contents gazette lawsociety · 2017-06-02 · sba annual accounts 41 personal injury judgment 42...

Contents

Law Society GazetteApril 2002

1

Regulars

News 2

Viewpoint 5

Letters 7

Book review 31

Tech trends 32

Stockwatch 35

Briefing 36

Council report 36

Committee reports 37

Legislation update 38

SBA annual accounts 41

Personal injuryjudgment 42

Firstlaw update 44

Eurlegal 50

People and places 54

Obituaries 57

Apprentices’ page 59

Professional information 61

Secure in the knowledgeSince the last Data Protection Act was passed in 1988, technologyhas become all-pervasive and our personal information is storedsomewhere on someone’s database. Denis Kelleher outlines howthe Data Protection (Amendment) Bill, 2002 will affect our right toknow what others know about us

8

The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, andany views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility forloss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by theauthors, contributors, Editor or publishers. The Editor reserves the right to make publishing decisions on any advertisement or editorial articlesubmitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professionallegal advice should always be sought in relation to any specific matter.

Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877.E-mail: [email protected] Law Society website: www.lawsociety.ie

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

Volume 96, number 3Subscriptions: €57.15

Cover Story

GazetteLawSociety

A game of high stakesThe director of public prosecutions recently issued newguidelines that aim to make prosecution decisions a littlemore transparent. Dr Eamonn Hall discusses the issuesinvolved

Defamation: which court to choose?In the light of recent high-profile libel actions, PamelaCassidy argues that careful consideration shouldbe given to whether a plaintiff’sdefamation claim justifies goingto the High Court at all

18

One step forward, two steps back?The European convention on human rightswill eventually become law in Ireland. Butif it’s enacted in the way the governmentproposes, this significant addition to ourlaw may have little practical effect, suggestsJohn Moher

12

COVER: [email protected]

Bridging the gapHow can businesses manage the gap betweentheir book debts andtheir cashflow withoutextending their compa-ny’s overdraft or gettingdeeper into hock? BarryO’Halloran explores someoptions

22

26

ONE TO WATCH: NEW LEGISLATION

News


2

Valuation Act, 2001The Valuation Act, 2001 isexpected to be commenced inearly May 2002. It replaceslegislation going back to 1838 andis designed to form a basis for afresh valuation of all rateableproperty in the state, and regularreviews and updates in the future.The intention is to remove themany anomalies in existingvaluations, and improve theprocess.

The following are the mainprovisions of the act:• Properties which are rateable

are referred to as ‘relevantproperty’ (s15(1)), to beconstrued with reference toschedule 3. This includesbuildings, lands used ordeveloped for any purpose,railways and tramways,harbours, piers, docks and fixed

moorings, mines, quarries, pitsand wells, fishery rights, profitsa prendre, tolls, easements andrights over lands, petroleumdrilling rights, canals andnavigation rights, electricitygenerating stations and ancillaryinstallations

• Exceptions (s15(2)) are set outin schedule 4. They includeagricultural land or land used forhorticulture, forestry, sport,farm buildings, domesticpremises, buoys, beacons orlighthouses, turf bog used forfuel or turf mould, propertyused as constituency offices byTDs or MEPs. Also included areproperty used exclusively forreligious worship, hospitals,burial grounds or crematoriums,educational establishmentsused exclusively for education,art galleries, museums,

libraries, parks or nationalmonuments, property occupiedby a list of organisationsincluding the National Museum,National Library and NationalConcert Hall, property used forcaring for elderly, handicappedor disabled people, communityhalls, property occupied bycharitable organisations or forthe advancement of science,literature or the fine arts,provided that none of these hasan element of private profit

• Properties occupied by the stateare not rateable (s15 (3)).Instead, local authorities get arate support payment throughthe local government fund

• The existing concept of netannual value is retained(s48(1)), but it is proposed toundertake a countrywiderevaluation which will bring this

figure up to date. The level ofrate struck will, of course, haveto be adjusted to reflect thenew values. This revaluation willbe undertaken by local authorityarea on the commissioner ofvaluation making a valuationorder, appointing an officer toundertake the job (s19) to beknown as a valuation manager.The valuation order willnominate a date by reference towhich all valuations are to bemade, and also a date forpublication of the list of rateableproperties and their valuesunder s23, to be no more thanthree years after the date of thevaluation order. On publicationof a new valuation list, it willreplace the existing one (s23),and every occupier will receive acertificate of the new rateablevalue (s24)

IBA DUBLIN CONFERENCEThe International BarAssociation will hold aconference on technology andthe law in Dublin at the end ofnext month. The conferencewill ‘consider the impact oftechnological advancement inlaw practice management andits role in creating a bettermanaged legal world’. It takesplace on 29 May and furtherinformation can be obtainedfrom June Elliott on +44 (0)207629 1206.

SOLICITORS IN EMPLOYMENTBOOKLETThe second edition of the LawSociety information booklet forsolicitors in employmentoutside private practice hasbeen published. A copy isbeing sent to all solicitors inthis category, who now numberabout 600. According to KevinFinucane, chairman of thesociety’s Corporate and PublicSector Committee: ‘If you arethinking of moving from privatepractice to a corporate orpublic services position, thisbooklet is essential reading’.Copies are available free fromSuzanne Chesney at the LawSociety on tel: 01 868 1220 orat [email protected].

Catherine Treacy, chief executive of the Land Registry, formally presents the registry’s Statement of strategy and business plan2002-05 to justice minister John O’Donoghue. Details of the planare available on the registry’s website at www.irlgov.ie/landreg.

Meanwhile, the government has announced that the major comput-erisation contract for the Land Registry has been awarded to EDS

Ireland Ltd. The multi-million euro project will eventually allow solicitors and other users to access the registry’s records over

the Internet.

In the season of Oscarceremonies and BRIT awards,

two of Dublin biggestcorporate law firms, MathesonOrmsby Prentice and A&LGoodbody, have earnedplaudits of their own.

MOP has won theprestigious European law firm ofthe year 2001, run by UKpublisher, Legal Business.MOP is the only Irish law firmto have won this major award,which is open to law firmsacross Europe and which waswon last year by a leadingGerman firm. The award is inrecognition of the firm’sgrowth over the last decade,underlined by the volume andvalue of business transactedand the growth in personnelnumbers. By 2001, MOP had40 partners and a total of 233fee-earners, compared with 14 partners and 56 fee-earnersin 1991.

Commenting on the award,MOP’s managing partnerDonal Roche said: ‘This awardis testament to the commercialsuccess and innovativeapproach of the firm in recentyears, and is a tribute to the

Top awards for Dublin firms hard work and expertise ofeveryone in the firm’.

Meanwhile, A&L Goodbodyhas won Legal Business’sPrivate equity deal of the yearaward, for its work in advisingValentia Telecommunications

on the takeover of Eircom plc.Goodbodys won the awardjointly with the UK firmFreshfields BruckhausDeringer. Again, this is thefirst time that an Irish law firmhas won such an award.

New developments at Land Registry

News


3

• While the revaluation exercisewill take place by local authorityarea, it can be expected thatmany areas will be revalued atthe same time. S25 providesthat further revaluations musttake place from time to time,between five and ten years fromthe publication of the lastvaluation list

• Occupiers are to be given noticeof the proposed valuation oftheir properties three monthsprior to publication of thevaluation list, and may makerepresentations within 28 daysto the valuation manager. Thisconsultation period is awelcome innovation and mayreduce appeals (s26)

• Part 6 provides for revisions ofvaluations at the request ofoccupiers or persons withinterest in the property, the

rating authority or on theinitiative of the commissionerfor valuation, and a revisionofficer must review the valuationwithin six months

• In order to prevent rate inflation,s56 provides that the total ratescollected in any local authorityarea are to be capped for thefirst year after the revaluation atthe existing level increased byno more than the consumerprice index. This will allow somerates to go up, to reflect thenew valuations, and some to godown, but the total must remainmuch the same. After that firstyear, there is no guarantee ofrate levels

• S53 provides for the ‘global’(countrywide) valuation of publicutilities and for theapportionment of their valuesbetween the various local

authority areas• The appeals system continues

as before (see part 7). Initially,appeals lie to the commissionerof valuations, and from there tothe Valuation Tribunal. Schedule2 sets out the provisions inrelation to the tribunal, the 13members of which are appointedby the minister for finance. Thetribunal sits with three membersin private, and all decisionsmust be reasoned and in writing.Appeals on points of law lie tothe High and Supreme Courts(s39). The appellant mustindicate the grounds of appealand the value he considers to beappropriate, based on othercomparable properties in thevaluation list (s31).

This act is to be welcomedbecause it will involve a complete

revaluation of all rateableproperties, which will be updatedat least every ten years. Theartificiality of very low rateablevaluations will be a thing of thepast, as will be the need to usefactors to reduce the currentrateable value of new propertiesto bring them in line with pastvaluations (currently 0.63 % forcities and 0.5% elsewhere). Thecomplex law in relation tocharities and other publicorganisations is much simplified,widening the entitlement to reliefconsiderably. The new, simplifiedsystem will be easier to work forthe Valuation Office, the localauthorities, valuers and rate-payers.

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

G

COMPENSATION FUND PAYOUTSThe following claim amountswere admitted by theCompensation Fund Committeeand approved for payment bythe Law Society Council at itsmeetings in February andMarch 2002: Michael PMcMahon, 5/6 UpperO’Connell Street, Dublin 1 –£8,625.33 and £7,534.33.

NEW LAW CENTRE ANDREFUGEE SERVICE OFFICEA new Legal Aid Board officehas been opened at 48/49North Brunswick Street inDublin 7. The premises willhouse the Refugee LegalServices and the Dublin lawcentre that has relocated fromUpper Mount Street.

PRIVATE EQUITY CONFERENCEInterTradeIreland, thedevelopment body set up tofacilitate cross-border trade, isrunning a conference entitledPrivate equity: an island andinternational perspective. Theconference will be held inBelfast on 24 April. For furtherinformation, visit theorganisation’s website atwww.intertradeireland.com orcall Nicola McGuinness on 0283083 4154.

The Bar Council has publiclyconfirmed for the first time

that there is no rule or practicepreventing solicitors andbarristers acting together asadvocates in court proceedings.The admission came before aDáil Select Committee hearingon the Court and Courts OfficersBill, 2001 last month.

Both the Bar Council andthe Law Society had beeninvited to attend before thecommittee to discuss anamendment to the bill proposedby deputy Alan Shatter. Theamendment reads: ‘For theremoval of doubt, a solicitor orsolicitors may together with abarrister or barristers appear andact together as advocates in anyproceedings’.

In its submission to thecommittee, Bar Councilchairman Rory Brady said thatthere were no rules prohibitingjoint advocacy by solicitors andbarristers and denied that therewould be any ‘disapproval’ ofjunior counsel if they acted incases where a solicitor was the

No ban on joint advocacy with solicitors, says the Bar

lead advocate. Pressed byShatter to say whether the BarCouncil had informed itsmembers of this, Brady replied:‘As far as we’re concerned, I’vestated the position publicly. Idon’t intend to write letters toevery solicitor around thecountry. I can’t make it anyclearer than that’.

The Law Society’srepresentatives, DirectorGeneral Ken Murphy andPresident Elma Lynch, told thecommittee that, while thesociety did not seek theamendment, it supported it.They said that the societysuspected that many barristersand solicitors believed thatthere was indeed a rulepreventing barristers fromacting jointly as advocates withsolicitors. Lynch added thatwhile the Bar Council seemedto be worried about howprecedence would applybetween solicitor and barristeradvocates, this was ‘not amatter of concern’ to the LawSociety.

‘If, in circumstances where asolicitor and barrister areacting jointly as advocates, andit is the solicitor who is moresuited in knowledge and abilityto act as the lead advocate,then there should be noobjection to this occurring inthe best interest of the client’,said Lynch. ‘If the Law Societywere to agree today to any-thing other than this, we wouldin effect be agreeing with theproposition that a solicitoracting as advocate could neverbe other than the equivalent ofa junior counsel. This is mostcertainly not the case’.

Alan Shatter: proposed amendment

News


4

EU IMMIGRATION LAWLECTUREThe Irish Society for EuropeanLaw is holding a public lectureentitled EU immigration law:recent developments. Themeeting will take place on 25 April at 6.15pm in theEuropean Parliament Office onDublin’s Molesworth Street.The meeting is free and opento the public. For furtherinformation, contact JeanneDermody on tel: 01 829 0010.

COPYRIGHT ASSOCIATIONSEMINARThe Copyright Association isrunning an all-day seminar onThe Internet, e-commerce andIPRs: recent developments, on 30 April at the IndustrialConference Centre, Belfield,Dublin 4. Among other things,the seminar will cover: e-commerce issues and models;infringement in the digitaldecade; on-line arbitration; andUS e-developments. For furtherinformation, contact PaulLambert on tel: 01 644 2074.

The International Centre forDispute Resolution (ICDR)

is holding a one-day ‘conflictmanagement forum’ in Dublinon 29 May. The event will takeplace in the Davenport Hoteland will discuss trends, topicsand issues in international

Tackling conflict management

Smokers who light up in theFour Courts and its

associated buildings could faceprosecution, the CourtsService, has warned. In a letterto Law Society President ElmaLynch, the head of the CourtsServices, PJ Fitzpatrick, saysthat the Four Courts had to beevacuated on 28 Februarybecause a fire alarm wasactivated, probably as a resultof smokers lighting up in theparticular area. ‘It would

Crackdown on smoking in the Four Courts

appear almost certain that itwas not members of thegeneral public who weresmoking in the area’, he writes.Describing smoking in publicbuildings as ‘flagrantly inbreach of the law’, Fitzpatrickadds that the Courts Servicehas arranged with the relevantauthorities to carry out regularinspections and ‘we will beasking the relevant authoritiesto have the offendersprosecuted’.

leaders…in the quest for excellence…

You’re a problem-solver. You need answers. You need speed and accuracy.You need a back-up service that is efficient and cost-effective. In short, you needthe professionals at Rochford Brady, Ireland’s largest legal services organisation.

rochford brady legal services limited64 francis streetdublin 8ireland

tel: 1850 529 732fax: 1850 752 436

e-mail: [email protected]: www.lawsearch.ie/rochford

law searching • summons serving • town agents • company formation

• title investigations • enquiry specialists

commercial dispute resolution.Among the speakers at theforum will EU CommissionerDavid Byrne and William Slate,president of the AmericanArbitration Association. TheICDR Dublin forum aims tobring together international

experts ‘to communicate andshare ideas in order to facilitatecontinuing global growth anddevelopment in the commercialdispute resolution arena’. For more information, contact Mandy Sawier on +353 1 418 2291.

Viewpoint


5

At least, let nobody say thatwe have a pathetic,

sectarian, mono-ethnic andmono-cultural courts system.The continuing quietexistence of the non-jurySpecial Criminal Court showshow pluralistic, diverse andimaginative we can be.

And yet, there must come apoint when we agree that theguns have indeed fallen silent,even if their users have notgone away. As the mortar of theGood Friday agreement continuesto solidify, and with the gunmenreceding into the shadows, havewe reached the time to ‘stand-down’ the Special CriminalCourt and to give over itsancient Green Street buildingto ease the pressures in theother courts?

Almost seven years ago, thethen-government announcedthat it was reviewing the needfor the Special Criminal Court.Developments since then in theNorth, including the Omaghatrocity, brought the short-livedinitiative to a standstill. Thecourt remains, despite calls forits abolition by the IrishCouncil for Civil Liberties andchallenges to its constitution-ality before the Supreme Court.

In a significant judgment sixyears ago, presided over by thelate Chief Justice LiamHamilton, the Supreme Courtreminded politicians thatcontinuation of the court was apolitical decision and that thegovernment had a duty to annulthe act establishing the court ifit was satisfied that it was nolonger necessary. The judgesalso warned that thecontinuance in force of part Vof the Offences against the StateAct, 1939 could not be regardedas being forever beyond the

In a democratic state, an extraordinary court should be reserved for extraordinary times. Does the year 2002 qualify? asks Pat Igoe

Time to decommission theSpecial Criminal Court?

reach of judicial control. Thegovernment had a duty to keepthe existence of the court underreview.

But the extent and depth ofthe government’s reportedannual review of the court isunclear in the absence of a fulland well-briefed annual debatein the Dáil on the 1939 act andits ethos in modern times. Mostjurists would argue thatemergency legislation withprovisions for special courtsshould be subject to regularpromulgation or annulment toaccord with passing time andsecurity imperatives. Section 35provides for this. Has it beenused adequately?

Part V of the 1939 act wasfirst brought into effect in theyear of its enactment. It thenceased to be in force in 1962,with the number of cases beforethe court being very fewbetween 1946 and 1962. Withthe political temperature clearlyrising in Northern Ireland inthe early 1970s, the legislationwas re-proclaimed on 26 May1972 and the Special CriminalCourt (or more precisely aSpecial Criminal Court) wasestablished four days later. Thiswas a time both when theresources of the state were morelimited than now and when

subversion on this side of theborder was a very credible fear.

The court has been with ussince then. Since 1990, therehave been just over 220 cases, anaverage of about 20 a year. Manyof the cases, especially in the1990s, had the full panoply ofsecurity measures, withmotorcycle outriders resemblingmotorcades up Dame Street toDublin Castle during EUsummits.

Anti-democratic natureThe anti-democratic nature ofthe court must trouble jurists,politicians and the public alike.And yet, it is unclear whether thelack of insistent and spontaneousquestioning of its continuingexistence springs from apathy ofour times, inertia or simply thatlawyers and the public continueto give the government thebenefit of the doubt.

The drafters of the 1939 actappreciated its draconian nature.So much so that they providedin the act both that the Dáilcould pass a resolution at anytime annulling the government’sproclamation enabling the courtto be established and also thatthe government itself couldproclaim that part V of the actbe no longer in force. Thelegislation also significantly

provided that the governmentcould declare that offenceswhich had been brought underthe authority of the court wouldno longer be such scheduledoffences.

So, ‘whenever thegovernment is satisfied that theeffective administration ofjustice and the preservation ofpublic peace and order’ inrelation to certain offences canbe pursued through the ordinarycourts, it could order theirreturn to the ordinary courts. Inthis way, the act enabledsuccessive governments to bothincrease and reduce the ambit ofthe Special Criminal Court.

The remit of the three-judgecourt spans the criminal code,ranging from the MaliciousDamage Act of 1861 to theExplosive Substances Act of 1883and the Conspiracy and Protectionof Property Act of 1875. The listcan be increased or reduced atwill by the government, beingdirected in reality by just twopeople – the taoiseach and theminister for justice. Their viewmust consider the adequacy ofthe ordinary courts to securejustice and preserve public order.

The Special Criminal Courthas a unique place in Irishjurisprudence and in Irishhistory – ranging from beinglauded for its role in preservingthe state and the populationfrom subversive attack to itsbeing an excessively large bloton the Irish legal landscape.

In a democratic state, anextraordinary court should bepreserved for extraordinarytimes. Does the year 2002qualify?

Pat Igoe is principal of the Dublinlaw firm Patrick Igoe andCompany.

G

The ‘full panoply of security measures’ on the way to the Special Criminal Court

Viewpoint


6

In a recent landmarkdecision, the European

Court of Justice held that aban on multi-disciplinarypartnerships (MDPs) betweenlawyers and accountants waslegal, even though it was anti-competitive (see Gazette, lastissue, page 3). The Dutchbar’s ban was justified becauseof the different requirementsof professional conductbetween the two professions.

The judgment is a majorsetback for the accountancyfirms involved in the case,Arthur Andersen (the auditorsof the failed US energy tradinggiant Enron) and rivalsPricewaterhouseCoopers.Other members of the ‘big five’accountancy firms have alsosought to create tie-ups withlaw firms in countries aroundthe world. They may now haveto look again at how theirarrangements with law firmsoperate in various EU memberstates.

The court endorsed TheNetherlands bar’s rules settingout the essential duties for theproper practice of the legalprofession, namely ‘the duty toact for clients in completeindependence and in their soleinterest, the duty to avoid allrisk of conflict of interest andthe duty to observe strictprofessional secrecy’. It alsofound that ‘by contrast, theprofession of accountant is notsubject, in general, and moreparticularly in TheNetherlands, to comparablerequirements of professionalconduct’.

Another issue identified bythe court – not a new issue forthe accountancy profession but

Ken Murphy argues that the recent NOVA decision by the European Court of Justice on multi-disciplinary partnerships between accountancy firms and law firms identifies and vindicatesthe legal profession’s core values

Court confirms core valuesof legal profession

one which has been broughtinto sharp focus by the Enrondebacle – is the potential forconflict of interest. As the courtdelicately put it, ‘theconcurrent pursuit of theactivities of statutory auditorand of adviser, in particularlegal adviser, also raisesquestions within the

solicitors and accountantswould be contrary to the publicinterest.

But how is it that somethingwhich the court acknowledgesis anti-competitive isnevertheless approved by it? Itis because the court saw theoverall objective of the Dutchban on MDPs as being ‘toensure that the ultimateconsumers of legal services andthe sound administration ofjustice are provided with thenecessary guarantees in relationto integrity and experience’. Inparticular, the court approvedof the requirement that lawyers‘should be in a situation ofindependence vis-à-vis thepublic authorities, otheroperators and third parties, bywhom they must never beinfluenced’.

This concept of theindependence of the legalprofession is the key. In

be seen as a victory for lawyersover accountants. It is a victoryfor the fundamental freedomsof all citizens.

A breach of the competitionlaw principles of the Treaty ofRome, on which principles Irishcompetition law is also based, isnot illegal if it can be justified.In this case, the ultimateauthority on such matters, theEuropean Court of Justice, hasfound the necessaryjustification to exist. Theobjective of the statutoryprohibition on fee sharing bysolicitors in Ireland – whicheffectively prohibits MDPs inthis jurisdiction – is compatiblewith the underlying principlesof EU and Irish competitionlaw.

Even beyond the borders ofthe EU, in other countries suchas the United States wherelawyer involvement in MDPs isalso prohibited in the publicinterest, encouragement will betaken from this hugelysignificant judgment.

Irish solicitors recognise thebenefits of competition. Intenseinternal and externalcompetition is a daily realityfor practising solicitors. Whatthis case illustrated, however, isthat there can be morefundamental principles at stakewhich can justify a rule thatinfringes competition. Thisjudgment has confirmed thespecial value to all citizens ofthe legal profession’sindependence, confidentialityand avoidance of conflicts ofinterest.

Ken Murphy is the directorgeneral of the Law Society ofIreland.

G

Ken Murphy: ‘MDPs involvingsolicitors and accountants wouldbe contrary to the public interest’

‘The fundamental rights of every citizen

depend on the existence of an independent

legal profession’

accountancy profession itself’.The potential for conflict ofinterest outweighed anyostensible economic advantagein the availability of a ‘one-stopshop’.

This judgment from theLuxembourg-based court hasbeen welcomed by members ofthe legal profession throughoutthe EU and beyond. The LawSociety of Ireland views it as avindication of its long-heldview that MDPs involving

essence, if there were noindependent legal profession,there could be no independentjudiciary. If there were noindependent judiciary, therecould be no rule of law. If therewere no rule of law, there couldbe no justice, democracy orfreedom. The fundamentalrights of every citizen dependon the existence of anindependent legal profession.

Accordingly, this decision bythe Court of Justice should not

Letters


7

From: Anthony Hussey, HusseyFraser, Solicitors, Dublin

Iread with interest the directorgeneral’s article in the March

issue of the Gazette (page 9),bemoaning the lack of judgesavailable to hear cases in theHigh Court. It seems to methat this has reached asufficient crisis point thatsolicitors embarking onlitigation should at leastconsider the possibility ofresolving any dispute througharbitration.

Apart from personal injuryactions in the High Court, itwould appear that the chancesof a case listed for hearingbeing actually heard on the dayis no better than 50/50 becauseof the lack of available judges.It is not unusual for the samecase to be listed twice withoutbeing heard, and the onlydifference between having acase specially fixed for hearingand otherwise fixed for hearingis that in the case of the latterthe presiding judge is sorry thathe does not have a judge

Letters

available, whereas in the case ofthe former he is very sorry.

Of my two most recent casesin the High Court, one wasspecially fixed and the otherwas not. The specially fixedcase involved a number ofwitnesses travelling to courtfrom outside Europe. There

was no judge available at the11am call-over. Fortunately, ajudge became available atapproximately 3.30pm. Had thecase at hearing lasted until4pm, we would have been putback into the list to fix dateswith no guarantee of beingheard on the next occasion

either. The other case had beenlisted for hearing twice, but wasnot reached on either occasion,although it was top of the liston the second occasion. It washeard on the third occasion.

I would suggest thatsolicitors should give carefulconsideration, particularly incases involving witnessestravelling from abroad, toreferring disputes toarbitration. Even if the case hascommenced in court and hasbeen fully pleaded, there is noreason why it should not bereferred at that stage toarbitration. The parties canagree that all the pleadings inthe High Court action willconstitute the pleadings in thearbitration and go straight tohearing. Even if one is nototherwise convinced of thevirtues of arbitration over courtlitigation, it is suggested thatclients should at least be madeaware of the problems whichmay be encountered and of theavailability of this alternativeroute. G

Lack of judges: could arbitration be the answer?

DUMB AND DUMBER

Jodee Berry, of Panama City, Florida, sits with her toy Yoda at her lawyer’soffice. Berry, a former Hooters waitress, has sued the restaurant where sheworked saying she was promised a new Toyota for winning a beer sales contest inApril. Berry, 26, believed that she had won a new car, but she was blindfolded, ledto the parking lot and presented a toy Yoda, the little green guy from Star Wars.

THE LAW SOCIETY’S COMPANY SERVICE, BLACKHALL PLACE, DUBLIN 7FAST • FRIENDLY • EFFICIENT • COMPETITIVE PRICES • MEMBERS OF EXPRESS SERVICE

LEAVE IT TO THE EXPERTS!

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

or e-mail: [email protected]

COMPANY FORMATIONCOMPANY FORMATION

• Private limited company – ten days, €278

• Guarantee company – ten days, from €215

• Single member company – ten days, €278

• New companies, using complete nominees – five days, €330

The Data Protection (Amendment) Bill,2002 was introduced in the Oireachtasin February. The new bill, which willimplement the Data protection directivethat should have been in force by the

end of October 1998, will change Irish law in anumber of different ways.

One of the key changes in the new bill is that itwill now apply to ‘manual data’. This is defined as‘information that is recorded as part of a relevantfiling system’ where a relevant filing system isdefined as ‘any set of information relating toindividuals to the extent that, although theinformation is not processed by means ofequipment operation automatically in response toinstructions given for that purpose, the set isstructured either by reference to individuals or byreference to criteria relating to individuals’. Whatthis means is that information which is stored in apaper-based filing system will be subject to dataprotection law. So it will no longer be possible tocircumvent the Data Protection Act, 1988 by holdinginformation in a paper system. Concerns about suchcircumvention are one reason why this provisionwas introduced.

The bill should also mean that data protectionwill apply to audio-visual data, such as that derivedfrom CCTV systems. This is not explicitly stated inthe bill, but it does provide that ‘a word orexpression that is used in this act and also in thedirective has ... the same meaning in this act as ithas in the directive’, and the directive makes it clear

that its provisions extend to‘sound and image data’.However, the directivewill only apply tosuch processing ‘ifit is automated orif the dataprocessed arecontained or areintended to becontained in a filingsystem structuredaccording to specificcriteria relating toindividuals, so as to permiteasy access to the personaldata in question’. Theadvent of cheap digitalrecording facilities maymean that this provision willhave considerable applicationto technologies such as theCCTV cameras that are increasinglyused in Irish town centres.

If visual images are in a digital format, they canbe processed. There are a number of software

Cover story


8

IN THE

The world has seen many changes since the last Data Protection Act was

passed in 1988. Technology has become all-pervasive and personal information

about every one of us is stored somewhere on someone’s database. Denis

Kelleher outlines how the long-anticipated Data Protection (Amendment) Bill,

2002 will affect our right to know what others know about us

MA

IN P

OIN

TS• Data Protection

(Amendment)Bill extendsscope ofprotection topaper-basedfiles

• Gives newrights toindividualswhile imposingnew duties ondata controllers

• Creates ageneral duty toregister, withlimitedexceptions

KNSECURE

KNSECURE

packages that cansearch through astream of digitalimages and identifyknown individuals.Packages such as this

are being touted as asolution to American

security worries in theaftermath of 11 Septemberand are already being usedsuccessfully. One exampleis the Trump Marina

casino in Atlantic City,which uses facial recognition

software to continually scanevery face in the casino and

match them with a database ofover 9,000 individuals. Within days

of its installation, the camerasidentified a group of six baccarat

cheaters who had previously beenarrested in California and they have

identified hundreds of ‘undesirables’ sincethen (Fortune, 29 October 2001). The use of

systems such as this in Ireland would raise

Cover story


9

NOWLEDGENOWLEDGE

Cover story


10

obvious concerns about the right to privacy andperhaps other rights, such as those provided by theEqual Status Act, 2000.

New rights for individualsThe bill will give individuals (who in the jargon ofthe bill are termed ‘data subjects’) a right to object to processing if it would cause themsubstantial and unwarranted damage or distress.There are exceptions to this, such as where the‘subject’ has given his consent or where processing iscarried out by a political party in the course ofelectoral activities. Where a decision willsignificantly affect a subject, such as a decision abouttheir performance at work, creditworthiness,reliability or conduct, then it may not be basedsolely on data processing by automatic means. Againthere are exceptions, most notably where the subjectconsents.

Consent is an important issue in data protectionlaw: the directive defines consent as ‘any freely givenspecific and informed indication of his wishes bywhich the data subject signifies his agreement topersonal data relating to him being processed’. Thismeans that a subject will have to indicate that he ishappy to see his data processed; it is doubtfulwhether asking a subject to indicate if he objects tohaving his data processed would be sufficient. Thebill also provides that subjects must be given certaininformation about how their data is to be processed,if that processing is to be done fairly.

The right of access is also revised and extended,and the bill takes steps to ensure that this right isnot abused. One form of abuse is to force employeesto access medical or other records and hand themover to the employer. The bill provides thatemployees or prospective employees cannot berequired to request access to their personal data orto supply their employer with the results of an accessrequest. Breach of this provision will be an offence.

The use of the right of access may cause otherproblems for employers, too. The bill provides thatwhere personal data consists of an expression ofopinion about the subject by another person, thedata may be disclosed to the subject without theconsent of that other person. References and other‘expressions of opinion’ are open to review in avariety of ways. The most obvious of these is anaction for defamation, but such an expression couldalso be grounds for complaint under the EmploymentEquality Act, 1998 or a prosecution under theProhibition of Incitement to Hatred Act, 1989.

The giving of references is becomingcontroversial and some employers are beginning torefuse to give them at all, while others simplyconfirm the bare details that a named individualworked for them between certain dates.

New duties for businessesThe principles of data protection are repeated (andamended) in the Data Protection Bill, 2002. A majorchange is that, in addition to these, controllers will

also have to pay attention to the criteria for makingdata processing legitimate. These criteria providethat data may only be processed where: • The subject has given his explicit consent • The processing is necessary for the performance

of a contract to which the subject is party• It is necessary in order to take steps at the request

of the subject prior to entering into a contract• It is necessary to prevent injury, loss or damage

being caused to the data subject, where seekingthe consent of the subject would damage thoseinterests

• It is necessary for the administration of justice, theperformance of a statutory or ministerial function,or a public nature function in the public interest, or

• It is necessary in the legitimate interests of thecontroller, except where the processing isunwarranted by reason of the prejudice to therights and freedoms of the subject.

