.
           contact with the psychiatric          Supreme Court, 27/7/2007                 Commissioner and the Refugee         The defendants opposed the
           services due to his affliction with   [FL14329]                                Appeals Tribunal. Consequently,      motion on the grounds of delay,
           schizophrenia. In March 2007,                                                  there was no reason why the          that the new claim would be
           he was admitted as a voluntary                                                 applicants ought to have been        statute barred, and that an
           patient and later left. His family      REFUGEE AND                            treated separately from their        inspection of the van was carried
           had concerns for him in April           ASYLUM LAW                             parents. Further-more, the first-    out. The amendment sought
           and a recommendation was              Deportation                              named respondent was not             raised a new issue in the action,
           made to involuntarily admit           Judicial review – whether the            obliged, when making the             which was not raised by the
           him. The argument was one as          respondents ought to have given          deportation order, to consider       plaintiff but by the defendant in
           to procedures adopted and the         separate consideration to the minor      the applicants separately.           its plea of negligence and con-
           general scheme of the act, where      applicants’ claims for refugee status.   Z(Z), Z(G) and Z(S) (A minor         tributory negligence. Time was
           no person shall be detained           The applicants applied for an            suing by his next friend and         extended to deliver a reply that
           without independent review.           order of certiorari by way of judi-      father, ZZ) (applicants) v           would deal, in terms of the over-
           Having been detained on an            cial review, quashing the recom-         Minister for Justice, Equality       loading of the vehicle, with a
           admission order, a renewal order      mendations of the second-                and Law Reform (respondent),         plea of negligence and contribu-
           was made without his knowledge        named respondent that the                High Court (McGovern J),             tory negligence against the
           a few days before the Mental          applicants be refused asylum.            26/6/2007 [FL14350]                  plaintiff.
           Health Tribunal was due to sit to     They also sought an order of                                                  Allen (plaintiff/respondent) v
           review his original detention in      prohibition and an injunction                                                 Irish Holemaster Ltd (defen-
                                                                                            TORT
           the hospital. Issues were raised      restraining their deportation.                                                dant/appellant),
           by the applicant as to the exact      The applicants arrived in this           Practice and procedure               Supreme Court, 27/7/2007
           date that the renewal order           state with their parents and,            Amendment of a statement of claim    [FL14322] G
           became effective, and the lawful-     essentially, their claim related to      – Civil Liability Act 1961, part 4
           ness of his detention as a result.    a failure of the respondent to           – Rules of the Superior Courts.      This information is taken from
              The court held that the            consider their applications for          The plaintiff’s claim arose pur-     FirstLaw’s legal current awareness
           detention the tribunal was            asylum separately from their             suant to the Civil Liability Act     service, published every day on the
           reviewing was the detention on        parents’ application.                    1961, arising out of the death of    internet at www.firstlaw.ie.




    58     www.lawsociety.ie
                                                                                                                                                 BRIEFING
                                                                                                  LAW SOCIETY GAZETTE MARCH 2008




                                                                                                        eurlegal
                                               News from the EU and International Affairs Committee
                                    Edited by TP Kennedy, Director of Education, Law Society of Ireland




Public procurement –
new Remedies Directive
     new directive that amends      ance with the principles of           sonal and material scope of         clusion of a contract (which the
A    the existing public pro-
curement Remedies Directives
                                    transparency, non-discrimina-
                                    tion and equal treatment and
                                                                          Directives 2004/18/EC and
                                                                          2004/17/EC.
                                                                                                              directive notes is a serious
                                                                                                              obstacle to effective judicial
(Council Directives 89/665/         that guarantee that tenders are          Tenderers are already afford-    protection for the tenderers
EEC of 21 December 1989 and         assessed in conditions of effec-      ed a degree of protection under     concerned, namely those ten-
92/13/EEC of 25 February            tive competition.                     the current Remedies Directives     derers who have not yet been
1992) has recently been formal-         The directive seeks to add        and as a result of Alcatel (Case    definitively excluded), the
ly adopted by the Council of        essential clarifications to the       C-81/98, Alcatel Austria and        directive provides for a mini-
Ministers and the European          existing Remedies Directives to       Others [1999] ECR I–7671),          mum standstill period of at
Parliament.                         allow the results intended by the     which held that the laws relat-     least ten calendar days from the
   The objectives of Directive      community legislature to be           ing to the review procedures of     day following the date on which
2007/66/EC of 11 December           attained. In particular, the direc-   the award of public supply and      the contract award decision is
2007 are to provide clear and       tive seeks to strengthen national     public works contracts must be      sent to the tenderers and candi-
effective procedures for seeking    review procedures in cases of         interpreted as meaning that         dates concerned, during which
redress in cases where bidders      illegal direct awards. Public pro-    member states are required to       the conclusion of the contract
consider contracts to have been     curement is a cornerstone of the      ensure that the contracting         in question is suspended.
unfairly awarded, so as to ensure   internal market and accounts for      authority’s decision, prior to         The standstill period should
that contracts ultimately go to     some 16% of EU GDP.                   the conclusion of the contract      give the tenderers concerned
the best tender and, as a conse-    Member states have 24 months          as to the bidder with which it      sufficient time to examine the
quence, make businesses and         within which to implement the         will conclude the contract, is in   contract award decision and to
citizens more confident that        directive.                            all cases open to review in a       assess whether it is appropriate
public procurement procedures                                             procedure whereby an appli-         to initiate a review procedure.
are being conducted in a fair and   Review procedures                     cant may have that decision set     Tenderers shall be deemed to
competitive manner throughout       The Remedies Directives and the       aside if the relevant conditions    be concerned if they have not
the EU.                             new Remedies Directive cover          are met (notwithstanding the        yet been definitively excluded.
   The new directive followed       remedies for public contracts         possibility, once the contract      An exclusion is definitive if it
extensive consultations with all    that fall within the scope of the     had been concluded, of obtain-      has been notified to the tender-
major stakeholders in the public    substantive EU directives on          ing damages).                       ers concerned and has either
procurement process, including      public procurement, Directive            There has, however, been         been considered lawful by an
lawyers, which revealed that        2004/18/EC (works, supplies           some uncertainty as to how          independent review body or
legal remedies that can be intro-   and services contracts in the         these provisions apply in prac-     can no longer be subject to a
duced at a stage before a public    classical sector) and Directive       tice and considerable criticism     review procedure. Candidates
contract is actually concluded      2004/17/EC (works, supplies           of the fact that these provisions   shall also be deemed to be con-
are not sufficiently effective in   and services contracts in the         do not address some of the most     cerned if the contracting
all member states and should        sectors of water, energy, trans-      serious breaches of procurement     authority has not made avail-
therefore be strengthened. EU       port and postal services). The        law, such as the illegal direct     able information about the
law on public procurement aims      new directive notes that,             award of public contracts with-     rejection of their application
to increase competition and         according to ECJ case law,            out competition and the misuse      before the notification of the
transparency in order to create     member states should ensure           of framework agreements.            contract award decision to the
opportunities for all EU busi-      that effective and rapid reme-                                            tenderers concerned.
nesses and better value and         dies are available against deci-      Minimum standstill period              The communication of the
higher-quality services for the     sions taken by contracting            In order to address the absence     award decision to each tenderer
taxpayer: contracts should be       authorities and contracting           of a period allowing an effective   and candidate concerned shall
awarded on the basis of objec-      entities as to whether a particu-     review between the decision to      be accompanied by a summary
tive criteria that ensure compli-   lar contract falls within the per-    award a contract and the con-       of the relevant reasons as set


                                                                                                                           www.lawsociety.ie      59
BRIEFING   LAW SOCIETY GAZETTE MARCH 2008



           out in article 41(2) of Directive   contract award decision and to       sons relating to a general inter-    review procedures include pro-
           2004/18/EC, subject to the          assess whether it is appropriate     est, the directive points out that   vision for powers to take inter-
           provisions of article 41(3) of      to initiate a review procedure.      economic interests in the effec-     im measures with the aim of
           that directive, and a precise       When the award decision is           tiveness of the contract may only    correcting the alleged infringe-
           statement of the exact standstill   notified to them, the tenderers      be considered as overriding rea-     ment or preventing further
           period applicable, pursuant to      should be given the relevant         sons if, in exceptional circum-      damage to the interests con-
           the transposing provisions of       information that is essential for    stances, ineffectiveness would       cerned, either to set aside or
           national law.                       them to seek effective review.       lead to disproportionate conse-      ensure the setting aside of deci-
                                               The same applies equally to          quences. However, economic           sions taken unlawfully, or the
           Derogations from the stand-         candidates, to the extent that       interests directly linked to the     awarding damages to persons
           still period                        the contracting authority or         contract concerned shall not         harmed by an infringement.
           Article 2(b) provides that mem-     entity has not made available in     constitute overriding reasons           A review procedure should
           ber states may provide, by way      due time information about the       relating to a general interest.      be available at least to any per-
           of derogation, that the stand-      rejection of their application.      Such interests include the costs     son having or having had an
           still periods shall not apply                                            resulting from the delay in the      interest in obtaining a particu-
           where (a) Directive 2004/18/        Illegal direct awards                execution of the contract, the       lar contract and who had been
           EC does not require prior pub-      The directive regards ineffec-       costs resulting from the launch-     or risks being harmed by an
           lication of a contract notice in    tiveness as the most effective       ing of a new procurement proce-      alleged infringement.
           the Official Journal (OJEU) (a      way to restore competition and       dure, the costs resulting from          Member states may also pro-
           notice of the contracting           to create new business opportu-      the change of the economic           vide that the body responsible
           authority’s intention to con-       nities for those economic opera-     operator performing the con-         for the review procedures may
           clude the contract is, however,     tors who have been deprived          tract and the costs of the legal     take into account the probable
           required to be published in the     illegally of their opportunity to    obligations resulting from the       consequences of interim meas-
           OJEU in accordance with arti-       compete. A contract resulting        ineffectiveness.                     ures for all interests likely to be
           cle 3a and a standstill period of   from an illegal direct award            In order to prevent serious       harmed, as well as the public
           ten days to be applied before       should therefore, in principle, be   infringements of the standstill      interest, and may decide not to
           concluding the contract. A sim-     considered ineffective. The inef-    obligation and automatic sus-        grant such measures where their
           ilar procedure applies where        fectiveness, however, should not     pension, which, the directive        negative consequences could
           member states have invoked          be automatic but should be           notes, are prerequisites for         exceed their benefits. A decision
           the derogation from the stand-      ascertained by or should be the      effective review, effective sanc-    not to grant interim measures
           still period for contracts based    result of a decision of an inde-     tions should apply. Contracts        shall not, however, prejudice
           on a framework agreement and        pendent review body.                 that are concluded in breach of      any other claim of the person
           a dynamic purchasing system –           Where a contract is so deter-    the standstill period or auto-       seeking such measures. In rela-
           the requirements are set out in     mined to be ineffective, the con-    matic suspension should there-       tion to the allocation of powers
           article 2d(5)); (b) the only ten-   tract will have to be tendered       fore be considered ineffective       to deal with the review, member
           derer concerned is the one who      again, this time in accordance       in principle if they are com-        states may confer powers on
           has been awarded the contract       with the appropriate rules.          bined with infringements of          separate bodies responsible for
           and there are no candidates         National courts may only decide      Directive 2004/18/EC or              different aspects of the review
           concerned; and (c) in the case      that these contracts remain in       Directive 2004/17/EC, to the         procedure.
           of a contract based on a frame-     force if the review body finds,      extent that those infringements
           work agreement as provided          after having examined all rele-      have affected the chances of the     Intention to seek review
           for in article 32 of Directive      vant aspects, that overriding        tenderer applying for review to      Where a member state requires
           2004/18/EC and in the case of       reasons relating to a general        obtain the contract.                 a person intending to use a
           a specific contract based on a      interest require that the effects       The principle of ineffective-     review procedure to inform the
           dynamic purchasing system as        of the contract be maintained.       ness may be inappropriate in         contracting authority or con-
           provided for in article 33 of           In such cases, alternative       the case of other infringements      tracting entity of that intention,
           that directive.                     remedies that are effective,         of formal requirements. In           the directive provides that, in
               In order to combat illegal      proportionate and dissuasive         such cases, member states            such cases, it is necessary to
           awards in respect of which a        must be applied, which may           should have the flexibility to       make it clear that this should not
           standstill derogation had been      entail the shortening of the         provide for alternative penal-       affect the standstill period or any
           invoked, member states are to       duration of the contract or the      ties. It is for the member states    other period to apply for review.
           ensure that such contracts are      imposition of fines on the con-      to determine the details of          Further, when a member state
           ineffective, in accordance with     tracting authority – an award        alternative penalties and the        requires that the person con-
           articles 2(d) and 2(f) of the       of damages where the scope of        rules of their application.          cerned has first sought a review
           directive, where applicable.        cancellation of contractual                                               with the contracting authority
                                               obligations that still have to be    Requirements for review              or contracting entity, it is neces-
           Relevant information                performed has been limited           procedures                           sary that this person should have
           The standstill period should        would not, however, constitute       Member states are to ensure          a reasonable minimum period
           give the tenderers concerned        an appropriate remedy.               that the measures taken for the      within which to refer to the
           sufficient time to examine the          In relation to overriding rea-   purpose of providing effective       competent review body before