‘The giving of

references is

becoming

controversial and

some employers

are beginning to

refuse to give

them at all,

while others

simply confirm

the bare details

that a named

individual worked

for them

between certain

dates’

Cover story


11

The criteria for legitimate processing have to beread in addition to and in conjunction with theprinciples of data protection.

Some provisions of the bill will become law on 1April 2002, pursuant to the European Union (DataProtection) Regulations 2001 (SI 626/2001). Onerelates to the securing of personal data: controllersare under a duty to keep data secure but theregulations provide that, in determining the securitymeasures which they will use, they can have regardto the state of technological development, the harmwhich might result from the unauthorised orunlawful use of the data and the nature of the dataconcerned. A controller must brief his staff aboutthese security measures and must ensure that sub-contractors are placed under a contractual duty tomaintain the security of the data.

One significant change in the bill is that itincreases the number of individuals and companiesthat will have to register to include all datacontrollers and data processors, except those whoare specifically exempted under the legislation.There are exceptions to this, such as keepers ofpublic registers, processors of manual data, or non-profit clubs and societies who maintain membershiplists.

The form in which registration must be made isalso changed. If a controller keeps data for two ormore unrelated purposes, he must apply forregistration separately in respect of each of them.Other significant changes are made to the mannerin which a controller can process sensitive personaldata. The bill also contains a limited exemption forprocessing that is done for journalistic, artistic orliterary purposes.

Data protection commissionerThe position of the data protection commissionerwill also change under the bill. Some of thesechanges are subtle: his report will be absolutelyprivileged for the purposes of the law ofdefamation and he and his staff will be placedunder a duty of confidentiality, breach of whichwill be a criminal offence. Other changes are moredramatic.

The commissioner may be required to engage in‘prior checking’, that is, controllers or processorsmay apply to the commissioner for an assessment ofwhether or not their processing complies with theData Protection Act, 1988. The commissioner mustthen reply within 90 days, stating whether or notthe processing is likely to comply, although thisperiod can be extended. The right to prior checkingis not automatic: the commissioner has to undertakethis only where the processing is of a kind likely tocause substantial damage or distress to data subjects.But if the processing is of this kind, it cannot becarried on unless the processing operation isregistered or the controller or processor has appliedto the commissioner for prior checking in respect ofit. Breach of this provision will be a criminaloffence.

The powers of the commissioner will alsochange in relation to cross-border informationexchange. The bill provides that data cannot betransferred to a country outside the EuropeanEconomic Area, unless that country provides anadequate level of data protection. The bill sets outa list of criteria which may be used in assessing thecircumstances in which the data is beingtransferred, but in time this function will betransferred to the EU. If a community finding hasbeen made that a country such as Hungary orSwitzerland has adequate levels of data protection,then that finding will be binding.

The Data Protection Bill, 2002 also sets out a hostof situations where this prohibition will not apply,including situations where the transfer is requiredby an Irish statute or international treaty, thesubject has given his or her consent, the transfer isnecessary for the performance of a contract betweenthe subject and controller or the transfer isnecessary for the purposes of getting legal advice.Although the commissioner still has the right toprohibit a transfer, these exceptions may effectivelylimit the commissioner’s power to do so. Thechanges in relation to cross-border data flows are totake effect from 1 April 2002.

A brave new world?Many political, social, economic and technologicalchanges have taken place since 1988. Newtechnologies such as the Internet have all had asignificant impact on data protection laws – theharvesting of European personal data by USwebsites was one spur to the EU developing its ‘safeharbour principles’ with the USA, which aresupposed to regulate the use of European data byUS-based firms.

One of the most significant changes may be theboom in technology spending over the last fewyears. This means that information technology isnow pervasive, from government departments tocommercial organisations. As a result, therequirements of data protection have to interactwith many other items of legislation. For example,section 2(1)(c)(iv) provides that data ‘shall not bekept for longer than is necessary’. The preciseassessment of how long it is necessary to keep datamay prove difficult. The Directive on the processing ofpersonal data in the telecommunications sector (directive97/66/EC) states that details of subscriber billingmay only be retained up until the end of the periodwithin which the bill may be challenged. It hasbecome clear that mobile phone networks werestoring billing data for up to six years, stating thatthey were required to do so under other legislation,such as the Statute of Limitations.

It may be that further regulations will be requiredto reconcile conflicting provisions such as these.

Denis Kelleher is a barrister and the co-author, withKaren Murray BL, of Information technology law inIreland, published by Butterworths.

G

Human rights


12

The European convention for the protection ofhuman rights and fundamental freedoms isan international treaty devised by theCouncil of Europe that gives effect tosome of the rights expressed in the 1948

United Nations Universal declaration of human rights.As such, the origins of the convention lie in theinternational response to the crimes againsthumanity perpetrated before and during the SecondWorld War.

The convention protects fundamental civil andpolitical rights such as the right to life (article 2), theright to freedom from torture and inhuman ordegrading treatment or punishment (article 3), theright to liberty (article 5), the right to respect forprivate and family life, home and correspondence(article 8) and the right to freedom of expression(article 10). Further rights, including certain socialand cultural rights (such as property, educational andelectoral rights) were subsequently introduced byfour operational protocols to the convention.

The convention was signed by the Irish ministerfor external affairs on 4 November 1950 and becamebinding on the state (but not within the state) on 3September 1953.

The rights protected by the convention have been,and still are, unenforceable in Irish courts.Contracting states, and the citizens of such statesaccorded the right of petition (such as Irish citizens),can lodge complaints against (other) contractingstates with the European Court of Human Rights inStrasbourg. But all domestic legal avenues must be

TWO STEPS

The European convention on human rights will eventually become law in Ireland. But if it’s

enacted in the way the government proposes, this significant addition to our law will have

little practical effect, argues John Moher

One step

exhausted before a complaint can be brought by acitizen to the court. The purpose of the EuropeanConvention on Human Rights Bill, 2001, when enacted,is to transpose the convention into Irish law, therebyenabling breaches of its provisions to be litigated inIrish courts.

Background to the billIreland is the only member state of the Council ofEurope which has yet to incorporate the convention

into its domestic law, a state of affairs which the billseeks to rectify. Further impetus for incorporatingthe convention was provided by the Good Fridayagreement, in which the government committed itselfto strengthening the constitutional protection ofhuman rights in the state and, in so doing, to drawon the convention. In addition, the agreementobliges the state to establish a level of human rightsprotection which is at least equivalent to that inNorthern Ireland.

In 1996, the Constitution Review Groupconsidered the question of whether the conventionshould be incorporated into Irish law. The groupbelieved that the outright replacement of existingfundamental rights provisions in the constitution bythe convention would lead to the diminution ofsome individual rights (for example, personal libertyin article 40.4) which are more extensively protectedby the provisions of the constitution than under theequivalent provisions of the convention. In thereview group’s opinion, incorporation by directreplacement would also mean ‘jettisoning almost 60M

AIN

PO

INTS• Background to

the Europeanconvention onhuman rights

• The EuropeanConvention onHuman RightsBill, 2001

• Influential Irishcases beforethe EuropeanCourt ofHuman Rights

BACK?

Human rights


13

years of well-established and sophisticated case law’.The review group recommended that the existing

fundamental rights provisions of the constitution bebuilt upon and improved by liberally drawing on theconvention text where necessary. The groupconcluded that the text of the convention (and otherinternational human rights conventions) should beused where:• The right in question is not expressly protected

by the constitution• The standard of protection of the right in

question is superior to that guaranteed by theconstitution, or

• The wording of a clause of the constitutionprotecting such a right might be improved.

The government did not adopt therecommendations of the review group. Instead, itfollowed the example set in the UK by the HumanRights Act 1998 and opted for the ‘interpretativemodel’ of incorporation. This method ofincorporation is explained by section 2(1) of the bill,

FORWARDwhich provides that: ‘In interpreting and applyingany statutory provision or rule of law, a court shall,in so far as is possible, subject to the rules of lawrelating to such interpretation and application, do soin a manner compatible with the state’s obligationsunder the convention provisions’.

Section 2(2) of the bill provides that this rule ofinterpretation is to apply to all statutory provisionsor rules of law in force immediately before thepassing of the bill, and to all provisions and rules oflaw introduced after the enactment of the bill.

Declarations of incompatibilitySection 5(1) of the bill provides that in anyproceedings, the High Court, or the Supreme Courton appeal, may, where no other legal remedy isadequate and available, declare a statutory provisionor rule of law to be incompatible with the state’sobligations under the convention.

These provisions are set to be deprived of anyreal effect, however, by section 5(2)(a) of the bill,which provides that a declaration of incompatibility

One of a long line of important Irish casesdecided by the European Court of HumanRights: in 1992, it held that restrictions onthe dissemination of information breachedarticle 10 of the convention

Human rights


14

shall not affect the validity, continuing operation orenforcement of the statutory provision or rule oflaw in question. So, for example, a statutoryprovision upon which civil or criminal proceedingshave been instituted would remain in force, andsuch proceedings could continue, despite a findingby the High Court or Supreme Court that thestatutory provision contravenes the convention.

The injustices that could flow from section5(2)(a) of the bill can be easily imagined. Suppose,for example, that David Norris had not embarkedon the long road to Strasbourg when he did (seepanel), but instead brought his challenge under thebill when enacted. The High Court or SupremeCourt would presumably declare the impugnedstatutory provisions to be incompatible with thestate’s obligations under the convention, but theprovisions would remain in place and couldconceivably have grounded future criminalprosecutions.

And what of a modern day Joseph Keegan,challenging the absence of any provision in law forhis consent as a natural father regarding theadoption of his child (supposing, again, that theoriginal challenge and subsequent change in the lawdid not occur)? The bill provides for declarations ofincompatibility regarding existing statutoryprovisions and rules of law, but not their absence.Assuming this hurdle could be overcome, MrKeegan would have been faced with the prospect ofthe courts agreeing with his complaint, but beingpowerless to make any real difference. Wouldanyone have suggested that his exclusion from theadoption process of his child could be remedied bya declaration and nothing more?

These are more than mere examples of howprevious successful litigants before the court mayhave fared under the regime proposed under thebill. They also serve to illustrate how the proposednew law, when invoked, is in many cases likely tomake little or no real difference to those whoseconvention rights have been infringed.

No entitlement to damages To compound matters, it is intended that the HighCourt shall not award damages for injury, loss ordamage suffered as a result of the incompatible lawin question.

Section 5(4) of the bill provides that where ‘(a) adeclaration of incompatibility is made, (b) a party tothe proceedings concerned makes an application inwriting to the attorney general for compensation inrespect of an injury or loss or damage suffered byhim or her as a result of the incompatibilityconcerned, and (c) the government, in theirdiscretion, consider that it may be appropriate tomake an ex gratia payment of compensation to thatparty (“a payment”), the government may requestan adviser appointed by them to advise them as tothe amount of such compensation (if any) and may,in their discretion, make a payment of the amountaforesaid or of such other amount as they consider

Decisions of the court in certain cases brought against the state have had anotable effect on the development of fundamental rights in Irish law.

• In the case of Airey v Ireland (application number 00006289/73, 9 October1979), the applicant claimed that because legal aid was not available to her forthe purpose of bringing separation proceedings, she was denied effectiveaccess to court in violation of article 6(1) of the convention. Article 6(1) statesthat in the determination of civil rights and obligations, everyone is entitled to afair and public hearing within a reasonable time by an independent and impartialtribunal established by law. The parties ultimately reached a settlement, whichwas approved by the court. The following year, the Irish government introduced anon-statutory scheme of civil legal aid which, 15 years later, was replaced by theCivil Legal Aid Act, 1995.

• In the case of Johnston and others v Ireland (no 00009697/82, 18December 1986), the applicants complained, among other things, of theunequal treatment under Irish law of children born outside marriage ascompared to children born to married parents. The court found that the normaldevelopment of family ties between the natural parents and their daughterrequires that the child should be placed, legally and socially, in a position akinto that of a child born to married parents. The court held that there had been abreach of article 8 of the convention in that the legal regime concerning thestatus of children under Irish law failed to respect the family life of the naturalparents and their child. The government subsequently introduced the Status ofChildren Act, 1987, which sought to abolish the legal status of illegitimacy.

• In Norris v Ireland (no 00010581/83, 26 October 1988), the applicantchallenged provisions of the Offences against the Person Act 1861 and theCriminal Law Amendment Act 1885, which criminalised private homosexual actsbetween consenting adults. The court rejected the Irish government’s argumentthat such provisions were necessary for the protection of ‘health and morals’,and found that the impugned legislation interfered with Mr Norris’s right torespect for his private life under article 8.1 of the convention. Five years afterthis decision, the Criminal Law (Sexual Offences) Act, 1993, whichdecriminalised homosexual activity, was implemented.

• In Open Door Counselling and Dublin Well Woman v Ireland (no00014234/88, 29 October 1992), the applicants challenged a Supreme Courtinjunction which restrained the dissemination of information to pregnant womenconcerning abortion facilities outside Ireland. The court held that the state didnot have an unfettered or unreviewable discretion in the field of morals. It notedthe absolute nature of the injunction, which imposed a perpetual restraint on theprovision of information to pregnant women concerning abortion facilitiesabroad, regardless of age or state of health or their reasons for seekingcounselling on the termination of pregnancy. The court concluded that therestraint imposed on the applicants from receiving or imparting information wasdisproportionate to the aims pursued and that, accordingly, there had been abreach of article 10 of the convention (which protects the right to freedom ofexpression).

Shortly after this decision, and that of the Supreme Court in the X Case, the14th amendment to the constitution, permitting the provision of information onservices lawfully available in other states, was enacted.

• In Keegan v Ireland (no 00016969/90, 29 May 1994), the court agreed withthe applicant’s argument that the lack of any need in law for his consent as anatural father for the adoption of his child, and the related lack of access tocourt, constituted violations of articles 6 and 8 of the convention (protecting theright to a fair hearing and the right to respect for private and family life). MrKeegan was awarded damages and costs. Four years later, with the passing ofthe Adoption Act, 1998, consultation procedures for natural fathers in theadoption process were introduced.

IMPORTANT IRISH CASES AT THE

EUROPEAN COURTOF HUMAN RIGHTS

Human rights


15

appropriate in the circumstances’ (emphasis added). The attorney general has explained the proposed

lack of any entitlement to damages for loss or injuryarising from a law which is incompatible with theconvention, but which is constitutional, as follows:‘If legislation is intra vires the Oireachtas under ourconstitution, and if it authorises or mandates aparticular action or omission in respect of a citizen,it seems on the face of it to be unconstitutional tocreate a jurisdiction for the courts to penalise suchlawful act or omission by damages as though it wereunlawful’.

In other words, if the law that breaches theconvention does not breach the constitution, thecourts cannot award damages. This problem wouldhave been avoided by the incorporation of theconvention in the way proposed by the ConstitutionReview Group: convention rights would have beenbrought within the constitutional framework wheredesirable, thus helping to ensure that laws whichbreach the convention would also beunconstitutional and that, as a consequence,damages for loss or injury arising from such lawscould be provided.

Furthermore, Mr Justice Donal Barrington, thechairman of the Human Rights Commission and aformer judge of the Supreme Court, has queried theconstitutionality of legislation that creates rights butprohibits the courts from awarding compensationfor breaches of those rights.

The constitutional requirement that justice beadministered in courts (article 34.1) may be relevantto any review of, or challenge to, the bill forcreating justiciable rights, but providing thatbreaches of those rights can only be compensatedby the executive. Furthermore, an act of theOireachtas purporting to confer on the High Courtsuch a circumscribed jurisdiction could raisequestions as to its compatibility with article 34.3.1of the constitution, which confers on the HighCourt full original jurisdiction in all matters.

Just satisfactionSection 5(5) of the bill provides that, in advising thegovernment on the amount of compensation thatmight be appropriate, the adviser shall takeappropriate account of the principles and practiceapplied by the court in affording ‘just satisfaction’under article 41 of the convention.

Article 41 of the convention states that ‘if thecourt finds that there has been a violation of theconvention or the protocols thereto, and if theinternal law of the high contracting party concernedallows only partial reparation to be made, the courtshall, if necessary, afford just satisfaction to theinjured party’.

While ‘just satisfaction’ can take the form ofmonetary compensation for pecuniary and non-pecuniary damage and costs and expenses, few clearprinciples governing the award of damages by thecourt exist. Several reasons have been advanced forthis. For example, the court does not apply a strict

doctrine of precedent, but tends to assess damageson an equitable case-by-case basis. In addition,rules or methods governing the assessment ofdamages vary between member states of theCouncil of Europe.

For example, Irish and English rules based oncausation and foreseeability can contrast with theapplication by French and Belgian courts ofconsiderations of fairness.

The court does, however, apply the principle ofrestitutio in integrum (restoration to the originalposition) when awarding compensation and, to thisextent at least, the court’s assessment of damagescan be said to resemble that of Irish courts.

In many cases, however, the court rules that thefinding of a violation of the convention in itself(without compensation) constitutes just satisfaction.It may be interesting to see the extent to which theattorney general is advised (and decides) that adeclaration of incompatibility by the courts in itselfis reward enough, or just satisfaction, for theindividual whose rights have been breached.

Still a last resort?Section 3 of the bill provides for the recovery ofdamages for injury, loss or damage caused by thefailure of an ‘organ of the state’ to conform with itsobligations under the convention. Excluded fromthe definition of ‘organ of the state’, however, arethe courts, the Oireachtas, Oireachtas committeesand the president. Significantly, under the UKHuman Rights Act 1998 courts are included in thedefinition of the ‘public authorities’ which arerequired to comply with the convention.

The fact that loss or injury caused by breaches ofthe convention by UK courts can be compensated,but that such loss or injury caused by Irish courtswill not, begs the question as to whether the state,in enacting the bill, will be in breach of the Good

Would previous successfullitigants before the ECHR,such as David Norris, fare as well under the proposed new regime?

COMPANY LAW REVIEW GROUPWORK PROGRAMME 2002-2003

The Company Law Review Group has been established under the Company Law EnforcementAct 2001 to advise the Minister for Enterprise Trade and Employment on reform and reviewof company law. The Review Group is chaired by Thomas B Courtney, solicitor. The ReviewGroup is seeking submissions from interested parties for its second two-yearly workprogramme 2002 - 2003. Submissions received will be used to assist the Review Group’sconsideration of the issues listed below. The Review Group will produce by end-2003 areport with recommendations on the future content and structure of company law in Irelandon these issues.1. Shares and share capital2. Winding up of companies3. Charges and security4. Company management regulations (Table A)Explanatory note: In its First Report the Review Group concluded that the provisions of TableA relating to internal corporate governance should be set out in the main statute. TheGroup’s First Report details in Chapter 4 the approach proposed towards specific Table ARegulations. Work has begun on the translation of the recommendations in the first reportinto legislative proposals. In its second work programme the Review Group will considerthose Regulations in Table A not dealt with in its First Report, with the intention of eithermigrating them to the main statute or repealing them. 5. Liquidators and liquidation serviceExplanatory note: The Review Group will consider how Ireland can ensure that liquidators areappointed for the proper winding up of all insolvent companies; and in this context whetherIreland should have a State-funded public interest liquidation service.6. Proposed EU developments in company law7. Accounting and auditWe welcome receipt of submissions in electronic form. These can be submitted on-line atwww.clrg.org They may also be emailed to [email protected] by post should be sent to:

PAT NOLAN, SecretaryCompany Law Review GroupEarlsfort CentreHatch Street Lower.Dublin 2

Information on the Review Group is available on our website: www.clrg.org.The First Report of the Review Group was published on 28 February 2002. It can bedownloaded from our website www.clrg.org and from the website of the Department ofEnterprise, Trade and Employment www.entemp.ie. The First Report can be purchased fromthe Government Publications Sale Office, Molesworth St., Dublin 2 for _20 per copy.

Human rights


17

Friday agreement for failing to ensure a level ofhuman rights protection equivalent to that inNorthern Ireland.

Even if an ‘organ of the state’ breaches aconvention right, the injured party may encountersignificant difficulties in recovering compensationunder section 3 of the bill (when enacted). Section3(2) of the bill provides that a person who hassuffered injury, loss or damage as a result of thefailure of an ‘organ of the state’ to conform with itsobligations under the convention, ‘may, if no otherremedy in damages is available, instituteproceedings to recover damages in respect of thecontravention’ (emphasis added).

At face value, this provision implies that whereanother remedy in damages might exist, this mustbe pursued before damages for breach ofconvention rights can be sought. In other words, aclaimant could not plead breach of his conventionrights in the alternative to other grounds. As such,the very difficulty that the bill is supposed toremedy, namely the necessity that all otherremedies be exhausted before damages can besought under the convention, is expresslyperpetuated by the bill itself.

What if it is unclear as to whether a ‘non-convention’ ground will provide a remedy indamages? Is the claimant still required to sue onthis other ground, and run the risk of losing andincurring costs, before suing under section 3? Ormust he seek the assistance of the courts by lookingfor an appropriate declaration in cases of doubt? Ifthe claimant must go to such lengths (as a literalinterpretation of section 3(2) suggests), it mighthave made little difference to him had thelegislature not taken the trouble to introduce thebill in the first place.

The apparent reluctance on the part of thegovernment to allow citizens to rely on theconvention in Irish courts is underscored by section3(5)(a) of the bill, which provides that proceedingsfor breaches of the convention by an ‘organ of thestate’ must be brought within one year of thebreach. In other words, and attributing to theprovisions of section 3 their ordinary meaning,before suing for damages under section 3, theinjured party must, within one year, exhaust allother potential remedies in damages withoutsuccess!

Under section 3(5)(b), the one-year limitationperiod may be extended by court order if it isappropriate to do so ‘in the interests of justice’.Why not prevent a host of applications for suchextensions, and the ensuing hardship anduncertainty for claimants, by simply allowing theconvention to be pleaded in the alternative to otherheads of law?

In the UK, plaintiffs suing under the HumanRights Act 1998 are not precluded from pleadingthe convention in the alternative to other grounds.This difference between the bill and the UK actonce again raises the question as to whether a level

of human rights protection equivalent to that inNorthern Ireland will exist here when the bill isenacted, and, as such, whether the state would bein breach of the Good Friday agreement in passingthe bill as it stands.

The UK case of Marcic v Thames Water UtilitiesLimited (Technology and Construction Court, 14May 2001) illustrates the importance, wereillustration needed, of allowing the convention tobe pleaded in the alternative to other grounds. Theplaintiff’s property was flooded repeatedly overnine years by water from the defendant’s seweragesystem. The plaintiff sought damages and aninjunction on various grounds, including common-law nuisance, negligence, breach of statutory dutyand contravention of the UK Human Rights Act1998.

The court found that the defendant was notliable in nuisance, and that its failure to carry outremedial works to the sewerage system did notamount to negligence or a breach of statutory duty.The court held, however, that failure to carry outthe works was a contravention of the claimant’sright to respect for private and family life underarticle 8 of the act (which implements article 8 ofthe convention), and his right to peacefulenjoyment of property and possessions underarticle 1, first protocol, of the act (whichimplements article 1, first protocol, of theconvention).

Were the same case to be tried here, the plaintiffwould either have to sue on common law and ‘non-convention’ statutory and other grounds (perhapsalso to no avail) before suing under the bill whenenacted, to seek a declaration to the effect thatsuch other grounds would be inadequate, or to sueunder the bill (when enacted) in the first instanceand try to overcome a strong argument from thedefendant that he has failed to exhaust all otherremedies in damages.

The bill, if enacted as it stands, would permitthe continued operation of laws that infringe theconvention, prohibit the courts from awardingdamages in respect of ‘incompatible’ laws, andprohibit reliance on convention rights in thealternative to other grounds when seeking damagesfor convention breaches by ‘organs of the state’.These features of the bill appear to be based on anassumption that adequate fundamental rightsprotection already exists in Ireland, but that theconvention has to be seen to be incorporated intoIrish law nonetheless.

While strong fundamental rights protectionexists in certain areas, thanks largely to judicialactivism of past years, clearly it would be wrong toassume that any framework for the protection ofhuman rights is ever complete. Just ask DavidNorris.

John Moher is a solicitor in the commercial litigationand dispute resolution department of Dublin law firmMatheson Ormsby Prentice.

G

‘If the claimant

must go to such

lengths, it

might have

made little

difference to

him had the

legislature not

taken the

trouble to

introduce the

bill in the first

place’

Criminal law


18

The primary duty of a lawyer in charge ofprosecutions is not to convict, but toensure that justice is done. ‘Justice’ isreferred to in the preamble of theconstitution in the context of seeking to

promote the common good so that the dignity andfreedom of the individual may be assured and truesocial order attained.

In October 2001, James Hamilton, the director ofpublic prosecutions, published a Statement of generalguidelines for prosecutors. It sets out the principles whichshould guide the initiation and conduct of prosecutionsin Ireland. The document was intended to give generalguidelines to prosecutors so that a fair, reasoned andconsistent policy underlies the prosecution function.The guidelines are of considerable significance.Although not issued on foot of any statutory duty orpower, they represent the collective wisdom of thecurrent director of public prosecutions and his officeand of his predecessor, Eamonn Barnes. This articlewill concentrate on one aspect of the guidelines, thedecision whether or not to prosecute.

Under article 30 of the constitution and theProsecution of Offences Act, 1974, all crimes andoffences, other than those prosecuted in a court ofsummary jurisdiction, are brought in the name of thePeople and at the suit of the director of publicprosecutions, except for a limited number of offenceswhich are still prosecuted at the suit of the attorneygeneral. In the context of indictable offences broughtat the suit of the DPP, the decision to prosecute ornot is taken by the DPP personally or by an officer ofthe DPP who is authorised to take such a decision.

The public interest A fundamental consideration when deciding whetherto prosecute is whether to do so is in the publicinterest. The guidelines specify that a prosecutionshould be initiated or continued, subject to theavailable evidence disclosing a prima facie case, if it isin the public interest and not otherwise.

The guidelines provide that there is a clear publicinterest in ensuring that crime is prosecuted and thatthe wrongdoer is convicted and punished. It followsthat it would generally be in the public interest toprosecute a case where there is sufficient evidence tojustify doing so, unless there is some countervailing

public interest reason not to. The guidelines statethat the prosecutor approaches each case first byasking whether the evidence is sufficiently strong tojustify prosecuting. If the answer to that question is‘no’, then a prosecution will not be pursued. If theanswer is ‘yes’, then before deciding to prosecute, theprosecutor will ask whether the public interestfavours a prosecution or if there is any public interestreason not to prosecute.

In the context of whether to prosecute or not,much depends on the duty of the prosecutor. Thenew guidelines explain what these are (see panel,page 19).

Far-reaching consequences The decision to prosecute or not to prosecute is ofgreat importance. It can have the most far-reachingconsequences for an individual. Even where theaccused person is acquitted, the guidelinesacknowledge that the consequences resulting from aprosecution can include loss of reputation, disruptionof personal relations and loss of employment andfinancial expense, in addition to the anxiety andtrauma caused by being charged with a criminaloffence. Further, for victims and their families, adecision not to prosecute can be distressing. As far asvictims are concerned, where they have made what isoften a very difficult and traumatic decision to reporta crime, they may well feel rejected and disbelieved ifa decision is taken not to prosecute.

The strength of the evidence The strength of the evidence is a critical factor indeciding whether or not to proceed with aprosecution. It may be said that it is not in the publicinterest to use public resources on a prosecution casewhich has no reasonable prospect of success.Furthermore, if there is a high rate of prosecutionsresulting in acquittals, the guidelines state that thiscould undermine public confidence in the criminaljustice system. A prosecution should not be institutedunless there is a prima facie case against the accused.This means in essence that the evidence isadmissible, substantial and reliable, and that acriminal offence known to the law has beencommitted by the accused. The evidence must besuch that a jury, properly instructed on the relevant

A game of hiAnyone working for the director of public prosecutions needs to have a touch of the gambler

in them: they need to know when to hold them and know when to fold them. Recently, the

DPP’s office issued new guidelines that aim to make its prosecution decisions a little more

transparent. Dr Eamonn Hall puts on his poker face and raises some issues

MAI

N P

OIN

TS• The generalduties of aprosecutinglawyer

• Evaluating thestrength andadmissibility ofthe evidence

• Mitigatingfactors thatreduce thepossibility of aprosecution

Criminal law


19

igh stakes

• The prosecutor has a duty to act honestly, fairly,impartially and objectively

• The prosecutor should at all times respect thefundamental right of all human persons to be heldequally before the law, and should abstain from anywrongful discrimination

• The prosecutor has a duty to respect, protect anduphold the universal concept of human dignity andhuman rights

• The prosecutor should at all times uphold the ruleof law, the integrity of the criminal justice systemand the right to a fair trial

• The prosecutor should remain unaffected byindividual or sectional interests and public or mediapressures, having regard only to the public interest.

These fundamental duties should inform all aspectsof the prosecutor’s work, including decisions whetherto prosecute or withdraw charges, bring appeals,decisions concerning the choice of charge and theconduct of the prosecutor in court.

law, could conclude beyond a reasonable doubt thatthe accused was guilty of the offence charged.

The guidelines provide that the prosecutorshould not lay a charge where there is no reasonableprospect of securing a conviction before areasonable jury (or a judge in cases heard without ajury). The question of what is meant by ‘areasonable prospect of conviction’ is not capable ofbeing answered by a precise mathematical formula.The guidelines provide that a prosecution shouldnot be brought where the likelihood of conviction iseffectively non-existent. Where the likelihood ofconviction is low, other factors, including theseriousness of the offence, may come into play indeciding whether to prosecute.

In evaluating the prospects of a conviction, theguidelines provide that the prosecutor has to assessthe admissibility, sufficiency and strength of theevidence that will be presented at the trial. Thisgoes beyond the issue of whether the statement orgroup of statements amounts to a prima facie case. Ineffect, the prosecutor must consider whetherwitnesses appear to be reliable and credible. Theguidelines note that accusations of criminalwrongdoing can be unreliable for all sorts ofreasons: they can be unfounded or inaccuratewithout being deliberately manufactured, they maybe the result of human error, or they can be mademaliciously. A statement may not simply be acceptedat face value and acted upon without considering its

credibility (see panel, page 20). The guidelines provide that the assessment of the

evidence not only has to be made initially, but needsto be reviewed at every stage of the proceedings. Theinvestigator would be expected to express views onthe evidence upon referring the case to theprosecution authorities. Likewise, it applies to the

OF THE PROSECUTORTHE GENERAL DUTIES

Director of PublicProsections JamesHamilton (right) withGarda CommissionerPat Byrne and AttorneyGeneral MichaelMcDowell, launchingthe new guidelines forprosecutors

Criminal law


20

solicitor for the prosecution. A decision not to chargemay not be final, particularly when the reason is asimple insufficiency of evidence. To postpone thebringing of proceedings due to the lack of availableevidence may be preferable to having proceedings failbecause they are brought prematurely.