    60     www.lawsociety.ie
                                                                                                                                                      BRIEFING
                                                                                                      LAW SOCIETY GAZETTE MARCH 2008



the conclusion of the contract,       review body from making a             ing of interim measures, the set-    dures are not judicial in char-
in the event that that person         prior assessment of whether the       ting aside of decisions taken        acter, written reasons for their
should wish to challenge the          review, as such, is admissible. In    unlawfully or the awarding of        decisions must always be
reply or lack of reply from the       this regard, the directive states     damages are to be determined         given. Further, in such a case,
contracting authority or con-         that member states may provide        by national law. Similarly, the      provision must be made to
tracting entity.                      that this period shall end either     consequences of a contract           guarantee procedures whereby
    However, seeking review           when the review body has taken        being considered ineffective are     any allegedly illegal measure
shortly before the end of the         a decision on the application for     to be determined by national         taken by the review body or
minimum standstill period             interim measures, including on a      law – national law may, in partic-   any alleged defect in the exer-
should not have the effect of         further suspension of the con-        ular, provide for retroactive can-   cise of the powers conferred
depriving the body responsible        clusion of the contract, or when      cellation of all contractual obli-   on it can be the subject of judi-
for review procedures of the          the review body has taken a           gations or limit the scope of the    cial review or review by anoth-
minimum time needed to act, in        decision on the merits of the         cancellation to those obligations    er body that is a court or tri-
particular, to extend the stand-      case, in particular on the appli-     that still have to be performed.     bunal within the meaning of
still period for the conclusion of    cation for the setting aside of an                                         article 234 of the treaty and
the contract. In the event, it is     unlawful decision.                    Enforceability of decisions          independent of both the con-
necessary to provide for an inde-        Except where the directive         Member states are to ensure          tracting authority and the
pendent minimum standstill            provides for member states to         that decisions taken by bodies       review body. G
period that should not end            ensure that a contract is consid-     responsible for review proce-
before the review body has taken      ered ineffective by a review body     dures can be effectively             James Kinch is a senior executive
a decision on the application.        in specified instances, the exer-     enforced. Where bodies               solicitor in the law department of
This should not prevent the           cise of powers such as the grant-     responsible for review proce-        Dublin City Council.



        RECENT DEVELOPMENTS IN EUROPEAN LAW
                                       his contribution base.               ly exclude the possibility that it   member state concerned.
    EMPLOYMENT
                                           Mr de la Villa argued that the   may be justified.                        The court found it was not
  Case C-411/95, Félix Palacios        notification to him amounted to          The ECJ considered that          unreasonable for a member
  de la Villa v Cortefiel Servicios    a dismissal and took proceed-        other elements, taken from the       state to take the view that com-
  SA, 16 October 2007. Directive       ings in the Spanish courts. The      general context of the measure       pulsory retirement, as a worker
  2000/78 established a general        Spanish courts referred a num-       concerned, may enable its un-        reaches the age-limit provided
  framework for equal treatment        ber of questions to the ECJ on       derlying aim to be identified for    for, may be appropriate and nec-
  in employment. It aims to com-       the interpretation of Directive      the purposes of judicial review      essary to achieve the legitimate
  bat certain kinds of discrimina-     2000/78. The ECJ held that the       as regards its justification. The    aim of promoting full employ-
  tion, including discrimination on    Spanish legislation fell within      court inferred from the context      ment by facilitating access to
  grounds of age.                      the scope of the directive.          in which it was adopted that the     the labour market.
     Spanish law treats compul-            The legislation provides that,   measure was aimed at regulat-            In addition, the measure did
  sory retirement clauses in col-      when a worker reaches the age        ing the national labour market,      not unduly prejudice the legiti-
  lective agreements as lawful –       fixed for compulsory retirement,     in particular for the purposes of    mate claims of workers subject
  where they provide as sole           this leads automatically to the      checking unemployment.               to compulsory retirement. The
  requirements that workers must       termination of his employment            The promotion of a high level    national legislation is not only
  have reached retirement age          relationship. It thus establishes    of employment is one of the          based on a specific age, but
  (65 years) and fulfilled other       rules relating to “employment        ends pursued both by the EU          also takes account of the fact
  social security conditions for       and working conditions, includ-      and the EC. Such an aim, in          that the persons concerned are
  entitlement to a contributory        ing dismissals and pay” within       principle, could be regarded as      entitled to financial compensa-
  retirement pension.                  the meaning of the directive.        “objectively and reasonably”         tion by way of a reasonable
     Mr de la Villa worked for             The court then considered        justifying a difference in treat-    retirement pension at the end
  Cortefiel from 1981 as organi-       whether there were possible          ment on grounds of age.              of their working life.
  sational manager. In 2005, he        justifications for the difference        Member states enjoy broad
  was notified of the termination      in treatment. The legislation        discretion in their choice, not
                                                                                                                   LITIGATION
  of his contract of employment,       was part of a national policy        only to pursue a particular aim
  as he had reached the compul-        aiming to promote better acc-        in the field of social and employ-   Case C-98/06, Freeport plc v
  sory retirement age. At this         ess to employment by means of        ment policy, but also in the def-    Olle Arnoldsson, 11 October
  date, he had completed the           better distribution of work          inition of measures capable of       2007. Mr Arnoldsson is an
  periods of employment neces-         between the generations. The         achieving it. The national meas-     employee of a company that
  sary to draw a retirement pen-       fact that the legislation does       ures may not go beyond what is       has, since 1996, carried out
  sion under the social security       not formally refer to an aim of      “appropriate and necessary” to       ‘factory shop’ retail-centre
  scheme amounting to 100% of          that kind does not automatical-      achieve the aim pursued by the       development projects through-