Factors to considerOnce the DPP, or his officer dealing with the case, issatisfied that there is sufficient evidence to justify theinstitution or continuance of a prosecution, the issuearises as to whether, in the light of the provable factsand the whole of the surrounding circumstances, thepublic interest requires a prosecution to be pursued.The guidelines provide that it is not the rule that alloffences for which there is sufficient evidence must beprosecuted.

The factors that may be taken into account in thecontext of the public interest being not to prosecutevary from case to case. The interest in seeing thewrongdoer convicted and punished, and crimepunished, is in itself a public interest consideration.The guidelines provide that the more serious theoffence and the stronger the evidence to support it,the less likely that some other factor will outweighthat interest. The first factor to consider in assessingwhere the public interest lies is, therefore, theseriousness of the alleged offence and whether thereare any aggravating or mitigating factors.

The guidelines set out the aggravating factors,which are not intended to be exhaustive, that tend toincrease the seriousness of the offence and, if present,

will tend to increase the likelihood that the publicinterest requires a prosecution:‘a) Where a conviction is likely to result in a

significant penaltyb) If the accused was in a position of authority or

trust and the offence is an abuse of that positionc) Where the accused was a ringleader or an

organiser of the offenced) Where the offence was premeditatede) Where the offence was carried out by a groupf) Where the offence was carried out pursuant to a

plan in pursuit of organised crimeg) Where the victim of the offence has been put in

fear, or suffered personal attack, damage ordisturbance. The more vulnerable the victim thegreater the aggravation

h) Where there is a marked difference between theactual or mental ages of the accused and the victimand the accused took advantage of this

i) If there is any element of corruptionj) Where the accused has previous convictions or

cautions which are relevant to the present offencek) If the accused is alleged to have committed the

offence whilst on bail, on probation, or subject to asuspended sentence or an order binding theaccused to keep the peace and be of goodbehaviour, or released on licence from a prison ora place of detention

l) Where there are grounds for believing that theoffence is likely to be continued or repeated, forexample, where there is a history of recurringconduct’.

The guidelines set out some factors which the prosecutor shouldconsider in evaluating the admissibility and strength of evidence. Theysay that each case is unique and the variety of human experience andbehaviour so great so as to make a comprehensive list of all possibleconsiderations which could arise impossible. Issues that arise mayinclude the following, which are set out at paragraph 4.11 of theguidelines: ‘a) Are there grounds for believing that evidence may be excluded,

bearing in mind the principles of admissibility under the Constitutionof Ireland, at common law and under statute? For example, hasconfession evidence been properly obtained? Has evidence obtainedas a result of search or seizure been properly obtained?

b) If the case depends in whole or in part on admissions by thesuspected person, are there grounds for believing that theadmissions may not be reliable considering all the circumstances ofthe case including the age, intelligence, mental state and apparentunderstanding of the suspect? Are the admissions consistent withwhat can be objectively provided? Is there any reason why thesuspect would make a false confession?

c) Does it appear that a witness is exaggerating or has a faultymemory, or is either hostile or friendly to the accused, or may beunreliable in some other way? Did a witness have the opportunity toobserve what he or she claims to have seen?

d) Has a witness been consistent in his or her evidence?e) Does a witness have a motive for telling an untruth or less than the

whole truth?f) Could the reliability of evidence be affected by physical or mental

illness or infirmity?g) What sort of impression is a witness likely to make? How is the

witness likely to stand up to cross-examination?h) If there is conflict between witnesses, does it go beyond what might

be considered normal, and hence materially weaken the case?i) If, on the other hand, there is a lack of conflict between witnesses,

is there anything which causes suspicion that a false story mayhave been concocted?

j) Are all the necessary witnesses available to give evidence, includingany who may be abroad? In the case of witnesses who are abroad,the possibility of obtaining the evidence through a live televisionlink, pursuant to section 28 of the Criminal Evidence Act, 1992 orby means of the issue of letter of request under the Criminal JusticeAct, 1994 should be considered

k) Are all the necessary witnesses competent to give evidence? If so,are they compellable? If competent but not compellable, have theyindicated their willingness to testify?

l) Where child witnesses are involved, are they likely to be able to givesworn evidence or evidence in accordance with the criteria in section27 of the Criminal Evidence Act, 1992? How is the experience of atrial likely to affect them? In cases of sexual offences or offencesinvolving violence, should children’s evidence be presented by way oftelevision link in accordance with section 13 of the act?

m) In relation to mentally handicapped witnesses, are they capable ofgiving an intelligent account of events which are relevant to theproceedings so as to enable their evidence to be given pursuant tosection 27 of the Criminal Evidence Act, 1992?

n) If identification is likely to be an issue, how cogent and reliable isthe evidence of those who claim to identify the accused?

o) Where there might otherwise be doubts concerning a particularpiece of evidence, is there any independent evidence to support it?’

EVALUATING THE EVIDENCE

Criminal law


21

According to the DPP’s guidelines (para 4.19), prosecutors should bear in mind thefollowing factors in relation to delays in prosecution: ‘a) Whether any delay was caused or contributed to by the alleged offenderb) Whether the fact of the offence or of the alleged offender’s responsibility for it

has recently come to lightc) Where any delay was caused or contributed to by a long investigation, whether

the length of the investigation was reasonable in the circumstancesd) Where the victim has delayed in reporting the offence, the age of the victim both

when the offence was committed and when it was reportede) Whether the alleged offender exercised a dominant position over the victimf) Whether there is actual prejudice caused to the alleged offender by reason of any

delay or lapse of time’.

The guidelines set out certain mitigating factors,which, if present, tend to reduce the seriousness of theoffence and hence the likelihood of a prosecutionbeing required in the public interest. These includethe issue of whether the court is likely to impose a verysmall or nominal penalty, where the loss or harm canbe described as minor and was the result of a singleincident – particularly if it was caused by an error ofjudgement, or where the offence is a first offence – andif it is not of a serious nature and is unlikely to berepeated.

Other factors may also arise in considering whetherthe public interest requires a prosecution. These areset out in the guidelines and are of such importancethat they deserve to be quoted in full (para 4.18):‘a) Where the offender is either very young or elderly

or suffering from significant mental or physical illhealth or disability. In such cases, however, otherfactors tending to indicate that the offence isserious or that there is a risk of the offence beingrepeated must be taken into account. In the case ofyoung offenders, the use of the Juvenile DiversionProgramme should be considered

b) The availability and efficacy of any alternatives toprosecution

c) The prevalence of offences of the nature of thatalleged and the need for deterrence, both generallyand in relation to the particular circumstances ofthe offender

d) Whether the consequence of a prosecution or aconviction would be disproportionately harsh oroppressive in the particular circumstances of theoffender

e) The attitude of the victim or the family of a victimof the alleged offence to a prosecution

f) The likely effect on the victim or the family of avictim of a decision to prosecute, or not toprosecute

g) Whether the likely length and expense of a trialwould be disproportionate, having regard to theseriousness of the alleged offence and the strengthof the evidence

h) Whether the offender is willing to co-operate inthe investigation or prosecution of other offenders,or has already done so

i) If a sentence has already been imposed on theoffender in relation to another matter, whether it islikely that an additional penalty would be imposed

j) Whether an offender who has admitted the offencehas shown genuine remorse and a willingness tomake amends’.

The complex issue of delay is a crucial factor, and hasresurfaced recently in the courts in the context of theprosecution of sexual offences. The guidelines statethat the prosecutor should, in any case where therehas been a long delay since the offence wascommitted, consider in the light of the case law of thecourts whether that delay is such that the case shouldnot proceed (see panel above).

Where there are mitigating factors present in acase, the prosecutor should consider whether these are

factors that should be taken into account by thesentencing court in the event of a conviction, ratherthan factors which should lead to a decision not toprosecute. Nevertheless, the guidelines provide thatwhere the alleged offence is not so serious as plainlyto require a prosecution, the prosecution shouldconsider in the circumstances whether the publicinterest requires it.

In the context of mitigating factors and otherrelevant issues, lawyers should bear in mind thatpursuant to section 6 of the Prosecution of Offences Act,1974 and section 2(4) of the Criminal Justice Act, 1993,the prosecutor is precluded from considering certainunlawful communications when considering a decisionto prosecute or to seek a review of sentence on thegrounds of undue leniency. The prohibition oncommunications to the DPP does not apply to acommunication made by a person who is a defendantor a complainant in criminal proceedings or whobelieves he or she is likely to be a defendant incriminal proceedings, or communications made by aperson involved in the matter either personally or aslegal or medical adviser to a person involved or as asocial worker or member of the family of the personinvolved in the matter.

Many people consider that criminal law isconfined to matters such as offences against theperson, sexual offences, larceny and such like, andsomehow consider that the same rigor andimplications do not apply to the myriad of offencesunder company law and under a host of statuteswhich some consider to be ‘civil’ matters. A criminaloffence under any code is a criminal offence andmust be taken seriously, and a prosecution may havethe most profound consequences for any individual.

All lawyers, of whatever hue, will be asked in onecontext or another to advise a client or a member ofa client’s family in relation to a criminal prosecution.Whether that lawyer is a corporate lawyer, one of thegreat solicitors in single or two-person practices, inone of the large firms, or an in-house lawyer to acorporation, we should note that these guidelines willhave an impact on the governance of the lives of allcitizens and business entities in the state.

Dr Eamonn Hall is chief legal officer of Eircom plc.

G

DELAYS IN TAKING

‘The guidelines

provide that the

assessment of

the evidence not

only has to be

made initially,

but needs to be

reviewed at

every stage of

the proceedings’

PROSECUTIONS

Litigation


22

On 7 December 2001, a High Courtlibel jury found that a 1999 SundayIndependent report suggested that SeánSherwin had wrongfully solicitedmoney from a property developer for

his sister-in-law, and that this suggestion was false.Nevertheless, they awarded him damages of just£250. The Sunday Independent argued that this wasno vindication and that Mr Sherwin should have nocosts at all or, alternatively, that any award of costsshould be limited to the Circuit Court scale.Furthermore, it argued that Mr Sherwin should paythe difference between the paper’s actual HighCourt costs and its costs had it defended a CircuitCourt action.

The trial judge refused the ‘no costs’ application,dismissing the argument that the award was‘nominal’. He awarded Mr Sherwin costs of £5,000– the District Court does not have jurisdiction tohear libel actions, but the judge accepted that, inview of the actual damages awarded, costs must belimited to the Circuit Court threshold of £5,000. MrSherwin was also ordered to pay the costs of thepaper, amounting to half of the difference betweenits High Court costs and what those costs wouldhave been had the case been taken in the CircuitCourt, estimated at £100,000. Despite the juryverdict in his favour, Mr Sherwin was left with acosts bill estimated at £300,000.

The Mangan caseOn 19 February 2002, a High Court libel jury foundthat a 1998 Sunday Independent article suggested thatDistrict Judge Joseph Mangan had acted in amanner inconsistent with the proper discharge ofhis judicial functions by taking a call on his mobilephone from the bench, rejecting the paper’s casethat it had not libelled the judge. The jury awardedthe plaintiff €25,000 in damages. The plaintiffimmediately accepted that his costs should belimited to the Circuit Court scale. The paper arguedthat he should make a contribution to its HighCourt costs. The judge refused this application, andawarded the plaintiff his costs on the Circuit Courtscale. The paper will appeal.

Actual costs of both parties are estimated at€750,000. The plaintiff is unlikely to be left with anoutstanding costs bill, as his legal team have agreedto limit their fees to the Circuit Court scale. In

short, the lawyers who advised Judge Mangan to takehis case in the High Court will bear the penalty forthe low award.

Trial by juryOne consequence of the costs provisions of the CourtsAct, 1981 (see panel) is to penalise the plaintiff whoseeks a jury trial. A favourable verdict from a jury is ofvalue in itself. Mr Justice Hardiman has said, speakingextra-judicially, that ‘the verdict of a jury is felt tocarry a degree of authoritative vindication difficult toreplace in any other way’.

The issue is not merely academic: in the Mangancase, a decision in the plaintiff judge’s favour by a fellowjudge, sitting alone without a jury (as he must do in theCircuit Court) may have caused public unease, which

DEFAMATION:

which courtRecent costs

awards in the

Sherwin and

Mangan libel

actions have

turned the spot-

light firmly on

the penalising

provisions of the

Courts Act,

1981, as amend-

ed in 1991.

Pamela Cassidy

argues that

careful consider-

ation should be

given to whether

a plaintiff’s

defamation claim

justifies going to

the High Court

at all

MAI

N PO

INTS• Plaintiff’s

entitlement tocosts recoveryunder theCourts Acts

• The Sherwinand Mangancases

• Complexitiesof defamationsuits

Litigation


23

makes his case ‘exceptional’. But if jury vindication isto have any value, the courts must take it into accountin cost awards. Under the present legislation, a HighCourt judge can only do so where the award exceeds€31,743.45. He has no discretion otherwise.

A jury vindication is particularly important in ajurisdiction like ours, where a publisher can never beforced to apologise. Jury trial in defamation actions isregarded in England as a constitutional right for bothplaintiff and defendant, and judges are reluctant toaccede to applications for trial by judge alonewithout the consent of both parties.

Defamation complexitiesThe question of ‘which court?’ is complicated by thedifficulty in forecasting how a jury will react to the

disputed issues (for example, what they will make ofthe words complained of) and in predicting the levelof the jury award. What words mean and whetherthey are defamatory is an essential preliminaryquestion in many libel actions. This makes thedefamation action different from, say, personalinjury actions, where there is a recognised level ofawards for particular injuries.

In the Mangan case, the Sunday Independentargued that it was not defamatory to call a judge amobile phone freak. In a case tried by a Dublin jurylast July, the Irish Times argued that it was notdefamatory of Peter Boyle, former chairman of theLeinster branch of the IRFU, to report the allegedcriticism of a French rugby player over a three-weeksuspension from play. The jury in each case

to choose?

Advances in medical care have lead to increased expectation. In the lastfifty years we have seen major infections controlled, major advancesin cardiovascular surgery leading to cardiac transplantation, liver

transplantation and the introduction of in-vitro fertilization with life expectan-cy greatly prolonged.

With all these advances comes a public perception that all operationsshould be 100% successful, that complications should no longer occur, thatevery baby born is perfect and doctors do not make mistakes. Sadly, despitemajor advances in science, much of medicine remains marred. Outcomes can-not be guaranteed. Some patients will suffer minor and on occasions, seriouscomplications. Doctors are now more accountable than ever before, bettertrained with better technology but despite this problems arise. The culturewhereby it became common practice to sue doctors arose in the United States,it has rapidly spread to the UK and now Ireland. Mistakes do happen. Patientsdo suffer and some form of compensation is appropriate. In many instances,patients are simply looking for an explanation. Good communication, a thor-ough explanation of events and many potential medical negligence cases willresolve.

For medical negligence cases to succeed there has to be a breach of dutyand this breach of duty must cause some damage. Sadly, the only outcome ofa medical negligence case is a financial contribution to the victim if negli-gence is proven. It is for the victim to show both breach of duty and causationand that is where medical reports become essential. Medical reports are pre-pared from the medical records and witness statements. The reports may besupplemented by reference to learned literature and by examination and re-examination of the patient.

Medical records remain a variable part of the process. The records maybe incomplete, illegible or inaccurate. Medical records are created by the doc-tors and nurses treating the patient. The entries represent their findings andtheir interpretation of the findings. Medical students are trained to write a fullset of notes. In particular this may include negative findings indicating that aparticular examination was not carried out which may be extremely useful inconstructing a Defence. Sparse notes may imply that an examination was notcarried out, but as is so common in clinical practice, the doctor when provid-ing his witness statement will often refer to the fact that it is normal practiceto do a particular examination in a certain way.

Operative findings again record the surgeon’s perception of what he sawand what he did. When a surgeon records that all layers were sutured, this ishis perception of what was done as opposed to what was actually done. Whennursing notes indicate “no problem seen” it is a matter of interpretation as tohow careful that examination was.

MEDICAL REPORTS:Medical reports range from a simple letter through to a more structured doc-ument, detailing the source of information, providing a chronology opinion,conclusions and references. It perhaps goes without saying that it is impor-tant to obtain the appropriate expert. The appropriate expert should be some-body practicing within that field of medicine, with specific experience andregard to the specific problems and complications. The person must be trulyindependent. A medical report prepared for a claimant or defendant by some-body who has a specific interest is of little use. A truly independent reportaimed at assisting the court, analyzing the facts, identifying areas of conflictand offering an adequate explanation of events is always preferred. Itremains an intellectual myth that the greater the expert, the greater the com-plexity of the report. The best experts will provide a very simple report, witha very simple understanding. Medical issues are often complex and a full

explanation of the terminology, the issues and the outcome are essential.When providing a report, it is important to consider all issues, to takeaccount of statements from both the defendants and the claimant and carryout a thorough and comprehensive review of all the medical records.Deficiencies in the medical records can be identified. Absent charts andmissing results can be highlighted.

The preparation of the medical report is akin to a detective story. It maybe necessary to look at the outcome and attempt to work back, creating ahypothesis. Using the medical records the hypothesis can be tested and anopinion derived.

The best Medico-Legal reports are ones that identify the issues, providea full and comprehensive explanation and then provide adequate conclusions.Any statement in the report should be supported by references. Statementslike “it is always done that way” have no value, unless supported by medicalliterature. It has long been recognised that there may be alternative ways ofachieving an outcome and therefore there are a reputable body of medicalopinion who will do things in a different way. It is no longer acceptable in theUK to get a group of experts to support a hypothesis, unless they can trulyback that with scientific evidence. When preparing a report, it is clearlyimportant to consider alternative methods of treatment and alternative out-come.

CURRENT CONDITION AND PROGNOSIS:Reports relating to Current Condition and Prognosis are important, particu-larly with regard to quantum. In the UK there is an increasing tendency toissue joint instructions to a single joint expert. The report is then accepted byboth sides, who are free to question the expert. The report is prepared for thecourt and clearly if independent in the preparation of these reports, it may benecessary to carry out up to date investigations which may be useful to deter-mine the long term outcome. Nerve conduction studies, vascular assessment,blood tests can be extremely helpful. In the preparation of these reports pri-marily intended to settle the case, recommendations about future treatmentand the cost of future treatment are often included.

MEDICO LEGAL CHAMBERS:Medico-Legal chambers were developed to assist in the preparation of med-ical reports and provide expert opinions in the management of Medico-Legalcases. Experts covering all medical disciplines with experience in the prepa-ration of Medico-Legal reports, and the provision of opinions, work togetherassisting both the claimant and the defendant. Preliminary letters of instruc-tions will be evaluated and the appropriate expert selected. Full and preciseinstructions will be given to the expert, along with all documentation requiredfor the purpose of preparing the report. In addition to receiving the report, fur-ther recommendations concerning other expert opinions may be offered.Experts are available to attend Medico Legal Conferences and are availableto attend court.

• Selection of Expert(s)• Obtaining appropriate documentation.• Sorting and processing medical records. • Full and proper instruction of Expert(s).• Preparation of the independent Medical Report:

addressing positive and negative issues.• Preparation of references to substantiate Medical Report.• Preparation of Report on Current Condition and Prognosis.• Recommendation for further Expert opinion.

MEDICAL MALPRACTICE

The Medical ReportArticle written by John H Scurr, Consultant Surgeon and Director Of Medico Legal

Chambers Ireland. He has just been awarded the JW Starkey medal by the Council ofthe Royal Society for Promotion of Health for his outstanding research in the field of

Deep Vein Thrombosis (DVT) Travel Thrombosis.

Further details of the chamber from:Marie Coyle Practice Manager

MEDICO LEGAL CHAMBERS IRL.LTD8 Taney Lawn, Dundrum, Dublin 14. Tel/fax 01-2962570

DX 76012 Dundrum

ADVERTISEMENT

Litigation


25

disagreed with the paper and found for the plaintiff.Mr Boyle was awarded £50,000.

And there are other complexities, such as difficultissues of law, which may make a case more suitablefor determination in the High Court. How, forexample, is a Circuit Court judge likely to react to anapplication for service of interrogatories by a plaintiff,made before he particularises his claim, where he hasa good cause of action in slander but is obliged toresort to the defendant to make out that case, or theplaintiff who seeks immediate disclosure of e-mailmaterial? The authorities suggest that the properprocedure is the issue of a High Court plenarysummons, followed by an application for inter-rogatories or disclosure. If he contemplates taking his case in the Circuit Court, the plaintiff is mostunlikely to obtain interrogatories or disclosure beforehe issues his civil bill, although he cannot properlyparticularise his case until he has this material. Yetthis plaintiff will be penalised on costs for proceeding

Section 17 of the Courts Act, 1981, as substituted by section 14of the Courts Act, 1991 reads:‘17(1) Where an order is made by a court in favour of the plaintiff

or applicant in any proceedings (other than an action specifiedin sub-sections (2) and (3) of this section) and the court is notthe lowest court having jurisdiction to make an order grantingthe relief the subject of the order, the plaintiff shall not beentitled to recover more costs than he would have been entitledto recover if the proceedings had been commenced anddetermined in the said lowest court

(2) In any action commenced and determined in the High Court,being an action where the amount of damages recovered by theplaintiff exceeds €31,743.45 but does not exceed €38,092.14,the plaintiff shall not be entitled to recover more costs than hewould have been entitled to recover if the proceedings had beencommenced and determined in the Circuit Court, unless thejudge hearing the action grants a special certificate, for reasonsstated in the order, that, in the opinion of such judge, it wasreasonable in the interests of justice generally, owing to theexceptional nature of the proceedings or any question of lawcontained therein, that the proceedings should have beencommenced and determined in the High Court

(3) In any action commenced and determined in the High Court,being an action where the amount of the damages recovered bythe plaintiff exceeds €6,348.69 but does not exceed€19,046.07, the plaintiff shall not be entitled to recover morecosts than whichever of the following amounts is the lesser, thatis to say, the amount of such damages or the amount of costswhich he would have been entitled to recover if the action hadbeen commenced and determined in the Circuit Court

(4) It shall not be lawful for rules of court to contain or impose anyrestriction on the amount of costs recoverable by any party fromany other party in any action or other proceeding, but nothing inthis sub-section shall prevent the insertion in rules of court of arestriction on the amount of the costs recoverable which isidentical with a restriction imposed by this section nor the fixingby rules of court of the amount recoverable by any person as

and for the costs and expenses incurred by him in the doing ofany specified thing in any particular form of action or otherproceeding

(5) (a) Where an order is made by a court in favour of the plaintiffor applicant in any proceedings (not being an appeal) and thecourt is not the lowest court having jurisdiction to make anorder granting the relief the subject of the order, the judgeconcerned may, if in all the circumstances he thinks itappropriate to do so, make an order for the payment to thedefendant or respondent in the proceedings by the plaintiff orapplicant of an amount not exceeding whichever of the followingthe judge considers appropriate:(i) the amount, measured by the judge, of the additional costs

as between party and party incurred in the proceedings bythe defendant or respondent by reason of the fact that theproceedings were not commenced and determined in thesaid lowest court, or

(ii) an amount equal to the difference between(I) the amount of the costs as between party and partyincurred in the proceedings by the defendant or respondentas taxed by a taxing master of the High Court or, if theproceedings were heard and determined in the Circuit Court,the appropriate county registrar, and(II) the amount of the costs as between party and partyincurred in the proceedings by the defendant or respondentas taxed by a taxing master of the High Court or, if theproceedings were heard and determined in the Circuit Court,the appropriate county registrar on a scale that he considerswould have been appropriate if the proceedings had beenheard and determined in the said lowest court

(b) A person who has been awarded costs under paragraph (a)of this sub-section may, without prejudice to his right to recoverthe costs from the person against whom they were awarded, setoff the whole or part thereof against any costs in theproceedings concerned awarded to the latter person against thefirst-mentioned person

(6) In this section “relief” includes damages’.

WHAT THE COURTS ACT SAYS

in the High Court if he does not obtain an award ofdamages of more than €31,743.45.

Which court to choose?The client’s objective is the vindication of hisreputation, achieved by a combination of threefactors: a verdict in his favour on the substantiveissue, a sum in damages sufficient to serve as awarning that the allegations are false and should notbe repeated, and recovery of his costs.

Prudence dictates that unless your client has avery clear case (so that a jury verdict against himwould be perverse) and the defamation and/or thepublisher’s conduct is particularly grave, he shouldbe advised to give very careful consideration as towhether his claim justifies trial before a jury in theHigh Court.

Pamela Cassidy is a partner with the Dublin law firmBCM Hanby Wallace.

G

Business


26

It’s stating the obvious, but cashflow is thelifeblood of any business. Many businessesstand or fall on the simple operation ofmanaging what’s coming in and going out.Accountants point to it as an indicator of the

real underlying health of an organisation. Take last year’s collapse of Independent Insurance

in the UK, which left 900 Irish motorists and a rangeof large and small businesses in this country withoutcover. In 1999, Independent Insurance reportedprofits of stg£61 million, while it had negativecashflow of stg£45 million – a stg£106 milliondifference. The pattern was repeated on a smaller

scale the following year, with a stg£17 milliondifference between cash from operations and itsreported profits of stg£15 million. A number ofanalysts pointed to these warning signs, but nobody(least of all Independent’s own management)appeared to be listening. The result was that thebusiness went to the wall.

One of the reasons for last year’s hi-tech collapsewas that investors suddenly realised that a highproportion of these companies were spending moneyat an enormous rate, but bringing in little or nothing.The result was that the investors said ‘no more’ andthe rest, as they say, is history.M

AIN

PO

INT

S• Managingcashflow isdifficult ifcustomers areslow to pay

• Factoring andinvoicediscounting arealternativesources ofworking capital

• Most businesstypes,includingpartnerships,can avail ofthese services

GBRIDGING

Your business clients know the story: the cheque is in the post, but they have yet to see the

colour of their customers’ money while their own creditors are banging down the door. So how

can they manage the gap between book debts and cashflow without extending their company’s

overdraft or getting deeper into hock? Barry O’Halloran looks at some options

Business


27

For the 90% or so of Irish businesses that fall intothe small or medium-sized category, cashflow isalmost a life-and-death matter. But the biggest sourceof that cash is, in most cases, the money they areowed by their customers. In fact, a look at most oftheir balance sheets will show you that one of thebiggest assets they have is their book debt. In theory,this should provide a ready source of, well, readies.

But like a lot of theories, this doesn’t always workin practice. Customers can be slow to pay: 30 days’credit can stretch into 60 or even longer. Accordingto the Small Firms’ Association, the average paymenttime in this country is 57 days, even though most

people agree to cough up within 30.In some cases, large and powerful customers can

impose onerous terms on their smaller suppliers,requiring them to wait the longest possible time fortheir money. In turn, suppliers have creditors who arebanging down the door demanding to be paid.

This so-called ‘vicious cash cycle’ can reach a pointwhere businesses actually find themselves at risk, asthey are effectively in a situation where they cannotpay their own debts as they fall due. Extending anoverdraft or raising new loans from the bank are notnecessarily viable ways out of this situation.

So, while you’re waiting weeks for the proverbialcheque in the post and your own creditors are on thepoint of sending around a couple of guys with baseballbats, what do you do? Or more particularly, what doyou do if you can’t afford, or don’t want, conventionalshort-term credit from the banks?

There is one, or rather two, ways out of this: invoicediscounting and factoring. These basically involvegetting a financial institution to advance you most ofthe money your customers owe you. They in turncollect the money, for a fee, normally charged as apercentage of the total amount. In short, they convertthe unpaid invoices into cash or working capital.

On the face of it, this looks like a route that anincreasing number of businesses take. According to thelatest figures available from the Factors’ andDiscounters’ Association (FDA), a British-basedorganisation whose members include the major Irishplayers in the market, namely AIB, Bank of IrelandFinance and Ulster Bank, members’ turnover morethan tripled over the last decade.

In 1993, invoice-discounting volumes came tostg£12.4 billion for the year; by 2000 that had grownto stg£57.2 billion. During the same period, factoringvolumes grew from stg£6.5 billion to stg£16 billion.Total volumes, including international business, wentfrom stg£19.7 billion to stg£77 billion during the sameseven-year period.

Small businesses were by far the biggest customers.Almost half of FDA members’ clients (47%) hadannual turnovers of stg£500,000 or less. Those in thestg£500,000 to stg£1 million range accounted for 18%,while those in the stg£1m to stg£5m bracket generated27% of all the business done during the same seven-year period.

This means that over 92% of FDA clients hadturnovers in a range where they would be classed assmall businesses in this country. In terms of sectors,manufacturing and services were the biggest clients,but all bar financial services had recourse to eitherfactors or invoice discounters. The FDA’s figures arelargely UK focused, but there are no comparablesurveys carried out here.

GAPTHE

Business


28

However, the picture in this country is reckoned tobe broadly similar. Pat Gallagher, marketing managerof Bank of Ireland Finance, one of the market leadershere, says invoice discounting has grown‘phenomenally’ over the last three years.

Old fashioned imageInvoice discounting accounts for a higher proportion ofthe volumes, largely, industry sources say, becausefactoring ‘went out of fashion, or was perceived as oldfashioned’. Sean Forrestal of AIB points out thatfactoring is not popular in this country, as it hashistoric connotations. ‘It used to be seen as a sign thatyou could not get credit anywhere else and that yourown controls were not that good’, he says. But he addsthat the bank does provide factoring to exporters.

In fact, there is not a huge difference between thetwo financing methods (see panel). They are bothbased on a particular class of assets, that is, a company’sbook debts, and they are both geared towardsmanaging the gap between those debts and reliablecashflow.

Factoring (sometimes called full-service factoring) isconsidered to be the better option for slow payingcreditors or for dealing with a short or medium-termshortage of working capital. It’s generally the optionmost frequently recommended to exporters, and somefactors will offer a form of protection or insuranceagainst bad debts.

A factor pays a percentage of approved debts (that is,approved by the factor) on receipt of invoice copies.The percentage depends on the agreement itself, butgenerally comes to around 80% to 85% of the fullamount. The balance, less charges, is paid when thecustomers pay. The charges may vary, but are usuallynegotiated on the basis of turnover.

The factor then takes over the business of creditcontrol and collection, normally with the aim of

speeding up the rate at which customers pay, withoutlosing their good will. This generally involves workingout an agreed credit terms policy with the client andthe customers. In theory at least, the two keyadvantages are that there is less need to borrowbecause cashflow is dependable and debtors are payingfaster, and that companies can save substantially on theadministration associated with credit control andcollection. It may also be useful for a business that doesnot have the resources for good credit control.

The fundamental difference between factoring andinvoice discounting is that in the latter case thebusiness maintains control of the sales ledger,collection and credit control, while customers are notgenerally told about the service. This implies that thebusiness already has the staff and systems to managecredit control. The institution still takes ownership ofthe debt, and the customer is required to sign a debtpurchase agreement before getting the facility.

‘It’s a simple, cost-effective method of raisingworking capital by converting trade debts into cash’,says Bank of Ireland’s Pat Gallagher. ‘It’s an idealproduct for expanding companies: as sales and debtorsgrow, so too does the amount of money available’.

But it does not necessarily have to be used solely forraising working capital, Ulster Bank CommercialServices (UBCS) says that it can also be an appropriatemethod of raising money for management buy-outs ormergers and acquisitions.

It’s worth noting that factors print an assignmentnotice on invoices. This informs customers that thebenefit of the contract has passed to the factor, andthat they are effectively the creditors, even thoughsomeone else is providing the goods or services forwhich the customer is invoiced. Depending on thekind of business relationship that companies maintainwith their customers, this may not suit everybody. As aresult, there may be situations where it may be betterto use invoice discounters.

Money up frontIn common with factors, invoice discounters provide apercentage of approved debts up front on receipt ofinvoice copies. Again, this is normally around 80% to85% of the amount owed, but there is no hard and fastrule. In general, the payments received are paid into abank account administered by the invoice discounter. Ittakes repayment for the advance from this, subtracts itsown charges and credits the balance to the business.Depending on the financier and the nature of theclient, the charges can be a flat fee or a percentage ofturnover. The latter option appears to be the mostcommon. In some cases, discounters will also offersome form of cover or insurance against bad debts.

The financial institutions offering these services donot restrict themselves to limited companies. UBCSsays it will cater for small owner-managed businesses,limited companies, plcs and partnerships. In general,businesses that are involved in manufacturing and thesale of goods and services are most suited.Construction, and any industries where stage contractsare common, tend not to be favoured because there are

FACTORING AND INVOICE DISCOUNTING:WHAT’S INVOLVED?

The business banking or assetfinancing arms of the country’s leading financial institutions providefactoring and invoice discountingservices. There are a number ofindependent providers. A full list ofIrish and UK players is available fromthe Factors’ and Discounters’Association (FDA) Ltd, Second Floor,Boston House, The Little Green,

Richmond, Surrey TW9 1QE, England.Tel: + 44 20 8332 99 55; website: www.factors.org.uk.

Some key providers of the service:• AIB Commercial Services• Anglo Irish Bank plc• Bank of Ireland Finance• Ulster Bank Commercial Services• Celtic Invoice Discounting plc.

FACTORINGA factor advances you 80% to 85% ofapproved trade debts, and assumesresponsibility for credit control andcollection. They will charge you a fee orpercentage of turnover for the service.The factor puts an assignment stamp onthe invoices, as they are effectively thecreditors. This means the relationship isdisclosed to the customer.

INVOICE DISCOUNTINGA discounter advances you 80% to 85%of approved trade debts. You stillmaintain control of collection, but thefunds are placed in an account that thediscounter administers. The relationshipis generally not disclosed to thecustomer. Note that for this to workeffectively, you need to have an efficientcredit control system of your own.

Business


29

particular difficulties associated with these agreements. Ulster Bank stipulates that, to qualify, the business

should have a turnover of €1.27 million (previously £1million) a year. The Bank of Ireland Finance thresholdis lower, at €317,400 (previously £250,000). AIBstipulates a threshold of €0.5 million. AIB’s SeanForrestal says that it will also look for a certain level ofdebtors. ‘We would generally look for a minimum of€0.5 million’, he says. ‘But if you have a scenario whereyou are a start-up and it is likely that you will have aturnover of €0.5 million or over within 12 months,then we could agree to give you a facility’.

Before getting final approval for invoice discounting,the banks will carry out a kind of mini due diligenceexercise which is aimed at ensuring that the business hasthe requisite credit controls in place. ‘Part of the wholeprocess is that you would have to get credit approval’,says Forrestal. ‘Our surveyors will go in and sit downwith the client and look at their controls and collectionsystem, look at the arrangements they have withcustomers and look for things like proof of delivery’.

Exposure to riskBanks will also scrutinise the debts for their exposure torisk, and will determine the facility’s limit as apercentage of the approved amount. Forrestal pointsout that debts outstanding for 90 days or more areunlikely to be approved unless this is the result of aspecial agreement. ‘Unless there are special creditterms, it’s more than likely that it will be a difficult debtto collect, and it hints at problems’, he says.

He explains that if a client has total book debts

Invoice discountingand factoring can beused to:• Meet day-to-day

cash flowrequirements

• Fund new marketdevelopment or new product lines

• Finance mergersand acquisitions

• Financemanagement buy-outs.

GUARANTEED More Destructive than a GREAT WHITE...

Confidential materials collected from HOME, OFFICE and INSTITUTIONS throughout DUBLIN and IRELAND.For information or to order direct call 01 838 5200 or visit www.hannay.ie

HANNAYDocument, Data and Product Destruction

01 838 5200www.hannay.ie

®

NATION

WIDE

SERVIC

E

valued at €200,000, and €40,000 of that figure isoutstanding for more than 90 days (or whatever othertime limit the individual institution sets), the banksubtracts this and multiplies the remainder by the pre-payment rate, for example, 70%. In this case, it is 70%of €160,000, or €112,000 – amounting to 56% of theoverall debt.

The limit can be adjusted up or down according tohow good the client is at collecting the debts. Thebanks get a copy of the monthly sales ledger and if itshows that the collection performance improving,then the facility’s limit will be increased accordingly.Conversely, if performance heads in the otherdirection, then the limit is cut.

‘In one way that’s the beauty of invoicediscounting’, Forrestal argues. ‘We had a client whostarted with us two years ago with a limit of €350,000.He came back to us after three months and said:“Look, this has gone through the roof. I’m right upagainst my limit”, so we increased it to €500,000. Hewas back again after another three months and wewere able to give him €750,000. He also had anoverdraft of €100,000, so he had total facilities of€850,000. That working capital added a huge amountto his bottom line’.

Presumably not all stories are as good as this one,but it does indicate that invoice discounting can be amore flexible system of raising cash thanstraightforward loan finance.

Barry O’Halloran is a staff reporter with Business &Finance magazine.

G


31

Books

Lawyers of my age weretaught fundamental

principles of law. Negligibleattention was given to the issueof ‘finding’ the law. Today,knowledge of the principles oflaw is still important, but moreis required. A lawyer todayneeds to possess the skill to‘find’ the law.

It was Thomas Jefferson whowrote that a lawyer withoutbooks would be like a workmanwithout tools. We all know thatthe mass of the law isaccumulating with frighteningrapidity. That is why the skill to‘find’ the law is of suchimportance.

Tom O’Malley, a barristerand lecturer in law at NUIGalway and the author ofseveral publications, states inhis preface that the objective ofthis book is to introducestudents to the primary andsecondary sources of law and toequip them with basic researchskills. Modestly, the authorquotes Sir Robert Megarry in

Book reviewSources of law (second edition)Thomas O’Malley. Round Hall Sweet & Maxwell (2001), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-185-4. Price: €50.

the first edition of the Manualof the law of real property thathis (Sir Robert’s) stated aimwas to help the ‘examinationcandidate whose main anxietyis not whether he will head thelist but whether he will appearin it at all’. Noting, with evengreater modesty, that his bookcould not even guarantee anappearance on the list, TomO’Malley hopes that it willeliminate some of theconfusion understandably feltby students as they try tobecome familiar with legalsources. The problem is notconfined to students: I havelearned much from this book.

The author has added newmaterial in this edition for thebenefit of practitioners, andthis is most welcome. The newchapters on electronic sourcesof law and legal citation areparticularly helpful, and thechapters on legal writing havebeen extensively revised. Other chapters provide acomprehensive account of the

paper and electronic sources ofIrish, British, European,American, Commonwealth andinternational law.

Appendices to the bookcontain a list of abbreviationscommonly encountered in legalliterature and a glossary ofLatin and French wordscommonly used in legalwriting. If a judge said ‘resintegra’, you would appreciatethat the judge was speakingabout an issue on which thereis no existing rule or precedentand which therefore must bedecided in accordance withfirst principles. A list of Irishlaw books published since 1950is set out under differentsubject headings. The finalappendix contains a selectionof useful websites.

Readers will undoubtedlyknow all about split infinitivesand other matters of grammarand syntax, but the authorprovides a most usefulrefresher course for all of us.There is also a certain charm

in getting titles correct: forexample, ‘The HonorableSociety of King’s Inns’ iscorrect, but ‘The HonourableSociety of the Kings’ Inns’contains at least three errors.One refers to ‘Queens’College, Cambridge’, namedafter two queens, but ‘TheQueen’s College, Oxford’,named after one queen.

Why is legal writingimportant? Words are thevehicle of thought; style is theneat dress of thought. Wordsexpress thoughts and wordsare the very tools of ourprofession. Words count.

Sources of law is a gem ofcompleteness and accuracythat will provide a mostvaluable aid to law students,practitioners and high priestsof the law. It is written in avery readable style, with anabundance of authoritativeinformation.

Dr Eamonn Hall is chief legalofficer of Eircom plc.

G

Gadgets


32

Tech trends

Now thatthe world

and his wife hasa mobile phone,the companies thatmake them arebeating themselves up trying tofind a new angle to make youpart with your cash. This onemight just work. It’s a phonethat takes pictures. Doesn’t thatsound like a good idea, ifyou’re a deaf mute? The newNokia 7650 doubles as an‘integrated digital imagingdevice’. That’s a camera to youand me. Point the phone, usethe colour display as aviewfinder, snap a picture, andshare the moment by texting itto someone who, like you, hasmore money than sense. Thishandset is almost guaranteed totake all the fun out of makingphone calls from the toilet.The Nokia 7650 should be inthe shops this summer, but thecompany hasn’t a clue howmuch it will cost yet.

Dell computers haslaunched the

latest in its line ofnotebook computers,the Inspiron 8200.The Inspiron runson the latest IntelMobile Pentium 4processor – the Mseries, supposedlythe fastestprocessor chipavailable for

mobiles. Now,

I know you want to hear thisbit, so you can bluff your matesdown the pub: the Inspironruns at up to 1.7Ghz with400Mhz processor bus speed.What this means really is thatit is a very fast machine indeed.It has up to 1 gigabyte ofsystem memory and runs avariety of fancy-soundingmultimedia graphics andmemory chips that I won’t boreyou with here. But perhaps itsstrongest selling point is theprice: at around €1,500, it

won’t break the bank andyou will have inyour hands aseven-and-a-

half poundmobile PC that doesn’t

trail its desktop counterpartby much at all.Available from Dell computers(www.dell.ie) and from computeroutlets.

8Mb internal hard drive(allowing faster loading ofgames), a DVD player and64Mb of memory. Microsoftclaims that its 233Mhzgraphics-processing unit(GPU) will deliver more thanthree times the graphicsperformance of other consoleson the market. This may wellbe true, because the Xbox isbasically a PC dressed up as agames console, with a host ofperipherals such as surroundsound, a CD burnerand on-linecapabilities.The downside– and it’s a verybig downside ifyou’re a parent– is that theXbox costs €479including VAT. That’s agood €150 more than Sony’s

PS2, which does many of thesame things.

Whether the Xbox willrepresent a real challenge tothe Playstation’s marketdominance, only time (andyour wallets) will tell. In themeantime, let the monkeyfights begin! Available from Virgin Megastoresand electronics outlets.

Small notebook, big performance

Gaming for generation X

A dumbidea for aphone?

Nothing beats the simple joyof a monkey knife-fight’,

the Duke of Wellington oncememorably said. Everyoneloves monkeys, and if they everinvent a monkey knife-fightinggame we’ll be first in the queueto buy it. And there’ll probablybe only one games console thatcould do it justice: the newXbox from Microsoft.

It’s been a long timecoming, and in the meantimeSony’s Playstation and PS2consoles have developed a nearmonopoly on the gamingmarket, which is estimated tobe worth about €23 billion ayear. Microsoft’s Xboxrepresents the first realisticcompetition to Sony’sstranglehold. It boasts an Intel733MHz Pentium IIIprocessor, the most powerfulCPU of any games console, an

‘

Gadgets


33

Take all the fun out of being a kid!This one’s a bit of a cheat

because it’s not available inIreland, but it’s such a coolidea that we thought you’d liketo know about it. I mean, howmany times have you wishedthat you could electronicallytag your kids? For that matter,how many times have youwished you could bang thelittle buggers up in jail and

throw away the key? Well, youcan’t do that, but you can makesure you know where they are,to within a few feet, at any giventime by using a globalpositioning system (GPS) tokeep tabs on them. The PersonalLocator from US electronicsfirm Wherify is a rugged,lightweight and near indestruct-ible device worn on a child’s

wrist like a watch. Yousimply log onto yourcomputer (or callthe company) andWherify willflash up a mapshowing yourchild’s currentlocation andprovide you withthe closest street

address (it also includes a one-button 911 emergency

response feature). Whata perfect opportunityto ruin their teenageyears. The device

costs just under $400and is currently only

available in the USA.For more information, see www.

wherifywireless.com/prod_watches.

Sites to see

Custom-made speeches (www.speechwriters.com). Within 60seconds of receiving your order, this site will e-mail you pre-written speeches, poems and eulogies that you can trot out forweddings, funerals and formal dinners. Give them a few moredays, and they’ll prepare a personalised speech for you.

DVD rentals (www.dvdrentals.ie). Couch-potato heaven! Ifyou’re too lazy to walk to the video shop, log on to this site andthey’ll send you out a rental DVD film on the same day byfirst-class post. The site boasts an extensive list of films andthey say you can keep your rental as long as you like withoutincurring any late return fees.

Blast from the past (www.schoolfriends.ie). The international fadfor digging up old school friends has come to Ireland. Log onto this site and find out what happened to the school bully(assuming the big lunkhead ever learnt how to use a computer).A great excuse to lie about how well you’re doing.

Guitar chords on-line (www.guitartabs.cc). A good site to visitif you’re looking for the lyrics of a particular song or just adviceon how to play it. The songs are presented as guitar tablature(an alternative to traditional music notation). The extensivedatabase of old and new songs should put you well on the roadto annoying your neighbours with your bizarre musical stylings.

Open 9am to 4.30pm, Monday to

Friday

Law Society of Ireland,

Friary Café, Four Courts,

Inns Quay, Dublin 2,

Telephone 668 1806

Friary Café at

theFourCourts

enjoyMeet yourclients...

enjoy a

coffee...

or simply take

time torelax

at the Society’s new

Mary B Cremin has been leading the way in recruitmentfor over 21 years. The professional excellence of the services

which Mary B Cremin Recruitment provides, and Mary's personal con-tribution to the industry, were recognised with the National

Recruitment Federation's Excellence in Recruitment Awardat their recent national conference.

NRF Award to Mary Cremin - 2nd March 2002‘EXCELLENCE REWARDED’

HARVEST LAW for WINDOWS

Running under Windows 95, 98, NT V4, ME and 2000

THE LEADING ACCOUNTS PACKAGE FOR LEGAL FIRMS

HARVEST SOFTWARE, 15 PARNELL ST WATERFORD

TEL 051-872111 FAX 051-872880 E-MAIL [email protected]

■ Full upgrade paths for existing DOS users

■ Free conversions from otheraccounting systems where possible

■ Fully Euro compatible and convertible

THE GOLDEN PATH TO PROFITTHE GOLDEN PATH TO PROFIT

Stockwatch


35

If it’s a recovery, away to participate

Alan Murphy: ‘ETFs are excellenttools for wary investors seekingmarket exposure with theenhancement of liquidity’

might be to buy from theexpansive list of exchangetraded funds on offer.

What are exchange traded funds?During the past eight years,there has been significantgrowth in the exchange tradedfund (ETF) market. ETFsrepresent shares in either fundsor unit investment trusts thathold portfolios of stocks whichclosely track the performanceand dividend yield of specific

(SPDRs) and the Nasdaq 100Trust, account for 67% of thetotal asset size of the ETFmarket. However, exposure tothe market is not limited to justthese two. There are alsoDiamonds, streeTracks, andrecently Barclays GlobalInvestors entered the marketwith its suite of iSharesproviding greater internationalexposure.

There is no minimuminvestment amount, or indeedtimeframe, required forinvesting in exchange tradedfunds. As with all securities, thevalue of ETFs can go down aswell as up, and there is anelement of risk attached toinvesting in them.

At present, investors mightconsider the FTSE 100 iShareas an index fund of choice. TheFTSE 100 has unjustifiablyunderperformed the S&P, theDow Jones and continentalEuropean equity markets. As theearnings that underpin theFTSE are no less robust innature than its counterparts, it isa great way to build a weightingin a market that is 25% off itsall-time high. It also trades on18.5 times earnings compared to23 times for the S&P 500.

Alan Murphy is a portfolio manager with Davy Stockbrokers’private clients unit.

G

quarter is shaping up to bebetter than last year’s brutalfirst quarter, when 70% of pre-announcements were negativeand only 14% were positive.

Interestingly, though, theearnings estimates and pre-announcement data fortechnology firms hint atcontinued tough times for thesector. More than twice asmany tech companies haveissued earnings warnings forthe first quarter than raisedexpectations.

Many economic indicatorsare starting to show that

the US economy is emergingfrom its zero-growth period,although whether it willcontinue to build on its recentstrength and avoid the much-vaunted double-dip back torecession is unclear.

In March, the US FederalReserve (Fed) changed itspolicy stance to ‘neutral’ froman interest rate ‘easing bias’.This can be interpreted to meanthat US interest rates may havebottomed. It stated that theeconomy was ‘evenly balanced’and it believes the US economyis showing signs of asustainable and robust recovery,with US manufacturing startingto produce again. Thisreinforces the optimists’ view.

On the face of it, while itmay look like the Fed ismoving to a neutral stance,market reaction has beenmixed. The market sees thechange in stance as the firststep towards a round ofmonetary tightening from thesummer months onwards.

Earnings pre-announcementsare improvingOn the earnings front, mostUS companies will notofficially report first quarterfigures until April. But manyhave already told the marketwhat to expect. So far,according to ThomsonFinancial/First Call, almost30% of first-quarter earningspre-announcements have beenpositive and 48% werenegative.

Though earnings warningsstill outnumber good news, this

All in all, the pessimistscould be in for a difficult time,particularly over the next sixto eight weeks, and especiallyif a pronounced flow ofinvestors’ funds returns toequities.

However, history has shownthat it will take a sustainedperiod of positive equityperformance before a markedshift in asset allocation byretail investors occurs. Ascompany fortunes do notappear to be improvingdramatically in the short termin tandem with the economy,a safer way to move back intoequities quickly and efficiently

It looks like a US economic recovery may be on the cards. Alan Murphy

outlines what may be a safer way to move back into equities quickly

and efficiently

indexes, either broad market orsector based.

The first ETF began tradingin January 1993. Since then, thenumber of ETFs has increasedto over 100, as investors seizethe opportunity to buy or sellan entire portfolio of stocks in asingle security. ETFs can bebought and sold via yourstockbroker throughout thetrading day – as easy as buyingor selling a share. As such, theyare excellent tools for waryinvestors seeking marketexposure with the enhancementof liquidity.

Two of the largest ETFs, theS&P Depository Receipts

Broad-basedThese track a broad group of stocks from various markets. Forexample, S&P SPDR is a broad-based ETF that tracks the S&P 500in the US, and the iShares FTSE tracks the FTSE 100.

Sector-based These track companies represented in related industries. Forexample, the iShare Dow Jones US Healthcare-sector Index Fund isa sector ETF that tracks the Dow Jones healthcare sector, and theXLK Technology Select SPDR tracks the top 100 technology stockslisted in the US.

TYPES OF EXCHANGE TRADED FUNDS

Briefing


36

Report of Law Society Councilmeeting held on 1 February 2002Motion: Mentor programme‘That this Council approves thereport of the Mentor ProgrammeTask Force.’Proposed: Stuart GilhoolySeconded: Kevin D O’Higgins

Stuart Gilhooly noted that thetask force had been establishedfollowing the passing of amotion at the last AGM that aprogramme should be developedby the Law Society whereby solepractitioners could approachmentors within the professionwhen faced with difficulties intheir practices. The proposal wasthat a panel of mentors shouldbe established, with a require-

ment of ten years’ qualificationin order to participate on thepanel, and that practitionersshould be invited to participatethrough the society’s commit-tees and the bar associations.The Council approved the pro-posal, subject to the exclusion ofcurrent members of the society’sregulatory committees.

Personal Injuries AssessmentBoard (PIAB)Ward McEllin reported that aletter had been received fromthe Interdepartmental Imple-mentation Group for the PIAB,inviting the society to meet thegroup to express its views on thePIAB. The society’s task forcehad considered the matter andhad agreed to seek access to thegroup’s draft proposals inadvance of any such meeting.He noted that, having ignoredthe legal profession so far, it wasnow proposed to ‘consult’ at avery late stage. The Councilagreed that the task force shouldnot engage in a cosmetic exer-cise and should seek to secureadequate information beforeagreeing to participate in anydiscussion.

Motor Insurance AdvisoryBoard (MIAB)The director general reportedthat the forthcoming report ofthe MIAB, which had beenleaked to the media, appearedto be very critical of solicitorsand of solicitor/client costs.One newspaper article indicat-ed that the report ‘accusesmany solicitors of being paid onthe double when they wininsurance claims for clients’.The Council noted that theMIAB had advertised in themedia the previous summerinviting clients who believedthey had been overcharged bytheir solicitors to contact theboard. Clearly, this had yielded‘war stories’ from a self-select-

ing group of people invited tocomplain, but would probablybe presented as ‘evidence’ ofovercharging by solicitors.

The Council noted that, incertain circumstances, it wasperfectly legitimate to charge asolicitor/client fee in additionto party-and-party costs alreadyreceived. It was agreed that thisshould be clarified in the media,as should the right of clients totax their costs or to make acomplaint of excessive fees.However, the society could notsupport any solicitor who didnot reveal a party-and-party feeto his client, who charged on apercentage basis or whocharged a fee that would nottax. Andrew Dillon said that theassertion that 42% of awardswere required to meet legalcosts was patently untrue andhe said that the costs associatedwith the delays in settlementscaused by insurance companiesshould also be emphasised.

Anne Colley said that thereal issue was notsolicitor/client charges, butrather the structure of the deliv-ery of compensation. Shebelieved that the society’s pri-mary concern should be to pro-tect a client’s right to obtain fairand reasonable compensation.

Competition Authority studyThe director general reportedthat a detailed questionnairecomprising 74 questions hadbeen received from theCompetition Authority andresponses were being preparedby a task force comprising him-self, John Fish, Michael Peartand Mary Keane, in conjunc-tion with advisors from A&LGoodbody, Solicitors. Whilethe Competition Authority hadinitially sought a response by 4February 2002, the society hadsought and obtained an exten-sion of time. The draftresponse, which currently stood

at 200 pages, would be circulat-ed for consideration by theCouncil shortly.

‘Tesco Legal Services’The director general reportedthat the Law Society ofEngland & Wales was consider-ing the removal of its prohibi-tion on solicitors employed bynon-solicitors giving legaladvice to anyone other thantheir employer. The proposalhad been dubbed ‘Tesco LegalServices’ and was a very seriousissue, impacting as it did on thecore values of independence,confidentiality and conflicts ofinterest. Michael Irvine saidthat the cost of independentlegal advice represented theprice of democracy. If legalservices were to be provided byorganisations who weredependent on the governmentfor lucrative contracts or busi-ness deals, this would representa most invidious form of pres-sure in relation to legal pro-ceedings in which the state wasinvolved, and true independ-ence would be a thing of thepast.

The director general agreedthat there were organisationsthat would wish to exploit thebrand of ‘solicitor’ by providinglegal services as one of a rangeof products, but not necessarilywith the public interest in mind.He said that the society wouldcommunicate its views at ameeting with the law societiesof England & Wales, Scotlandand Northern Ireland beingheld on 28 February.

Supreme Court computerisationThe Council approved thenomination of Frank Nowlanand Frank Lanigan to a workinggroup being established by thechief justice to consider issuesrelating to the computerisationof the Supreme Court. G

In briefingthis month ...■ Council report page 36

■ Committee page 37reports

■ Legislation page 38update

■ SBA annual page 41report and accounts

■ Personal injury page 42judgment

■ FirstLaw update page 44• Criminal• Discovery• Family• Land law• Landlord and tenant• Litigation• Medical negligence• Mental health• Practice and procedure

■ Eurlegal page 50• Damages now available for

breaches of EC competitionlaw – the ECJ’s judgment inC-453/99 Courage v Crehan

• Recent EU legislativedevelopments: December2001, January andFebruary 2002

• Recent developments inEuropean law

Briefing


37

CONVEYANCING

The Land Registry has broughtto the attention of theConveyancing Committee thefact that conference papersfrom a property registrationconference which took place inOctober of last year are avail-able on the Land Registry web-site and might be of interest topractitioners. The subject mat-ter was property registration inthe electronic era. There aretwo ways of accessing the con-ference papers:• www.irlgov.ie/landreg – when

you access this site, you go toWhat’s new

• Alternatively, the LandRegistry’s own website can beaccessed at www.landreg-istry.ie and you then go toLand Registry InformationPublications website and thento What’s new.

The committee is happy to passon this information to the pro-fession and it has been indicated

Committee reportsthat the conference papers inrelation to the Irish and Englishsystems would be of particularinterest to conveyancing practi-tioners.

BUSINESS LAW

CRO waives late filing penaltyfor strike-off applicationsThe Companies RegistrationOffice has announced a waiverof the late filing penalty forapplications for strike-offreceived prior to close of busi-ness on 2 August 2002. Its state-ment reads:‘Section 311 of the CompaniesAct, 1963 (as amended) empow-ers the registrar of companies tostrike companies off the register

where he has reasonable cause tobelieve that a company is nolonger carrying on a business.However, this is a discretionarypower which the registrar is pre-pared to use only if a director ofa company furnishes a statementto the effect that the companyhas ceased trading or has nevertraded, that it has no assets orliabilities and that it wishes itsname to be struck off the regis-ter. In a revised process, intro-duced on 12 October 2001, sucha statement must be accompa-nied by the following:• All outstanding annual

returns, including accounts,and relevant filing fees,including late filing penalty (ifany)

• A letter of no objection fromthe Revenue Commissioners

• A copy of an advertisement inthe approved form publishedin one daily newspaper indi-cating the intention to applyto have the company struckoff the register.

In order to facilitate theremoval of moribund/off-the-shelf companies from the reg-ister, it has been decided towaive the late filing penalty inrespect of applications for vol-untary strike-off which com-ply with all other conditions,where applications arereceived prior to the close ofbusiness on Friday 2 August2002.

Note, none of the other con-ditions will be waived andabsolutely no further extensionof time will be granted.Applicants for voluntary strike-off since 12 October 2001, whohave paid the late filing penalty,will have the penalty refunded indue course’. G

An error occurred in the recently distributed Tax guide 2002.Practitioners should note that, in the stamp duties section, under‘residential property’, the third column which reads ‘buyer rate’should read ‘first-time buyer rate’.

PROBATE, ADMINISTRATION & TAXATION

TAX GUIDE 2002

10am Registration10.30am Morning session

• Putting justice to the hazard: developments inthe area of disclosure/discovery for criminal trialsSpeaker: Niall Dolan, solicitor

• Forensic science from an independent viewpointSpeaker: Keith Borer, consultant forensic scientist

12.45pm Lunch2.15pm Afternoon session

• Section 4 of the Criminal Justice Act, 1984:detentions and Garda video-taping of interviews (including on-site video demonstration)Speaker: Hugh Sheridan, state solicitor, Sligo

• The Lion Intoxylizer 6000 and the Intoximeter EC/IR: an updateSpeaker: Kevin Kilrane, solicitor

4pm End of seminar

BOOKING FORM

Name:

Firm:

Please reserve place(s)

Cheque in the sum of attached

Please forward booking form and payment (to be received no later than Thursday 9 May) to: Colette Carey, Solicitor, Criminal Law Committee, Law Society of Ireland, Blackhall Place, Dublin 7.