                                                                                                                               www.lawsociety.ie       61
BRIEFING   LAW SOCIETY GAZETTE MARCH 2008




            out Europe. Freeport acquired a     relationship with that company).     6(2) expressly provides for a         EC acts are valid, they do not
            number of those projects from       Thus, article 6(1) should not be     case in which an action is            themselves have jurisdiction to
            the company. One of these was       applied, as the two actions          brought solely in order to            declare such acts invalid. That
            a project is Kungsbacka,            were not connected.                  remove the party sued from the        jurisdiction is vested in the EC
            Sweden.                                The case was referred to the      jurisdiction of the court that        courts, and such acts become
                At a meeting between Mr         ECJ. It was asked whether an         would be competent in his             definitive unless properly chal-
            Arnoldsson and the managing         action based on a disputed obli-     case. There is no such express        lenged by their respective
            director of Freeport, it was        gation on the part of a company      provision in article 6(1). The        addressees. A recipient of aid
            agreed that he would receive a      to make a payment as a conse-        test for the application of article   that has been the subject of a
            Stg£500,000 success fee             quence of an undertaking given       6(1) is that there is a sufficient    negative decision by the com-
            when this shop opened. Some         by an undertaking that is nei-       connection between the claims         mission cannot call into ques-
            weeks later, Freeport con-          ther a representative nor an         to make it expedient to hear          tion the lawfulness of that deci-
            firmed the agreement in writ-       agent of the company can be          and determine them together,          sion before the national courts
            ing, but added three conditions     considered as contractual in         to avoid the risk of irreconcil-      by challenging the national
            to payment of the fee. He           nature.                              able judgments resulting from         measures taken to implement
            accepted those conditions.             The court held that the ques-     separate proceedings.                 that commission decision.
            One of these provided that the      tion rested on the premise that                                                An interpretation of the rele-
            payment he would receive            article 6(1) does not apply                                                vant Italian legislation that laid
                                                                                       STATE LIABILITY
            would be made by the company        where actions brought against a                                            down the principle of res judica-
            that was to become the owner        number of defendants before          Case C-119/05, Ministero dell’        ta – which precludes the open-
            of the Kungsbacka site.             the courts for the place where       Industria, del Commercio e            ing of a second set of proceed-
            Freeport sent Mr Arnoldsson         any one of them is domiciled         dell’Artigianato v Lucchini SpA,      ings or the examination of mat-
            written confirmation of the         have different legal bases. It       18 July 2007. In 1990, the            ters that could have been raised
            revised agreement.                  pointed out that it was not          commission declared all state         in earlier proceedings but were
                The shop in Sweden is           apparent from the wording of         aid applied for under an Italian      not – could result in effects
            owned by a Swedish company,         article 6(1) that the conditions     law as incompatible with the          being attributed to a decision of
            Freeport Leisure (Sweden) AB.       laid down for application of that    common market.                        a national court that exceeded
            It is owned by a wholly owned       provision include a requirement          Lucchini, a company that had      the jurisdiction of the national
            subsidiary of Freeport plc.         that the actions brought against     applied for the aid in 1985,          court in question. Such an inter-
            Arnoldsson asked both Freeport      different defendants should          obtained final judgment in the        pretation could frustrate the
            and Freeport AB to pay his fee.     have identical legal bases.          national courts that it was enti-     application of community law
            Freeport AB refused as it was          It is for the national court to   tled to the aid for which it had      insofar as it would make it
            not a party to the agreement        assess whether there is a suffi-     applied. In obtaining judgment,       impossible to recover state aid
            and did not exist when the          cient connection between the         it had not referred to the appli-     that had been granted in breach
            agreement was concluded.            different claims so that they        cable EC law nor to the com-          of EC law.
                In February 2003, he            should be heard together to          mission’s decision.                       As a result of the primacy of
            brought an action in the            avoid the risk of irreconcilable         In 1999, the Administrative       EC law, national courts must
            Swedish courts against both         judgments result from separate       Court of Lazio declared that, as      give full effect to its provisions
            companies, claiming the pay-        proceedings. It distinguished its    the national court’s decision         and – if necessary – refuse, of
            ment of his fee with interest. He   earlier decision in Réunion          had become final, the Ministry        their own motion, to apply any
            brought this action against         Européenne as having been            of Industry – which had revoked       provision of national law that is
            Freeport, relying on article 6(1)   decided in a different legal and     the decree granting the aid and       contrary to those provisions of
            of     Regulation     44/2001.      factual context.                     had called on Lucchini to repay       EC law. Therefore, the relevant
            Freeport argued that it was not        The Swedish court also            it on foot of the commission’s        Italian law seeking to lay down
            established in Sweden and that      asked whether the application        decision – could not revoke the       the principle of res judicata
            the claims were not so closely      of article 6(1) presupposes that     payment of the aid.                   must not be applied insofar as
            connected as to confer jurisdic-    the action was not brought               The court was asked               its application prevents the
            tion on the Swedish courts.         against a number of defendants       whether EC law precludes appli-       recovery of state aid granted in
            Freeport argued that the claim      with the sole object of ousting      cation of the principle of res        breach of EC law that has been
            against it was contractual in       the jurisdiction of the courts of    judicata in such circumstances.       found to be incompatible with
            nature, whereas that against        the member states where one          The ECJ pointed out that,             the common market in a com-
            Freeport AB was tortious (as        of the defendants is domiciled.      although national courts have         mission decision that has
            Arnoldsson had no contractual          The ECJ indicated that article    occasion to consider whether          become final. G


                                                FOR BOOKINGS CONTACT MARY BISSETT OR PADDY CAULFIELD
                                                TEL: 668 1806
                                                                                                                   LAW SOCIETY ROOMS
                            Meet at the Four Courts                                                                at the Four Courts


    62     www.lawsociety.ie
                                                                                                                                                                               PROFESSIONAL NOTICES
                                                                                                                       LAW SOCIETY GAZETTE MARCH 2008



  LOST LAND


                                                Gazette
                                                          LAW    SOCIETY
  CERTIFICATES

Registration of Deeds and Title Acts
1964 and 2006
An application has been received from
the registered owners mentioned in
                                                 PROFESSIONAL NOTICE RATES
the schedule hereto for an order dis-
pensing with the land certificate issued
                                                      RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS:
in respect of the lands specified in the
                                                             •   Lost land certificates – €138.50 (incl VAT at 21%)
schedule, which original land certifi-
cate is stated to have been lost or inad-                    •   Wills – €138.50 (incl VAT at 21%)
vertently destroyed. The land certifi-                       •   Title deeds – €138.50 per deed (incl VAT at 21%)
cate will be dispensed with unless noti-                     •   Employment/miscellaneous – €138.50 (incl VAT at 21%)
fication is received in the registry with-
in 28 days from the date of publication                          These rates will apply from Jan/Feb 2008 to Dec 2008
of this notice that the original certifi-
cate is in existence and in the custody                HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT –                                      €33 EXTRA
of some person other than the regis-
tered owner. Any such notification               ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. CHEQUES SHOULD BE
should state the grounds on which the            MADE PAYABLE TO LAW SOCIETY OF IRELAND. Deadline for April Gazette:
certificate is being held.
                                                 19 March 2008. For further information, contact Catherine Kearney or Valerie Farrell on
Property Registration Authority,
Chancery Street, Dublin 7                        tel: 01 672 4828 (fax: 01 672 4877)
(Published 7 March 2008)

Regd owner: John Gaskin; folio: 184F;          11668F/41664; lands: plot of ground      Killester, district of Killester and city     land of Coolmine and electoral divi-
  lands: Ballydarton and barony of             situate in the townland of               of Dublin; Co Dublin                          sion of Blanchardstown-Coolmine
  Idrone East; Co Carlow                       Riverstown and barony of               Regd owner: Francis Keogh and                   and barony of Castleknock; Co
Regd owner: Patrick Keogh                      Barrymore in the county of Cork;         Constance Keogh, 25 Mount                     Dublin
  (deceased); folio: 1726F; lands:             Co Cork                                  Drummond Square, Harold’s Cross,            Regd owner: Martin Joseph Gibsey;
  Aclare and Myshall and barony of           Regd owner: Daniel Joseph Guerin;          folio: DN155702F; Co Dublin                   folio: 28716F; lands: townland of
  Forth; Co Carlow                             folio: 54696F; lands: plot of ground   Regd owner: Roisin Sullivan and Philip          Keernaun and barony of Clare; Co
Regd owner: John William James;                situate in the townland of Rathduane     Sullivan, 54 Seagrange Road; folio:           Galway
  folio: 7972F; lands: Tankardstown            and barony of Muskerry West, in the      DN46728L; Co Dublin                         Regd owner: Hans H Hoppe; folio:
  and barony of Rathvilly; Co                  county of Cork; Co Cork                Regd owner: John Carlin (one undivid-           3712F; lands: townland of Dooros
  Carlow                                     Regd owner: Francis Diver and              ed 1/100 share); folio: DN112530F;            (Ross By) and barony of Ross; Co
Regd owner: Anthony Shields, 81                Margaret Diver, West End, Ardara,        lands: property known as no 55                Galway
  Edgewood Lawn, Blanchardstown,               Co Donegal; folio: 5548 and 5737;        Prospect Avenue, Rathfarnham, situ-         Regd owner: Thomas O’Halloran;
  Dublin 15; folio: 5369F; lands:              lands: Drumbaran; Co Donegal             ate in the townland of Newtown and            folio: 8359F and 56131F; lands:
  Portaliff; Co Cavan                        Regd owner: Donal Campbell and             barony of Uppercross; Co Dublin               townland of Carrowmoreknock and
Regd owner: John Joseph Murphy and             Darina Campbell, Speenogue, Bart,      Regd owner: Killian Banks (99 undivid-          Freeheen Island and barony of
  Johannah        Murphy,       Uragh,         Co Donegal; folio: 55967F; lands:        ed 1/100 share); folio: DN112530F;            Moycullen; Co Galway
  Swanlinbar, Co Cavan; folio: 2400;           Speenoge; Co Donegal                     lands: property known as no 55              Regd owner: Tom Quinton; folio:
  lands: Uragh, Commas; Co Cavan             Regd owner: Pierce Bermingham and          Prospect Avenue, Rathfarnham, situ-           75125F; lands: townland of
Regd owner: Annie McKiernan,                   Nancy Boyle; folio: DN46232L;            ate in the townland of Newtown and            Knockaunnagat and barony of
  Leitra, Corlough, Bawnboy, Co                lands: property situate in the town-     barony of Uppercross; Co Dublin               Dunmore; Co Galway
  Cavan; folio: 1050; lands: Leitra; Co        land of Ballycragh and barony of       Regd owner: Joseph O’Keeffe and Anna          Regd owner: Patrick Whyte (as tenant-
  Cavan                                        Uppercross; Co Dublin                    O’Keeffe; folio: DN37185L; lands:             in-common of one undivided half
Regd owner: Patrick O’Donoghue and           Regd owner: Bernadette Brennan (49         property situate in the townland of           share); folio: 53000; lands: townland
  Frances O’Donoghue; folio:                   undivided 1/50 share(s)); folio;         Templeogue and barony of                      of        Knockroe,          Killimor,
  14227F; lands: townland of                   DN23718F; lands: property situate        Uppercross; Co Dublin                         Cloonsheecahill, Cappanasruhaun
  Ballyconnoe South and barony of              in the townland of Kilbogget and       Regd owner: Gearoid Clarke and Edel             and barony of Kilconnell; Co
  Burren; area: 0.164 hectares; Co             barony of Rathdown in the county of      Clarke; folio: DN61007L; lands:               Galway
  Clare                                        Dublin; Co Dublin                        property situate in the townland of         Regd owner: William Brophy and
Regd owner: Martin Reddington and            Regd owner: Mohamed Taha (one              Castleknock and barony of                     Eileen Brophy; folio: 16309F; lands:
  Colette Reddington; folio: 16608F;           undivided 1/50 share); folio:            Castleknock; Co Dublin                        townland of Clievragh and barony of
  lands: townland of Crag and barony           DN23718F; lands: property situate      Regd owner: Hugh Ignatius Byrne;                Iraghticonnor; Co Kerry
  of Tulla Lower; area: 10.927                 in the townland of Kilbogget and         folio: DN3526F; lands: property sit-        Regd owner: Patrick Dineen and
  hectares; Co Clare                           barony of Rathdown in the county of      uate in the townland of Ballystruan           Hannah M Dineen; folio: 28736F;
Regd owner: Seamus Barry (deceased);           Dublin; Co Dublin                        and barony of Coolock; Co Dublin              lands: townland of Camp and barony
  folio: 35035; lands: plot of ground        Regd owner: Industrial Development       Regd owner: Teresa McKenna; folio:              of Corkaguiny; Co Kerry
  situate in the townland of                   Agency (Ireland) (statutory corpora-     DN1153; lands: property situate in          Regd owner: Terry Egan; folio: 7531F;
  Dromderrig and barony of Kinsale             tion); folio: DN134874F; lands:          the townland of Coolquoy Common               lands: Carrahane Lower and barony
  in the county of Cork; Co Cork               property situate in the townland of      and barony of Nethercross; Co                 of Clanmaurice; Co Kerry
Regd owner: John Joseph Cronin                 Fortunestown and barony of               Dublin                                      Regd owner: Timothy Murphy and
  (deceased); folio: 699; lands: plot of       Newcastle; Co Dublin                   Regd owner: John O’Rourke and                   Sheelagh Murphy; folio: 7189F;
  ground situate in the townland of          Regd owner: Deirdre Mille-Kavanagh;        Antoinette        O’Rourke;        folio:     lands: townland of Barrow and
  Ballyard and barony of Barrymore             folio: DN56583F; lands: property         DN130190F; lands: a plot of ground            barony of Trughanacmy; Co Kerry
  in the county of Cork; Co Cork               situate on the east side of the          known as 9 Whitechapel Road,                Regd owner: John O’Connor; folio:
Regd owner: Denis Dooley; folio:               Malahide Road in the parish of           Blanchardstown, situate in the town-          19856F; lands: townland of