CRIMINAL LAW COMMITTEE

SEMINARTHE COURTHOUSE*, SLIGO, SATURDAY 11 MAY 2002

*By kind permission of the Courts Service

€120 per person (includes materials, morning coffee and lunch)

Chairman: Judge Conal Gibbons

Briefing


38

LEGISLATION UPDATE: 12 JANUARY – 21 MARCHACTS PASSEDState Authorities (PublicPrivate PartnershipArrangements) Act, 2002Number: 1/2002Contents note: Makes provisionin relation to the functions andpowers of certain state authori-ties, in particular to enable themto enter into public-private part-nership arrangements; alsoempowers state authorities toform companies and to enter intojoint ventures for the purpose ofa public-private partnership andgives state authorities the legalcapacity necessary to contractwith the private financiers of pub-lic-private partnerships; providesthat the functions of a stateauthority may be conferred underthe public-private par tnershiparrangement to the private sec-tor, subject to the general controlof the state authorityDate enacted: 21/2/2002Commencement date: 21/3/2002 (per section 9(2) of theact)

Sustainable Energy Act, 2002Number: 2/2002Contents note: Provides for theestablishment of the SustainableEnergy Authority of Ireland, underthe auspices of the minister forpublic enterprise, which will gen-erally trade under the nameSustainable Energy Ireland. Themain functions of the authorityare to promote and assist envi-ronmentally and economicallysustainable production, supplyand use of energy in all sectorsof the economy; to promote ener-gy efficiency and renewable energy; and to minimise the envi-ronmental impact relating to theproduction, supply and use ofenergy. The functions are prima-rily based on those outlined inthe green paper on sustainableenergy (1999)Date enacted: 27/2/2002Commencement date: 27/2/2002. Establishment day orderto be made (per section 3 of theact)

SELECTED STATUTORYINSTRUMENTSACC Bank Act, 2001 (Sections6, 8, 10, 11(2) and 12)(Commencement) Order 2002Number: SI 69/2002Contents note: Appoints 28/2/

2002 as the commencementdate for the above sections

Capital Gains Tax (Multipliers)(2002) Regulations 2002Number: SI 1/2002Contents note: Specify the multi-pliers by reference to whichsums (such as the base cost ofan asset and enhancementexpenditure incurred on it) whichare allowable as a deductionfrom the consideration for thedisposal of an asset in the yearof assessment 2002 are to beincreased, under section 556(2)of the Taxes Consolidation Act,1997, for the purpose of com-puting the chargeable gain accru-ing to a person on such a dis-posal

Civil Legal Aid Regulations2002Number: SI 8/2002Contents note: Amend the CivilLegal Aid Regulations 1996 (SI273/1996) to give effect torevised financial criteria for eligi-bility to obtain legal aid or advice.Also amend the Civil Legal AidRegulations 1996 to allow amember of staff of the Civil LegalAid Board give a signed opinionas to whether a cer tificateshould be granted: previouslythis opinion was given only by asolicitorCommencement date: 16/1/2002

Companies Act, 1990(Commencement) Order 2002Number: SI 57/2002Contents note: Appoints 28/2/2002 as the commencementdate for section 248 of the act

Companies Act, 1990 (Formand Content of DocumentsDelivered to Registrar)Regulations 2002Number: SI 39/2002Contents note: Prescribe theform, content and manner ofcompletion of documentsdeposited with the CompaniesRegistration OfficeCommencement date: 1/3/2002

Companies (Forms) Order 2002Number: SI 38/2002Contents note: Substitutes anew form B1 for the form out-lined in part II of the fifth sched-

ule to the Companies Act, 1963as amended by the Companies(Forms) Order 1991 (SI161/1991) (annual returns).Prescribes a new form B73 andB73(a) for the purposes of sec-tion 127 of the Companies Act,1963 as amended by section 60of the Company Law EnforcementAct, 2001 (annual returns)Commencement date: 1/3/2002

Companies (Forms) (No 2) Order2002Number: SI 54/2002Contents note: Prescribes a newform B74 for the purposes ofsection 195 of the CompaniesAct, 1963 as amended by sec-tion 91 of the Company LawEnforcement Act, 2001 and forthe purposes of section 3A of theCompanies (Amendment) Act,1982 as inserted by section 101of the Company Law EnforcementAct, 2001. The form sets out theadditional statement that mustbe sent to the registrar by a per-son who has been disqualifiedunder the law of another statefrom being appointed director oracting as a director or secretaryof a companyCommencement date: 26/2/2002

Company Law Enforcement Act,2001 (Commencement) (No 4)Order 2002Number: SI 43/2002Contents note: Appoints1/3/2002 as the commence-ment date for the following sec-tions of the act: 1) paragraphs(a) and (c) of section 25, insofaras those paragraphs relate toinvestigations under section 8 ofthe Companies Act, 1990 initiat-ed on or after 1/3/2002; 2) sec-tion 107

Company Law Enforcement Act,2001 (Commencement) (No 5)Order 2002Number: SI 53/2002Contents note: Appoints 1/3/2002 as the commencementdate for sections 40, 41, 42,84(b), 91(a) and 101 of the act

Customs and Excise (MutualAssistance) Act, 2001(Commencement) Order 2002Number: SI 59/2002Contents note: Appoints

22/2/2002 as the commence-ment date for the act

Diseases of Animals Act, 1966(Foot and Mouth Disease)(Restriction on Imports fromthe United Kingdom) (No 3)Order, 2001 (Amendment)Order 2002Number: SI 6/2002

Diseases of Animals Act, 1966(Foot and Mouth Disease)(Restriction on Imports fromthe United Kingdom) (No 3)Order 2001 (SecondAmendment) Order 2002Number: SI 12/2002

Employment Equality Act, 1998(Code of Practice)(Harassment) Order 2002Number: SI 78/2002Contents note: Declares that thecode of practice on sexualharassment and harassment atwork set out in the schedule tothe order is an approved code ofpractice for the purposes of theEmployment Equality Act, 1998Commencement date: 8/3/2002

European Communities (Civiland Commercial Judgments)Regulations 2002Number: SI 52/2002Contents note: Set out the effecton domestic legislation and pro-vide for the administration ofcouncil regulation (EC) no 44/2001 of 22/12/2000 on jurisdic-tion and the recognition andenforcement of judgments in civiland commercial matters (Brus-sels I regulation). The Brussels Iregulation supersedes the 1968Brussels convention in the mem-ber states of the EuropeanCommunity, other than Denmark.The Jurisdiction of Courts andEnforcement of Judgments Act,1998 shall, except as provided inarticle 68 of the council regula-tion, cease to apply as betweenthe state and member statesCommencement date: 1/3/2002

Extradition (European UnionConventions) Act, 2001(Commencement) Order 2002 Number: SI 85/2002 Contents note: Appoints 20/3/2002 as the commencementdate for the act

Briefing


39

Industrial Relations Act, 1990(Code of Practice detailingProcedures for addressingBullying in the Workplace)(Declaration) Order 2002Number: SI 17/2002Contents: Declares that the codeof practice set out in the scheduleto the order is a code of practicefor the purposes of the IndustrialRelations Act, 1990Commencement date: 25/1/2002

Local Government Act, 2001(Commencement) Order 2002Number: SI 65/2002Contents note: Appoints the fol-lowing commencement dates forspecified provisions of the LocalGovernment Act, 2001 (mainlyrelating to local authority meet-ings and committees, includingrepeals): 11/3/2002 for section5(1) of and part 1 of schedule 3to the act for the purposes of therepeal of section 4 of the Cityand County Management(Amendment) Act, 1955, insofaras that section is not alreadyrepealed; 1/5/2002 for section19 and for section 5(1) of andpart 1 of schedule 3 to the actfor the purposes of the repeal ofsection 11 of the LocalGovernment Act, 1994;17/7/2002 for part 6 and part 7of the act and for schedule 10 tothe act other than paragraphs

3(3) and 5 of schedule 10;17/7/2002 for section 5(1) ofand part 1 of schedule 3 to theact for the purposes of therepeal of local government legis-lation set out in part 1 of theschedule to this order (SI65/2002); 17/7/2002 for sec-tion 5(2) of and part 2 of sched-ule 3 to the act for the purposesof the revocation of articles 36and 38 of the schedule to theLocal Government (Application ofEnactments) Order 1898 (SR & O1898/1120); 1/5/2004 forparagraph 3(3) of schedule 10 tothe act

Local Government Act, 2001(Meetings) Regulations 2002Number: SI 66/2002Contents note: Provide for mat-ters relating generally to meet-ings of local authorities, includ-ing public and media access totheir committee meetingsCommencement date: 17/7/2002

Lottery Prizes Regulations 2002Number: SI 29/2002Contents note: Increase the limiton the total value of prizes for lot-teries held under section 28 ofthe Gaming and Lotteries Act,1956 from €19,046.07(£15,000) to €20,000Commencement date: 1/3/2002

Mental Health Act, 2001(Establishment Day) Order2002 Number: SI 91/2002Contents note: Appoints 5/4/2002 as the establishment dayfor the purposes of part 3 of theact

Mental Health Act, 2001(Sections 1 to 5, 7, 31 to 55)(Commencement) Order, 2002Number: SI 90/2002Contents note: Appoints 5/4/2002 as the commencementdate for the above sections

Ordnance Survey Ireland Act,2001 (Establishment Day)Order 2002 Number: SI 73/2002Contents note: Appoints 4/3/2002 as the establishment dayfor the purposes of the act

Planning and DevelopmentRegulations 2002Number: SI 70/2002Contents note: Modify thescales of location maps to be used in areas other thanbuilt-up areas. Also modify thedetails to be indicated on location maps to be submittedwith a planning application.Amends the Planning andDevelopment Regulations 2001(SI 600/2001)

Commencement date: 11/3/2002

Road Traffic (Construction,Equipment and Use of Vehicles)(Amendment) (No 2)Regulations 2001 Number: SI 93/2002 Contents note: Prohibit the useof a hand-held mobile phone orsimilar communications appara-tus while driving a mechanically-propelled vehicleCommencement date: 19/3/2002

Safety, Health and Welfare atWork (Chemical Agents)Regulations 2001Number: SI 619/2001Contents note: Give effect tocouncil directive 98/24/EC of7/4/1998 on the protection ofthe health and safety of workersfrom the risks related to chemi-cal agents at work, and giveeffect to commission directive2000/39/EC of 8/6/2000,establishing a first list of indica-tive occupational exposure limitvalues in implementation ofcouncil directive 98/24/EC,through an approved code ofpracticeCommencement date: 19/12/2001.

Prepared by the Law Society Library

G

€108 (plus €7.60 presentation box and €9 delivery)

First come, first servedOnly one bottle per member

Contact Alan Greene, Bar Manager, Law Society of Ireland, Blackhall Place,Dublin 7, tel: 01 6724919, e-mail: [email protected]

MEMBERS ONLY SPECIAL OFFER

Law Society Bushmills Millenium Malt

25 years old

Law Society Bushmills Millenium Malt

25 years old

SPANISH LAWYERS

RAFAEL BERDAGUER ABOGADOS

Avda. Ricardo Soriano, 29,Edificio Azahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain

Tel: 00-34-952823085 Fax: 00-34-952824246e-mail: [email protected]

PROFILE:

Spanish Lawyers Firm focussedon serving the need of the for-

eign investors, whether in compa-ny or property transactions and allattendant legalities such as ques-tions of immigration-naturalisa-tion, inheritance, taxation,accounting and bookkeeping,planning, land use and litigation inall Courts.

FIELD OF PRACTICES:

General Practice, Administra-tive Law, Civil and Commercial

Law, Company Law, Banking andForeign Investments in Spain,Arbitration, Taxation, Family Law,International Law, Immigrationand Naturalisation, Litigation in allCourts.

Director: Sheila Kavanagh

Experts in Overnight Transcripts

Specialists in

Court Reporting

Medical Cases / Arbitrations

Conferences / Board Meetings

Contact:Hillcrest House,

Dargle Valley, Bray, Co. Wicklow.

Telephone/Fax: (01) 286 2184or

4b Arran Square, Dublin 7

Telephone: (01) 873 2378

IrishStenographers

Ltd

AMEM

BER O

F

INTERNATIONAL P

RACTICEGROUP

LAW AGENCY SERVICESE N G L A N D & WA L E S

S O L I C I T O R SEstablished 1825

• Fearon & Co specialise in acting for Irish residents in

the fields of probate, property and litigation

• Each solicitor is available by direct line, fax or e-mail.

Conferences can be easily arranged

• Fearon & Co is committed to the use of information

technology to help improve both the quality and

speed of service for the benefits of all clients both at

home and abroad

• The firm’s offices are within half an hour of London

Waterloo station and within a short travel from both

Gatwick and Heathrow airports, with easy access from

the London orbital M25 motorway

• No win, no fee arrangements are available in

appropriate cases

PHONE NOW FOR A BROCHUREWestminster House

12 The Broadway, Woking, Surrey GU21 5AU England

Fax: +44 (0)1483 725807

Email: [email protected] www.fearonlaw.com

PROPERTYJohn Phillips

Tel: +44 (0)1483 747250

LITIGATIONMartin Williams

Tel: +44 (0)1483 776539

PROBATEFrancesca Nash

Tel: +44 (0)1483 765634

WHERE THERE’S A WILLTHIS IS THE WAY…

5 Northumberland Road, Dublin 4. Tel: (01) 668 185515 Bridge Street, Cork. Tel: (021) 4509 918

When a client makes a will in favour of the Society, it wouldbe appreciated if the bequest were stated in the following words:

“I give, devise and bequeath the sum of X pounds to the IrishCancer Society Limited to be applied by it for any of itscharitable objects, as it, at its absolute discretion, may decide.”

All monies received by the Society are expended within theRepublic of Ireland.

“Conquer Cancer Campaign” is a Registered Business Nameand is used by the Society for some fund-raising purposes.The “Cancer ResearchAdvancement Board”allocates all ResearchGrants on behalf of theSociety.

RECEIPTS AND PAYMENTS ACCOUNTYEAR ENDED 30 NOVEMBER 2001

2001 2000RECEIPTS

IR£ IR£Subscriptions 189,595 187,454Donations 29,975 19,664Investment income 35,116 34,799Bank interest 2,980 2,640

257,666 244,557

PAYMENTSGrants (245,816) (215,170)Bank charges (1,537) (1,322)Administration expenses (17,006) (15,839) Deficit on movements in investments – (528)

(264,359) (232,859)

(DEFICIT)/SURPLUS FOR THE YEAR BEFORE SPECIAL EVENTS PROCEEDS (6,693) 11,698Lawyers diaries and christmas cards (369) 16,910Irish conveyancing precedents publication 4,678 –

(DEFICIT)/SURPLUS (2,384) 28,608FOR THE YEAR BEFORE LEGACIESLegacies 165,016 111,418

SURPLUS FOR THE YEAR 162,632 140,026

Briefing


41

Solicitors’ Benevolent Association138th report and accounts

Year 1 December 2000 to 30 November 2001

The Solicitors’ BenevolentAssociation, founded in 1863,

is the profession’s voluntary chari-table body. It consists of membersof the profession throughoutIreland who contribute to ourfunds, and its aim is to assistmembers or former members ofthe profession and their spouses,dependants and families who arein need. The association also pro-vides advice and financial assis-tance on a confidential basis andfunctions independently of both lawsocieties.

The amount paid out during theyear in grants was IR£245,816.Currently, there are 54 beneficiar-ies in receipt of regular grants andapproximately one third of theseare themselves supporting spous-es and children.

The directors anticipate that,particularly in view of the increas-ing number of families with youngchildren being helped, there will bea need for increased assistance inthe coming years. Again, in a num-ber of cases, the directors are con-scious of the fact that grants have

not been increased for some time,despite rising costs. Also, in sev-eral instances increased needsare apparent in cases where bene-ficiaries are of advanced age. Forthese reasons, the directors par-ticularly welcome higher levels ofsubscriptions, donations and lega-cies and the general support ofthe profession.

The rules of the associationwere amended at a special gener-al meeting on 5 July 2001, in orderfor the association to retain itscharitable status. Copies of thenew rules can be obtained fromthe secretary or any of the direc-tors. There are currently 15 direc-tors, three of whom reside inNorthern Ireland, and they meetmonthly in the Law Society’soffices, Blackhall Place. They meetat Law Society House, Belfast,every other year. The work of thedirectors, who provide their servic-es entirely on a voluntary basis,consists in the main of reviewingapplications for grants and approv-ing new applications. The directorsalso make themselves available to

those who may need personal orprofessional advice.

The directors are grateful toboth law societies for their sup-port and, in particular, wish toexpress thanks to Ward McEllin,past president of the Law Societyof Ireland, John Neill, past presi-dent of the Law Society ofNorthern Ireland, Ken Murphy,director general, John Bailie, chiefexecutive and all the personnel ofboth societies.

I wish to express particularappreciation to all those who con-tributed to the association whenapplying for their practising certifi-cates, to those who made individ-ual contributions and to the following:• The Law Society• Northern Ireland Law Society• Dublin Solicitors’ Bar Associa-

tion• Belfast Solicitors’ Association• Faculty of Notaries Public in

Ireland• Limavady Solicitors’ Associa-

tion• Tipperary and Offaly Bar Asso-

ciation• Mayo Bar Association• Southern Law Association• County Galway Solicitors’ Bar

Association• West Cork Bar Association• Kerry Law Society.

To cover the ever greaterdemands on the association,additional subscriptions are morethan welcome as, of course, arelegacies. Subscriptions and dona-tions will be received by any of thedirectors or by the secretary, fromwhom all information may beobtained at 73 Park Avenue,Dublin 4, and I would urge allmembers of the association, whenmaking their own wills, to leave alegacy to the association. You willfind the appropriate wording of abequest at page 26 of the Lawdirectory and on page 11 of the2002 Gazette yearbook and diary.

I would like to thank all thedirectors and the association’ssecretary, Geraldine Pearse, fortheir valued hard work, dedicationand assistance during the year.

Thomas A Menton,chairman

DIRECTORS AND OTHER INFORMATION

DirectorsThomas A Menton (chairman)John Sexton (deputy chairman)Sheena Beale, DublinDesmond Doris, BelfastFelicity M Foley, CorkJohn Gordon, BelfastColin Haddick, NewtownardsNiall D Kennedy, TipperaryMary H Morris, SwinfordJohn M O’Connor, DublinSylvia O’Connor, WexfordBrian K Overend, DublinColm Price, DublinDavid Punch, LimerickAndrew F Smyth, Dublin

Trustees (ex officio directors)Brian K OverendJohn M O’ConnorAndrew F Smyth

SecretaryGeraldine Pearse

BankersAIB plc37/38 Upper O’Connell StreetDublin 1

First Trust31/35 High StreetBelfast BT1

StockbrokersBloxham Stockbrokers2-3 Exchange PlaceIFSCDublin 1

AccountantsDeloitte & ToucheChartered AccountantsDeloitte & Touche HouseEarlsfort TerraceDublin 2

Offices of the associationLaw Society of IrelandBlackhall PlaceDublin 7

The Law Society of NorthernIrelandLaw Society House90/106 Victoria StreetBelfast BT1 3JZ

Briefing


42

Personal injury judgment

CASE Rebecca Cassells (a minor), suing by her mother and next friend, Martina Cassells v Marks and Spencer plc, Supreme Court (Murphy,Murray and McGuinness JJ), judgment of McGuinness J of 30 July 2001.

Negligence – duty of care – purchase of cotton dress – dress catching fire – no chemical fire-retardant treat-ment on dress – whether retailer liable – High Court dismissed claim of mother – appeal to Supreme Court onbasis of inadequacy of fire warning – argument about whether warning was too bland

THE FACTSRebecca Cassells, born 27

September 1989, lived withher mother in Navan. Prior tolate 1994, the family lived inBrixton, London. In September1994, Martina Cassells, motherof Rebecca, purchased a cottonday dress for Rebecca at theretail store of Marks andSpencer at Brixton. The dresshad a full flared skirt. AsRebecca was small for her age,the skirt reached to within threeto four inches of her ankles.

At 5.30pm on 24 May 1995,Rebecca and her motherreturned home to their house inNavan. Rebecca was wearingthe dress with a light cardiganand normal underclothes. Shecomplained she was cold. When

Rebecca and her mother enteredthe living room, Mrs Cassells litthe fire, which was in a typicalopen domestic fireplace. Therewas no fire guard. Rebecca wentto turn the television on as hermother left the room briefly togo upstairs. The mother was outof the room for about threeminutes. On her way down-stairs, the mother heardRebecca screaming. She randownstairs and found the childin the kitchen with the back ofher dress in flames. Mrs Cassellsput her daughter into thekitchen sink and extinguishedthe flames by turning on thecold tap. Rebecca sufferedsevere and extensive burnsinvolving the upper leg and but-

tock on the left side, the back,the left armpit and left upperarm.

The dress which Rebecca waswearing was made of 100% cot-ton material. This cotton mate-rial had not been treated with achemical fire retardant. On alabel on the dress there was awarning in red, ‘keep away fromfire’, in English and three otherlanguages. The label was a per-manent part of the dress.

The normal practice ofMarks and Spencer was toattach to the dress two sizeablecardboard tags which hungbelow the hem of the dress andwere intended to be removedafter purchase. One of thesetags, which was approximately

one-and-a-half inches wide bytwo inches long, contained onone side a warning in large redletters that read ‘in the interestof safety, it is advisable to keepyour child away from fire’. Thesame warning was repeated insmall red capital letters on theother side of the tag in Englishand three other languages.

Mrs Cassells issued HighCourt proceedings, claimingthat Marks and Spencer wasnegligent in selling and market-ing the dress in question with-out having it treated with achemical fire retardant. It wasalso contended by Mrs Cassellsthat the dress did not contain anadequate warning of the dangersof fire.

The matter came before BarrJ of the High Court, who

delivered judgment on 25March 1999. In his judgment,Barr J stated that the probabil-ity was that, having turned onthe television, Rebecca wentover to the fire to warm herselfand stood with her left sidenearest the flames as shewatched the television. He stat-ed that the hem of her flaredskirt on that side caught fireand the flames spread rapidlyupwards. As soon as shebecame aware that her dresswas on fire, or at least when shebegan to feel pain from the

burning, the child screamedand ran towards the kitchenwhere she was rescued by hermother a few seconds later.

Barr J stated that it had beenestablished that a cotton mate-rial comprised in the dress washighly flammable and a sourceof immediate danger for a childto wear if exposed to fire.

In the High Court, Barr Jaccepted that in all probabilitythe warnings referred to earlierhad been appended to the dress,as contended by Marks andSpencer.

Mrs Cassells conceded in theHigh Court that she should

have fitted the fire guard aftershe lit the fire and that chil-dren should not be left unac-companied in a room with anopen fire. Mrs Cassells hadnot intended to be out of theroom for long. Barr J rejectedthe contention that Marksand Spencer was negligent inselling and marketing thedress in question without hav-ing it treated with a chemicalfire retardant. He also reject-ed the argument on behalf ofMrs Cassells that the dressdid not contain an adequatewarning of the dangers of fire.Barr J dismissed Mrs

Cassells’s claim. Mrs Cassells appealed to the

Supreme Court. There was noappeal from the decision ofBarr J on the fire retardantissue. Mrs Cassells appealedonly on the issue of the inade-quacy of the fire warning givenby Marks and Spencer that thedress should be kept away fromfire. It was claimed that theHigh Court was wrong in lawand on the facts in holding that,despite the finding that the cot-ton used in Rebecca’s dress washighly flammable, the warningby Marks and Spencer was ade-quate.

THE HIGH COURT

Briefing


43

The case came before theSupreme Court composed

of Murphy, Murray andMcGuinness JJ, withMcGuinness J deliveringjudgment on 30 July 2001. Inthe Supreme Court judgment,the court reviewed the factsand the decision of the HighCourt. McGuinness J notedthat there had been consider-able technical evidence in theHigh Court as to the testingof materials for flammabilityand as to statutory and otherregulations in England andIreland covering both theflammability of materials andthe need for warning labels ongarments. Certain regulationsas to flammability appliedonly to nightwear, and itappeared there were no regu-lations of a particular typerelating to children’s daywear.

It was noted by theSupreme Court that the HighCourt had observed thatMarks and Spencer was one ofthe leading retailers of chil-dren’s clothing both in theUnited Kingdom and Ireland,and their clothing had ‘longenjoyed a high reputation forquality and value’. The HighCourt had accepted thatMarks and Spencer had aregard for safety whichexceeded that displayed bymany of their competitors inthe clothing industry.

Standard of flammabilityMcGuinness J stated that,during the course of the trial,18 children’s dresses made ofcotton and other comparablematerials that had been pur-chased from Marks andSpencer’s major competitorswere introduced in evidence.All had been tested by inde-pendent experts. None con-formed to the Marks andSpencer’s standard of flamma-bility for children’s daywearand none had any fire warninglabel. It was noted that Barr Jin the High Court had stated

THE SUPREME COURTthat Marks and Spencer had‘voluntarily adopted and iscomplying with a minimumstandard of safety vis-à-vis firerisk relating to children’s day-wear which leads the field inthe retail trade in the UK andIreland’.

Counsel for RebeccaCassells submitted in the HighCourt that, in the circum-stances of the case, the warn-ings provided by Marks andSpencer were inadequate. Itwas argued that the warningswere ‘mere platitudes’ and didnot tell purchasers anythingthey did not already know. Itwas argued that the light cot-ton material was very danger-ous if exposed to fire becauseof the rapidity and accelerationof the flame along the fabric.Counsel for Rebecca referredto the case of O’Byrne vGloucester (Supreme Court,unreported, 3 November1988), where, in similar cir-cumstances, Finlay CJ in hisjudgment suggested theattaching to the garment inquestion of ‘a simple warningthat it was dangerous ifexposed to a naked flame andwould burn rapidly’. It wassuggested by counsel that thiswording was much more effec-tive than that the ‘bland’ warn-ing in the present case.

Counsel for Marks andSpencer submitted that thewarning was sufficiently clear.It was also submitted that theevidence showed that some200,000 children’s dresses ofthe style in question had beensold by Marks and Spencerwith 60,000 of the dresses soldin that season alone. The pres-ent case was the only caseknown to Marks and Spencerwhere a child wearing one ofthese dresses had been injuredby fire. It was argued that thisdemonstrated that Marks andSpencer’s fire warning was infact adequate and effective.

McGuinness J stated thatthere was no requirement

either in Ireland or the UnitedKingdom for children’s day-wear clothes, of whatevermaterial, to meet any particu-lar flammability standard or tocarry any label warning againstfire. In the case of Rebecca’sdress, Marks and Spencer of itsown volition provided a per-manent label carrying a warn-ing.

Duty of careOf the cases open to the courtby counsel on both sides,McGuinness J noted that thetwo most relevant were Duffy(a minor) v Patrick Mooney andDunnes Stores (Dundalk)Limited (Supreme Court, unre-ported, 23 April 1988) andO’Byrne (a minor) v BrendanGloucester and others (SupremeCourt, unreported, 3November 1988). The courtnoted that in both these caseschildren were badly burnt as aresult of their clothes catchingfire. However, in neither casedid the garment in questionbear any label whatsoeverwarning of the dangers of fire.In both cases, the court accept-ed the need for such a label andthat the failure to provide awarning label was a breach ofthe retailer’s duty of care. Inthe present case, Marks andSpencer acknowledged theduty of care owed to the pur-chaser. It also accepted that,without the provision of thewarning label, it would be inbreach of this duty of care.McGuinness J stated that shefound it somewhat difficult tofollow the logic of the argu-ment asserted on behalf ofRebecca Cassells that thewarning ‘keep away from fire’merely ‘tells people what theyknow already’ and is too bland.The warning clearly indicatedthat the garment was made offlammable material; otherwisethere would be no need for thewarning.

The judge added: ‘Is it sug-gested that because the label

does not warn that the materialburns rapidly, one might thinkthat there was really no dangerin allowing the garment tocome in contact with a nakedflame? Is it suggested that achild dressed in material whichburns more slowly, but isnonetheless flammable, maysafely be exposed to unprotect-ed fire, or in that case, a “keepaway from fire” warning maybe ignored?’

McGuinness J noted thatdifferent materials had differ-ent properties when exposed tofire; it was well known thatsome emit fumes, others meltand may adhere to the fleshcausing severe burns, and oth-ers – like cotton – burn rapidly.The judge noted that when apurchaser was presented with awarning label that read ‘keepaway from fire’, the only logicalreaction is to do precisely that,regardless of the nature of theparticular garment or the mate-rial of which it was made. Thecourt noted that, to her credit,Mrs Cassells accepted that shehad seen the warning label andknew of the danger of anunguarded fire.

Tragic accidentThe Supreme Court stated thatit was tragic that RebeccaCassells had suffered seriousinjury. Unfortunately, the courtobserved that it was a fact of lifethat, in spite of reasonable careon the part of those concerned,such as retailers and parents,such tragic accidents do hap-pen. McGuinness J joined withBarr J in the High Court inadmiring the way in whichRebecca Cassells and hermother had dealt with a sad sit-uation. Nevertheless, theSupreme Court dismissed theappeal and upheld the decisionof the High Court judge hold-ing that Marks and Spencer wasnot liable.

This case was summarised by solic-itor Dr Eamonn Hall.

G

Briefing


44

UpdateNews from Ireland’s on-line legal awareness serviceCompiled by Robert Forde BL for FirstLaw

CRIMINAL

Bail, delay, res judicataAppeal – rape charge – res judica-ta – delay – whether change of cir-cumstance had occurred sufficientto grant bailThe applicant had sought bail,which had been refused in theHigh Court. The applicant hadbeen charged with rape offencesand at a previous hearing therehad been evidence given ofthreats and intimidation, andbail was refused. The applicantnow appealed against the refusalof bail and contended that thetrial date was a considerabletime away. The applicant alsoindicated a willingness to resideelsewhere, away from the com-plainant.

The Supreme Court (KeaneCJ delivering judgment) dis-missed the appeal, holding thatthe fact that there would be adelay in bringing the applicantto trial was not a change of cir-cumstance. The undertaking toreside elsewhere was not achange in circumstance. Theappeal would be dismissed andthe order of the High Courtaffirmed.DPP v Doherty, SupremeCourt, 30/07/2001 [FL4734]

Bail, fair procedures Jurisdiction of High Court –whether bail correctly revoked –whether change of circumstancehad occurredThe applicant had been chargedin respect of the death of awoman. Originally, the appli-cant had been granted bail byMr Justice Quirke. Bail wasgranted on the basis that a cashlodgement of £10,000 be madeas well as two independentsureties of £20,000, togetherwith signing on conditions at agarda station. The applicant had

sought to vary the terms of bailand had applied to Mr JusticeO’Higgins, who decided thatthe matter warranted a completere-hearing. Mr Justice Smyth inthe High Court revoked bail onthe basis that the applicantwould not stand trial if admittedto bail.

The Supreme Court allowedthe appeal. Originally, given thecircumstances of the applicant,bail had been granted on quitestringent conditions. There hadbeen no appeal against the orderof Mr Justice Quirke and therewas no suggestion that thewrong principles had beenapplied. Settled jurisprudenceprecluded one High Courtjudge from reopening the termsof bail granted by another HighCourt judge unless there hadbeen a change in circumstance.The order of the High Courtrevoking bail was wrong in lawand the matter would be remit-ted to the High Court to deter-mine on what conditions theapplicant should be admitted tobail.DPP v Horgan, SupremeCourt, 21/12/2001 [FL4759]

Dismissal of proceedings, evi-dencePractice and procedure – evidence –sexual offences – application thatcase be withdrawn from jury – roleof jury – right to fair trial –whether case should be left to juryThe accused had been chargedwith alleged rape. At the conclu-sion of the case for the prosecu-tion, an application was madethat the case be withdrawn fromthe jury and a verdict of notguilty be directed. It was sub-mitted that the quality of thestate’s evidence was poor andunreliable, owing to inconsis-tencies in the evidence given bythe complainant.

Mr Justice Herbert refused theapplication. Notwithstandingthe apparent inconsistencies, itwas still a matter for the jury todetermine. It was not just aborderline case. A mild direc-tion would be given to the jurythat, given the inconsistencies,it should only convict afterassessing the complainant’s evi-dence with great care.DPP v Nolan, High Court,Mr Justice Herbert,27/11/2001 [FL4802]

Drink driving, powers of arrest Road traffic – drink driving –whether accused arrested undercorrect section – whether personarrested under section 49(8) of theRoad Traffic Acts, 1961-95could be charged with offenceunder section 50 of the acts –Road Traffic Act, 1961 – RoadTraffic Act, 1994

The respondent had beenrequested by a garda to give abreath sample on the suspicionthat he had consumed alcohol.The sample was positive andthe garda informed the respon-dent that it was his opinion thatthe respondent had committedan offence under section 49 ofthe Road Traffic Act, 1961 andwas arresting him pursuant tothat section. The respondentwas in fact later charged undersection 50 of the act. In theDistrict Court, the solicitor onbehalf of the respondent con-tended that the state was notentitled to prosecute a section50 charge when the respondenthad been arrested under sec-tion 49 of the act. It was arguedthat there were two distinctpowers of arrest – one set outin section 49(8) and the otherin section 50(10). It was sub-mitted that neither sectiongave power to arrest for an

offence under the other sec-tion. On behalf of the appel-lant, it was argued that therespondent had been lawfullyarrested, no issue regarding thetaking of the specimens wasraised and the prosecution wasentitled to put either charge tothe respondent. It was submit-ted that the evidence before thecourt supported a charge ofeither section 49(2) or section50(2). The District Court judgeaccepted the argument madeon behalf of the respondent anddismissed the charge againsthim. The District Court judgestated a case for the opinion ofthe High Court as to whetherhe was correct in law in dis-missing the charge.

Mr Justice Finnegananswered the case stated in thenegative, holding that if a manwas to be deprived of his free-dom he was entitled to knowthe reason why. However, anarrest did not become wrongfulmerely because a man wasarrested for one felony and wassubsequently charged withanother one. The garda hadformed the opinion that therespondent had consumedintoxicating liquor and had soinformed the respondent. Therespondent furnished a speci-men of his breath which provedpositive. The respondent wastold that he was being arrestedfor drink driving. It was quiteclear that the arrest was lawful.These facts together were suffi-cient to constitute the crimewith which he was charged,which was an offence under theRoad Traffic Acts, 1961-1994. Itwas immaterial that he was infact arrested pursuant to thestatutory power of arrest con-ferred by section 49(8) of theacts. The scheme of the RoadTraffic Acts was also relevant.

Briefing


45

Had the respondent in fact beencharged under section 50 of theacts, he could have been con-victed under section 49 of theact and vice versa. The districtjudge was not correct in dis-missing the charge. DPP v Moloney, High Court,Mr Justice Finnegan,20/12/2001 [FL4820]

Sentencing Drug offences – appeal against sen-tence – statutory guidelines –whether minimum sentence appro-priate – whether sentence undulyharsh – Misuse of Drugs Act,1977, sections 15(A) and 27(3) –Criminal Justice Act, 1999, sec-tions 4 and 5The applicant had pleaded guiltyin the Circuit Court to fivecounts of being in possession ofcontrolled drugs for the purposeof sale or supply contrary to theMisuse of Drugs Act, 1977. Theapplicant was sentenced to sixyears’ imprisonment in respectof one of the counts and alsoreceived a number of lesser sen-tences. An application wasbrought for leave to appeal onthe ground that the sentenceswere unduly severe.

The Court of CriminalAppeal dismissed the applica-tion, holding that section 27 ofthe Misuse of Drugs Act, 1977provided for a mandatory mini-mum sentence of ten years’imprisonment. The CircuitCourt judge had assessed a sen-tence of 15 years and hadadjusted this downwards takinginto account a plea of guilty andthe fact that it was a firstoffence. This resulted in a sen-tence of six years. The CircuitCourt judge had felt that it wasinappropriate to increase thesentence to the statutory mini-mum, but had taken intoaccount the existence of a statu-tory minimum sentence and wasbound to do this. The court wasunable to detect any error inprinciple on the part of theCircuit Court judge and theapplication would be refused.DPP v Duffy, Court ofCriminal Appeal, 21/12/2001[FL4796]

DISCOVERY

Practice and procedure Litigation – notice for particulars –damages – whether order of discov-ery complied with – whether plain-tiff should furnish further particu-lars of claimThe case concerned allegationsby the plaintiff that the defen-dants, as members of theChurch of Scientology, putundue pressure on her to payfor and attend various courses.The plaintiff alleged that theactions of the defendants hadbreached the plaintiff’s consti-tutional rights to bodily integri-ty, mental and psychologicalintegrity and personal privacy.The defendants denied theclaims of the plaintiff andbrought two motions to theHigh Court, one seeking fur-ther and better particulars ofthe plaintiff’s claim and theother seeking to have the plain-tiff’s claim dismissed for analleged failure to comply withan order of discovery. Bothmotions were refused in theHigh Court and the defendantsappealed to the Supreme Court.The Supreme Court held that itwas most unfortunate that anaction begun in December 1995was pursuing a laborious andprotracted course through thecourts. The issues in the casewere relatively straightforwardand did not require theimmense panoply of particularsand of discovery that had so farissued. However, some of thelegal issues involved were noveland the defendants were enti-tled in some respects to furtherparticulars of the claim beingalleged against them. It orderedthat further particulars shouldbe furnished regarding thealleged pressure that wasbrought on the plaintiff to sub-scribe to other courses. Theplaintiff should indicate whatform the alleged pressure took.In other respects, the particularssought were matters relating toevidence which the plaintiffwould give at trial. To a certainextent, the defendants’ appeal inthis matter would be allowed.

The application for the dis-missal of the plaintiff’s action onthe basis of an alleged failure tocomply with an order of discov-ery would be refused. The orderof discovery was extremely wideranging and covered a hugequantity of correspondence.The court had undoubtedly ajurisdiction to strike out pro-ceedings over non-compliancewith a court order. The plaintiffhad maintained that she hadcomplied with the order of dis-covery. The High Court judgehad correctly declined to dis-miss the plaintiff’s proceedingsand the defendants’ appealwould be dismissed.Johnston v Church ofScientology, Supreme Court,07/11/2001 [FL4752]

FAMILY

Delay, legal aid Judicial review – legal aid – fami-ly law – delay – damages – statuto-ry interpretation – Legal AidBoard – whether board failed toprocess request of applicant withreasonable expedition – whetherrespondent in breach of statutoryduty – Civil Legal Aid Act, 1995 The applicant had applied tothe legal aid board for legal aidin connection with an applica-tion for judicial separation. Byletter, the board indicated thaton account of the demand forlegal services it could notprocess her application. Theapplicant’s request was notprocessed until almost 20months later. While awaitingthe outcome of the applicationfor legal aid, the applicant wasforced to leave the family homebecause of a violent incident.The applicant sought variousdeclarations, including orders ofmandamus, to the effect that therespondent was obliged to con-sider her application for legalaid within a reasonable time andthat the board had failed toprosecute her proceedings forjudicial separation with reason-able expedition. The respon-dents argued that the proceed-ings were now moot as the pro-

ceedings for legal separationhad been concluded.

Mr Justice Butler refused therelief sought, holding that therewas no connection between theapplicant being forced to leaveher home and the delay in thejudicial separation proceedings,as legal aid was available to herunder the private practitionerscheme. The delay suffered bythe applicant in the processingof her application for legal aidwas the ordinary inconveniencecaused by any such delay.Orders of mandamus could notbe obtained as the proceedingsfor legal separation were moot.The language of section 5(1) ofthe Civil Legal Aid Act, 1995 wasplain and obvious and requiredno special interpretation. Theboard was obliged to provide,within its resources and subjectto other provisions of the act,legal aid to persons who satis-fied the requirements of the act.The words simply meant thatlegal aid shall be provided with-in the board’s resources and thatwas precisely what the board didin this case. The board had amethod of dealing with cases ina certain order of priority andwithin that scheme the appli-cant was given equal treatmentto all other applicants. Therelief sought was refused.Kavanagh v the Legal AidBoard and Others, HighCourt, Mr Justice Butler,24/10/2001 [FL4793]

Divorce, domicileRecognition of foreign divorce –preliminary issue – whetherrespondent had discharged onus ofproof that he had relinquisheddomicile of origin – whether for-eign divorce entitled to recognition– Judicial Separation andFamily Law Reform Act, 1989 –Family Law Act, 1995 – FamilyLaw (Divorce) Act, 1996 –Family Law (Maintenance ofSpouses and Children) Act 1976– Domicile and Recognition ofForeign Divorces Act, 1986

The applicant had sought adecree of judicial separationpursuant to the JudicialSeparation and Family Law

Briefing


46

Reform Act, 1989 and otherancillary reliefs. It was orderedthat the issue of whether adivorce obtained in theNetherlands was entitled torecognition in this state shouldbe tried as a preliminary issue.The respondent claimed thatthe divorce obtained in theNetherlands was entitled torecognition in the state on thebasis that on the date when thedivorce was obtained he wasdomiciled in that jurisdiction.The respondent also claimedthat the divorce was entitled torecognition on the basis of resi-dence. Both parties had a domi-cile of origin in Ireland and hadmarried and set up the familyhome in Dublin. Some yearslater the family moved to theNetherlands when the respon-dent was appointed to a positionthere. Both parties learnt andspoke Dutch fluently. Theirchildren were enrolled in pri-mary schools. Differences arosein the marriage, and the appli-cant and the children returnedto Ireland. The applicantbelieved that the respondent wasin negotiation with his employerwith a view to returning toIreland. The respondent con-tended that the idea of returningto work in Ireland was one ofmany options he considered anddid so only in the hope that itmight save the marriage and thatit was always his intention toremain in the Netherlands. Therespondent contended that hehad severed his connectionswith Ireland and that he nowhad acquired a domicile of

choice in the Netherlands. Theapplicant disputed the respon-dent’s assertion and contendedthat the respondent’s move tothe Netherlands was no morethan a career change and wasmotivated by the tax regime inIreland and that he had returnedto Ireland to discuss the jobwhich his employer (an interna-tional firm) would give him inIreland. The applicant statedthat she had initiated divorceproceedings in the Netherlandsas she needed sufficient funds tokeep herself and the children.She applied for interim mainte-nance in the Netherlands and itwas a condition of such an orderthat the applicant prosecute thecase to seek a divorce.

Mr Justice Morris stated thatthe respondent had not acquireda domicile of choice in theNetherlands. The respondentbecame fond of living in theNetherlands and was content toremain there for the purposes ofhis work. However, the respon-dent had not formulated anyintention of abandoning Irelandas his domicile of origin.Accordingly, on the date onwhich the divorce was obtainedin the Netherlands, the respon-dent was domiciled in Ireland.The court was satisfied that therespondent, being aware of thedivorce proceedings, availed oftheir existence to settle up out-standing matters. It was commoncase that a Dutch court wouldaccept jurisdiction based on theresidence of one of the parties.The divorce was granted afterthe coming into operation of the

Domicile and Recognition of ForeignDivorces Act, 1986. The questionwas whether foreign divorceswere regulated by the commonlaw or were they regulated bystatute. With the enactment ofsection 5 of the 1986 act, therules relating to recognition offoreign divorces passed from thecommon law and thereafter wereregulated by statute. Thereuponthe court’s right to alter the rulesceased. Residence was not a basisfor recognition under the act.Accordingly, the respondent wasnot entitled to a declaration thatthe divorce obtained in theNetherlands was entitled torecognition in this state.DT v FL, High Court, MrJustice Morris, 23/11/2001[FL4839]

LAND LAW

Negligence, occupier’s liabilityPersonal injuries – negligence –damages – whether defendant failedto take reasonable care to ensureplaintiff did not suffer injury –whether plaintiff guilty of contribu-tory negligence – Occupier’sLiability Act, 1995The plaintiff had been injured ina ‘trip and fall’ accident at anequestrian centre and as a resulthad sued the defendant, claimingthat the defendant had failed totake reasonable care to ensurethat the plaintiff had not sufferedinjury within the meaning of theOccupier’s Liability Act, 1995. Onbehalf of the defendant, it wassubmitted that the saddle of the

door (where the accidentoccurred) did not constitute adanger or a hazard. Further-more, it was submitted that theproximate cause of the accidentwas that the plaintiff failed tolook where she was going.

Mr Justice Lavan found infavour of the plaintiff, holdingthat there had been a danger anda hazard present due to the stateof the premises. The plaintiff’sactions in talking to her familyand walking through the doorwas an act of momentary inad-vertence. It would be unreason-able to make a finding of contrib-utory negligence. A total of£41,200 in damages would beawarded.Sheehy v Devil’s Glen Tours,High Court, Mr Justice Lavan,10/12/2001 [FL4730]

LANDLORD AND TENANT

Contract, land law Equity – option to purchase – specif-ic performance – whether optioncould be exercised – whether vendorhad wrongfully refused to complete –whether just and equitable to grantrelief soughtThe plaintiff had negotiated alease with his landlords (the sec-ond- to seventh-named defen-dants) for the rental of a particu-lar premises. The lease providedthat a non-returnable deposit wasto be paid along with an optionto purchase the premises. Thetenant paid the deposit andsigned a standing order for thepayment of rent. During the cur-rency of the lease, the landlords

EXCELLENCE IN REPORTINGSINCE 1954

Principal: Áine O’Farrell

USA REGISTERED COURT REPORTING QUALIFICATIONS• Daily transcripts

• Real-time

• Conferences

• Arbitrations

• Inquiries

2 Arran Quay, Dublin 7. Tel: 872 2833 or 294 1481 (After Hours). Fax: 872 4486. E-mail: [email protected]

Website: www.doylecourtreporters.com

Briefing


47

sold their interest to the first-named defendant (Albion). Theplaintiff was not notified of thistransaction for some time andcontinued to pay rent to his orig-inal landlords. Subsequently, theplaintiff cancelled the standingorder and wrote to Albion seek-ing to exercise the option to pur-chase. At this point, rent had notbeen paid for three months.Albion then wrote to the plaintiffpointing out that there werearrears of rent, that these shouldbe discharged and also pointedout that the title deeds had beenlost for a number of years. Theplaintiff replied that it had beenassumed that the deposit wouldcover the outstanding rent.Albion then sought the promptpayment of the option purchaseprice. Further correspondenceensued and Albion stated that itwas not bound by the option topurchase agreement. The plain-tiff issued proceedings seeking toenforce the option agreement.Albion contended that the saleshould have been completed by acertain date. It was argued thatthe option could only be exer-cised if the plaintiff was not inbreach of covenant at the time ofthe exercise of the option. As theplaintiff was in arrears with hisrent, it was submitted that theexercise of the option wasinvalid. Albion also argued thatspecific performance was anequitable remedy and that itwould not be just and equitableto grant it.

Mr Justice McCracken grant-ed the relief sought, holding thatthe plaintiff had wronglybelieved that the deposit couldbe used for the payment of therent for three months. The leaseonly provided that the depositcould be used to pay the rent forthe last three months of the termgranted by the lease provided thelease had run its full term. Byexercising the option, the plain-tiff ensured that the lease had notrun its full term. However, thiswould appear to have been putright by the payment by the ten-ant of the three months’ rent.The contents of the letter fromAlbion which challenged the

option were quite astonishing.None of the grounds had theslightest validity. The optionclearly formed part of the tenan-cy agreement. Undoubtedlythere was an argument to bemade that time should be of theessence of the contract.However, the landlords werebound to furnish evidence of titlewithin six months from the dateof the lease and had failed to doso. As a result, the plaintiff couldnot complete within the speci-fied time and there could not beany question of time being of theessence of the contract. Also,Albion’s solicitors had undertak-en to issue contracts for sale.Undoubtedly the plaintiff wastechnically in arrears of rentwhen the option was exercised,due to his mistaken belief that hecould use the deposit to pay thelast three months’ rent.However, the plaintiff had fur-nished a cheque for the rent andsubsequently a bank draft. Theoption agreement did not con-tain any express provision mak-ing it a condition precedent tothe exercise of the option and thecourt was not prepared to implysuch a condition. In the circum-stances, the plaintiff had validlyexercised the option to purchaseand Albion had wrongfullyrefused to complete. There wasnothing inequitable in the plain-tiff’s behaviour which wouldwarrant a refusal of the remedyof specific performance. A decla-ration would issue that Albionwas bound by the option agree-ment and specific performancewould be ordered.Terry v Albion EnterprisesLimited and Others, HighCourt, Mr Justice McCracken14/11/2001 [FL4807]

LITIGATION

Evidence, negligence Personal injuries – litigation – evi-dence – negligence – appeal –whether findings of fact made bytrial judge correct – whether trialjudge incorrectly dismissed evidenceof expert witnessThe plaintiff had been injured in

an accident at his workplace andhad brought a claim for damagesfor personal injuries. The plain-tiff was awarded £50,300 in dam-ages, which was reduced to£37,725 on the basis of contribu-tory negligence. The defendantsappealed the judgment on thebasis that the findings of facts ofthe trial judge were unsatisfacto-ry. The plaintiff had slipped onthe floor of the workplace andevidence had been given in rela-tion to the build-up of water onthe floor. The defendants con-tended that the trial judge hadfailed to adjudicate on a matterrelating to the seeping of waterfrom a manhole cover and alsoobjected to the rejection of theevidence of their expert witness.

The Supreme Court dismissedthe appeal, holding that the trialjudge had made findings on theevidence which he was entitled tomake. He had also preferred theevidence of one expert engineerover another. The appeal wouldbe dismissed and the order of theHigh Court affirmed.Cassidy v Wellman Inter-national Limited, SupremeCourt, 31/10/2001 [FL4733]

Negligence, Statute ofLimitationsPractice and procedure – Statute ofLimitations – tort – property andconstruction – negligence – contract– whether action statute-barred –whether cause of action accrued fromdate of construction of house –Statute of Limitations 1957 –Statute of Limitations(Amendment) Act, 1991 – Rulesof the Superior Courts 1986,order 25The plaintiffs instituted proceed-ings against the defendants inrespect of the building of theirdwelling-house. Cracks hadappeared in the house shortlyafter it was built and repairs hadbeen carried out. However, someyears later further cracksappeared and the plaintiffs sued,basing their claim on both con-tract and negligence. The defen-dants denied the claims and apreliminary issue arose as towhether the action was statute-barred. Counsel for the defen-

dants argued that any cause ofaction of the plaintiffs in con-tract accrued when the defectiveblocks were used in the construc-tion of the house.

Mr Justice Finnegan declaredthat the action by the plaintiffsbased on tort was not statute-barred. The relevant period oflimitation in tort applicable inthis matter was six years from thedate on which the cause of actionaccrued. An action in contracthad become time-barred by thetime the plenary summons wasissued. The existence of a con-tractual relationship betweenparties did not preclude theinjured party from seeking aremedy in tort on the same facts.The cracks that occurred did notdevelop until well within thelimitation period of six years.The cause of action pleaded intort against the defendants wasnot time-barred.O’Donnell and Anor v KilsaranConcrete and Anor, HighCourt, Mr Justice Herbert,02/11/2001 [FL4777]

Occupier’s liability Personal injuries – litigation – neg-ligence – status of plaintiff on build-ing site – access to unsecured ladder– whether plaintiff trespasser or vis-itor – Occupier’s Liability Act,1995The plaintiff was the manager ofa guttering distribution firm andhad been requested by a builders’providers to fly over fromEngland to look at a problemrelating to the installation of gut-tering at a building site. Whileon the site, the plaintiff accesseda ladder, fell and suffered person-al injuries. The plaintiff issuedproceedings and claimed dam-ages for personal injuries on thebasis of common-law negligenceor breach of statutory duty. MrJustice Morris held that the firstissue to be decided must be thestatus of the plaintiff on the siteat the relevant time. Counsel onbehalf of the defendants submit-ted that the plaintiff was on thebuilding site as a trespasser. Itwas submitted that within themeaning of the Occupier’sLiability Act, 1995 they had not

Briefing


48

acted with reckless disregard forthe person or his property. Onbehalf of the plaintiff, it was sub-mitted that he was on site as a vis-itor and that he was owed theduty of care as set out in theOccupier’s Liability Act, 1995. Itwas further submitted on behalfof the plaintiff that section 8 of

the Safety, Health and Welfare atWork Act, 1989 imposed a fur-ther duty on the occupiers of thesite.

Mr Justice Morris said hefound some conflict in the evi-dence given by the plaintiff’s wit-nesses. The court did not believethat the party had come to be on

the roof in the manner describedon behalf of the plaintiff. Thecourt was not satisfied that theplaintiff was entitled to beregarded in law as a visitor with-in the meaning of the Occupier’sLiability Act, 1995. No case hadbeen made out that the first-named defendant acted in such a

reckless way, and therefore theplaintiff was not entitled to anyrelief under the Occupier’sLiability Act. There was no evi-dence which established that thepremises were ‘made available tothe plaintiff’ and accordingly theplaintiff was not entitled to anyrights under section 8 of the

Law Society of Ireland – Continuing Legal Education

EUROPEAN LAW HEALTH CHECK 2002On Saturday 20 April 2002, at Maryborough House Hotel, Maryborough Hill, Douglas, Cork.

Fee: €100 (€60 trainees/students).

APPLICATION FORM

Name:

Address:

Telephone: Fax: E-mail:

Solicitor Trainee Student (PLEASE TICK AS APPROPRIATE)

I enclose €100 (€60 trainee/student) (ALL CHEQUES TO BE PAYABLE TO THE LAW SOCIETY) OR

You are authorised to charge €100 to my credit card (ACCESS/MASTERCARD/VISA/EUROCARD ACCEPTED)

Card type: Card no: Expiry date:

PLEASE RETURN TO:The CLE applications secretary, The Law School, Law Society, Blackhall Place, Dublin 7. Telephone: 01 672 4802 Fax: 01 672 4803

9AM REGISTRATION AND COFFEE

9.30am IntroductionPatrick Dorgan(president, Southern Law Association)

9.45am Treaty of Nice – legal implicationsJohn Handoll(William Fry)Human rights developments in EuropeHugh O’Donoghue(HV O’Donoghue)

10.30am Recent European developments in litigation and employment lawTP Kennedy(director of education, Law School)

11am Recent developments in family lawRosemary Horgan(Ronan Daly Jermyn)

11.30AM COFFEE BREAK

11.45am Competition updateJohn Handoll(William Fry)

12.15pm Environmental law updateJoe Noonan(Noonan Linehan Carroll Coffey)

12.45pm Regulation and utilitiesDenise Casey(A&L Goodbody)

ORGANISED BY THE EU AND INTERNATIONAL AFFAIRS COMMITTEE OF THE LAW SOCIETY

(PLEASE COMPLETE IN FULL)

Briefing


49

Safety, Health and Welfare atWork Act, 1989. There was aresponsibility on a main contrac-tor if a ladder was allowed to beleft unattended and unsecured,leaning against a scaffolding, andif a visitor as defined in the 1995act used the ladder and sufferedpersonal injuries as a result of afall. However, the plaintiff wasnot a visitor within the terms ofthe act and was not entitled tosucceed in this action.Williams v TP WallaceConstruction and Others, HighCourt, Mr Justice Morris,23/11/2001 [FL4794]

MEDICAL NEGLIGENCE

Delay, dismissal of proceedings Practice and procedure – dismissalof proceedings – medical negligence– lay litigant – whether delay inor-dinate and inexcusableThe plaintiff had initiated pro-ceedings against the defendantsover an alleged failure to treatthe plaintiff’s medical problemsproperly. The plaintiff’s claimhad been dismissed in the HighCourt by Mr Justice Johnson forwant of prosecution. The plain-tiff sought to appeal against thedecision and also sought libertyto adduce fresh evidence and toamend the notice of appeal. Theplaintiff was a lay litigant andcontended that the defendantshad not made a full discovery ofrelevant documents and that onthe merits of the issue the plain-tiff had an arguable case.

The Supreme Court dis-missed the appeal, holding thatthere had been inordinate delayin the case and that the questionto be determined was whether itwas inexcusable. The matter ofseeking an additional medicalreport was not a sufficientexcuse for the delay in obtaininga second notice of trial. Theproblems in relation to discov-ery could have been dealt withby the former solicitors engagedby the plaintiff. The inordinatedelay had given rise to a sub-stantial risk that it was not possi-ble to have a fair trial and the

delay was likely to have causedserious prejudice to the defen-dants. The High Court had noterred in its discretion in dismiss-ing the proceedings.Brennan v Fitzpatrick andOthers, Supreme Court,23/11/2001 [FL4851]

MENTAL HEALTH

Detention, guardianshipPractice and procedure – mentalhealth – detention – whether wel-fare of applicant best met by contin-ued detention – whether case shouldbe heard or adjournedThe applicant had beendetained in the Central MentalHospital by order of the HighCourt (Mr Justice Kelly). Theguardian of the applicant wishedto appeal against the decision.At the High Court hearing, theapplicant made an unswornstatement to the effect that shewould prefer to stay in theCentral Mental Hospital. In theSupreme Court, Chief JusticeKeane held that the applicantwas a young woman with a sig-nificantly troubled past. Thecourt was not in a position toembark on the hearing of theappeal from the order by theHigh Court made on the previ-ous day. None of the materialswhich were before the HighCourt judge were before theSupreme Court. The appropri-ate procedure was to adjourn thecase to a date in respect of whichsubmissions by counsel wouldbe heard. This would give theguardian ad litem an opportunityto consider how best to proceed.P v Eastern Health Board,Supreme Court, 10/05/2000[FL4804]

PRACTICE AND PROCEDURE

Amendment of pleadings,delayLitigation – amendment of plead-ings – delay – whether amendmentof counterclaim should be allowed –whether amendment would preju-dice plaintiff’s case

Ejectment proceedings hadbeen taken by the plaintiff overnon-payment of rent. Thedefendant brought a defenceand counterclaim, alleging thatthe plaintiff had committed anumber of torts against thedefendant, including injuriousfalsehood and negligent mis-statement. In particular, allega-tions were made that maliciousphone calls were made fromtelephone lines owned by aperson who was associated withthe plaintiff. The defendanthad sought to obtain docu-ments which would support itscounterclaim and experiencedconsiderable delay in obtainingthese documents. When thesedocuments were obtained, itwas apparent that the defen-dant might wish to amend itspleadings. Mr JusticeMcCracken refused the appli-cation to amend the pleadingson the grounds of delay andalso on the grounds of preju-dice that would result to theplaintiff.

The Supreme Court (KeaneCJ delivering judgment)allowed the appeal, holding thatthe plaintiff in a broad sensemust have been aware of thenature of the case that thedefendant was making. Wherean amendment could be madewithout causing prejudice tothe other party and enable thereal issues to be tried, theamendment should be made. Inorder for the real issues to betried in this case, the amend-ment sought should be allowed.If the defendant was precludedfrom producing that evidence,an injustice would be created.While there had been a delay inseeking the amendment, thedelay of itself would not be asufficient ground for refusingthe amendment. There was notany degree of prejudice to theplaintiff which would justify therefusal of the amendments. Theorder of the High Court wouldbe discharged and the amend-ment allowed.Crofter Properties v Genport,Supreme Court, 16/03/2001[FL4827]

Dismissal of proceedingsLitigation – application for non-suit – whether trial judge hadincorrectly applied test for non-suitWhen the present case wasbeing heard in the High Court,counsel on behalf of the defen-dant had applied for a non-suit.The trial judge had inquired asto whether the defendantintended on going into evi-dence if the application wasrefused. The defendant indi-cated he would and the trialjudge held that the defendanthad a case to answer. Havingheard the defendant’s evidence,the trial judge held that theplaintiff was not entitled to suc-ceed and dismissed the plain-tiff’s case. However, the trialjudge had stated when dealingwith the application for a non-suit that if the defendant hadproposed not to go into evi-dence then he would have dis-missed the plaintiff’s case. Theplaintiff appealed against thedismissal of proceedings.

The Supreme Courtallowed the appeal, holdingthat the trial judge had notdealt with the application for anon-suit in a satisfactory man-ner. Where a trial judgebelieved there was no ‘case tomeet’, then that was all thetrial judge was required to say.To indicate to the defence thatthe plaintiff had not made outa case could only be an indica-tion to the defendant that themore evidence they called themore their prospects of win-ning the case diminished. Theappeal would be allowed and are-trial would be ordered on allissues.O’Donovan v Southern HealthBoard, Supreme Court,02/11/2001 [FL4749]

The information contained here is taken from FirstLaw’s LegalCurrent Awareness Service, pub-lished every day on the Internetat www.firstlaw.ie. For moreinformation, contact [email protected] or FirstLaw,Merchants Court, MerchantsQuay, Dublin 8, tel: 01 6790370, fax: 01 679 0057.

G

Briefing


50

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

Damages now available for breaches ofEC competition law: the ECJ’s judgment in C-453/99 Courage v Crehan

The European Court ofJustice (ECJ) has recently

sent an important and double-edged message to people orcompanies that are party to ille-gal agreements, namely that: (1)being a party to an illegal agree-ment does not necessarily stopyou from seeking full remediesbefore national courts (evendamages) against your ‘partnersin crime’, provided you were notsignificantly responsible for theillegality in question; and (2) as aresult, the chances of partiesgoing to court over anti-com-petitive agreements have nowincreased. The ECJ’s judgmentcomes in the case of Crehan (onreference from the EnglishCourt of Appeal) and has beenheralded as a potential startingpoint for a wave of competition-law based litigation. This articleexamines what the ECJ has saidin some more detail and, in par-ticular, considers what it mightmean in Irish terms.

Legal basisArticle 81(1) of the EC treatyprohibits agreements having apotential effect on tradebetween member states andwhich prevent, restrict or distortcompetition. Article 81(2) ren-ders such agreements void andunenforceable. The EuropeanCommission is the guardian ofthe treaty, and has wide-rangingpowers to enforce respect forarticle 81 and other EC compe-tition provisions. However,what the European Commission(and indeed the Europeancourts) cannot do is adjudicatecivil remedies between privateparties based on infringement ofEC law. This is the preserve of

national courts, based on gener-al EC law principles of directeffect. The ECJ has long sinceruled that article 81, by its verynature, produces direct effectsin relations between individualundertakings, and thereforearticle 81 creates a direct rightfor such undertakings, whichnational courts have a responsi-bility to safeguard.

Actions for breach of article81 before national courtsIn the UK, it had been general-ly accepted that a third partyaffected by the unlawful conductof others contrary to article 81had a right of action before thenational court and a remedyavailable in damages. What wasnot accepted, however, was theidea that a party to an agree-ment itself, which infringed arti-cle 81, had a right of actionagainst his co-contractor(s),together with a remedy in dam-ages. The theory was that no-one could base a cause of actionupon an illegal agreement towhich they themselves were aparty, and therefore complicit(in pari delicto).

The facts of the Crehan caseBernie Crehan was a tenant of apublic house, who in 1991entered into two tenancy agree-ments with his landlord,Inntrepreneur Estates Limited(IEL), a joint venture betweenCourage and GrandMetropolitan. Crehan leasedthe pub under a standard 20-year IEL lease which containedan exclusive purchasing obliga-tion, the beer tie, in favour ofCourage. The standard leasewas notified to the European

Commission for exemptionfrom article 81(1), which wasrefused, partly due to tenants’submissions that there were sig-nificant price differencesbetween Courage beer suppliedto tied tenants and free houses.IEL withdrew that notificationand notified a new standardform lease, which afforded tiedtenants discounts off list pricesfor Courage beer.

Meanwhile, Crehan left thepub, claiming that the beer tieand the inflated prices had driv-en him out of business.Courage sued Crehan forunpaid beer, and he counter-claimed for loss suffered byadhering to the original beertie, which had prevented himfrom buying beer from cheapersources. Crehan claimed thatthe original lease to which hehad been a party evidentlyinfringed article 81(1) given itsrejection by the commission,and that therefore his misfor-tunes were the result of an illegalagreement to which, admittedly,he was a party, but for which inreality he was not responsibleand had no control over.

Questions before the ECJThe Court of Appeal was awareof a US decision, PermaMufflers v Intl Oarts Corp (US134 [1968]), that states that aparty to an anti-competitiveagreement, which is at an eco-nomic disadvantage, may bringan action for damages againstthe other party. The Court ofAppeal felt there was a need forclarification of this issue, hencethe referral to the ECJ.

The ECJ was asked essential-ly to judge the compatibility

with EC law of English laws bywhich a party to an ‘illegal’agreement cannot seek declara-tory relief (that the agreementis void) or claim damages fromthe other party to the agree-ment, on the basis that oneshould not be able to profitfrom unlawful conduct. TheECJ replied that:• Article 81 is a fundamental

provision of EC law andessential for the proper func-tioning of the internal market

• The nullity of agreementsbreaching article 81(1) canbe relied on by anyone

• Article 81 has direct effectwhich includes grantingrights to individuals withoutlimitation. The ECJ ruledtherefore that an individualhas a right to seek declarato-ry relief based on a breach ofarticle 81 even where he is aparty to a restrictive agree-ment

• To preclude the possibility ofdamages would breach theprinciple of effective protec-tion. If a contractor has aright to seek declaratoryrelief, this right alone (that is,without possibility for dam-ages) might be insufficient toprovide effective protectionfor that right. A right to seekdamages may not then beprecluded. The ECJ addedthat a clear right to claimdamages would positivelystrengthen enforcement ofEC competition law and dis-courage unlawful contracts

• To recover damages it mustbe shown that the partyclaiming damages was not‘significantly responsible’ forthe agreement. In this

Briefing


51

regard, the ECJ suggestedthat matters to be taken intoaccount by national courts indetermining ‘significantresponsibility’ might includethe economic and legal con-text in which the respectiveparties to the agreement hadfound themselves, theirrespective bargaining power,and their conduct.

The discretion as to the roleplayed by each party andwhether or not parties will beallowed to claim damages willstill remain with the nationalcourts. Crehan’s case will nowreturn to the Court of Appeal,which, having established thathe is able to bring a claimagainst Courage and can claimdamages as a result of thataction, will decide on the factswhether or not actually to awarddamages and, if so, in whatamount.

Significance of the judgmentthroughout the EUThe long-term significance ofthe judgment remains to beseen, but a healthy prediction isthat it will open the eyes of liti-gators to the possibility thatnational courts are a viableoption for competition law-based remedies. Furthermore,would-be infringers of EC com-petition law will now know thatbeing dragged into nationalcourts on account of theiractions is a far more real andgreater possibility. The fact thatcurrent proposals before theEuropean Commission seek aneven greater enforcement rolefor national courts may signifi-cantly add to this.