                                                                                                                                                     www.lawsociety.ie              63
PROFESSIONAL NOTICES   LAW SOCIETY GAZETTE MARCH 2008



                         Croogorts and barony of                   Miriam O’Grady; folio: 33980F;          Regd owner: Eamon Carney and                Regd owner: John McCarthy; folio:
                         Trughanacmy; Co Kerry                     lands: townland of Rathcahill West        Pauline Carney; folio: 13585F;              9115; lands: Coolnastudd and
                       Regd owner: Patricia O’Shea; folio:         and barony of Glenquin; Co                lands: townland of Buninna and              barony of Gorey; Co Wexford
                         10646F; lands: townland of Ross and       Limerick                                  barony of Tireragh; area: 0.46            Regd owner: Bridget Murray; folio:
                         barony of Trughanacmy; Co Kerry         Regd owner: John Walsh; folio: 11266;       hectares; Co Sligo                          23022; lands: Quanstown and
                       Regd owner: John P O’Sullivan; folio:       lands: townland of Kilglass and         Regd owner: John P Healy and Eileen           barony of Forth; Co Wexford
                         22870F; lands: townland of                barony of Coshlea; Co Limerick            Healy; folio: 17561; lands: townland      Regd owner: Peter Breen; folio:
                         Derrylahan and barony of                Regd owner: Kathleen Keegan and             of Lissaneeny, Srannagh and                 17949; lands: Ballymacoonoge, The
                         Glanarought; Co Kerry                     Annie Keegan, Tenelick, Colehill,         Clooskirt and barony of Tirerrill;          Ballagh and barony of Ballaghkeen
                       Regd owner: Donnacha Finucane;              Co Longford; folio: 10582; lands:         Co Sligo                                    South; Co Wexford
                         folio: 37636F; lands: townland of         Tennalick; Co Longford                  Regd owner: Gerard Carroll; folio:          Regd owner: Elizabeth Mary Curran;
                         Kilcolgan Upper and barony              Regd owner: Michael Casey, Clonmee,         141L; lands: townland of                    folio: 6785, 6786, 8355, 2583F;
                         Iraghticonnor; Co Kerry                   Newtowncashel, Co Longford;               Gortmaloge and barony of Iffa and           lands: Ballynamona and barony of
                       Regd owner: Albert Schumacher-              folio: 4127F; lands: Cloonmee, Co         Offa East; Co Tipperary                     Ballaghkeen North; Co Wexford
                         Cantillon; folio: 19469; lands: town-     Longford                                Regd owner: John Commins; folio:            Regd owner: Louise Mary Ennis;
                         land of Knockenagh South and            Regd owner: John Michael Taaffe,            2197; lands: townland of Blackcastle        folio: 21271; lands: Tullycanna and
                         barony of Iraghticonnor; Co Kerry         Dromin, Drogheda, Co Louth;               and barony of Eliogarty; Co                 barony of Bargy; Co Wexford
                       Regd owner: Thomas Reilly (deceased),       folio: 3050; lands: Rathescar; Co         Tipperary                                 Regd owner: Kathleen Hoxey,
                         Baltracey, Maynooth, Co Kildare;          Louth                                   Regd owner: Mortimer Barron and               Dernamuck,         Knockanarrigan,
                         folio: 8882F; lands: townland of        Regd owner: Michael J Higgins and           Breda Barron; folio: 12728; lands:          Donard, Co Wicklow; folio: 6348;
                         Baltracey (Ikeathy and Oughterany         John P Creighton; folio: 7372; lands:     plot of ground situate in the town-         lands: townland of Clonshannon
                         By) in the barony of Ikeathy and          townland of Gortgarve and barony          lands of (1), (4) Toberagoole, (2), (5)     and barony of Talbotstown Upper;
                         Oughterany in the electoral division      of Gallen; area: 3.497 hectares; Co       Pilltown, (3) Garrananaspick, in the        Co Wicklow
                         of Balraheen; Co Kildare                  Mayo                                      barony of Decies-within-Drum in           Regd owner: Paul Janzen of
                       Regd owner: Catherine Delahunty           Regd owner: John Jeffers; folio: 2617F;     the county of Waterford; Co                 Ballinvalley,     Redcross,     Co
                         (deceased); folio: 5263; lands:           lands: townland of Carrowbeg and          Waterford                                   Wicklow; folio: 8811F and 9073;
                         Filbuckstown, known as Dourane            barony of Burrishoole; Co Mayo          Regd owner: Michael Coyne                     lands: townland of Ballinvally
                         Road, Mooncoin, Waterford and           Regd owner: Michael McQueeney and           (deceased); folio: 7543; lands: plot        Upper (ED Ennereilly) in the
                         barony of Iverk; Co Kilkenny              Mary McQueeney; folio: 44695;             of ground situate in the townland of        barony of Arklow in the electoral
                       Regd owner: John Cunningham; folio:         lands: townland of Hazelhill and          Moyng and barony of Decies-with-            division of Ennereilly, the cottage
                         3247; lands: Baunfree and barony of       barony of Costello; area: 0.0177          in-Drum in the county of                    thereon situate in the townland of
                         Kells; Co Kilkenny                        hectares; Co Mayo                         Waterford; Co Waterford                     Ballinvally Upper (ED Ennereilly),
                       Regd owner: Michael McGrath; folio:       Regd owner: Mary Needham; folio:          Regd owner: John Murphy; folio:               known as Ballinvalley Upper,
                         15083; lands: Aughatubbrid or             33839F; lands: townland of Murrisk        1705F; lands: plot of ground situate        Woodenbridge, Arklow, in the
                         Chatsworth and barony of                  demesne and Bellatalleen and              in the townland of Headborough              barony of Arklow in the electoral
                         Fassadinin; Co Kilkenny                   barony of Murrisk; Co Mayo                and barony of Coshmore and                  division of Ennereilly; Co
                       Regd owner: Mary Fahy, Mary               Regd owner: Richard Niland and Brid         Coshbride in the county of                  Wicklow
                         Murphy, Mary O’Flynn, Ellen               Niland; folio: 28136F; lands: town-       Waterford; Co Waterford
                         Hogan, Una Mary O’Neill; folio:           land of Kiltaugharaun, Knockalinsk      Regd owner: John Skehan; folio: 2396;
                         1605; lands: Reviewfields and             and Creggarve and barony of               lands: plot of ground situate in the
                                                                                                                                                         WILLS
                         barony of Shillelogher; Co                Kilmaine; Co Mayo                         townland of Shanakill in the barony
                         Kilkenny                                Regd owner: Noel A Farrell and Anne         of Upper Third in the electoral
                       Regd owner: Margaret O’Doherty;             Farrell, Kilbride, Mulhuddart, Co         division of Rathgormack in the            Doyle, Stephen (deceased), late of
                         folio: 5297F; lands: Park View,           Dublin; folio: 23546F; lands:             county of Waterford; Co                   Woodpark, Sixmilebridge, Co Clare,
                         Kilmakevoge, Glenmore and barony          Ballymacarney; Co Meath                   Waterford                                 and 9 Scamore House, Shannon,
                         of Ida; Co Kilkenny                     Regd owner: John Michael Taaffe,          Regd owner: Desmond Dalton,                 Drumgeeley Hill, Shannon, Co Clare,
                       Regd owner: Anne Carroll; folio: 7810;      Dromin, Dunleer, Co Louth; folio:         Parkanham           Hall        Road,     who died on 6 June 2007. Would any
                         lands: Ballykenneen Upper and             10753; lands: Deenes; Co Meath            Castlepollard, Co Westmeath;              person having knowledge of a will made
                         barony of Tinnahinch; Co Laois          Regd owner: Robert Harper; folio:           folio: 11618; lands: Kinturk              by the above-named deceased, or if any
                       Regd owner: Patrick Earley, Drum-           18207; lands: Annamult and barony         Demesne, Co Westmeath                     firm is holding same, please contact
                         humman, Carrick-on-Shannon, Co            of Shilleogher; Co Meath                Regd owner: Hans Eric Ehlers, 35            John Casey & Company, Solicitors,
                         Leitrim; folio: 10544; lands:           Regd owner: Denis Kelly; folio: 4344F;      Auburn Heights, Athlone, Co               Bindon Street, Ennis, Co Clare; tel: 065
                         Drumhumman; Co Leitrim                    lands:      Cloghan        Demesne,       Westmeath; folio: 5198; lands:            682 8159, fax: 065 682 0519
                       Regd owner: John Francis Keating,           Gortarevan, Clonahenogue and              Collegeland; Co Westmeath
                         Ballakiltyfea, Cloone, Carrick-on-        barony of Garrycastle; Co Offaly        Regd owner: James Lowry, Rath,              Elwood, Patricia (deceased), late of
                         Shannon, Co Leitrim; folio: 13519;      Regd owner: James Anderson; folio:          Glasson, Athlone, Co Westmeath;           Merlin Park Regional Hospital, Galway,
                         lands: Bellakiltyfea; Co Leitrim          624F; lands: Knockdrin and barony         folio: 3724; lands: Rath; Co              and formerly of 195 Bohermore,
                       Regd owner: Giesela Adam and Heinz          of Warrenstown; Co Offaly                 Westmeath                                 Galway, who died on 17 January 2008.
                         Joachim Adam, c/o Brittons,             Regd owner: James Joseph Doherty          Regd owner: Alfred Palmer, 23               Would any person having knowledge of
                         Solicitors, Ballyshannon, Co              and Mary Kate Doherty; folio:             Merville Road, Stillorgan, Co             a will made by the above-named
                         Donegal; folio: 12751, 2457F and          33221; lands: townland of Drummad         Dublin, and Vincent J Holloway, 12        deceased please contact Emerson &
                         13249; lands: Drumany (O’Brien);          and barony of Frenchpark; area: 1         St Brigid’s Road, Clondalkin, Co          Conway, Solicitors, 1 St Francis Street;
                         Co Leitrim                                acre; Co Roscommon                        Dublin; folio: 19045; lands:              tel: 091 562 531, fax: 091 566 808
                       Regd owner: Cealtra Developments          Regd owner: Michael Earley and              Creaghduff; Co Westmeath
                         Limited; folio: 27842F; lands: town-      Pamela Earley; folio: 12876F; lands:    Regd owner: John Ross, Newport,             Finn, Francis (deceased), late of Main
                         land of Bohereen and barony of            townland of Ballypheasan and              Lenamore, Co Longford; folio:             Street, Kiltimagh, Co Mayo, who died 6
                         Clanwilliam; Co Limerick                  barony of Balintober South; area:         12466; lands: Corrydonnellan; Co          December 2007. Would any person
                       Regd owner: Patrick McCarthy                0.0530 hectares; Co Roscommon             Westmeath                                 having knowledge of a will made by the
                         (deceased); folio: 9495F; lands:        Regd owner: Paul Kelly; folio: 30942;     Regd owner: John Ross, Corrydon-            above-named deceased please contact
                         townland of Barnakyle and barony          lands: townland of Carrow Beg and         nellan, Rathowen, Co Westmeath;           Gilmartin & Murphy, Solicitors, Main
                         of Pubblebrien; Co Limerick               barony of Boyle; area: 4.2391             folio: 19158; lands: Corrydonnel-         Street, Kiltimagh, Co Mayo; tel: 094
                       Regd owner: Denis O’Grady and               hectares; Co Roscommon                    lan; Co Westmeath                         938 1204, fax: 094 938 1226


           64          www.lawsociety.ie
                                                                                                                                                                                     PROFESSIONAL NOTICES
                                                                                                                         LAW SOCIETY GAZETTE MARCH 2008



Fletcher, Anne (deceased), late of 30        McFaul, Teresa (widow) (deceased),         Celbridge: newly refurbished period           Donnybrook, Dublin 4.
Montpellier Hill, Dublin 7, who died         late of Ardmore, Muff, Co Donegal.         property set out in six modern office            Take notice that Paula Daly intends
on 20 January 2008. Would any person         Would any person having knowledge of       suites. Located on main street in excel-      to submit an application to the county
having knowledge of a will made by the       a will made by the above-named             lent trading location. All units have         registrar for the county of the city of
above-named deceased please contact          deceased, who died on 4 August 2006,       own front-door access and share a pri-        Dublin for acquisition of the freehold
Smyth & Son, Solicitors, 30 Magdalene        please contact Messrs Patrick J            vate, secure parking area for 14 cars.        interest of the aforesaid property, and
Street, Drogheda, Co Louth; tel: 041         O’Doherty & Co, Solicitors, Bridge         Contact: Coonan’s; tel: 01 628 8400 or        any party asserting that they hold a
983 8616, fax: 041 983 5194                  Street, Carndonagh, Co Donegal; tel:       visit our website, www.coonan.com             superior interest in the aforesaid prem-
                                             074 937 4129                                                                             ises (or any of them) are called upon to
Heath, Kathleen (deceased), late of St                                                  Seven-day ordinary publican’s                 furnish evidence of the title to the
Joseph’s Hospital, Ennis, Co Clare, and      Murphy, Phyllis (otherwise Annie           licence for sale. Contact MD White            aforementioned premises to the below
late of 3 Central Building Abbey Street,     Philomena) (deceased), late of Reask       & Co, Solicitors, Carndonagh, Co              named within 21 days from the date of
Ennis, Co Clare, and Knockliscrine,          House, Carlanstown, Kells, Co Meath.       Donegal; ref: PW/T.1855; tel: 074 937         this notice.
Barefield, Ennis, Co Clare, who died on      Would any person having knowledge of       4102, fax: 074 937 4313, email:                  In default of any such notice being
17 August 2007. Would any person hav-        a will being made by the above-named       mdwhite@eircom.net                            received, Paula Daly intends to proceed
ing knowledge of a will made by the          deceased, who died on 20 April 2002 at                                                   with the application before the county
above-named deceased, or if any firm is      Woodlands House, Nursing Home,             Thinking of retiring? Dublin north.           registrar at the end of 21 days from the
holding same, please contact John            Navan, please contact Oliver Shanley &     Shannons of Swords have acquired              date of this notice and will apply to the
Casey & Company, Solicitors, Bindon          Company, Solicitors, 62/63 Academy         adjoining premises. They now wish to          county registrar for the county of the
Street, Ennis, Co Clare; tel: 065 682        Street, Navan, Co Meath, tel: 046 909      acquire a solicitor’s practice or takeover    city of Dublin for directions as may be
8159, fax: 065 682 0519                      3200 or fax: 046 902 9937                  a retiring solicitor’s caseload/clientele.    appropriate on the basis that the per-
                                                                                        Reply in confidence to Vincent                sons beneficially entitled to the superi-
Kenny, Denis (deceased), late of 57          Spillane, James (otherwise Jimmy)          Shannon at 01 840 1780 or                     or interest including the freehold rever-
Lohunda Park, Clonsilla, Dublin 15,          (deceased) (farmer), late of               vincent@shannons.ie                           sion in each of the aforesaid premises
who died on 26 January 2008. Would           Derrygrinagh Middle (otherwise                                                           are unknown or unascertained.
any person having knowledge of a will        Derrygranaugh), Bantry, Co Cork,                                                         Date: 7 March 2008
made by the above-named deceased             farmer, who died on 10 January 2008.          Wanted: Irish Law Times                    Signed: Richard Black Solicitors (solicitors
please contact Richard Black, Solicitors,    Would any person having knowledge of          Reports. Do you have an archive            for the applicant), Beechfield House,
Beechfield House, Clonee, Dublin 15;         a will being made by the above-named          of Irish Law Times Reports dating          Clonee, Co Meath
tel: 01 825 3400                             deceased please contact Elizabeth             back to 1867 that you would con-
                                             Murphy, solicitor, Wolfe & Co,                sider selling? If so, please email         In the matter of the Landlord and
Kiernan, Denis (deceased), late of 19        Solicitors, Market Street, Skibbereen,        maura.smyth@gmail.com                      Tenants Acts 1967-1994 and in the
Deravaragh Road, Crumlin, Dublin             Co Cork; tel: 028 21177, fax: 028 21676,                                                 matter of the Landlord and Tenant
6W, who died on 7 December 2007.             email: elizabeth.murphy@wolfe.ie                                                         (Ground Rents) (No 2) Act 1978: an
Would any person having knowledge of                                                         ARE YOU: under pressure?                 application by Pairc An Chrocaigh
a will made by the above-mentioned           Timothy, Patrick (deceased), late of             too busy? overworked?                   Teoranta
deceased please contact Michael Hayes        Corgarva, Creggs, Co Galway, who               DO YOU: need help to clear                Take notice that any person having an
& Co, Solicitors, 1 Sundrive Road,           died on 19 December 1984. Would any            a backlog and/or to provide               interest in the freehold estate in the fol-
Dublin 12; tel: 01 492 2332, fax: 01 492     person having knowledge of a will made                                                   lowing property: all that and those the
                                                                                            broader services to existing
2540, email: mail@mhayeslaw.com              by the above-named deceased please                                                       premises situate off Drumcondra Park
                                                                                             clients without increasing
                                             contact Ann O’Leary & Co, Solicitors,                                                    and formerly known as 24A
                                                                                                     overheads?
Leavy,       Christopher      Joseph         Millennium House, Main Street,                                                           Drumcondra Park in the parish of Saint
(deceased), late of 4 Del Val Avenue,        Tallaght, Dublin 24; tel: 01 427 1000,        Experienced, reputable solicitor           George and city of Dublin, showed
Co Dublin, and ‘Arno’, 79 Terenure           fax: 01 427 1001, email: info@                with own practising certificate and        coloured blue on the map annexed to
Road East, Dublin 6. Would any person        johnolearysolicitors.com                      insurance available to undertake           said deed.
having knowledge of a will made by the                                                     litigation, commercial, employ-               Take notice that Pairc an Chrocaigh
above-named deceased please contact                                                        ment and family law work for               Teoranta intends to submit an applica-
Lacy & Associates, Solicitors, Main                                                        solicitors’ firms.                         tion to the county registrar for the
                                               MISCELLANEOUS                                   Short term, temporary, project
Street, Blanchardstown, Dublin 15; tel:                                                                                               county of the city of Dublin for the
01 821 3540, fax: 01 822 1033                                                              or consultancy basis. Confiden-            acquisition of the fee simple interest in
                                             London solicitors will be pleased to          tiality guaranteed.                        the aforesaid property, and any party
Lynch, Flannan (otherwise Flan)              advise on UK matters and undertake                Caroline O’Reilly BCL, Dip             asserting that they hold a superior
(deceased), late of 65 Creagoun,             agency work. We handle probate, liti-         E Comm. Email: info@oreilly                interest in the aforesaid property is
Tobertaiscaun, Ennis, Co Clare,              gation, property and company/com-             legal.ie, mobile: +353 87 051              called upon to furnish evidence of title
national-school teacher, who died on 26      mercial. Parfitt Cresswell, 567/569           6526, tel/fax: +353 1 849 4226             to the aforementioned property to the
June 2007. Would any person having           Fulham Road, London SW6 1EU; DX                                                          below named within 21 days from the
knowledge of a will made by the above-       83800 Fulham Broadway; tel: 0044                                                         date of this notice.
named deceased please contact Seamus         2073 818311, fax: 0044 2073 814044,                                                         In default of any such notice being
Monaghan & Co, Solicitors, Teeling           email: arobbins@parfitts. co.uk                                                          received, the applicant, Pairc an
                                                                                          TITLE DEEDS
Street, Sligo; tel: 071 913 8572, fax: 071                                                                                            Chrocaigh Teoranta, intends to proceed
913 8573, email: seamusmonaghan@             English qualified solicitors – is your                                                   with the application before the county
gmail.com                                    client buying or selling property in the   In the matter of the Landlord and             registrar at the end of 21 days from the
                                             UK or Northern Ireland? We hold cur-       Tenants Acts 1967-1994 and in the             date of this notice and will apply to the
McEvoy, James (deceased), late of            rent practicing certificates and insur-    matter of the Landlord and Tenant             county registrar for the county of the
The Cottage, Loughill, Co Limerick,          ance in the three jurisdictions of         (Ground Rents) (No 2) Act 1978 and            city of Dublin for directions as may be
who died on 19 February 2007. Would          Ireland, N Ireland and the UK. With        in the matter of no 28 Airfield               appropriate on the basis that the per-
any person having knowledge of the           large volumes of Irish clients buying      Court, Donnybrook, Dublin 4, and              sons beneficially entitled to the superior
whereabouts of a will made on 20 April       property in the UK, we can act as agent    in the matter of an application of            interest including the freehold reversion
2005 by the above-named deceased             or take matters on referral. Contact       Paula Daly (‘the applicant’)                  in each of the aforesaid property are
please contact Michael B O’Donnell,          Catherine Allison & Co, 6 Roden            Take notice that any person having any        unknown or unascertained.
solicitor, Rathkeale, Co Limerick; tel:      Place, Dundalk, Co Louth at 042 932        interest in the freehold estate of the fol-   Date: 7 March 2008
069 64600, fax: 069 64749                    0854 or info@callison.ie                   lowing property: 28 Airfield Court,           Signed: Reddy Charleton & McKnight