What the above basicallymeans is that the chances of lit-igation arising from agreementswith one’s business partnershave risen dramatically, particu-larly where there is an imbal-ance in each party’s relative bar-gaining power. Where this ismost obvious is in so-called‘vertical agreements’ – that is,those between parties operatingat a different level in the supplyand distribution chain. The reg-

ulation of such agreementsunder EC competition law isheavily linked to the marketshares of the parties concludingthe agreement, especially if over30%. A rule of thumb thereforemight be that the more marketpower enjoyed by parties to ver-tical agreements, especially ifover 30%, the greater the likeli-hood of competition law prob-lems arising, which in turn,based on Crehan, may now leadto a greater likelihood ofnational court litigation andthereafter possibly damages.This is an over-simplification,but will surely create a moregenuine commercial concern ona day-to-day basis when con-cluding and operating verticalagreements, and will also createa more significant concern indue diligence assessments ofrisk when buying or sellingcompanies.

Significance of the judgmentin IrelandThe significance of this judg-ment for the Irish courts isthree-fold:• It offers a new and potential-

ly valuable weapon for thecourts to ensure the fullenforcement of EC competi-tion law

• It challenges the autonomy ofnational courts to decideupon matters relating toremedies and rules of proce-dure, when adjudicating onEC law1

• Litigants pleading breach ofsection 4 of the CompetitionAct, 1991 will not benefitfrom the same ‘advantage’available to litigants pleadingon the grounds of EC law.Thus it would appear that lit-igants before the Irish courtsseeking damages relating tocontracts in breach of the1991 act, to which theythemselves have been a party,will find themselves frustrat-ed by the in pari delictoprinciple.

It is perhaps notable that thelast point above regarding thelack of benefit of the judgment

to cases concerning the 1991act would not seem to applyequally to breaches of the UKCompetition Act 1998. This isbecause section 60(2) of that actobliges the national courts toensure, as far as possible, con-sistency between decisionsmade under the 1998Competition Act and the princi-ples enshrined in the EC treaty,as interpreted in the decisionsof the European courts.Conversely, the Irish act of1991 is said to function ‘byanalogy with articles 85 and 86of the treaty’ only; it containsno provision such as that foundin the UK act. As noted byShanley J in Bleming v DavidPatton Ltd (High Court, unre-ported, 15 January 1997): ‘Inapplying the jurisprudence ofthe ECJ, the CFI and the com-mission to sections 4 and 5 ofthe 1991 act, there is no doubtthat decisions of those bodiesshould have very strong persua-sive force – however, it shouldbe borne in mind that suchdecisions are based on competi-tion rules which are, textuallyand contextually, different fromthe 1991 rule and which oftenare decisions influenced oraffected either by policy consid-erations, objectives or articlesof the treaty which do not nec-essarily underpin the 1991 act’.

As a general principle, com-munity law does not create anyremedies for the infringementof the rights that it confers:rather, that is a matter fornational law, as emphasised bythe ECJ in Case C 158/80 Rewev Hauptzollamt Kiel ([1981]ECR 1805). However, thenational rules regarding theremedies available for Europeanlaw litigants are ruled by thetwin principles of equivalenceand effectiveness. Equivalenceessentially amounts to ensuringthat all remedies available undernational law should be availableto litigants pleading a commu-nity law right. However, thisprinciple is subject to the over-riding rule, as proved in Crehan,that national courts mustensure that community rights

are given effective protection.Moreover, this applies even if inso doing national courts findthemselves giving those litigat-ing on a point of communitylaw access to a remedy denied tolitigants relying purely onnational law.

The present regulation 17/62governing the application of theEC competition rules is expect-ed to be replaced in mid-2003by a directly effective enforce-ment system which shall seeboth the Irish CompetitionAuthority enforcing EC compe-tition rules and the Irish courtsadjudicating upon them. If andwhen this happens, the basis ofthe above comments maychange entirely. In principle,however, it should remain amatter for the national courts toprovide the necessary remediesto ensure effective enforcement.This has led many commenta-tors to criticise the commissionfor decentralising the applica-tion of the competition ruleswithout either ensuring the har-monisation of the national rulesof procedure so as to ‘level theplaying field’, or guaranteeinglitigants access to adequateremedies.

Nonetheless, the judgmentgives a clear indication of thesteps the ECJ is prepared to taketo do both.

Jonathan Branton and DonoghHardiman are solicitors with thelaw firm Hammond SuddardsEdge, in Brussels.

Footnote1 In this respect, the decision in

Courage v Crehan fits into anestablished line of ECJ caselaw, under which the ECJ hasforced national judges toignore national proceduralrules which would impede alitigant’s ability to access theirEC law rights, even if thoserules would have producedthe same impediment for alitigant pleading undernational law.

In particular, see Case C-312/93 Peterbroek v Belgium([1995] ECR I-4599).

G

Briefing


52

Standardisation of public procurement notices. TheEuropean Commission hasadopted a directive imposing,from 1 May 2002, the use ofstandard forms in contractnotices published in the EU’sOfficial journal when public enti-ties purchase goods, works orservices in circumstances wherethe EU procurement directivesare applicable. The object of thisinitiative is to promote efficiencyand transparency and facilitateelectronic procurement.

Emergency measures to sup-port EU airlines and increasesecurity. This proposed regula-tion deals with the adoption andenforcement of common securi-ty rules for civil aviation.Notwithstanding the adoptionof this package by the commis-sion, all state aid and agree-ments still require to be notifiedto the commission and beassessed on a case-by-case basis.Under this package, memberstates are allowed to compensateairlines for revenue losses as aresult of the closure of US air-space for four days; the under-writing by member states of theadditional insurance costs to theend of the year will be looked onfavourably by the commission;increased security measures willalso be favourably considered;competition rules will be relaxedbetween airlines whose functionis to maintain regular scheduleson less frequented routes or toco-ordinate schedules duringoff-peak periods; and airlines arealso permitted to keep theirexisting airport slots until 26October 2002. Provision is alsomade for a code of good conductin relation to the US authorities,which will be proposed by thecommission and will avoid dis-tortions of competition result-ing from aid being given to the US airlines. Proof of mini-mum insurance cover will

be required from airlines fromnon-EU countries.

Data protection: standardclauses. The commission has,by decision, stipulated standardclauses for contracts that will beconsidered to meet the dataprotection safeguard require-ments of the Data protectiondirective (95/46/EC). The claus-es cover the transfer of person-al data from EU-based con-trollers to recipients in non-EUcountries where an adequatelevel of data protection has notbeen recognised. When con-tracts involving the transborderflow of data incorporate thestandard clauses, nationalauthorities in the EU will notbe able to block the transfer ofinformation based on reasons ofinadequate data protection(decision 2002/16EC, OJL6/52, 10 January 2002).

Proposed directive to extendthe scope of the Seveso IIdirective (96/82/EC) on thecontrol of major accident haz-ards involving dangerous sub-stances. The adoption of thisproposed directive by the com-mission follows several majorindustrial accidents over the lastfew years. The amendmentscover tailings, explosives, stor-age and carcinogenic and aqua-toxic substances. It is expectedthat there will be a furtheramendment to cover land useplanning.

Two directives on investmentfunds (UCITS). The first ofthese directives removes barri-ers to cross-border marketingof units of collective investmentfunds by widening the scope ofassets in which they can invest.These include bank deposits,money market instruments andfinancial derivatives. The sec-ond directive permits manage-ment companies to operate

throughout the EU, increasesthe activities which they areallowed to undertake as non-core services, and increasesinvestor protection by theintroduction of a simplifiedprospectus requirement whichwill provide more accessible anddetailed information.

Framework directive on work-er information and consulta-tion. This directive sets out therules for companies on inform-ing and consulting with theiremployees. Three years is theperiod within which nationalgovernments have to implementthis directive into national law.Before certain decisions involv-ing a company are taken, includ-ing those affecting employment,all businesses having more than50 employees will be obliged tosupply information to and con-sult with their employees.Provision must be made atnational level for sufficientpenalties to deter companiesfrom breaching the directive.

Commission green paper onmerger control reform. Theproposals include extending thescope of the commission’s pro-posal to cover cases subject tonotification under the EUMergers control regulationregarding transactions involvingundertakings in three or moremember states in the interest ofimpending EU enlargement.The green paper also proposesto simplify the circumstances inwhich the commission isempowered to refer transactionsback to national authorities orreceive referrals from nationalauthorities under articles 9(referral to a member state) and22 (referral by a member state).It is also proposed in relation toarticle 9 that the commissionwould be given the power of itsown initiative to carry out aninvestigation. A number of

potential changes to the con-cept of concentration are alsobeing examined.

One of the substantivereforms includes holding adebate on the substantive testapplied by the Merger regula-tion (4069/89/EEC) to includewhether a concentration willcreate or strengthen a domi-nant position in the commonmarket. Comments are invitedon whether the proposed testof the ‘substantial lessening ofcompetition’ as used in otherjurisdictions, such as the US,would be desirable.

The proposed proceduralreforms include allowing theparties to request the extensionof the timetable for the sub-mission and discussion ofremedies designed to meetobjections raised by the com-mission in phase I or phase IIof the merger review process.Comments are also invited onthe procedural issues, in partic-ular whether the proceduresinvolve due process, on theevent which leads to notifica-tion, the standstill obligation,filing electronically, notifica-tion filing fees, submission bythe parties themselves of noti-fication copies to memberstates, the stage at which thecommission can declare a noti-fication incomplete and theenforcement procedures whichthe commission has at its dis-posal. Provision is also madefor lessening the burden ofnotification in simple cases.

Ratification of Rotterdamconvention on hazardouschemicals. This proposalwould ratify the Rotterdam con-vention procedure for handlinghazardous chemicals in interna-tional trade. Countries partici-pating in the Rotterdam conven-tion have the right to refuseimports of certain dangerouschemicals and establish a sys-

Recent EU legislative developments: December 2001, January and February 2002

Briefing


53

tem of information exchangeregarding dangerous chemicals.The commission has decided topropose detailed rules for theimplementation of the conven-tion’s provisions, replacing cur-rent EU arrangements control-ling the import and export ofdangerous chemicals. The com-mission’s proposal goes furtherthan the convention in impor-tant areas; for example, by cover-ing a wider range of chemicals.

Registration procedure on tra-ditional herbal medicines. Therationale for this proposeddirective is to improve quality

checks and market surveillance.By creating a clear and reliableregulatory environment forthese products, it is intended tobenefit both patients and manu-facturers, most of which aresmall and medium-sized enter-prises. The rules governing theplacing on the market and sur-veillance of herbal medicinesdiffer between member states,which has a detrimental impacton public health protectionstandards and the free move-ment of goods within the EU.

Immunity from, and reductionof, fines in cartel cases. From

14 February 2002, this noticereplaces the 1996 Leniencynotice for all cases in which anundertaking has not contactedthe commission in order totake advantage of thefavourable treatment set out inthat notice. The purpose of thenew rules is to make the policyeven more effective and attrac-tive for companies to come for-ward, to obtain full immunityand to provide more certaintyagainst the imposition of fines or the level of fines. Themain requirement for qualify-ing for full immunity, besideshaving to be the first to come

forward, is not to have takensteps to coerce other undertak-ings to participate in theinfringement. Immunity appli-cants will be quickly informedof their situation and, if theyqualify, conditional immunitywill be granted to them in writ-ing. If companies comply withtheir obligations of completeand continuous co-operation,this conditional immunity willbe confirmed in the final deci-sion.

Jennifer McGuire is a traineesolicitor with the Dublin law firmLK Shields.

G

Recent developments in European lawCONSUMER LAW

The commission has proposed a reg-ulation (2 October 2001) to removenational restrictions on sales promo-tions within the EU. The regulationwill apply to certain price-relatedrestrictions on promotional instru-ments. This will cover free gifts, dis-counts and promotional contestsand games. Its objective is to makeit easier to use such promotions ona cross-border basis.

COMPETITION

Case C-475/99 Ambulanz Glöckner vLandkreis Südwestpfalz, 25 October2001. In 1990, the applicantreceived authorisation to provide apatient transpor t service untilOctober 1994. In July 1994, itapplied for the renewal of its authori-sation to the territorial authority – theLandkreis. Under a 1991 law, theauthority could refuse to grant suchan authorisation if its use might havean adverse effect on the functioningand profitability of the public ambu-lance service. The Landkreis refusedthe authorisation, as the two publicfacilities in the area were not fullyused and were operating at a loss.The German court asked whether thegrant of a monopoly over the trans-port of patients in a limited geo-graphical region was compatible withEU rules on competition. The ECJheld that the public ambulance serv-ice to which was reserved the emer-gency transpor t service was an

undertaking subject to EU competi-tion law. It left it to the Germancourts to determine whether therehad been any abuse of a dominantposition. It examined whether anyabuse of a dominant position mightbe justified by the existence of a taskof general economic interest. TheECJ held that this was such a task,as it consisted of an obligation toprovide permanently the service oftransporting sick or injured personsthroughout the territory at a uniformrate and on identical conditions as toquality without regard to individualsituations or to the degree of eco-nomic profitability of each individualoperation. In that context, restric-tions or exclusions of competitionmay be permissible if they are nec-essary for the performance of theparticular task. There is a need tooffset the costs of providing theemergency transport service withrevenue from non-emergency trans-port, which is more lucrative. TheGerman court had to determinewhether the restriction of competi-tion placed on non-emergency trans-por t patients was necessary toenable the public service to carry outtheir task of general interest in eco-nomically acceptable conditions. Italso had to be ascertained thatthese organisations provided a trans-port service in an effective manner.

CRIMINAL LAW

On 28 September 2001, the com-mission adopted a green paper on

whether EU action should be taken toimprove state compensation to vic-tims of crime. At present there aresignificant dif ferences betweenstates on the level of compensationpayable and the criteria on which anaward for compensation is based.The commission wishes to ascertainwhether the situation can beimproved in cross-border cases. Itoutlines two possible approaches.Firstly, it will examine whether itshould be compulsory for states toprovide an adequate level of com-pensation. The second approach isto ensure that compensation isaccessible regardless of where theindividual became a victim.Interested parties were invited tosubmit views before 31 January2002, after which a public hearingwill be organised to further debatethe issues raised to considerwhether legislation is necessary.

EMPLOYMENT

DiscriminationCases C-438/99 and 109/00 MariaLuisa Jiménez Melgar v Ayuntamientode Los Barrios and Tele Danmark A/Sv Handels-og KontorfunktionærernesForbund i Danmark (HK), 4 October2001. The municipality of Los Barriosrecruited Ms Melgar for threemonths. Her contract was renewedtwice until 2 May 1999. On the fol-lowing day, she signed a new contracton a part-time basis and for a fixedterm. Subsequently, the municipalitywas informed that she was pregnant.

She received a letter indicating thather contract would terminate on 2June. She challenged her dismissalon grounds of discrimination andbreach of fundamental rights.

Tele Danmark had employed MsBrand-Nielsen for six months from 1July 1995. In August, she informedher employer that she was pregnantand expected to give birth in earlyNovember. On 23 August, she wasdismissed with effect from 30September, as she had not informedher employer of her pregnancy whenshe was recruited. She argued thather dismissal was discriminatory.

The two courts referred questionsto the ECJ on the scope and interpre-tation of the EU provisions on equaltreatment and the specific measureswhich oblige member states to pro-hibit the dismissal of female workersduring the period from the start ofpregnancy to the end of maternityleave, save in exceptional cases notlinked to their condition. The ECJ heldthat there is no distinction betweenfixed term and indefinite employmentcontracts and that the measuresapply equally to both. However, thenon-renewal of a fixed-term contract,which has reached its terminationdate, cannot be equated with dis-missal. In certain circumstances,such non-renewal can be regarded asa refusal of employment. The refusalto employ a woman, despite the factthat she is considered suitable to per-form the work in question, on accountof her pregnancy is direct discrimina-tion on grounds of sex. G

People and places


54

Foreign affairsThe entire membership of the Supreme Court of Cyprus recently visited Blackhall Place, meeting members of

the society’s EU and International Affairs Committee to explore the legal effects of joining the European Union.Pictured above are (seated, from left) Christakis Elades and Pallas Gavrielides, both judges of the CypriotSupreme Court; Georghias M Pikis, president of the court; Law Society President Elma Lynch and Solon

Nikitas, judge of the Supreme Court of Cyprus. Standing (from left) are Director General Ken Murphy; Cypriotambassador Nicholas Emiliou; Wendy Hederman; John Handoll; TP Kennedy, the society’s director of education;

former Circuit Court Judge John Buckley; and the Law School’s Brid Moriarty

New recruitTamsyn Broderick recently

joined the legal recruitmentteam at Osborne

Recruitment. She isresponsible for recruitingsolicitors, paralegals and

legal executives

Joint effortPictured at the joint conference of the Society of Young Solicitors Ireland and the NorthernIreland Young Solicitors Association in March are (seated, from left) Law Society PresidentElma Lynch; Alan Hewitt, president of the Law Society of Northern Ireland; Maureen Bell,

chairperson of NIYSA; Daniel Morrissey, president of the Waterford Bar Association; and KayFinnegan. Also pictured (back row, from left) are Neil Faris, managing partner of Cleaver

Fulton Rankin, Solicitors, Belfast; Osborne Recruitment’s Tamsyn Broderick; Enda Murphy ofBank of Ireland; Nora Lillis, secretary of the SYS; President of the High Court Mr Justice

Joseph Finnegan; Suzanne Johnston, director of Osborne Recruitment; Nessa Agnew, vice-chair of NIYSA; and William Aylmer, chairman of SYS

Wood you be interested?Don’t forget the Calcutta Run on Sunday 19 May,which is organised by solicitors to help homeless

children in Calcutta and Dublin. Run or walk orsponsor a colleague, and enjoy a barbecue

afterwards. Information and sponsorship cards canbe obtained by e-mailing [email protected], or

visit the website www.calcuttarun.com

Distinguished guestsPictured at the recent SADSI guest speaker debate

are (from left) Director General Ken Murphy,Professor Ivana Bacik of TCD’s law school, and LiamHerrick, chair of the ICCL. The motion for the debatewas that ‘Ireland has a justice system to be proud of’

SOLICITORS’HELPLINE

01 284 8484

The Solicitors’ Helpline is available to assist every member of the profession with anyproblem, whether personal or professional.The service is completely confidential and totally independent of the Law Society.If you require advice for any reason, phone: 01 284 8484

People and places


55

Conference callLaw Society President Elma Lynch and Rory Brady SC, chairman of the Bar Council, pictured

at a working session during the Conference of European Presidents in Vienna in February

The Law Society’s ‘roadshow’ to explain the Solicitors’ accounts regulations 2001 recently visited Kilkenny and Sligo. Pictured at the Kilkenny seminar(above left) are Anne Colley of the society’s Compensation Fund Committee and accountant Charles Russell. Pictured in Sligo are (above right, from

left) investigating accountant Tim Bolger; immediate past president Ward McEllin; Tina Beattie, executive officer with the society’s regulatorydepartment; Simon Murphy, chair of the Compensation Fund Committee; and accountant Charles Russell

On a silver platterEric Plunkett and his wife Myra recently presented

the Law Society with a salver that was owned by thelate Eric A Plunkett, a former secretary (director

general) of the society. The salver was presented toMr Plunkett in 1955. Pictured with Eric Plunkett and

his wife are President Elma Lynch and DirectorGeneral Ken Murphy

The finalists of the trainee solicitors’ moot court competition: pictured (above left) are the successful appellants Patrick English and CaoimheDaly, and (above right) are the respondents Sinead Lynch and Sinead Keaveney

It’s all moot

On the road again

People and places


56

Presidents and secretaries

Pictured are (front row, from left) Martin McAllister, president of theLaw Society of Scotland; David McIntosh, president of the Law

Society of England & Wales; President Elma Lynch; and Alan Hewitt,president of the Law Society of Northern Ireland. Standing are (from

left) Joe Platt, vice-president elect, Law Society of Scotland; KenMurphy, director general; Douglas Mill, secretary, Law Society of

Scotland; Janet Paraskeva, chief executive, Law Society of England &Wales; Geraldine Clarke, senior vice-president; Mary Keane, deputy

director general; David Preston, vice-president, Law Society ofScotland; Joe Donnelly, junior vice-president; and John Bailie, chief

executive, both from the Law Society of Northern Ireland

The leaders of approximately120,000 solicitors met in

Dublin last month to discuss arange of issues of mutualinterest. The presidents, vice-presidents and secretaries ofthe law societies of NorthernIreland, Scotland, Ireland andEngland & Wales meet twice ayear in either Belfast, Edinburgh,London or Dublin, with eachsociety hosting the event onceevery two years. Among theissues discussed over the two-day meeting in Dublin were the

core values of the profession,the controversy in England about‘Tesco legal services’, theEuropean Court of Justicejudgment in the NOVA case, theUK’s Office of Fair Tradingreport, Scotland’s ‘Justice I’Committee and Ireland’sCompetition Authority study, thefuture of self-regulation, thePersonal Injuries AssessmentBoard proposal, legal aid reformand legal expenses insurance,the CCBE, e-conveyancing anddigital signatures.

Yes, ministerThe Minister for Justice, Equality and Law Reform John O’Donoghue, who

is a solicitor, was heavily engaged recently in piloting through theOireachtas two pieces of legislation of considerable interest to the

solicitors’ profession, namely the Solicitors (Amendment) Bill and theCourts and Court Officers Bill. Before doing so, and in recognition of hisnearing completion of a term of five years as minister, he met recently in

Blackhall Place with the representatives of the society pictured above:(seated) Minister O’Donoghue and President Elma Lynch, and (standing,from left) Senior Vice-President Geraldine Clarke, Director General KenMurphy, immediate past president Ward McEllin, Junior Vice-President

Philip Joyce and Deputy Director General Mary Keane

Seat of powerAt a recent dinner in Blackhall Place for the four solicitors who represent

the Fine Gael party in the Dáil, Deputy Jim O’Keeffe got the opportunity tosit in the Law Society president’s chair, and seemed to enjoy it very much.

Also pictured are (from left) Charles Flanagan TD, Tom Enright TD andDirector General Ken Murphy. Alan Shatter TD also attended the dinner

This year is the 150th anniversary of the 1852 charter from Queen Victoria that established the Incorporated Law Society of Ireland. The term‘incorporated’ was deleted by statute in 1994. The original charter hangs in the Council chamber and some distinguished visitors to Blackhall

Place were recently given the opportunity to see it. Pictured with the charter and President Elma Lynch are (above left) Minister for Justice,Equality and Law Reform John O’Donoghue and (above right) the leader of Fine Gael, Michael Noonan

Royal charter

People and places


57

James Gerald Hickey was born on 16March 1927, at Naas, Co Kildare, to

James Joseph Hickey and his wife Greta.His father moved to Dublin in the early1930s, setting up practice in O’ConnellStreet and then going into partnershipwith the late Tommy O’Reilly, who wassubsequently president of the thenIncorporated Law Society for 1954/55.

Gerry, as he is known to his colleaguesand friends, was educated in Xavier’sPrivate School in Donnybrook,graduating from there at the young ageof 17 to enter Trinity College in 1944. Atthat time it was necessary for his fatherto obtain permission from the CatholicArchbishop of Dublin, John CharlesMcQuaid, for Gerry to begin his studiesat what was then perceived to be a Protestant institution! Hebegan his apprenticeship in the family firm and took theprofessional examinations with the Incorporated Law Society.He qualified in an unusually short period, with the result thathe had to wait some time to reach his 21st birthday, when hewas duly admitted as a solicitor in Easter Term 1948.

He practised with the family firm, dealing particularly withlitigation and commercial matters. He was a splendid advocateand a tough opponent, especially in his younger days, when heenjoyed the cut and thrust of District Court practice in civilmatters. In 1973, the firm of Hickey & O’Reilly amalgamatedwith Beauchamp Kirwan and O’Reilly, and Gerry became itschairman.

In 1966, he was elected to the Council of the IncorporatedLaw Society of Ireland and he continued to serve on that bodyas chairman of different committees until his election aspresident of the society in 1979.

In the 1970s and 80s he became very much involved in thecommercial life of Dublin, serving with distinction as chairmanof ICC Bank, director of New Ireland Assurance and directorof Cement Roadstone Holdings, now CRH plc.

During this period, he was also involved with manysignificant property developments, including the award-winningredevelopment of the old Dolphin Hotel, which now houses anumber of District and Circuit Court facilities. He continuedin active practice until 1988, when he joined Amory’s Solicitorsas a consultant. He retired from active practice entirely in 1995.

Although – as will be appreciated – Gerry was heavilyengaged with his professional and commercial activities, he wasa man who thoroughly enjoyed golf and horse racing. From hisstudent days representing Dublin University Golf Club throughto his membership of Portmarnock Golf Club and MilltownGolf Club, of which he was captain in 1961/1962, he was aserious golfer, playing off a single figure handicap during mostof his career. In addition to this, he had a great knowledge andlove of nature and was something of an ornithologist, spendingmany holidays in West Cork, where he maintained a holidayhome for some years. There he had ample opportunity toindulge his other hobby, that of reading. He was a well-read

man in the very broadest sense of the term.Being gifted with total recall made him themost interesting company on any occasion.

During his period as a member of theCouncil of the Law Society, Gerry servedas chairman of many different committeesand was actively involved in thedevelopment of the society’s headquartersat Blackhall Place. His organisational skillsand enthusiasm played an enormous partin raising the necessary finance fromwithin the profession to make theundertaking the success it is today. Aspresident, Gerry, with his gracious wifeDorinda, represented the society in the USand elsewhere. His ability as an erudite andwitty public speaker, as well as his ability toappreciate the good things in life, assured

his success as a worthy ambassador, not only for the Irish legalprofession but for Ireland as well.

Those of us who had the privilege of serving with Gerry onthe Council, and who indeed would have known him as acolleague, always marvelled at the pride he held in his professionand how highly he regarded the importance of high standards ofintegrity, not only between solicitors and their clients, butbetween solicitors and their colleagues in their day-to-daydealings with each other. While he was the most compassionateof men, he expected of his colleagues the same high standards hehimself held in practice.

As Oliver Goldsmith said of one of his ancestors in the poemIn retaliation:

‘Here Hickey reclines, a most blunt, pleasant creature,And slander itself must allow him good nature;

He cherish’d his friend, and he relish’d a bumper;Yet one fault he had, and that was a thumper.Perhaps you may ask if the man was a miser?I answer, no, no, for he always was wiser;Too courteous perhaps, or obligingly flat?His very worst foe can’t accuse him of that;Perhaps he confided in men as they go,And so was too foolishly honest? Ah no!Then what was his failing? Come, tell it, and burn ye – He was, could he help it? A special attorney’.

Despite his busy professional and public persona, Gerry wasessentially a very private person who shunned publicity of anykind. His happiest times were with his wife Dorinda, his children– James, who follows him into the legal profession, David,Gerald (deceased), Greta, Maurice, Dorinda Anne, and Paul –and his adored grandchildren, who also will miss him greatly.

The profession he served so loyally will be the poorer for hispassing as we who have been his colleagues will be the richer forknowing this man, of whom it may truly be said: ‘he was a manfor all seasons’.

Moya Quinlan is a former president of the Law Society and a partnerwith the Dublin law firm Dixon Quinlan.

G

Gerald Hickey: a tribute

People and places


58

James Patrick Sweeney, solicitor,formerly of Falcarragh, Co Donegal,

died on 27 January, in his 90th year. Jimwas born in Burtonport in 1912 and wasthe eldest of 12 children. He moved toDublin with his family in 1922. One ofhis first memories of Dublin was beingbrought by his father to the funeral ofMichael Collins. He was educated atBlackrock College, for which he held alifelong affection. While a pupil, heexcelled on the rugby pitch and was amember of the Leinster Schools SeniorCup winning team in 1930. He wasadmitted as a solicitor in 1935 andcommenced practice in Falcarragh,where he worked until retirement in1981. After his retirement, he moved to Dublin, and heassisted his successor in the firm as an advisor and consultant.

Jim was for many years a familiar figure in the Four Courts,where he made his reputation as a skilful negotiator with adisarming charm and gentle sense of humour. He was a wiseand practical advisor and established a successful legal

practice. He retained a keen interest insport, particularly rugby and cricket. Jim’slife was long, successful and happy. Hebore his personal tragedies withequanimity, particularly the untimelydeath of his wife Billie in 1957 and theirson Paddy in 1996. He remarried in 1961and enjoyed 40 happy years with Joan,who survives him. Their devotion to eachother was evident to everyone who knewthem.

He is also survived by his daughtersEithne and Siobhan, son and colleagueJames, daughter-in-law Irene, sons-in-lawAlistair and Peter and grandchildrenEvanna, Davida, Andrew and Sarah.

A long sort o’ sigh seemed to come from us allAs the waves hid the last bit of auld Donegal(Percy French).

Brendan J Twomey is a solicitor with the Falcarragh, Co Donegal,law firm James P Sweeney & Co.

G

OBITUARY

James P Sweeney1912 – 2002

P R O G R A M M E S P O N S O R S

Corporate and Public Services SolicitorsAssociation

Global Corporate Counsel Association

International Bar Association, Committee D

Law Society of Ireland

The Bar Council of Ireland

A SAMPLING OF THE SPEAKERS A N D P A N E L I S T S

John Beechey,Partner, Clifford Chance LLP,London, U.K.

David Byrne,Commissioner for Health,and Consumer Protection, European Commission,Brussels, Belgium

Bernardo M. Cremades, Partner, B. Cremades y Asociados, Madrid, Spain

Eileen M. Lach, Corporate Secretary and Associate General Counsel International, Wyeth, Madison, New Jersey, U.S.A.

Siegfried Schwung,General Counsel, Products, DaimlerChrysler, Stuttgart, Germany

William K. Slate II, President & CEO, American Arbitration Association, New York, New York, U.S.A.

W E D N E S D A Y , 2 9 M A Y 2 0 0 2 1 2 . 3 0 T O 2 0 . 0 0 T H E D A V E N P O R T H O T E L D U B L I N ,

I R E L A N D

I n t e r n a t i o n a l C e n t r e f o r D i s p u t e R e s o l u t i o nF o r u m – D u b l i n

W W W . A D R . O R G

A ONE- D A Y I N T E R N A T I O N A L D I S P U T E R E S O L U T I O N F O R U M P R E S E N T E D B Y T H E I N T E R N A T I O N A L

C E N T R E FOR DISPUTE RESOLUTION S M (ICDR ).

T H E P R O G R A M M E W I L L A D D R E S S :

C O R P O R A T E P E R S P E C T I V E S O N I N T E R N A T I O N A L D I S P U T E R E S O L U -TION

T H E R O L E O F C O N F L I C T M A N A G E M E N T I N O U R R A P I D L Y E X P A N D I N G G L O B A L E C O N O M Y

F O R I N F O R M A T I O N

Please contact Mandy Sawier by fax+353.1.418.2291,

Apprentices’ page


59

Trainee solicitors’ ballSADSI

Solicitors ApprenticesDebating Society of Ireland

Western representativeDawn Carney and sports

liaison officer Noel Devins puttogether a weekend in Galway inMarch to allow those of us in thePale a chance to socialise withour colleagues in the West. Theweekend was a great success, andprovided an opportunity to catchup with trainee solicitorspreparing to come back on thePPC2 course this April.