                                                                                                                                                         www.lawsociety.ie                65
PROFESSIONAL NOTICES   LAW SOCIETY GAZETTE MARCH 2008



                                                                                                                     or persons beneficially entitled to the         (Ground Rents) (No 2) Act 1978: an
                                                                                                                     superior interests including the fee sim-       application by Fiona Fitzgerald
                                                                                                                     ple in each of the aforesaid premises are       Take notice that any person having an
                                                                                                                     unknown or unascertained.                       interest in the freehold estate or any
                                                                                                                     Date: 7 March 2008                              intermediate interest therein of the fol-
                                                                                                                     Signed: Millett and Matthews (solicitors for    lowing property: all that and those the
                                                                                                                     the applicant), Main Street, Baltinglass, Co    plot of ground being more particularly
                                                                                                                     Wicklow                                         described in the first schedule (part 2) of
                                                                                                                                                                     an indenture of assignment dated 4
                                                                                                                     In the matter of the Landlord and               April 2003 made between Leitway
                                                                                                                     Tenant (Ground Rents) Act 1967 and              Homes Limited and Fiona Fitzgerald
                                                                                                                     the Landlord and Tenant (Ground                 and herein described as “all that and
                                                                                                                     Rents) (No 2) Act 1978: acquisition of          those that plot or piece of ground as is
                                                                                                                     fee simple (section 4 of the said act of        more particularly delineated with a red
                                                                                                                     1967)                                           verge line on the map attached hereto”,
                                                                                                                     To any person having any interest in the        being part of the premises held under an
                                                                                                                     following property: all that messuage           indenture of lease dated 19 November
                                                                                                                     dwelling house and premises situate at          1974 made between Hardwicke
                                                                                                                     Main Street, Baltinglass in the county of       Limited of the one part and Ellen
                                                                                                                     Wicklow, delineated on the map                  Adelaide Ronan of the other part for all
                                                                                                                     annexed to the indenture of lease dated         the unexpired residue of the term of 700
                       (solicitors for the applicant), 12 Fitzwilliam   reversion in the aforesaid premises are      20 September 1932 between Henry                 years from 8 November 1893 and made
                       Place, Dublin 2                                  unknown and unascertained.                   James Tollemache, the Honourable                between Bridget Emily Redmond of the
                                                                        Date: 7 March 2008                           Stanhope Alfred Tollemache, Cecil               one part and Hugh Joseph Smith of the
                       In the matter of the Landlord and                Signed: Patrick White & Co (solicitors for   Lyonel Newcomen Tollemache and                  other part, subject to the yearly rent of
                       Tenants Acts 1967-2005 and in the                the applicant), 25 Fitzwilliam Square,       Eustace Bowles of the one part and              £10 per annum, payable by equal half-
                       matter of the Landlord and Tenant                Dublin 2                                     Kathleen Kitson of the other part for           yearly payments.
                       (Ground Rents) (No 2) Act 1978 and                                                            the term of 99 years from 29 September              Take notice that Fiona Fitzgerald
                       in the matter of an application by               In the matter of the Landlord and            1930, subject to the yearly rent of £15         intends to submit an application to the
                       Eilis Reilly                                     Tenant (Ground Rents) Act 1967 and           per annum and thereon coloured red,             county registrar for the city of Dublin
                       Any person having a freehold estate or           the Landlord and Tenant (Ground              together with the right of way on the           for the acquisition of the freehold inter-
                       any intermediate interest in all that and        Rents) (No 2) Act 1978: acquisition of       premises coloured green on the said             est in the aforesaid property, and any
                       those that part and parcel of the town           fee simple (section 4 of the said act of     map, at present in the occupation of            party or parties asserting that they hold
                       and lands of Delgany known as East               1967)                                        John and Ann Farrar, on foot and with           a superior interest in the aforesaid
                       Hill, Delgany Road, Greystones, Co               To any person having any interest in the     horses, carts, carriages and other vehi-        premises are called upon to furnish evi-
                       Wicklow, containing two acres, three             following property: all that messuage        cles along the lane, lettered ‘C’, ‘D’, ‘E’,    dence of title to the aforementioned
                       roods and 17 perches late Irish                  and plot of ground together with the         and ‘F’ on the said map.                        premises to the below named within 21
                       Plantation Measure, equivalent to four           ash pit thereon situate near to the Main         Take notice that Ann Farrar intends         days from the date of this notice.
                       acres, two roods and 24 perches British          Street in the town of Baltinglass in the     to submit an application to the county              In default of any such notice being
                       Imperial Standard Measure, measured              barony of Talbotstown Upper and              registrar for the county of Wicklow for         received, Fiona Fitzgerald intends to
                       and bounded on the north and west by             county of Wicklow, as more particular-       the acquisition of the fee simple in the        proceed with the application before the
                       part of the lands of Kindlestown and on          ly delineated on the map annexed to the      aforesaid property, and any party assert-       county registrar at the end of 21 days
                       the south and east by the road leading           indenture of lease dated 22 March 1949       ing that they hold a superior interest in       from the date of this notice and will
                       from Delgany to Greystones, the sub-             between Eustace Bowles, John Count           the aforesaid premises (or any of them)         apply to the county registrar for the city
                       ject of an indenture of lease dated 24           de Salis, and Richard Bertram Verdin of      to the leasehold interest created by the        of Dublin for directions as may be
                       May 1837 between Mary Baker                      the one part and Henry Harmon of the         said indenture of lease dated 20                appropriate on the basis that the person
                       Keoghoe and Eliza Keoghoe of the one             other part for the term of 81 years from     September 1932 are called upon to fur-          beneficially entitled to the superior
                       part and Robert Lumsden of the other             29 September 1948, subject to the year-      nish evidence of title to the aforemen-         interest including the freehold reversion
                       part for a term of 999 years at a rent of        ly rent of £1 per annum and thereon          tioned premises to the below named              in the aforesaid remises are unknown or
                       £11.15s.5d.                                      coloured red.                                within 21 days from the date of this            ascertained.
                           Take notice that Eilis Reilly, being            Take notice that Ann Farrar intends       notice.                                         Date: 7 March 2008
                       the person currently entitled to the             to submit an application to the county           In default of any such evidence being       Signed: McEvoy Partners (solicitors for the
                       lessees’ interest under the said lease,          registrar for the county of Wicklow for      adduced, Ann Farrar intends to proceed          applicant), Connaught House, Burlington
                       intends to apply to the county registrar         the acquisition of the fee simple in the     with the application before the county          Road, Dublin 4
                       of the county of Wicklow for the acqui-          aforesaid property, and any party assert-    registrar at the end of 21 days from the
                       sition of the freehold interest and all          ing that they hold a superior interest in    date of this notice and will apply to the       In the matter of the Landlord and
                       intermediate interests in the aforesaid          the aforesaid premises (or any of them)      county registrar for the county of              Tenant Acts 1967-1994 and in the
                       properties, and any party asserting that         to the leasehold interest created by the     Wicklow at 3 Wentworth Place,                   matter of the Landlord and Tenant
                       they hold a superior interest in the             said indenture of lease dated 22 March       Wicklow, for directions as may be               (Ground Rents) (No 2) Act 1978: an
                       aforesaid property is called upon to fur-        1949 are called upon to furnish evidence     appropriate on the basis that the person        application by Leitway Homes
                       nish evidence of their title to same to          of title to the aforementioned premises      or persons beneficially entitled to the         Limited
                       the below named within 21 days from              to the below named within 21 days from       superior interests including the fee sim-       Take notice that any person having an
                       the date of this notice.                         the date of this notice.                     ple in each of the aforesaid premises are       interest in the freehold estate or any
                           In default of any such notice being             In default of any such evidence being     unknown or unascertained.                       intermediate interest therein of the fol-
                       received, Eilis Reilly intends to proceed        adduced, Ann Farrar intends to proceed       Date: 7 March 2008                              lowing property: all that and those the
                       with the application before the                  with the application before the county       Signed: Millett and Matthews (solicitors        plot of ground together with the
                       Wicklow county registrar at the end of           registrar at the end of 21 days from the     for the applicant), Main Street, Baltinglass,   dwellinghouse and premises now
                       21 days from the date of this notice and         date of this notice and will apply to the    Co Wicklow                                      erected thereon and known as no 35
                       will apply for such directions as may be         county registrar for the county of                                                           Belmont Avenue, Donnybrook,
                       appropriate on the basis that the person         Wicklow at 3 Wentworth Place,                In the matter of the Landlord and               Dublin, formerly known as no 1 Stella
                       or persons beneficially entitled to the          Wicklow, for directions as may be            Tenant Acts 1967-1994 and in the                Terrace, Dublin, being part of the
                       superior interests including the freehold        appropriate on the basis that the person     matter of the Landlord and Tenant               premises held under indenture of lease


           66          www.lawsociety.ie
                                                                                                                                                                                            PROFESSIONAL NOTICES
                                                                                                                                  LAW SOCIETY GAZETTE MARCH 2008



dated 19 November 1974 made                      In default of any such notice being
between Hardwicke Limited of the              received, the Provost, Fellows and
one part and Ellen Adelaide Ronan of          Scholars of the College of the Holy and
the other part for all the unexpired          Undivided Trinity of Queen Elizabeth
residue of the term of 700 years from 8       near Dublin intend to proceed with the
November 1893 and made between                application before the county registrar
Bridget Emily Redmond of the one              at the end of 21 days from the date of
part and Hugh Joseph Smith of the             this notice and will apply to the county
other part, subject to the yearly rent of     registrar for the city of Dublin for
£10 per annum, payable by equal half-         directions as may be appropriate on the
yearly payments.                              basis that the person or persons benefi-
   Take notice that Leitway Homes             cially entitled to the superior interest,
Limited intends to submit an applica-         including the freehold reversion in the
tion to the county registrar for the city     property, are unknown or unascer-
of Dublin for the acquisition of the free-    tained.
hold interest in the aforesaid property,      Date: 7 March 2008
and any party or parties asserting that       Signed: Macaulay Graham Judge (solici-
they hold a superior interest in the          tors for the applicants), 26 Lower Hatch
aforesaid premises are called upon to         Street, Dublin 2
furnish evidence of title to the afore-
mentioned premises to the below               In the matter of the Landlord and
named within 21 days from the date of         Tenant Acts 1967-2005 and in the                 (Ground Rents) (No 2) Act 1978: an              In the matter of the Landlord and
this notice.                                  matter of the Landlord and Tenant                application by Dublin Institute of              Tenant (Ground Rents) Acts 1967-
   In default of any such notice being        (Ground Rents) (No 2) Act 1978 and               Technology                                      1984: notice of intention to acquire
received, Leitway Homes Limited               in the matter of an application under            Take notice that any person having              fee simple (section 4)
intends to proceed with the application       section 15 of the Landlord and                   any interest in the freehold interest of        To: Ms Ellen Noonan, East Douglas,
before the county registrar for the city      Tenant (Ground Rents) Act 1967                   the following property: all that and            Cork; and Joseph O’Donovan
of Dublin for directions as may be            All that and those that part of the prem-        those the lands more particularly               (deceased), c/o Mr Patrick Dorgan,
appropriate on the basis that the person      ises known as 7a Sussex Mews, Sussex             described in an indenture of lease              Coakley Maloney, Solicitors, 49 South
or persons beneficially entitled to the       Terrace, Dublin 4, being the rear part of        dated 9 July 1924, between Reginald             Mall, Cork; and Irish Life and
superior interest including the freehold      premises 151 Upper Leeson Street in              Dashwood Tandy of the one part and              Permanent plc, c/o Ms Darina White,
reversion in the aforesaid premises are       the county of the city of Dublin. The            Andrew J Cullen of the other part, as           A&L Goodbody, Solicitors, IFSC,
unknown or ascertained.                       applicants: Conor Davitt and Frank               all that messuage or tenement known             North Wall Quay, Dublin 1; and all
Date: 7 March 2008                            O’Hagan, as trustees of the E O’Hagan            as 35 New Bride Street, as more par-            persons concerned.
Signed: McEvoy Partners (solicitors for the   Discretionary Will Trust.                        ticularly shown on the plan endorsed            1. Description of land to which this
applicant), Connaught House, Burlington           Take notice that the applicants have         on these presents together with all             notice refers: that part of the Shell
Road, Dublin 4                                submitted an application to the county           rights, easements and appurtenances             Service Station, Douglas, Cork City,
                                              registrar of the county of Dublin for the        to the said premises belonging or               being “all that and those piece or plot of
In the matter of the Landlord and             acquisition of the freehold interest in          usually held or enjoyed therewith, sit-         ground being part of the lands of
Tenant (Ground Rents) Acts 1967-              the aforesaid premises, held pursuant to         uated in the Parish of St Peter and             Douglas in the parish of Carrigaline in
1994: notice of intention to acquire          a lease dated 14 December 1840 and               city of Dublin and now occupied by              the barony and county of Cork, con-
the fee simple                                made between Henry Read of the first             Dublin Institute of Technology under            taining in all one-and-one-half roods
To: any person or persons for the time        part and Robert Chambers of the sec-             the lease for a term of 99 years from           statute measure approximately, which
being entitled to or having an interest in    ond part.                                        1 January 1924, subject to the yearly           lands are more particularly delineated
the freehold or a leasehold estate in the         Take notice that any party asserting         rent of £15.                                    on the map” endorsed on the sublease
property now known as 30 South                that they hold a superior interest in the            Take notice that the applicant,             dated 17 August 1953 and made
Cumberland Street, in the city of             aforesaid premises are called upon to            Dublin Institute of Technology, intends         between (1) Ellen Noonan and (2)
Dublin, being the property demised by         furnish evidence of title to the afore-          to submit an application to the county          Denis Noel O’Mahony, Patrick Vincent
a lease dated 27 April 1948 and made          mentioned premises to the under-                 registrar for the county of the city of         O’Mahony, Michael Kevin O’Mahony
between Evaline A Chitty, Phoebe              named solicitors within 21 days from             Dublin for the acquisition of the free-         and Daniel Joseph O’Mahony and
Stephenson and Cecelia Davis of the           the date of this notice.                         hold interest in the aforesaid property,        thereon coloured yellow, a copy of
one part and Susan Dunne of the other             In default of any such notice being          and any party or parties asserting that         which map is attached hereto.
part for the term of 35 years from 1          received, the applicants intend to pro-          they hold a superior interest in the            2. Particulars of applicant’s lease or
November 1945, subject to the yearly          ceed with the application before the             aforesaid property are called upon to           tenancy: sublease dated 17 August
rent of £30.                                  county registrar at the end of the said          furnish evidence of title to the afore-         1953 made between (1) Ellen Noonan
   Take notice that the Provost, Fellows      period of 21 days from the date of this          mentioned premises to the below                 and (2) Denis Noel O’Mahony,
and Scholars of the College of the Holy       notice and will apply to the county reg-         named within 21 days from the date of           Patrick Vincent O’Mahony, Michael
and Undivided Trinity of Queen                istrar for the county of Dublin for              this notice.                                    Kevin O’Mahony and Daniel Joseph
Elizabeth near Dublin, being the per-         directions as may be appropriate on the              In default of such notice being             O’Mahony for a term of 97 years from
sons entitled under sections 8-10 of the      basis that the persons beneficially enti-        received, the applicant intends to pro-         25 March 1953 at a rent of £50
Landlord and Tenant (Ground Rents) (No        tled to the superior interest including          ceed with the application before the            (€63.49 modern-day rent) per
2) Act 1978, to purchase the fee simple       the freehold reversion in the aforesaid          county registrar for the county/city of         annum, payable in equal half-yearly
intend to submit an application to the        premises are unknown or unascer-                 Dublin for directions as may be appro-          instalments on 25 March and 29
county registrar for the city of Dublin       tained.                                          priate on the basis of the person or per-       September each year of the term.
for the acquisition of the freehold inter-    Date: 7 March 2008                               sons beneficially entitled to the superior          Take notice that Topaz Energy
est in the aforesaid property, and any        Signed: Lyons Kenny Solicitors (solicitors for   interest including the freehold rever-          Limited (formerly known as Irish Shell
party asserting that they hold a superior     the applicant), 57 Fitzwilliam Square,           sion in the above premises are unknown          Limited), Registered Office: Topaz
interest in the aforesaid property (or        Dublin 2                                         or unascertained.                               House, Beech Hill, Clonskeagh, Dublin
any of them) are called upon to furnish                                                        Date: 7 March 2008                              4, being a person entitled under
evidence of title to the aforementioned       In the matter of the Landlord and                Signed: Arthur Cox (solicitors for the appli-   section 9 of the 1978 (no 2) act, propos-
premises to the below named within 21         Tenant Acts 1967-2005 and in the                 cants), Earlsfort Centre, Earlsfort Terrace,    es to purchase the fee simple in the land
days from the date of this notice.            matter of the Landlord and Tenant                Dublin 2                                        described in paragraph 1.


                                                                                                                                                                 www.lawsociety.ie               67
PROFESSIONAL NOTICES   LAW SOCIETY GAZETTE MARCH 2008