Quite a crowd gathered onthe Friday in the SkeffingtonArms, Eyre Square, to socialise,imbibe and avail of the excellent food.

The group also experiencedGalway City’s night spots andleft in the early hours with thepromise of meeting the next dayfor some outdoor activities.However, when dealing withthe western climate, a better

Line dancingPictured at the ball are (from left) Elaine Campbell, Roberta Grealish,

Dawn Carney, Caoimhe Heery and Claire Campbell-Murphy

plan involved convening in thebowling alley. This had the dualbenefit of being indoors as wellas being a licensed premises.

Talents exhausted, we met upagain in the city and proceededat a respectable hour to thefantastic Quays Bar, where we

The annual PPC1 traineesolicitors’ ball took place

in February at the DavenportHotel, Merrion Square. Theevent was a huge success andwas attended by over 340trainees from the course –reputed to be the largest everattendance at such an event.

The evening began earlywith a pre-ball wine reception,and musicians from the RoyalIrish Academy of Music –whom we must heartily thank– provided a superb ambiencethroughout dinner. Afterdinner, there was music fromthe band Junk, who, despitetheir rather inauspiciousname, ensured a packed dancefloor all through the night.But there’s more. As hasbecome de rigueur with thisyear’s PPC1, the night wouldnot have been completewithout a trip to an infamouswine bar on Leeson Street.We have been warned not to

say any more! Suffice to say,the night was a great successand was thoroughly enjoyedby all.

It is with gratefulappreciation that we thank thesponsors who helped ensuresuch a memorable occasion:

Ulster Bank and BCM HanbyWallace. Our thanks also toFrank Ellis of Ellis & EllisLaw Searchers, The RoyalIrish Academy of Music, AlanGreene of the Law Club, andthe management and staff ofthe Davenport Hotel.

Partying in the city of the tribes

The SADSI careers day,which will focus on

alternative careers in law,and the annual summerbarbecue will be taking placeon Friday 5 July. Thespeakers will provide aninsight into how you can putyour professionalqualification to use in avariety of environments bothat home and internationally.Benson & Associates LegalRecruitment Agency havegenerously agreed tosponsor the event. Pleaselet us know if there is aspecific topic you wish to beaddressed by the speakerson the day by [email protected].

Unfortunately, or fortunatelyfor our aching heads, all

efforts to engage in a healthylifestyle on the Saturday inGalway were in vain as a blanketof snow covered the city. Uponchecking the football pitch incase it was playable, wediscovered that half of it wasunder snow while the other halfwas under water. Swimming andskiing being out of the question,

and the match having beencalled off, we retired toparticipate in some bowling.

Despite the fact that we didnot get the chance to unveil ournew soccer kit at the Galwayevent, we would like to take thisopportunity to thank our sponsor,Frank Ryan & Son, for theirassistance in securing the kit. • We are currently in the processof compiling a sports page for

the SADSI website, and thosewith suggestions as to content,queries, or information oncontact numbers or names forsports clubs in their area maycontact us at [email protected]. Aswe are hoping to create anextensive database on a widerange of sports, any informationis much appreciated.Noel Devins,sports liason officer

A DATEFOR YOURSUMMERDIARY

SNOW JOB

remained until embarking toexperience talents of a differentsort in Salthill.

Sunday saw the return toDublin for those based there,with stories from a successfulweekend and expectations ofmore to come.

Thanks must be given toUlster Bank, kind sponsors ofthis event. With the standardnow set for such events,trainees around the countrycan look forward to meetingcolleagues in different venueslater in the year.

Recruitment


60

KNOW-HOW OFFICER Legal Adviser

We have a fixed term contract position available for a legal adviser.This role would involve providing general servicing of legal needs toour Treasury & International Banking Business.

The successful candidate will be required to work with all businessareas within Treasury & International Banking as well as with otherdivisions of Bank of Ireland, external legal advisors and counter-parties.

He/she will have 4 years minimum experience with transactionaland/or banking experience preferred. Knowledge of capital marketsand ISDA documentation desirable.

Skills Required:- Good understanding of the internet and IT- Experience in the review and negotiation of legal agreements- Strong understanding of corporate structures- Excellent drafting and written communication skills- Excellent organisational skills with strong ability to prioritise- Excellent attention to detail & computer skills

If you are interested in applying for this position then please forwardyour curriculum vitae in confidence to [email protected]. Ifyou require further information then please telephone Janette Pegley-Reed at (01) 6094579.

Closing date for receipt of applications is 20th April, 2002.

Treasury & International Banking

www.benasso.com

The Irish Legal RecruitmentSpecialists

Carmichael House, 60 Lower Baggot Street, Dublin 2, IrelandT +353 (0) 1 670 3997 F +353 (0) 1 670 3998 E [email protected]

For information on the services we provide as

well as current vacancies, please visit our

website or contact Michael Benson (BCL) or

Annaleen Sharkey (LLB)

in strictest confidence, at:

Benson & Associates is a

niche consultancy,

specialising in the

recruitment of high calibre

lawyers for private practice,

commerce and industry

Professional information


61

LOST LANDCERTIFICATES

Registration of Title Act, 1964An application has been receivedfrom the registered owners men-tioned in the schedule hereto for theissue of a land certificate as stated tohave been lost or inadvertentlydestroyed. A new certificate will beissued unless notification is receivedin the registry within 28 days fromthe date of publication of this noticethat the original certificate is in exis-tence and in the custody of some per-son other than the registered owner.Any such notification should state thegrounds on which the certificate isbeing held.(Register of Titles), Central Office, LandRegistry, Chancery Street, Dublin 7(Published 5 April 2002)

Regd owner: Colm and BrendaO’Connor; folio: 18412F; lands:Morterstown upper and barony ofCarlow; Co Carlow

Regd owner: William Murphy; folio:9167F; lands: townland ofKilcolgan and barony ofDunkellin; area: 0.0254 hectares;Co Clare

Regd owner: Denis Coveney andSusan Curtis Coveney; folio:6821F; lands: known as the town-land of Kilpatrick (ED Brinny) sit-uate in the barony of Kinalmeakyand the county of Cork; Co Cork

Regd owner: Patrick J Hickey(deceased); folio: 13142; lands: aplot of ground being part of thetownland of Gurteenard andbarony of Duhallow and the coun-ty of Cork; Co Cork

Regd owner: Patrick J Doherty; folio:20355F; lands: Meenderry-gramph; area: 45.450 hectares; CoDonegal

Regd owner: Connie Nixon (former-ly McGealy); folio: DN39664F;lands: property known as 47Walnut Court, Courtlands estate,situate to the north of GriffithAvenue in the parish of Clonturkand district of Drumcondra; CoDublin

Regd owner: Michael John Early;folio: DN4807L; lands: propertysituate in the townland ofKilmacud West and barony ofRathdown; Co Dublin

Regd owner: Carl Keenan; folio:DN127916F; lands: propertyknown as 2 Warrenstown Court,Blanchardstownheath; Co Dublin

Regd owner: Leslie and BernadetteStone; folio: DN64408F; lands:property situate in the townland ofWhitehall and barony ofRathdown; Co Dublin

Regd owner: Patrick J and Eileen

Keenan; folio: DN23052L; lands: aplot of ground known as 32Walnut Avenue in the parish ofClonturk and in the district ofDrumcondra and in the countyborough of Dublin; Co Dublin

Regd owner: William McGuirk; folio:DN9299; lands: property situate inthe townland of Stillorgan Groveand barony of Rathdown; CoDublin

Regd owner: Patrick Finn andKathleen Finn; folio: DN7210L;lands: property situate to the westof Grange Road in the parish anddistrict of Kilbarrack; Co Dublin

Regd owner: Paschal Vincent Doyle;folio: DN4588; lands: property sit-uate in the townland of Whitehalland barony of Rathdown area; CoDublin

Regd owner: the County Council ofthe County of Dublin; folio:DN9088; lands: property situate inthe townland of Yellowmeadowsand barony of Uppercross; CoDublin

Regd owner: the Right Honourablethe Lord Mayor Aldermen andBurgesses of Dublin; folio:DN4161; lands: property situateon the west side of Le Fanu Roadin the parish of Ballyfermot, dis-trict of Ballyfermot and city ofDublin; Co Dublin

Regd owner: John and MaureenO’Toole; folio: 21548; lands: town-land of Killeany and barony ofAran; Area: 11.06070 hectares; CoGalway

Regd owner: Kathleen Mitchell (néeSkehill); folio: 41897; lands: town-land of Castlebin East and baronyof Kilconnell; Area: 0.2730hectares; Co Galway

Regd owner: William McDonagh;folio: 8158; lands: townland ofRooaun and barony of Longford;Area: 19 acres, 1 rood, 30 perchesor thereabouts; Co Galway

Regd owner: Ellen Rowan; folio:28050; lands: Lohercannon andbarony of Trughanacmy; CoKerry

Regd owner: Helen O’Sullivan; folio:710; lands: townlands ofBallygreany and barony of OffalyWest; Co Kildare

Regd owner: Thomas Flynn; folio:5962 (now folio 18748); lands:townland of Kilmurray and baronyof Carbury; Co Kildare

Regd owner: Agilux Limited; folio:16692; lands: townland ofAllenwood North and barony ofConnell; Co Kildare

Regd owner: Carmel O’Neill; folio:15377; lands: Ballyverneen andbarony of Ida; Co Kilkenny

Regd owner: the County Council ofthe County of Laois; folio:

DN12395F; lands: property situ-ate in the townland of Portlaoise;Co Laois

Regd owner: Greg Petrie; folio: 1259;lands: Curraun; area: 27.625 acres;Co Leitrim

Regd owner: Thomas McNamara;folio: 6003F; lands: Castlerobertsand barony of Coshma; CoLimerick

Regd owner: Michael F Doyle; folio:2158, 2159; lands: Drumanure;area: F2158 38.9062 acres andF2159 28.2312 acres; CoLongford

Regd owner: Peter Walsh; folio:3839F; lands: Drumderg,Carrowlinan, Castlebaun; area:2.806 hectares, 0.829 hectares,21.125 hectares; Co Longford

Regd owner: Thomas Morris; folio:2558; lands: townland of Kilbarriffand barony of Costello; area:9.6492 hectares; Co Mayo

Regd owner: John Conmy; folio:38319; lands: townland ofBellanumera and barony of Erris;area: 3.6927 hectares; Co Mayo

Regd owner: Colm O’Donoghue;folio: 26946; lands: Teltown; area:0.35 acres; Co Meath

Regd owner: Thomas Quinlan; folio:4590F; lands: Clonlee and baronyof Ballybritt; Co Offaly

Regd owner: Dermot Foley; folio:29696 & 14844; lands: townlandof Cleaheen and barony of Boyle;area: 15.0671 hectares; CoRoscommon

Regd owner: Owen McGreevy; folio:townland of Dorrary and baronyof Boyle; area: 12.077 hectares; CoRoscommon

Regd owner: Francis Kelly; folio:7417; lands: townlands ofGarrynagran and barony ofAthlone north; area: 12.8563hectares; Co Roscommon

Regd owner: Mary O’Loughnan;folio: 38602; lands: Lisgibbon andbarony of Clanwilliam; Co

TipperaryRegd owner: Norma Caples; folio:

13497F; lands: a plot of groundsituate in the townland of Crookeand situate in the barony ofGaultier; Co Waterford

Regd owner: Eileen Fortune, BridgetO’Neill (deceased), Mary O’Neilland Anne Maher (sisters of OurLady of Mercy); folio: 6538; lands:Castlemoyle and barony of Bantry;Co Wexford

Regd owner: James Synnott; folio:11265; lands: townland ofBallynerrin Lower and barony ofArklow; Co Wicklow

Regd owner: Michael and PhyllisDavis; folio: 643; lands: townlandof Merginstown and barony ofTalbotstown Lower; Co Wicklow

WILLS

Bacon, Frederick (deceased), late of25 Rutland Cottages, Lower RutlandStreet, Dublin 1. Would any personhaving knowledge of a will made bythe above named deceased who diedon 30 October 1993, please contactKen J Byrne & Co, Solicitors, 17Rock Hill, Main Street, Blackrock,Co Dublin, tel: 01 283 2715 or fax: 01283 3453

Clifford, Patrick (Joseph)(deceased), late of Faha West,Killarney, Co Kerry and 57 GandonClose, Harolds Cross, Dublin, 6W.Would any person having knowledgeof a will being made by the abovenamed deceased who died on 10 May2001, please contact Padraig JO’Connell, Solicitors, Glebe Lane,Killarney, Co Kerry, tel: 064 33278 orfax: 064 34286

Connor, William (deceased), late of6 Cromlech Court, Ballymun, Dublin11. Would any person having knowl-edge of a will made by the above

ADVERTISING RATES

All advertisements must be paid for prior to publication. Deadline for MayGazette: 19 April 2002. For further information, contact Nicola Crampton on01 672 4828 (fax 01 672 4877)

• Lost land certificates – €46 (incl VAT at 20%)• Wills – €77 (incl VAT at 20%)• Lost title deeds – €77 (incl VAT at 20%)• Employment miscellaneous – €46 (incl VAT at 20%)

HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – €30 EXTRA

Advertising rates in the Professional information section are as follows:

GazetteLawSociety



62

named deceased after 17 January1992, please contact Stephen Connorat 28 Knowth Court, Poppintree,Dublin 11, tel: 01 842 6096 or fax: 01847 1714. The deceased passed awayon 29 January 2002.

Foley, Ellen (deceased), late of 21 StPatrick’s Cottages, Rathfarnham,Dublin 14. Would any person havingknowledge or possession of the origi-nal will dated 11 June 1987 in relationto the estate of the said Ellen Foleywho died on 4 July 2000, please con-tact John Synnott & Co, Solicitors,24 Dame Street, Dublin 2, tel: 6793630 or fax: 679 3449, ref: JS/BOB

Jackson, Patrick (deceased), late of 1O’Neill Crowley Terrace,Mitchelstown. Would any personhaving knowledge of a will made bythe above named deceased who diedon the 31 January 2001, please con-tact Messrs John Molan & Sons,Solicitors, 57 Lower Cork Street,Mitchelstown, Co Cork, ref:KM/J.5955, tel: 025 24543 or fax: 02584343

Lambe, Katherine (otherwiseKathleen) (deceased), late of St.Bridgid’s Home, Crooksling, Brittas,Co Dublin, formerly of 67 GaltymoreDrive, Drimnagh, Dublin 12. Wouldany person having knowledge of thewhereabouts of the original will exe-cuted by the above named deceasedon the 15 April 1998, the saiddeceased having died on 5 August2001, please contact Taylor &Buchalter, Solicitors, GreensideHouse, 45/47 Cuffe Street, Dublin 2,tel: 01 478 2966 or fax: 01 478 2776,quoting reference RMcL

McCoy, Felix (deceased), late ofBallyroan Road, Abbeyleix, Co Laois.Would any person having knowledge

of a will being made by the abovenamed who died on 26 November2001, please contact Cahill andCompany, Solicitors, Abbeyleix, CoLaois, tel: 0502 31220 or fax: 050231480

O’Connell, Annie (deceased), late of99 Errigal Road, Drimnagh in thecity of Dublin. Would any personhaving knowledge of a will made bythe above named deceased who diedon 16 December 2000, please contactBourke & Co, Solicitors, 167-171Drimnagh Road, Walkinstown,Dublin, tel: 01 456 1155 or fax: 01456 1176 (reference FOD/LS)

O’Connell, Frank (deceased). If any-one knows the whereabouts of thewill of Frank O’Connell, otherwiseknown as Francis O’Connell,Ballygibbon, Blarney, Co Cork, whoformerly worked in Swissco, LittleIsland, Co Cork, who died on 29January 2002, could they please con-tact Katherine Kelleher, ConwayKelleher Tobin, Solicitors, 29 SouthMall, Cork, tel: 021 427 3192 or fax:021 427 0390

Roche, Barry (otherwise DanielFinbar), late of 46 College Road,Cork (formerly Rathfadden,Endsleigh, Douglas Road, Cork).Would any person having knowledgeof a will made by the above nameddeceased who died on 10 March2002, please contact Farrell andPartners, Solicitors, O’ConnorSquare, Tullamore, Co Offaly, tel:0506 21477 and 0506 21805, fax:0506 51532, e-mail: [email protected]

Shanahan, Frances (otherwiseFrances Brown) (deceased), late ofVesey Hill, Abbeyleix, Co Laois.Would any person having knowledge

of a will being made by the abovenamed deceased who died on 13February 2002, please contact Cahilland Co, Solicitors, Abbeyleix, CoLaois, tel: 0502 31220 or fax: 050231480

Trehy-Butler, Jean Alice, late of 1Bishops Dale Court, RidgewayHeights, Sheffield, S20 5PD,England, and also of 18 GlenvaleCourt, Clybaun Road, Salthill, CoGalway, and formerly of 97 ClyborneHeights, Galway. Would any personhaving knowledge of a will made bythe above named deceased who diedon 16 February 2002, please contactArthur O’Hagan, Solicitors, 9Harcourt Street, Dublin 2, tel: 4758701 or fax: 478 1583

Twomey, Fr Timothy (deceased),late of Sandyford Road, Dundrum,Dublin 16. Would any person haveknowledge of a will made by the abovenamed who died at the PallotineCollege in Thurles on 4 September2001, please contact Moriarty & Co,Solicitors, 11 Anglesea Street, Dublin2, tel: 01 677 7306 and fax: 01 6770277

EMPLOYMENT

Newly-qualified solicitor requiredfor busy Galway practice. Apply inwriting to Tom O’Regan & Co,Solicitors, 60 Lower Salthill, CoGalway

Solicitor with savvy, experience, andthe constitution available for employ-ment. Divorce and conveyancing pre-ferred. North West. Tel: 074 58274

Mullingar firm need qualified solic-itor for full-time position; generalpractice. Experience preferable.Contact Sally-Ann O’Donnell orPaddy Crowley at 044 40887/8 orsend CV to JJ Macken, Bishopsgate,Mullingar, Co Westmeath

Locum solicitor needed for generalpractice in Mullingar, 4/5 months;May to September; experience need-ed. Contact Sally-Ann O’Donnell orPaddy Crowley at 044 40887/8 orsend CV to JJ Macken, Bishopsgate,Mullingar, Co Westmeath

Corporate lawyer to €55k + bensrequired for top class multinational inthe midwest region. Candidates willbe fully qualified lawyer/barrister withcommercial experience. Drafting skillsand knowledge of EU law essential.Contact Jackie Kelly, IRC Limerick,tel: 061 313744, fax: 061 417553 ore-mail: [email protected]

Busy Dublin 7 practice seeksnewly-qualified solicitor for litiga-tion and conveyancing work; attrac-tive salary for suitable candidate.Please reply to Box no 40

Solicitor required for busy litiga-tion department of practice in thenorth east. Must have experience.Attractive remuneration package forsuitable candidate. Apply with fulldetails of experience to KMRAccountants, Crowe Street,Dundalk; reference JMK

Solicitor required: experience inconveyancing and probate essential(min three years’ PQE). Court expe-rience desirable. Busy practice – halfhour’s drive from Galway City. Applyto A Gerard Moylan & Co,Solicitors, Loughrea, Co Galway, tel:091 841356 or fax: 091 842120

Legal secretaries wanted: avoid thecommute, enjoy flexible hours andwork in Dalkey. Apply in writingwith CV to Dominic Dowling,Solicitors, 37 Castle Street, Dalkey,Co Dublin, or e-mail: [email protected]

MISCELLANEOUS

Northern Ireland solicitors pro-viding an efficient and comprehen-sive legal service in allcontentious/non-contentious mat-ters. Dublin-based consultations andelsewhere. Fee apportionment. MLWhite, Solicitors, 43-45 MonaghanStreet, Newry, Co Down, tel: 0801693 68144, fax: 080 1693 60966

Northern Ireland agents for allcontentious and non-contentiousmatters. Consultation in Dublin ifrequired. Fee sharing envisaged.Offices in Belfast, Newry andCarrickfergus. Contact NorvilleConnolly, D&E Fisher, Solicitors, 8Trevor Hill, Newry, tel: 080 169361616, fax: 080 1693 67712

London solicitors will advise onUK matters and undertake agencywork. All areas. Corporate/privateclients. Ellis & Fairbairn, 26 OldBrompton Road, South Kensington,London SW7 3DL, England, tel:0044 171 589 0141, fax: 0044 171225 3935

Northern Ireland solicitors. Willadvise and undertake NI-relatedmatters. All areas corporate/private.Agency or full referral of cases aspreferred. Consultations in Dublinor elsewhere if required. Fee sharingenvisaged. Donnelly Neary &

M ISSING

H EIRS TRACED

+ 4 4 ( 0 ) 2 0 7 5 4 9 0 9 0 0Fax: +44 (0)20 7549 0949 • DX: 53347 Clerkenwell

Email: [email protected] • www.title-research.com

W ILLS E A R C H



63

Donnelly, 1 Downshire Road,Newry, Co Down, tel: 080 169364611, fax: 080 1693 67000. ContactKJ Neary

Personal injury claims, employ-ment, family, criminal and propertylaw specialists in England and Wales.Offices in London (Wood Green,Camden Town and Stratford),Birmingham and Cardiff. ‘No win,no fee’ available for accident andemployment claims, legal aid forfamily and criminal cases. ContactLevenes Solicitors at Ashley House,235-239 High Road, Wood Green,London N22 8HF, tel: 0044 20 88817777. Alternatively, e-mail us [email protected] or visit our web-site at www. levenes.co.uk

EYE INJURIES ANDOPHTHALMOLOGICAL

NEGLIGENCE

Mr Louis Clearkin ChM, FRCS, FRCOphth, DO, MAI, MEWI

Consultant Ophthalmic Surgeon

Experienced expert witness inophthalmological personal

injury, medical negligence and civil litigation

Renuntiabo, 8 Rose Mount, Oxton, Wirral, Merseyside,

L43 5SW

secretary: +44 (0) 151 6047047fax: +44 (0) 151 6047152

e-mail: [email protected]

Mortgage brokers have office torent, own access, fax and photocopy-ing facilities available. €130 perweek, Phibsboro area, tel: 087 2569858

Clonmel – well-established smallgeneral practice for sale. Reply instrictest confidence to Box no 41

Office to let: Arran Quay, D7,c30sqm, adjacent Four Courts. Fullyrefurbished. Superb condition inperiod building. Attractive and flexi-ble lease terms. Available immediate-ly. Contact Douglas Newman GoodCommercial at 01 673 1400

Ordinary seven-day publican’slicence for sale. Contact PJO’Driscoll & Sons, Solicitors, 73South Mall, Cork, reference DK, tel:021 2300 800 or fax: 427 4709

South West – busy sole practition-er’s practice for sale, inquiries in con-fidence to Box no 42

Established solicitor’s practice forsale in Co Louth. Excellent opportu-nity. Principals only. Please reply toBox no 43

Publican’s ordinary seven-daylicence for sale. Please contactMessrs John Casey & Co, Solicitors,Bindon House, Bindon Street, Ennis,Co Clare, tel: 065 682 8159, refer-ence: OA/MK

TITLE DEEDS

In the matter of the Landlord andTenant Acts, 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) (No 2) Act, 1978: anapplication by Bernard RichardsonTake notice that any person havingany interest in the freehold estate ofthe following properties: the premisesat the rear of 28 Gardiner Place,Dublin, more particularly known as27A Gardiner Place (Grenville Lane)in the city of Dublin held under aperiodic tenancy subject to the yearlyrent of £85 per annum.

Take notice that BernardRichardson intends to submit an appli-cation to the county registrar for thecounty of the city of Dublin for theacquisition of the freehold interest inthe aforesaid properties, and any partyasserting that they hold a superiorinterest in the aforesaid premises (orany of them) are called upon to furnishevidence of title to the aforementionedpremises to the below named within21 days from the date of this notice.

In default of any such notice beingreceived, the applicant intends toproceed with the application beforethe county registrar for the county ofthe city of Dublin for directions asmay be appropriate on the basis thatthe person or persons beneficiallyentitled to the superior interest,including the freehold reversion ineach of the aforesaid premises, areunknown and ascertained.Date: 26 February 2002Signed: Kent Carty, Solicitors, 47-48Parnell Square, Dublin 1

In the matter of the Landlord andTenant Acts, 1967-1994 and in thematter of the Landlord and Tenant(Ground Rents) No 2 Act, 1978: anapplication by Bernard RichardsonTake notice that any person havingany interest in the freehold estate ofthe following properties: all that andthose the hereditaments and premisesbeing the stable at the rear of thehouse premises no 29 Gardiner Placesituate in the parish of St George andcounty of the city of Dublin and heldunder an indenture of lease dated 26July 1946 made between LindaMcWhinney of the one part andBernard Richardson of the other partfor the term of 500 years from 1 July1946 subject to the yearly rent of £1,10s and the covenants on the part ofthe lessee to be performed and theconditions therein contained.Take notice that Bernard Richardsonintends to submit an application tothe county registrar for the county ofthe city of Dublin for the acquisition

of the freehold interest in the afore-said properties, and any party assert-ing that they hold a superior interestin the aforesaid premises (or any ofthem) are called upon to furnish evi-dence of title to the aforementionedpremises to the below named within21 days from the date of this notice.In default of any such notice beingreceived, the applicant intends toproceed with the application beforethe county registrar for the county ofthe city of Dublin for directions asmay be appropriate on the basis thatthe person or persons beneficiallyentitled to the superior interest,including the freehold reversion ineach of the aforesaid premises, areunknown and unascertained.Date: 26 February 2002Signed: Kent Carty , Solicitors, 47-48Parnell Square, Dublin 1

In the matter of the Landlord andTenant (Ground Rents) Acts, 1967-1978: an application by GerardKinahanTake notice that any person havingany interest in the freehold estate ofthe following property: all that andthose dwelling house and premises

DUBLIN SOLICITORS’PRACTICE OFFERS

AGENCY WORK IN NORTHERN

IRELAND* All legal work undertaken

on an agency basis* All communications to clients

through instructing solicitors* Consultations in Dublin if required

Contact: Séamus ConnollyMoran & Ryan, Solicitors,

Arran House,35/36 Arran Quay, Dublin 7.

Tel: (01) 872 5622 Fax: (01) 872 5404

e-mail: [email protected] Bank Building, Hill Street

Newry, County Down.Tel: (0801693) 65311Fax: (0801693) 62096E-mail: [email protected]

NORTHERNIRELAND

SOLICITORSWe will engage in,

and advise on, all Northern Ireland-

related matters,particularly personal

injury litigation.Consultations where

convenient.Fee sharing envisaged.

OLIVER M LOUGHRAN & COMPANY

9 HOLMVIEW TERRACE,OMAGH, CO TYRONE

Phone (004428) 8224 1530Fax: (004428) 8224 9865

e-mail:[email protected]

J. DAVID O’BRIENATTORNEY AT LAW20 Vesey St, Suite 700 New York, NY, 10007

Tel: 001212-571-6111Fax: 001212-571-6166

Email: [email protected]

PERSONAL INJURY ACCIDENT

CASES

CONSTRUCTION

RAILROAD

MARITIME

AVIATION

CAR/BUS/TRUCK

MEMBER AMERICAN AND NEW

YORK STATE TRIAL LAWYERS

ASSOCIATIONS

Enrolled as Solicitor in Rep of Ireland, England

& Wales

OFFICES TO LETOffices available opposite

Four Courts. Approximately1,400 square feet.

Available by way of leaseassignment.

For more details, please call 677 9877



64

situate at Church Street, Clara, in thecounty of Offaly.

Take notice that Gerard Kinahanintends to submit an application tothe county registrar for the county ofOffaly for the acquisition of the free-hold interest in the aforesaid proper-ty, and any party asserting that theyhold superior interest in the aforesaidpremises are called upon to furnishevidence of title to the aforemen-tioned premises to the below namedwithin 21 days from the date of thisnotice.

In default of any such notice beingreceived, Gerard Kinahan intends toproceed with the application beforethe county registrar at the end of 21days from the date of this notice andwill apply to the county registrar forthe county of Offaly for directions asmay be appropriate on the basis thatthe person or persons beneficiallyentitled to the superior interests,including the freehold reversion, areunknown and unascertained.Date: 1 April 2002Signed: O’Donovan & Cowen, solicitorsfor the applicant, William Street,Tullamore, Co Offaly

In the matter of the Landlord andTenant (Ground Rents) Act, 1967-1994 and in the matter of theLandlord and Tenant (GroundRents) (No 2) Act, 1978 and in thematter of the Landlord and Tenant(Ground Rents) Acts, 1967-1984:notice of intention to acquire thefee simpleTo any such person or persons for thetime being entitled to the interest inthe freehold estate of the followingproperty: all that piece or plot ofground situate at Sidney Place ofSaint Anne Shandon and the city ofCork, more commonly known asGlenvera Hotel car park and moreparticularly delineated and describedin the map thereof thereunto annexedand thereon coloured orange and heldunder indenture of lease dated 24April 1906 and made between JohnCotter Wood and George AugustusWood of the first part, Richard Woodof the second part and PH Thompson& Son Limited of the third part for aterm of 848 years for a yearly rent ofthirty pounds and subject to the con-venants and conditions on the part ofthe lessee therein contained.

Take notice that the executors ofthe estate of John A O’Connor,deceased, being the person entitled tothe fee simple, intend to submit anapplication to the county registrar forthe county of Cork for the acquisitionof the freehold interest in the aforesaidproperty, and any party asserting thatthey hold a superior interest in theaforesaid are called upon to furnishevidence of title to the aforementionedpremises to the below named within21 days from the date of this notice.

In default of any such notice beingreceived, the executors of the estate ofJohn A O’Connor, deceased, intend toproceed with the application beforethe county registrar at the end of 21days from the date of this notice andwill apply to the county registrar forthe county of Cork for such directionsas may be appropriate on the basis thatthe person or persons beneficially enti-tled to the superior interest, includingthe freehold reversion in the property,are unknown and unascertained.Date: 20 March 2002Signed: Timothy J Hegarty & Son, solic-itors for the applicants, 58 South Mall,Cork

Contactable [email protected]

Individual mail addresses take

the form:[email protected]

LAW SOCIETY OF IRELAND ON E-MAIL

Solve your storage problems with a new-style Gazettemagazine binder. Each easy-to-use binder takes a year’sworth of issues and is finished in blue leatherette with theGazette logo in gold on the front and spine.

EACH BINDER COSTS €10 PLUS €1.50 POST AND PACKAGE (FOR ORDERS OFBETWEEN FIVE AND TEN BINDERS, A SPECIAL POSTAGE RATE OF €7 APPLIES)

Keep your magazines safe with aGazetteBINDERTo order your magazine binder, please fill in the form below.

Please send me magazine binders at €10 plus €1.50 p&p (special p&p rate of €7 for orders of between five and ten binders)

I enclose my cheque for €

Please charge my Access Visa Mastercard Eurocard

Credit card number

Expiry date:

Name:

Address:

Telephone:

Signature:

Please return to Law Society Gazette, Blackhall Place, Dublin 7.

MONTH/YEAR