                       Date: 7 March 2008                              acts to acquire the fee simple in the land      under sections 9 and 10 of the Landlord         thereabouts, in depth from front to rear
                       Signed: Arthur Cox (solicitors for the appli-   described above, require you to give me,        and Tenant (Ground Rents) (No 2) Act            on the north 48 feet, four inches, and in
                       cant, Topaz Energy Limited, formerly            within one month after the service of           1978, intend to submit an application to        depth from front to rear on the south
                       known as Irish Shell Ltd), Earlsfort Centre,    this notice on you, the following infor-        the county registrar for the city of the        side 41 feet, six inches or thereabouts,
                       Earlsfort Terrace, Dublin 2                     mation:                                         county of Dublin for the acquisition of         situate at 119 and 120 Upper Church
                                                                       a) The nature and duration of your              the freehold interest and any intermedi-        Street in the city of Dublin and being
                       In the matter of the Landlord and                  reversion in the land,                       ate interests in the aforesaid premises,        the property demised by an indenture of
                       Tenant (Ground Rents) Act 1967 and              b) The nature of any incumbrance on             and any parties asserting that they hold        lease dated 20 June 1861 and made
                       in the matter of the Landlord and                  your reversion in the land, and              a superior interest in the aforesaid            between John Batson and Robert Healy
                       Tenant (Ground Rents) (No 2) Act                c) The name and address of:                     premises are called upon to furnish evi-        for the term of 200 years from 1 May
                       1978: notice requiring information                 i) The person entitled to the next           dence of title to the aforementioned            1861, subject to the yearly rent of 34
                       from a lessor                                          superior interest in the land, and       premises to the below named within 21           pounds sterling and to the covenants on
                       To: Ms Ellen Noonan, East Douglas,                 ii) The owner of any such incum-             days from the date of this notice.              the part of the lessee and conditions
                       Cork; and Joseph O’Donovan                             brance,                                     In default of any such notice being          therein contained.
                       (deceased), c/o Mr Patrick Dorgan,              d) The name of the person to be served          received, the applicants intend to pro-             Take notice that Halifax Taverns
                       Coakley Maloney, Solicitors, 49 South              with the notice of intention to              ceed with the application before the            Limited intends to submit an applica-
                       Mall, Cork; and Irish Life and                     acquire the fee simple.                      county registrar at the end of 21 days          tion to the county registrar for the city
                       Permanent plc, c/o Ms Darina White,             Date: 7 March 2008                              from the date of this notice and will           of Dublin for the acquisition of the free-
                       A&L Goodbody, Solicitors, IFSC,                 Signed: Arthur Cox (solicitors for the appli-   apply to the county registrar for the city      hold interest in the aforesaid property
                       North Wall Quay, Dublin 1; and all per-         cant, Topaz Energy Limited, formerly            of the county of Dublin for such direc-         and that any party asserting that they
                       sons concerned.                                 known as Irish Shell Ltd), Earlsfort Centre,    tions as may be appropriate on the basis        hold a superior interest in the aforesaid
                       Description of land to which this               Earlsfort Terrace, Dublin 2                     that the person or persons beneficially         property are called upon to furnish evi-
                       notice refers: that part of the Shell                                                           entitled to the superior interest includ-       dence of title to the aforementioned
                       Service Station, Douglas, Cork City,            In the matter of the Landlord and               ing the freehold reversion in the afore-        property to the below named within 21
                       being “all that and those piece or plot of      Tenant Acts 1967-2005 and in matter             said premises are unknown or unascer-           days from the date of this notice.
                       ground being part of the lands of               of the Landlord and Tenant (Ground              tained.                                             In default of any such notice being
                       Douglas in the parish of Carrigaline in         Rents) (No 2) Act 1978 and in the               Date: 7 March 2008                              received, Halifax Taverns Limited
                       the barony and county of Cork, contain-         matter of premises known as 93                  Signed: Maples and Calder (solicitors for the   intends to proceed with the application
                       ing in all one-and-one-half roods statute       Leinster Road, Rathmines, Dublin 6              applicant), 75 St Stephen’s Green, Dublin 2     before the country registrar at the end
                       measure approximately, which lands are          Take notice that any person having an                                                           of the 21 days from the date of this
                       more particularly delineated on the             interest in the freehold estate of the fol-     In the matter of the Landlord and               notice and will apply to the county reg-
                       map” endorsed on the sublease dated 17          lowing property: all that and those the         Tenant Acts 1967-2005 and in the                istrar for the city of Dublin for direc-
                       August 1953 and made between (1)                dwelling house and premises known as            matter of the Landlord and Tenant               tions as may be appropriate on the basis
                       Ellen Noonan and (2) Denis Noel                 93 Leinster Road, Rathmines, in the city        (Ground Rents) (No 2) Act 1978 and in           that the person or persons beneficially
                       O’Mahony, Patrick Vincent O’Mahony,             of Dublin, being a portion of the hered-        the matter of the property situate at           entitled to the superior interest includ-
                       Michael Kevin O’Mahony and Daniel               itaments and premises held under an             nos 119 and 120 Upper Church                    ing the freehold reversion in the afore-
                       Joseph O’Mahony and thereon                     indenture of lease dated 20 March 1855          Street in the city of Dublin: an appli-         said property are unknown or unascer-
                       coloured yellow, a copy of which map is         and made between Patrick Dempsey of             cation by Halifax Taverns Limited               tained.
                       attached hereto.                                the one part and Patrick Kerr of the            Take notice that any person having an           Date: 7 March 2008
                       Particulars of applicant’s lease: sub-          other for a term of 143 years from 25           interest in the freehold estate of the fol-     Signed: Cusack McTiernan (solicitors for
                       lease dated 17 August 1953, made                March 1855 at a yearly rent of IR£9.9.0         lowing property: all that and those the         the applicant), 6 Fitzwilliam Place,
                       between Ellen Noonan (lessor) and               and subject to the covenants and condi-         hereditaments and premises known as             Dublin 2
                       Denis Noel O’Mahony, Patrick Vincent            tions therein contained.                        nos 119 and 120 Upper Church Street
                       O’Mahony, Michael Kevin O’Mahony                   Take notice that the applicants, Dr          in the city of Dublin, with yards and           In the matter of the Landlord and
                       and Daniel Joseph O’Mahony (lessees).           Bill Twomey, Conor Twomey, Ciaran               appurtenances belonging thereto con-            Tenant Acts 1967-2005 and in the
                       Take notice that Topaz Energy Limited,          Twomey, Barry Twomey, Lorcan                    taining in breadth in front to Church           matter of the Landlord and Tenant
                       with a registered office at Topaz House,        Twomey, Siobhan Trainor, Miriam                 Street on the east side 34 feet, eight          (Ground Rents) (No 2) Act 1978 and in
                       Beech Hill, Clonskeagh, Dublin 4,               Twomey and Bronagh Sparrow (the                 inches or thereabouts, in breadth in the        the matter of an application by Oliver
                       being a person entitled under the above         ‘applicants’), being the persons entitled       rear on the west 45 feet, four inches or        Harrington and Mary Harrington




                          FREE LOCUM                                                                                      FREE EMPLOYMENT
                         RECRUITMENT RECRUITMENT
                         REGISTER REGISTER
                          For Law Society members seeking a position as a                                                  For Law Society members to advertise for all their
                          locum solicitor or seeking to employ a locum solicitor.                                          legal staff requirements, not just qualified solicitors.
                          Log onto the new self-maintained locum recruitment register on the                               Log onto the new expanded employment recruitment register on
                          members’ area of the Law Society website, www.lawsociety.ie, or                                  the members’ area of the Law Society website, www.lawsociety.ie,
                          contact Trina Murphy, recruitment                                                                or contact Trina Murphy, recruitment
                          administrator, at the Law Society’s                                                              administrator, at the Law Society’s
                          Cork office, tel: 021 422 6203 or                                                                Cork office, tel: 021 422 6203 or
                          email: t.murphy@lawsociety.ie                                                                    email: t.murphy@lawsociety.ie


           68          www.lawsociety.ie
                                                                                                                                                                                     PROFESSIONAL NOTICES
                                                                                                                           LAW SOCIETY GAZETTE MARCH 2008



Any person having a freehold estate or       may be appropriate on the basis that                                                       the superior interest including the
any intermediate interest in all that and    the person or persons beneficially enti-          NOTICE TO THOSE                          freehold reversion in each of the afore-
those that piece or parcel of land for-      tled to the superior interests including        PLACING RECRUITMENT                        said premises are unknown and
merly known as number 4 Salana Villas,       the freehold reversion in the aforesaid        ADVERTISEMENTS IN THE                       unascertained.
Clonliffe Road, in the parish of Saint       premises are unknown and unascer-               LAW SOCIETY GAZETTE                        Date: 7 March 2008
George and the county of the city of         tained.                                        Please note that, as and from the           Signed: Paul A Ferris & Co (solicitors for
Dublin, and now known as 191                 Date: 7 March 2008                             August/September 2006 issue of              the applicant), Suite 227 The Capel
Clonliffe Road, Drumcondra, Dublin           Signed: Murray Flynn Maguire (solicitors       the Law Society Gazette,                    Building, Mary’s Abbey, Dublin 7
9, the subject of an indenture of lease      for the applicant), 12-16 Fairview Strand,     NO recruitment advertisements
dated 13 September 1882 between the          Dublin 3                                       will be published that include
Working Man’s Benefit Building                                                              references to years of post-
                                                                                                                                          RECRUITMENT
Society of the first part, William Hall of   In the matter of the Landlord and              qualification experience (PQE).
the second part and William Riordan of       Tenant Acts 1967-2005 and in the               The Gazette Editorial Board has
the third part for a term of 189 years       matter of the Landlord and Tenant              taken this decision based on legal
from 1 May 1882 at a rent of £4.10s per      (Ground Rents) (No 2) Act 1978 and             advice, which indicates that such              Available to work in multi-
annum.                                       in the matter of James Kelly: appli-           references may be in breach of                 role capacity in medium to
   Take notice that Oliver Harrington        cation for fee simple in property at           the Employment Equality Acts                   large firm. Law degree
and Mary Harrington, being the per-          Goldenbridge, Inchicore, Dublin 8              1998 and 2004.                                 (University of Manchester,
sons currently entitled to the lessees’      Take notice that any person having any                                                        1985). Experienced in dealing
interest under the said lease, intend to     interest in the freehold estate of the fol-                                                   with the public. Returning to
apply to the county registrar of the         lowing property: all that and those that                                                      workforce. Experience includes
county of Dublin for the acquisition of      plot of ground being part of the lands        the aforesaid property, and any party           legal work. Interests include
the freehold interest and all intermedi-     of Goldenbridge, Inchicore, in the city       asserting that they hold a superior inter-      family law. Contact: Jane Heyn,
ate interests in the aforesaid properties,   of Dublin, which said lands are more          est in the aforesaid premises (or any of        2 Clyde Road, Ballsbridge,
and any party asserting that they hold a     particularly described and delineated         them) are called upon to furnish evi-           Dublin 4; tel: 01 660 3057 or 085
superior interest in the aforesaid prop-     on the map attached to a deed of              dence of the title to the aforementioned        739 3366
erty is called upon to furnish evidence      assignment dated 31 December 1991             premises to the below named within 21
of their title to same to the below          and made between UDT Bank Ltd of              days from the date of this notice.
named within 21 days from the date of        the first part, James Kelly of the second        In default of any such notice being       Trainee solicitor seeks new training
this notice.                                 part and Ranisse Properties Limited of        received, the applicant, James Kelly,        contract (Dublin area). Enthusiastic
   In default of any such notice being       the third part, and thereon outlined in       intends to proceed with the application      and hardworking trainee seeks transfer
received, the said Oliver Harrington         red and referred to as the sold land.         before the county registrar at the end of    of training contract. Experience in the
and Mary Harrington intend to pro-              Take notice that James Kelly, the          21 days from the date of this notice and     areas of residential conveyancing, civil
ceed with the application before the         applicant, intends to submit an applica-      will apply to the county registrar for the   litigation and family law. Available to
Dublin county registrar at the end of        tion to the county registrar for the          county of the city of Dublin for direc-      commence employment in April 2008.
the 21 days from the date of this notice     county of the city of Dublin for the          tions as may be appropriate on the basis     CV available on request. Enquiries by
and will apply for such directions as        acquisition of the freehold interest in       that the persons beneficially entitled to    email: postppc1@iol.ie




                                                                                                                                                          www.lawsociety.ie               69

								
To top